[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT
U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
July 21, 2005
No. 04-11713 THOMAS K. KAHN
________________________ CLERK
D. C. Docket No. 02-00991-CV-WS-L
VIOLA WILLIAMS UNDERWOOD,
Plaintiff-Appellant,
versus
PERRY COUNTY COMMISSION,
ALBERT TURNER, ALBERT PAIGE,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 21, 2005)
Before CARNES and PRYOR, Circuit Judges, and FORRESTER*, District Judge.
*
Honorable J. Owen Forrester, United States District Judge for the Northern District of
Georgia, sitting by designation.
FORRESTER, District Judge:
Plaintiff, Viola Williams Underwood, filed suit against Defendants, Perry
County Commission and Albert Paige, the Superintendent of Roads for Perry
County, contending that she was discriminated against on the basis of her sex in
violation of Title VII of the Civil Rights Act of 1964 and the Equal Protection
Clause of the United States Constitution when they failed to consider, interview,
or hire her as a truck driver for Perry County.1 The district court granted
Defendants’ motion for summary judgment finding that Underwood could not
establish a prima facie case of employment discrimination. Specifically, the
district court concluded that Underwood’s two citations for speeding violations
rendered her ineligible for a truck driver position with Perry County despite the
fact that Paige was not aware of the citations at the time he decided not to
interview Underwood. On appeal, Underwood contends that the district court
erred in using the “after-acquired” evidence of the speeding citations to defeat her
prima facie case of employment discrimination. We review the grant of summary
judgment de novo, viewing the evidence in the light most favorable to the non-
1
In her complaint, Underwood also named Albert Turner, a Perry County Commissioner,
as a defendant. At summary judgment, Underwood conceded that Turner was not a proper
defendant, and the district court dismissed him. Underwood does not challenge that ruling.
2
moving party. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir.
2004).
Viewing the facts in the light most favorable to Underwood, we find that
Underwood completed a JTPA Truck Driver Training program in Selma, Alabama
in January 2001. She then obtained a Class A Commercial Driver’s License. By
February 2001, she had completed two months of over-the-road training with a
trucking company. Underwood then applied to Paige for a truck driver position
with Perry County at least three times: in January, March, and May 2001. See
Underwood Depo., at 50, 51, 54, 75-76. She even told Paige that she would take
any position, whether for Class A or Class B driver.2 See id. at 83. However,
Underwood was not interviewed for any truck driver positions, and her name was
not submitted to the Perry County Commission for hiring consideration. See id. at
111-12, Paige Decl., at 2.
Defendants submitted testimony that when there was a job opening in Perry
County, the position would be advertised in the local newspaper and posted. See
Deposition of Johnny Lee Flowers, at 27. Interested individuals could then submit
an application through the state unemployment office. Id. at 23. The office would
2
Class A drivers are licensed to drive vehicles that carry up to 70,000 to 80,000 pounds.
Class B drivers are restricted to “straight trucks” that carry 26,000 pounds. A Class A license
permits an individual to drive both Class A and Class B trucks.
3
forward the applications to the Perry County Commission Clerk who, in turn,
would submit them to the appropriate department superintendent. Id. at 24-27.
We find that the record does contain information concerning individuals who were
hired as truck drivers during 2001 and 2002. In the spring of 2001, Drake Wright
was hired by Perry County to be a truck driver. See Paige Depo., at 36.3 Stanley
Stewart was hired as a driver sometime between mid-2001 and early 2002. Id. at
34. Finally, Kwame McLiney was hired in mid-2001. Id. at 39. It is not clear
from the record whether Underwood’s application was considered as pending for
all of these positions. It is undisputed that on February 11, 1998 and on March 23,
1999, Underwood was cited for driving at least fifteen miles over the speed limit.
The district court found that Underwood could not establish a prima facie
case of employment discrimination. Under the now-familiar shifting framework
established in McDonnell Douglas/Burdine4, a plaintiff establishes a prima facie
case by showing that (1) she is a member of a protected class, (2) she was
qualified for a position and applied for it, (3) she was not considered for the
position despite her qualifications, and (4) equally or less qualified individuals
3
The record does not contain the entire transcript of Paige’s deposition. As such, we
consider only the testimony contained in the excerpts attached by Underwood in her response to
Defendants’ motion for summary judgment.
4
See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248 (1981).
4
outside of the protected class were considered or hired for the position. See
Wilson, 376 F.3d at 1087, 1089. It is only after a plaintiff establishes the prima
facie case that the burden shifts to the employer to articulate a legitimate
nondiscriminatory reason for its actions. Id. at 1087, 1089-90.5
A plaintiff bears the burden of establishing a prima facie case, but the
burden is not an onerous one. See Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997). Based on the facts recited above, we find that Underwood has
established that she is a member of a protected class who applied for a position
and was not considered for it. As previously noted, however, it is not clear that
Underwood can establish that other equally or lesser qualified individuals outside
her protected class were hired for the position for which she applied. That is, she
has not demonstrated that Wright, Stewart, or McLiney were hired in her place.
The most we can glean from the record is that three male drivers were hired over
the course of 2001 and 2002. Because we find Underwood’s prima facie case
lacking in other respects, we need not further consider this issue. Instead, we
focus on the area the parties most vigorously contest -- whether Underwood can
5
When Title VII and Equal Protection claims brought pursuant to 42 U.S.C. § 1983 are
used as parallel remedies, the causes of action are analyzed in the same way. See, e.g., Sinder v.
Jefferson State Cmty. Coll. , 344 F.3d 1325, 1328 & n.4 (11th Cir. 2003); Harris v. Shelby
County Bd. of Educ., 99 F.3d 1078, 1082-83 (11th Cir. 1996).
5
satisfy the second prong of the prima facie case -- that she was qualified for the
position.
We have previously discussed the type of qualifications a court may
consider at the prima facie stage. In Carter v. Three Springs Residential
Treatment, 132 F.3d 635 (11th Cir. 1998), for example, we held that only
objective criteria could be considered as a qualification at the prima facie stage.
Id. at 643-44. See also Wilson, 376 F.3d at 1089 (plaintiff qualified where
decisionmaker stated that plaintiff was “obvious choice” and “most qualified” for
the position), Sledge v. Goodyear Dunlop Tires N. Am., Ltd., 275 F.3d 1014, 1019-
20 (11th Cir. 2001) (plaintiff qualified based on his work experience and affidavit
from a supervisor). Here, the only evidence presented by the parties concerning
the qualifications for a truck driver are statements by Paige. In his deposition,
Paige testified that when hiring drivers, he considered skill, experience, lack of
substance abuse, seniority, over-the-road experience, good driving record, and
good, common-sense judgment. See Paige Depo., at 33-34.
Underwood argues that she was qualified for the position because she
possessed a Class A driver’s license and had over-the-road experience. She relies
primarily, however, on the testimony of Paige, who stated during his deposition
that he agreed that Underwood was qualified for both the Class A and Class B
6
driver positions. See id. at 88-89. We agree with the assessment of the district
court that Paige’s statement cannot satisfy Underwood’s qualification requirement
because his deposition was taken prior to the time that Underwood’s two traffic
convictions for serious moving violations for speeding were discovered.
After the close of discovery, Defendants submitted a declaration from Paige
stating that the County learned of Underwood’s two speeding tickets during the
course of the litigation. Paige further testified that the two speeding tickets would
have precluded Underwood from employment as a truck driver with the County.
Finally, Paige stated that had he known about the tickets at the time of his
deposition, he would not have testified that Underwood was qualified for the
position. See Paige Decl., at 2. In fact, Paige testified that he considered a good
driving record to be “one of the most important qualifications” for a truck driver.
See id. at 2 (stating that a “good driving record, including no convictions for
driving under the influence or serious moving violations is a qualification for a job
as a truck driver with Perry County”).6
6
Although it appears to us that Underwood might have been entitled to a reopening of
discovery after the submission of Paige’s declaration, because Underwood did not request such
relief, we need not consider whether it would have been an abuse of discretion to deny it.
Furthermore, we agree with the determination of the district court that Paige’s declaration
is not inconsistent with his deposition testimony. When Paige testified at his deposition, he was
not aware of the fact that Underwood had two speeding tickets and, thus, stated that she was
qualified for the position. Having learned of the speeding tickets, Paige stated in his declaration
that she would not be qualified for the position because of the tickets. There is no inconsistency
7
The key issue on this appeal, then, is whether the district court properly
considered the “after-acquired” evidence of the traffic convictions to conclude that
Underwood was not qualified for the position and therefore could not establish a
prima facie case of employment discrimination. In McKennon v. Nashville Banner
Publ’g Co., 513 U.S. 352 (1995), the Supreme Court considered the issue of “after
acquired” evidence in the context of what kind of relief would be available to a
plaintiff in an employment discrimination lawsuit. There, the Court held that
where a plaintiff’s misconduct was not discovered until after she had been fired,
the employer could not contend that the employee was fired for the
nondiscriminatory reason of the misconduct. See id. at 359-60 (“McKennon’s
misconduct was not discovered until after she had been fired. The employer could
not have been motivated by knowledge it did not have and it cannot now claim
that the employee was fired for the nondiscriminatory reason.”). The Court did
find that the misconduct could be relevant for the purposes of determining whether
the plaintiff was entitled to back pay. Id. at 362. As the parties recognize,
however, McKennon is not at all on point because the defendant there conceded
that intentional age discrimination was the sole reason for the plaintiff’s discharge.
Furthermore, McKennon did not discuss the use of “after-acquired” evidence to
in these statements.
8
defeat the plaintiff’s burden of establishing a prima facie case of discrimination
but rather viewed it in the context of the employer’s production of a legitimate,
nondiscriminatory reason for termination.
Few courts have addressed the use of “after-acquired” evidence with respect
to a prima facie case, and those that have can be distinguished from our facts here.
See, e.g., Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001)
(where the court found that the police officer plaintiff was “qualified” despite a
retroactive termination by the Florida Department of Law Enforcement because
the officer had spent some time on the job); Anaeme v. Diagnostek, Inc., 164 F.3d
1275, 1281 (10th Cir. 1999) (allowing “after acquired” evidence that employer
had never received plaintiff’s applications to rebut prima facie case because
employer’s reasons for failure to hire were arguably not related to an intent to
discriminate).
Unlike McKennon, which considered an employer’s proffered legitimate,
nondiscriminatory reason for an adverse employment action, here, at the earlier
prima facie stage, we simply look to see whether Underwood was qualified to be a
truck driver for Perry County at the time she expressed interest in the position. In
this case, it is a binary analysis. Underwood was either qualified or she was not.
The existence or nonexistence of the speeding tickets is an objective fact. There is
9
no dispute that Perry County conducts a Department of Motor Vehicles check of
all prospective drivers, so there is no question Underwood’s speeding violations
would have been discovered prior to her actual hiring. As such, we do not even
reach the point of considering what may or may not have been in the mind of
Paige or his stated or actual reasons for not hiring Underwood. Regardless of
what Paige may have believed, Underwood could never have been given the job.
Because the speeding tickets constitute objective criteria, we are less concerned
with some of the pitfalls of the use of “after acquired” evidence, such as post hoc
mining of an applicant’s file to discern nondiscriminatory reasons for a failure to
hire. We need only consider whether it would have been possible at all for
Underwood to be hired. The answer to that question is an undisputed “no.”
Furthermore, Underwood has proffered no evidence that any other
individual with speeding violations was hired as a truck driver for Perry County.
This fact distinguishes Underwood’s situation from that of plaintiffs whom we
have found to establish a prima facie case because candidates outside the protected
class were not required to fulfill some “qualification” that was mandated upon the
plaintiff. See, e.g., Sledge, 275 F.3d at 1019-20 (concluding that passing written
examination was not minimum job requirement because individuals outside
protected class were not required to pass test); Carter, 132 F.3d at 643 (not
10
considering clinical experience to be a job qualification because employer did not
apply that criterion to individual eventually hired); Turnes v. AmSouth Bank, NA,
36 F.3d 1057 (11th Cir. 1994) (where bank hired white collection agents who did
not have “clear credit” history, bank could not use allegedly poor credit history of
black applicant as legitimate, nondiscriminatory reason for failure to hire).
In sum, it is not relevant that the speeding tickets were not actually
considered at the time Paige made his employment decisions because nothing in
the record disputes that (1) the speeding tickets would have rendered her ineligible
for hiring, and (2) that no other individual with a speeding ticket was hired by the
County. Underwood’s two speeding tickets constitute the equivalent of her being
denied a license to drive a truck by the state of Alabama. Clearly, Underwood
would not be able to establish she was qualified for the position if she did not have
the required state licenses to operate a truck. The speeding tickets are more than
merely a reason not to hire Underwood. Under the evidence presented in the
record here, they are an absolute bar to her employment. For these reasons, we
find the district court did not err in using “after acquired” evidence to determine
that Underwood was not qualified for the truck driver position.
11
Because Underwood cannot show she was qualified for the position of a
truck driver, she cannot establish her prima facie case of employment
discrimination, and we AFFIRM the judgment of the district court.7
7
Because we affirm the district court’s order granting Defendants’ motion for summary
judgment on the basis that Underwood cannot establish that she was qualified for the position of
truck driver, we need not address the other insufficiencies alleged by Defendants, including
whether (1) Underwood’s complaint was timely, (2) Underwood adduced any evidence to
establish municipal liability under Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), and (3)
Paige can be individually liable because he was not the “official decisionmaker” or in the
alternative would be entitled to qualified immunity.
12