[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 07-14108 Aug. 11, 2008
Non-Argument Calendar THOMAS K. KAHN
-------------------------------------------- CLERK
D.C. Docket No. 05-00174-CV-WLS-1
DR. FREDERICK POLITE,
Plaintiff-Appellant,
versus
DOUGHERTY COUNTY SCHOOL SYSTEM,
SALLY WHATLEY, Individually and in her
Official Capacity as Superintendent of the
Doughtery County School System,
Defendants-Appellees.
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Appeal from the United States District Court
for the Middle District of Georgia
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(August 11, 2008)
Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Frederick Polite, an African-American male, appeals the
district court’s grant of summary judgment in favor of his former employer
Dougherty County School System (“DCSS”) and DCSS superintendent Sally
Whatley, ending his discrimination and retaliation claims under Title VII, 42
U.S.C. § 2000e-2(a)(1), and 42 U.S.C. §§ 1981, 1983, and dismissing several state
law claims.1 No reversible error has been shown; we affirm.
Polite formerly worked for DCSS as a math and science teacher. His claims
stem from his failure to be hired as a principal or assistant principal after applying
for several such positions at certain schools in DCSS. Whatley is responsible for
recommending to DCSS persons to be hired. For assistant principals, Whatley
depends on the principal of the hiring school to make a recommendation to her.
Principals generally rely on a leadership committee at their school to assist them
with interviewing and recommending candidates. The principal makes a
recommendation to Whatley; and she then makes a recommendation to the school
board. In selecting a principal, a selection committee at the school interviews
qualified applicants and recommends its top two or three choices to Whatley. She
1
Claims against state actors for violations of section 1981 must be brought pursuant to section
1983. Butts v. County of Volusia, 222 F.3d 891, 892-94 (11th Cir. 2000). Title VII and section
1983 claims have the same elements where the claims are based on the same set of facts. Rioux v.
City of Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008).
2
then evaluates whether the top selection is appropriate and makes a
recommendation to the Board. In her tenure as superintendent, Whatley has
endorsed to the Board every recommendation made to her by principals and
selection committees. According to Whatley, no one ever had recommended
Polite to her for a principal or assistant principal position; and she never told
anyone not to recommend Polite for a position.
Polite interviewed with selection committees to be considered for various
principal and assistant principal positions within DCSS. Based on a conversation
he had with Valerie Overstreet-Thomas, the principal at Lamar Reese Elementary
School, he understood that Overstreet-Thomas had recommended him for the
assistant principal position at that school; but Polite never interviewed personally
with Overstreet-Thomas. She informally interviewed Polite over the phone and
planned to recommend him and one other person for the assistant principal
position, but after checking his references, decided against recommending Polite.
Though she initially told Whatley she planned to recommend Polite, she ultimately
did not recommend him. Polite also stated that Johnny Scott, the principal at
Southside Middle School, “basically promised” him the assistant principal
position there; but then, according to Polite, Scott told him that Whatley would not
allow his recommendation to go through. Scott stated that he told Polite he had
3
decided to recommend another person for the position and that he never promised
Polite the position.
In his complaint, Polite alleged that DCSS and Whatley, by failing to hire
him, unlawfully discriminated against him because of his sex and race. The
district court concluded that Polite had not made a prima facie case of
discriminatory failure to hire.
On appeal, Polite argues that the district court erred in determining that he
did not make a prima facie case of failure to hire because he was recommended for
the positions in question,2 but Whatley rejected him. We review a district court’s
grant of summary judgment de novo; we view the evidence and all reasonable
factual inferences in the light most favorable to the nonmoving party. Maniccia v.
Brown, 171 F.3d 1364, 1367 (11th Cir. 1999).
A prima facie case of hiring or promotion discrimination requires a plaintiff
to prove the following things: (1) he belonged to a protected class, (2) he applied
for and was qualified for a job for which the employer was seeking applicants, (3)
despite these qualifications, he was rejected, and (4) after the rejection, the
2
Polite abandoned the following claims by failing to offer argument on them: hostile work
environment under Title VII, violations of freedom of speech, association and to petition the
government under section 1983 and the Georgia Constitution, equal protection and due process
violations under section 1983, and state law breach of contract. See Denney v. City of Albany, 247
F.3d 1172, 1182 (11th Cir. 2001) (explaining that issues not briefed on appeal are abandoned).
4
employer continued to seek applications from persons with similar qualifications
or promoted a person outside the protected class. Perryman v. Johnson Prods. Co.,
Inc., 698 F.2d 1138, 1142 nn.6-7 (11th Cir. 1983).3
The district court committed no error when it concluded that Polite did not
make a prima facie case of discriminatory failure to hire. That Polite never was
recommended to Whatley -- either by a principal or selection committee -- for a
position is undisputed; and thus, Whatley never rejected him for a position. See
id.4 As per hiring policy, Whatley recommended to the Board a candidate who a
principal or selection committee had recommended to her. Because Polite never
was recommended to her, she never considered him in her recommendations to the
Board.5 In his affidavit opposing summary judgment, Polite alleged that
Overstreet-Thomas and Scott recommended him to Whatley; but these allegations
were not based on personal knowledge and were contradicted directly by the
deposition testimony of Overstreet-Thomas and Scott, who did have personal
3
No direct evidence of discrimination is alleged. Because this case is a circumstantial evidence
case, the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 93 S.Ct.
1817 (1973), applies.
4
The district court concluded that, because Polite never was recommended for a position pursuant
to DCSS hiring practices, he had not “applied” for the positions. It is clear that Polite did apply for
the positions but was not recommended for them. This misconstruction of the word “apply” does
not impact on the ultimate correctness of the district court’s decision.
5
Polite made clear in his complaint and deposition that he believed only Whatley had
discriminated against him.
5
knowledge of whether they made such recommendations. See Fed.R.Civ.P.
56(e)(1) (an affidavit opposing summary judgment must be made on personal
knowledge and set out facts that would be admissible in evidence).
We now address Polite’s retaliation claim. He alleged that, during his
employment with DCSS, he complained to Whatley about her “discriminatory
hiring practices.” And shortly after his complaints, he was transferred to a
different school in DCSS. He alleged that the transfer was in retaliation for
complaining about Whatley’s hiring practices. On appeal, Polite argues that the
transfer violated DCSS policy and, thus, was direct evidence of retaliation.
To establish a prima facie case of retaliation under Title VII, a plaintiff must
show, among other things, that he suffered an adverse employment act.
Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). An
adverse employment act is “[a] tangible employment action [that] constitutes a
significant change in employment status such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities or a decision causing a
significant change in benefits.” Webb-Edwards v. Orange County Sheriff’s
Office, 525 F.3d 1013, 1031 (11th Cir. 2008) (internal quotation and citation
omitted). The act must be such that “a reasonable employee would have found the
6
challenged action materially adverse.” Burlington N. & Santa Fe. Ry. Co. v.
White, 126 S.Ct. 2405, 2415 (2006).
The district court committed no error in granting summary judgment on
Polite’s retaliation claim because he suffered no adverse employment act. His
teaching job after the transfer involved the same responsibilities, and he had the
same pay. He stated in his deposition that he got along well with the principal at
his new school. Thus, his employment status was not materially adversely
affected by the transfer.6
On appeal, Polite also challenges the district court’s dismissal of his state
law claims on sovereign immunity grounds. He contends that because DCSS had
liability insurance, it waived its sovereign immunity. Sovereign immunity extends
to the state and all of its departments and agencies and can be waived only by a
legislative act specifically delineating the waiver. Ga. Const. Art. I, § 2, ¶ IX(e).
While the Georgia Tort Claims Act provides for a limited waiver of the state’s
sovereign immunity for torts of its officers and employees, this waiver expressly
6
The district court correctly granted summary judgment on all Title VII claims against Whatley
in her individual capacity: Title VII does not provide for suits against persons in their individual
capacities. Cross v. State of Ala., 49 F.3d 1490, 1504 (11th Cir. 1995). Because the section 1981
claims, brought pursuant to section 1983, against Whatley were brought as a “parallel remedy” for
Title VII violations, summary judgment also was appropriate on those claims. See Underwood v.
Perry County Comm’n, 431 F.3d 788, 793 (11th Cir. 2005) (Title VII and section 1983 use the same
analytical framework when section 1983 is used as a parallel remedy for a Title VII violation).
7
excludes school districts. O.C.G.A. § 50-21-22(5). Polite has not shown that
DCSS waived its immunity because he points to no legislative act providing for a
waiver. In addition, because Whatley was a state employee whose alleged tort was
committed while acting within the scope of her employment, she also was entitled
to immunity. O.C.G.A. § 50-21-25(a).
AFFIRMED.7
7
We briefly address Polite’s remaining arguments. He argues that the district court erred in
denying his motion to increase the number of depositions he could take from 10 to 20. But Polite
offers no substantive argument on why this decision was in error; we deem this argument waived.
See Flanigan’s Enters., Inc. of Ga. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001)
(a party waives an issue where, although the issue was mentioned in passing, the party did not
elaborate or provide any citation of authority in support of the issue). He also argues that the district
court erred in denying his motion to strike Watley’s affidavit in support of summary judgment. But
motions to strike are only appropriately addressed towards matters contained in the pleadings; here,
the affidavit was submitted as part of the motion for summary judgment, which is not a pleading.
See Fed.R.Civ.P. 7(a), 12(f). Contrary to Polite’s unsupported assertions on appeal, nothing
evidences that the district court viewed the evidence in the light most favorable to Defendants or that
Defendants did not seek summary judgment on all of his claims. The record shows that the district
court adequately evaluated and considered the evidence before it and applied the correct legal
standards in deciding the summary judgment motion.
8