[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
___________________________________
JUNE 3, 2008
No. 07-11603 THOMAS K. KAHN
__________________________________ CLERK
D.C. Docket No. 04-00089-CV-JOF-1
JACQUELYN R. CRAWFORD,
Plaintiff-Appellant,
versus
BARBARA CARROLL,
KATHERINE JOHNSTON,
individually and in her official capacity as Vice President
of Finance and Administration,
BOARD OF REGENTS OF THE UNIVERSITY SYSTEM
OF GEORGIA/GEORGIA STATE UNIVERSITY,
Defendants-Appellees.
___________________________________
Appeal from the United States District Court
for the Northern District of Georgia
___________________________________
(June 3, 2008)
Before BIRCH and FAY, Circuit Judges, and RODGERS,* District Judge.
* Honorable Margaret C. Rodgers, United States District Judge for the Northern District of
Florida, sitting by designation.
RODGERS, District Judge:
Jacquelyn R. Crawford appeals the district court’s grant of summary
judgment in favor of her former employer, the Board of Regents of the University
System of Georgia/Georgia State University (GSU), and two of her former
supervisors, GSU officers Barbara Carroll and Katherine Johnston. After review
and oral argument, we reverse and remand for further proceedings, having
determined that genuine issues of material fact exist that preclude summary
judgment on Crawford’s Title VII retaliation and race discrimination claims
against GSU and her 42 U.S.C. § 1983 race discrimination claim against Carroll.
We affirm the district court’s grant of summary judgment to Johnston on
Crawford’s § 1983 race discrimination claim because Johnston is entitled to
qualified immunity.
I. Standard of Review
We review a district court's grant of summary judgment de novo. Brooks v.
County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1161-62 (11th Cir.
2006). At summary judgment we consider all evidence and reasonable factual
inferences drawn therefrom in a light most favorable to the non-moving party.
Rojas v. Fla. Dep't of Bus. & Prof'l Regulations Pari-Mutual, 285 F.3d 1339,
1341-42 (11th Cir. 2002) (per curiam) (citation and quotations omitted).
2
Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Wilson v. B/E/
Aerospace, Inc., 376 F.3d 1079, 1085 (11th Cir. 2004).
II. Background1
Crawford, who is African-American, began working in the personnel field
in 1987. She holds a masters degree in public administration, with a specialization
in human resources management. In 1992 GSU hired Crawford to serve as the
wage and salary administrator in its human resources department. Crawford was
promoted in December 1997 to the position of manager of classification and
compensation, her job at the time the events giving rise to this case occurred.
Carroll was GSU’s assistant vice president of human resources from March 1999
until August 2004. She supervised Crawford’s position as well the higher level
positions of director of human resources, director of human resources information
systems, and director of payroll. Johnston came to GSU in July 2000 to serve as
1
At summary judgment we view the facts in the light most favorable to the nonmoving
party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142
(1970). We therefore do so here, drawing those facts from the pleadings, depositions, and other
evidentiary materials on file. Nevertheless, we observe that what are stated as "facts" herein for
purposes of summary judgment review may not be the actual facts nor are all of the facts. See
Montount v. Carr, 114 F.3d 181, 182 (11th Cir. 1997).
3
its vice president of finance and administration. In that capacity she directly
supervised Carroll. Johnston was also responsible for overseeing the supervision
of approximately eight hundred other GSU employees, including those in the
human resources, budget, physical plant, facilities planning, campus master
planning, and campus police departments. Both Carroll and Johnston are
Caucasian.
In early 2000 Crawford was absent from work periodically due to her
mother’s serious illness; her mother died in February 2000. In March 2000 Carroll
formally reprimanded Crawford for misuse of the department’s leave policy, in
particular its bereavement leave policy which Carroll stated permitted only up to
three days’ absence in connection with the death of a family member. Carroll
asserted that Crawford had missed eighteen full or partial days of work prior to
and following her mother’s death without giving proper notice or obtaining proper
authorization. In response, Crawford filed a grievance in which she protested that
the reprimand was factually incorrect as well as culturally insensitive. According
to Crawford, Carroll did not understand that the funeral practices of African-
Americans require more than three days of leave. When Carroll failed to withdraw
the reprimand Crawford appealed to GSU’s provost and vice president for
academic affairs, who reversed the reprimand and instructed that it be removed
4
from Crawford’s file, partly on the ground it contained errors of fact. Crawford
maintains that subsequent to the reversal of the reprimand Carroll took retaliatory
action against her by making new and unreasonable job demands and by sending
her an increased number of e-mail messages, many of which Crawford felt were
unfairly critical of her work performance.
In April 2001 Crawford wrote to Carroll to make staffing recommendations
for the classification and compensation division. Additionally, based on her own
analysis of internal and external market data, Crawford asked Carroll to increase
her annual salary of $50,960 to the range of $54,565 to $56,202 in order to be
commensurate with other positions of similar responsibility. Carroll responded
that she would not address Crawford’s requests until a new position, that of
director of classification and employment, had been filled. This position would be
responsible for supervising classification division functions, i.e., those performed
by Crawford’s department such as assigning pay classifications and developing
job descriptions, as well as functions related to the employment division, such as
posting vacant positions and accepting and reviewing job applications. Crawford
thought she was eligible to receive an "in-place" promotion to the new position
because other employees had been given promotions in similar circumstances but
the job was not offered to her; instead, the position was advertised in August
5
2001.2
A five-member panel comprised of GSU management and staff was formed
to screen the applicants for the new position and recommend a candidate to
Johnston, who would interview the candidate.3 Johnston, with the approval of
Linda Nelson – the director of GSU's Office of Affirmative Action and Diversity
Programs (OAADP) – would then make the final selection. Crawford applied for
the new job and was chosen for an interview. It was conducted by Carroll and the
other panel members in the early fall of 2001.
Carroll favored hiring Nancy Strasner, a Caucasian female, for the new
position. Mae Okwandu, an Equal Opportunity specialist at GSU who reviewed
the qualifications of the applicants during the selection process, felt that Crawford
was the most qualified applicant. Nelson thought Crawford’s and Strasner’s
qualifications were “somewhat equal,” with Crawford having greater experience in
the compensation field and less in the employment area, and Strasner’s experience
2
An “in place” promotion is one that results from an employee’s being reclassified in
job title and salary without posting the new position for competitive recruitment. In this appeal
Crawford does not challenge the district court’s holding that her claim of being wrongly denied
an “in-place” promotion is time-barred.
3
Carroll served on the panel, as did two human resources department directors, Melissa
Brennaman (the director of human resources for information systems) and Dawn Davis (the
director of payroll). Brennaman and Davis are Caucasian. Additionally, employees Sonya
Richburg and Paula Gomes, both of whom are African-American, were panel members.
6
being the reverse. Ultimately, Nelson described Crawford as the “best suited”
candidate and slightly preferred her because she was already employed by GSU
and was familiar with its operations. Johnston testified that she interviewed
Strasner, at Carroll’s request, but thought Strasner lacked sufficient experience
and therefore – to Carroll’s displeasure – declined to endorse Strasner for the job.
No other candidates were proposed to her so Johnston interviewed none.
In December 2001 Crawford filed an internal complaint of retaliation with
the OAADP. In the complaint Crawford alleged that Carroll had subjected her to
increased, unfair scrutiny of her job performance and mishandled the recruitment
process for the new position of director of classification and employment.
In January 2002 Nelson issued a determination letter announcing that there
had been no consensus reached regarding whom to hire for the new position and
that the job therefore would not be filled at that time. No other reason was given.
In a deposition Nelson stated that Johnston told her that she did not wish to hire
anyone given Nelson’s view that Crawford rather than Strasner was the best suited
candidate, Nelson’s concern there was no real need for the new position, and her
concern over “other incidents in the past.”4 When asked to identify the past
4
Crawford maintains this is a reference to her prior complaint of discriminatory
treatment regarding her bereavement leave.
7
incidents, Nelson responded, “[s]ome of the issues that Ms. Crawford brought up
regarding communication that occurred between Ms. Carroll and Ms. Crawford
and, you know, those types of things.” With the new position unfilled, Carroll
temporarily assigned some of its duties to Brennaman, who had been employed at
GSU for approximately twenty years and was then earning a salary of
approximately $70,000 per year.
In January or February 2002 the position of director of classification and
employment was posted for a second time. Crawford again applied but no
applicants were selected for interviews.5
In April 2002 Carroll wrote, and Johnston approved, a negative evaluation
of Crawford’s job performance for the period from March 2001 through March
2002. Crawford learned in May 2002 that as a result of the poor evaluation she
would not be eligible to receive a merit pay increase due in October 2002.
In May 2002 Crawford submitted a complaint to Johnston alleging that
Carroll had retaliated and discriminated against her. Among other matters,
Crawford’s complaint addressed Carroll’s negative performance review (and
Crawford’s resulting loss of eligibility for a merit pay increase), Crawford’s
5
The record is unclear as to whether, in addition to Crawford, there were any other
applicants for the position at this time. Crawford understood that no interviews were conducted
because the process had stalled, but she was unaware of the specific reasons for the inaction.
8
contention that she suffered racially disparate treatment in the terms and
conditions of her employment compared with Brennaman and others, and
Crawford’s nonselection for the new position of director of classification and
employment. Johnston met with Crawford in July 2002 for approximately forty-
five minutes to discuss the complaint, then later denied it. According to Johnston,
she viewed the tension between Crawford and Carroll as essentially a serious
personality conflict between two strong-minded women with major disagreements
over how the human resources department’s work should be performed. As
Johnston “was not convinced that [the problems were related to] discrimination
and retaliation,” she simply counseled Crawford to work towards improving her
relationship with Carroll. Johnston also testified that she took no independent
action regarding Crawford’s allegations because Johnston believed the claims
were being investigated independently by the OAADP. Crawford contends
Johnston was hostile during their meeting, accusing her of having an attitude
problem, being to blame for the friction between Carroll and herself, and accepting
Carroll’s version of events without addressing Crawford’s concerns.
Crawford appealed Johnston’s denial of her complaint to GSU president
Carl Patton. Crawford also filed a complaint with the OAADP, which hired
independent investigator Arthur Rogers to conduct an inquiry into Crawford’s
9
allegations. Rogers submitted a final report in October 2002 in which he
recommended that "a cause determination be issued indicating a violation of Title
VII occurred in regards to race, and retaliation as they pertain to evaluation merit
pay, promotion opportunity and disparate treatment."6 Nelson accepted Rogers'
findings and referred Crawford to Johnson for follow-up. Additionally, although
the OAADP did not itself formally investigate Crawford’s complaints, the issues
her complaints raised were discussed internally within the OAADP by Nelson and
her staff, as well as with Johnston and perhaps the provost. Nelson concluded
there were Causasian employees in the human resources department, namely
Brennaman and another worker, Angela Bourque, who had been moved forward at
a faster pace than had African-American employees.
In September 2002 Crawford wrote to Patton again regarding the appeal of
her complaint. She requested that she be given a four percent merit increase in
salary, that the requirements of her position be outlined in a detailed job
description, and that the classification and compensation division be assigned an
additional analyst because it was understaffed. Patton responded that a "desk
audit" of plaintiff's position, salary, and responsibilities would be performed and
6
This was the second draft of Rogers’ report. Crawford contends that Nelson asked
Rogers to rewrite his report because she found the first one to be excessively critical of the
human resources department.
10
that if changes were warranted they would be made.
In October 2002 Carroll posted the new position of director of classification
and employment for a third time. Johnston wished to broaden the pool of those
engaged in the selection process, so Carroll established a four-member screening
committee to evaluate the applicants. The committee consisted of two individuals
from GSU’s finance and administration division, one from an academic division
on campus, and one from a non-academic division. First, a recruiter in the
employment office reviewed the résumés of the one hundred ten applicants,
narrowing the field to fifty-four candidates, including Crawford. Next, the four
screening committee reviewers individually listed the five to eight applicants each
thought should be interviewed. After briefly consulting with Johnston, Carroll
decided to limit the group of interviewees to the three candidates whom three of
the panelists had chosen. Carroll did not inform Johnston of the names of those
selected for interviews but rather simply the result of the method employed.
Crawford was selected by only two of the screening committee members and thus
was not among those included in the final group of three. Two of these candidates
agreed to be interviewed for the position, with the committee ultimately
recommending that Russell Willis, a Caucasian male, receive the position over the
other finalist, an African-American female.
11
In December 2002 Crawford filed a charge of discrimination with the Equal
Employment Opportunity Commission (EEOC). She identified race as the basis of
her charge and claimed a starting date in May 2002, which is when she learned she
would be denied a merit pay increase. In January 2003 Crawford submitted a
written protest to Nelson regarding the selection process for the new position and
complaining of continued acts of race discrimination and retaliation by Carroll. In
February 2003 Carroll recommended that Willis be offered the position of director
of classification and employment. No offer was made to Willis, however, based
on Nelson’s advice against filling the position while Crawford’s race
discrimination claims were pending. Crawford amended her EEOC charge in
April 2003 to include race discrimination and retaliation based on her nonselection
for the new position of director of classification and employment.
In accordance with Patton’s instruction, and as recommended by Johnston,
an outside consultant was hired to perform a functional assessment of the office of
human resources in January 2003. The consultant, Whit Perrin Wright, completed
her “desk audit” in March 2003. Wright observed that most universities do not
combine the functions of employment and classification in one job, as GSU had.
She also indicated that the duties of the new position could instead be handled by
other human resources department staff. Wright further noted that Brennaman's
12
position as director of human resources for information systems did not involve as
much responsibility as other directors' positions did; her job also appeared to be no
greater in depth or scope to a manager’s position and did not require that any other
employees directly report to her. Wright recommended that the human resources
department have a clearer definition of the criteria used to determine titles, pay
bands, and pay grades. She also commented that Crawford's position, with a
salary of $50,960, seemed to be paid approximately $4000 below the benchmark
for manager-level jobs, while at $73,901 Brennaman's director-level job was paid
at the median or average level.
In March 2003 Johnston decided to adjust Crawford’s pay grade and
increase her salary to $54,740 annually. Johnston also eliminated the new position
of director of employment and classification; according to Johnston, due to budget
constraints, she was under enormous pressure to reduce expenditures in the
departments under her supervision. Relying on Nelson’s advice as well as
Wright’s report, Johnston determined that the new position could be abolished
without “hurting the organization.” Later that month Johnston was relieved of
responsibility for supervising the human resources department. In October 2003,
Jerry Rackliffe, who had assumed Johnston’s duties, advised Crawford by letter
that based on Wright’s review her position had been reclassified from a pay grade
13
17 to a pay grade 18, with a salary adjustment to $54,740 annually. Rackliffe also
advised Crawford that “[a]s an action to settle your complaint regarding your 2002
Performance Evaluation, we have retroactively adjusted your salary by 4% on top
of your classification adjustment. Thus, this adjustment will move your base
salary to $56,930, retroactive to October 1, 2002.” In 2004 Crawford was
promoted to the position of assistant director of human resources, with a salary of
$70,000 per year.
Crawford filed this suit in January 2004, asserting claims pursuant to Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., 42
U.S.C. § 1981, and 42 U.S.C. § 1983. The magistrate judge to whom the case was
referred recommended the defendants’ motion for summary judgment be granted
in part and denied in part. The district court modified and adopted the magistrate
judge’s report, granting the defendants’ motion for summary judgment in its
entirety and dismissing the complaint with prejudice.7 This appeal followed.
7
The magistrate judge recommended dismissal of the following claims in Crawford’s
three-count complaint because Crawford had abandoned them: Title VII claims against Johnston
and Carroll for racial discrimination and retaliation; § 1981 claims against all defendants for
racial discrimination and retaliation; § 1983 claims against GSU for racial discrimination; and
§1983 claims for retaliation against GSU and Johnston and Carroll in their individual capacities.
With respect to the remaining claims, the magistrate judge recommended granting the motion on
Crawford’s Title VII discrimination and retaliation claims against GSU and her § 1983
discrimination claim against Johnston in her individual capacity. He recommended denying the
motion on Crawford’s §1983 discrimination claim against Carroll in her individual capacity. The
district court accepted the magistrate judge’s recommendations of dismissal but also dismissed
14
III. Discussion
The district court addressed Crawford’s race discrimination and retaliation
claims together in connection with three events: “(1) denial of a merit increase in
October 2002, (2) discrepancy in pay and responsibilities between Plaintiff and
Melissa Brennaman, and (3) denial of promotion to [d]irector, [c]lassification and
[e]mployment . . . . ” For ease of discussion we do much the same.8
A. Denial of Merit Pay Increase
Crawford claims that her April 2002 performance evaluation was retaliatory
and racially discriminatory and resulted in her being denied a merit pay increase
she otherwise would have received. With respect to this claim, the parties’
arguments, and the district court’s analysis, center on whether Crawford presented
a prima facie case of discrimination or retaliation by showing she suffered an
adverse employment action.9
the § 1983 claim against Carroll.
8
Crawford specifically limits her appeal to the “Merits section of the District Court’s
Order, which begins on Page 10 of the Order.” App. Brief at 25. Thus Crawford appeals only
the district court’s rulings on her claims arising from these three events.
9
In discussing Crawford’s allegations that she was denied a merit pay increase, the
district court states that Crawford “was notified on March 12, 2003, that her salary would be
retroactively increased four percent from May 6, 2002. The question then becomes whether
Plaintiff has suffered an adverse employment action because of the time period between May 6,
2002, and March 12, 2003, when she did not have her increase in salary.” Under the district
15
To make out a prima facie case of racial discrimination a plaintiff must
show (1) she belongs to a protected class; (2) she was qualified to do the job;
(3) she was subjected to adverse employment action; and (4) her employer treated
similarly situated employees outside her class more favorably. See Knight v.
Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam).
These elements also apply to a claim of race discrimination under § 1983 because
the analysis of disparate treatment claims under § 1983 is identical to the analysis
under Title VII where the facts on which the claims rely are the same. See Abel v.
Dubberly, 210 F.3d 1334, 1338 (11th Cir. 2000) (holding that Title VII and § 1983
court’s calculation, Crawford therefore was denied a merit pay increase for approximately ten
months, even though she was not due to receive the increase until October 2002.
Our review of the voluminous record in this case reveals only that Johnston decided on
March 13, 2003, to adjust Crawford's pay grade and increase her salary to $54,740 annually. We
did not locate a reference to the four percent merit pay increase being awarded in March 2003.
Rather, insofar as we have been able to determine, the merit pay increase was not awarded until
October 2003, retroactive to October 2002. If these calculations are correct, Crawford actually
went without a merit pay increase for approximately twelve months – from October 2002 until
October 2003 – even though the increase was eventually paid retroactively. Crawford was also
aware of her ineligibility to receive the merit pay increase in May 2002, a period of another five
months. Additionally, if it is assumed that Crawford was entitled to a pay grade and salary
adjustment in April 2001, when she wrote Carroll requesting an increase, Crawford went without
a pay grade adjustment for approximately twenty-three months (this increase apparently was first
awarded in March 2003 by Johnston, then directed in October 2003 by Rackliffe to be paid
retroactively to October 2002).
Fortunately, it is not necessary for us to know the precise number of months involved
with respect to either the denial of the merit pay increase or the pay grade adjustment, which is
relevant to Crawford’s disparate pay claim. The parties do not dispute the ten month period
identified by the district court. In any event, recognizing that a significant period of time was
involved, perhaps anywhere from five to twenty-three months for each event, is sufficient for the
purpose of our analysis here.
16
claims have the same elements where the claims are based on the same set of
facts); Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985) (stating that
"[w]here, as here, a plaintiff predicates liability under Title VII on disparate
treatment and also claims liability under sections 1981 and 1983, the legal
elements of the claims are identical . . . [and] we need not discuss plaintiff's Title
VII claims separately from his section 1981 and section 1983 claims.").
Title VII also prohibits retaliation against an employee “because [s]he has
opposed any practice made an unlawful employment practice by [Title VII], or
because [s]he has made a charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or hearing [thereunder].” 42 U.S.C. § 2000e-3(a).
A prima facie case of retaliation under Title VII requires the plaintiff to show that:
(1) she engaged in an activity protected under Title VII; (2) she suffered an
adverse employment action; and (3) there was a causal connection between the
protected activity and the adverse employment action. Pennington v. City of
Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
In the past this circuit’s standard for both discrimination and retaliation
claims has required an employee to establish an “ultimate employment decision”
or make some other showing of substantiality in the employment context in order
to establish an adverse employment action. See Stavropoulos v. Firestone, 361
17
F.3d 610, 616-17 (11th Cir. 2004); Gupta v. Florida Board of Regents, 212 F.3d
571, 587 (11th Cir. 2000); Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239
(11th Cir. 2001). We defined ultimate employment decisions as those “such as
termination, failure to hire, or demotion.” Stavropoulos, 361 F.3d at 617. And we
required that conduct falling short of an ultimate employment decision must, in
some substantial way, “alter[ ] the employee's compensation, terms, conditions, or
privileges of employment, deprive him or her of employment opportunities, or
adversely affect[ ] his or her status as an employee.” Gupta, 212 F.3d at 587
(quotation and citation omitted). More particularly, when defining the level of
substantiality required for a Title VII discrimination claim, we required an
employee to demonstrate she suffered “a serious and material change in the terms,
conditions, or privileges of employment” to show an adverse employment action.
Davis, 245 F.3d at 1239 (emphasis added). The “serious and material change”
requirement has also been applied in this circuit to Title VII retaliation claims.10
See, e.g., Stavropoulos, 361 F.3d at 617; Bass v. Board of County Com'rs,
Orange County, Fla., 256 F.3d 1095, 1118 (11th Cir. 2001); Gupta, 212 F.3d at
10
Davis also refers to a “materially adverse change”requirement, 245 F.3d at 1239, while
Stavropoulos and Gupta require proof of “serious and tangible” act. Stavropoulos, 361 F.3d at
616-17; Gupta, 212 F.3d at 587. Regardless of the different terminology used, the applicable
standard appears to be the same.
18
588; Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir. 1998);
Benefield v. Fulton Co., Ga., 130 Fed.Appx. 308 (11th Cir. 2005).
The district court in this case found that because GSU had awarded
Crawford a merit pay increase, effective retroactively to October 2002, Crawford
could not establish an adverse employment action for purposes of either her
discrimination or retaliation claims. According to the district court, because
Crawford’s “job was never in doubt, and she never lost any of her base salary,”
she did not suffer a materially adverse employment action in connection with the
denial of her merit pay increase. The question then is whether the fact that GSU
reversed its decision and awarded Crawford her merit pay increase retroactively
somehow deprives her of the right to pursue her claims. For the reasons given
below, we think the answer to that question is “no.”
We first note that our decision in Gillis v. Georgia Department of
Corrections, 400 F.3d 883 (11th Cir. 2005), is directly on point on Crawford’s
discrimination claims. The district court recognized the relevance of Gillis to the
instant case but declined to apply that decision because it concluded, as it did in
connection with Crawford’s retaliation claim, that her successful grievance
resulted in her having suffered no loss and thus no adverse employment action.
In Gillis the plaintiff, an African-American female, received a “met
19
expectations” performance evaluation, which resulted in her receiving a three
percent raise, rather than an “exceeded expectations” evaluation, which would
have yielded a five percent raise. The difference between the three percent raise
and the five percent raise was less than $1000 annually, and the plaintiff lost no
employment benefits as a result of the evaluation. Gillis brought a Title VII action
against her employer and former supervisors. The district court held that Gillis’
receiving a smaller pay raise than she would have had her performance evaluation
been more favorable did not constitute an adverse employment action and granted
summary judgment for the defendants. We reversed the district court’s judgment
on Gillis’ race discrimination claim, holding that a poor performance evaluation
that directly results in the denial of a pay raise of any significance clearly affects
an employee’s compensation and thus constitutes an adverse employment action
under Title VII. Id. at 888 (citing Davis, 245 F.3d at 1240; McCabe v. Sharrett,
12 F.3d 1558, 1564 (11th Cir. 1994); and Gupta, 212 F.3d at 590).
We perceive no basis for distinguishing the facts of the instant case from
those in Gillis. As was true for the plaintiff in Gillis, the evidence in this case
shows that Crawford’s poor evaluation and her compensation were “inextricably
intertwined.” Id. at 888. From October 2002 (when Crawford’s paycheck did not
include the four percent merit pay increase she otherwise would have received
20
absent the poor evaluation she was given in April 2002) until her position was
reclassified in March 2003 and salary retroactively increased by four percent in
October 2003, Crawford suffered an adverse employment action directly
connected to her compensation. Although Crawford received a retroactively
awarded merit pay increase, that raise could not alter the fact that she had been
denied the increase or erase all injury associated with it, specifically the lost value
and use of the funds during the time she was not receiving them. See Phelan v.
Cook County, 463 F.3d 773, 780 (7th Cir. 2006) (finding, for purposes of
plaintiff’s VII gender discrimination claim, that a four month job termination
constituted an adverse action even though the plaintiff was later reinstated and
awarded back pay). To conclude otherwise would permit employers to escape
Title VII liability by correcting their discriminatory and retaliatory acts after the
fact. Id. (stating that “[c]onsistent with Title VII’s goal of deterring
discrimination, we decline to endorse a rule that would allow employers to escape
liability by merely reinstating [an] aggrieved employee months after termination,
whenever it becomes clear that the employee intends to pursue her claims in
court."). Following the Seventh Circuit’s lead, we too decline to hold as a matter
of law that a retroactive pay raise can “undo” the harm caused by a discriminatory
or retaliatory act because such a decision could permit employers to elude liability
21
for conduct that otherwise is actionable. We therefore find that the district court
erred when it held that Crawford’s poor performance evaluation, which made her
ineligible for a merit pay increase in October 2002, did not constitute an adverse
employment action for purposes of her discrimination claims.
The district court relied on our decision in Stavropoulos v. Firestone, 361
F.3d 610 (11th Cir. 2004), to analyze Crawford’s allegations of retaliation. In that
case an untenured college assistant professor claimed she was retaliated against in
violation of Title VII when, after she complained about a hiring decision involving
another professor, the faculty later twice voted not to renew her teaching contract.
On both occasions, after the plaintiff successfully challenged the faculty’s votes,
her contract was renewed before the prior contract had concluded. We affirmed
summary judgment in the defendants' favor, noting first that no ultimate
employment decisions were involved because the plaintiff “did not lose her job or
suffer a lessening of pay, position, or benefits.” Stavropoulos, 361 F.3d at 617.
We also concluded that the complained-of acts did not rise to a sufficient level of
substantiality because they ultimately had no effect on the plaintiff’s employment
status. Further, we decided that any emotional distress or costs incidental to the
plaintiff’s seeking review of the votes were too insubstantial to be considered an
adverse employment action because the plaintiff’s challenges ultimately were
22
successful. Id. at 618.
Our decision in Stavropoulos hinged on whether the employer’s actions
adversely affected the plaintiff’s employment status. See Stavropoulos, 361 F.3d
at 617 (noting that “[h]ere, the acts Stavropoulos complains of ultimately had no
effect on her employment status.”). As previously discussed, the plaintiff in that
case suffered no loss in pay or benefits whatsoever as a result of the faculty votes
recommending that she not be rehired. Stavropoulos’ contracts in fact were
renewed, with no lapse in employment and thus nothing more than an anticipated
loss. We thus concluded Stavropoulos suffered no tangible harm as a result of an
employment decision that never became final. Id.
We think that on the facts of this case the district court misapplied the
standard and the holding of Stavropoulos. In Crawford’s case, the decision that
she not be awarded a merit pay increase was a final decision that resulted in her
not receiving a merit pay increase. As acknowledged by the district court, “[there
is no dispute that as a result of the rating Carroll gave to plaintiff on her 2001-
2002 evaluation, Plaintiff did not receive an increase in her salary effective 2002.”
Crawford, unlike Stavropoulos, therefore, realized an actual loss. Although the
four percent merit pay increase eventually was awarded retroactively in October
2003, as noted, Crawford nevertheless was deprived of the use or value of her
23
merit pay from the time it otherwise would have been awarded in October 2002.
In other words, Crawford suffered an adverse employment action directly related
to her compensation: the alleged retaliatory performance appraisal deprived her of
the tangible employment opportunity of receiving a merit pay increase and thus
adversely affected her status as an employee.11 Again, we think it important to
emphasize that an employer cannot undo the harm its actions have caused, and
thereby avoid liability, simply by attempting to make the employee whole
retroactively. See Phelan, 463 F.3d at 780. This case is not, as the district court
deemed it, simply a matter of “no harm, no foul.”
Thus, for the foregoing reasons, with respect to the temporary denial of a
merit pay increase, we conclude that under the standards outlined in Gillis and
Stavropoulos Crawford showed that she suffered an adverse employment action
for purposes of her race discrimination and retaliation claims. The district court
therefore erred in ruling otherwise.
The district court also discussed but chose not to apply the Supreme Court’s
decision in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct.
2405, 165 L.Ed.2d 345 (2006), in which the Court announced a new rule which
11
The district court incorrectly assumed that Crawford’s only injury was “having to await
the results of her appeal before retroactively receiving her merit increase.”
24
redefines the standard for retaliation claims under Title VII.12 For the reasons
previously discussed, we are convinced that under this circuit’s prior standard the
district court erred in granting summary judgment on Crawford’s retaliation claim.
If any doubt remained regarding the incorrectness of the district court’s ruling –
though we find none does – application of the decidedly more relaxed Burlington
standard to the facts of this case must emphatically dispel it.
Under the holding of Burlington, the type of employer conduct considered
actionable has been broadened from that which adversely effects the plaintiff’s
conditions of employment or employment status to that which has a materially
adverse effect on the plaintiff, irrespective of whether it is employment or
workplace-related.13 See Burlington, 126 S.Ct. at 2415. Thus, the
Burlington Court effectively rejected the standards applied by this court in both
Stavropoulos and Gupta that required an employee to show either an ultimate
employment decision or substantial employment action to establish an adverse
12
The district court concluded that the facts of Crawford’s case were more closely
aligned with those in Stavropoulos and therefore that Stavropoulos should control. The court
found it unnecessary to decide “the extent to which Burlington Northern might overrule
Stavropoulos because the factual circumstances of the two cases differ substantially and the
cases, therefore, are distinguishable.”
13
Burlington also strongly suggests that it is for a jury to decide whether anything more
than the most petty and trivial actions against an employee should be considered “materially
adverse” to him and thus constitute adverse employment actions. See Burlington, 126 S.Ct. at
2417.
25
employment action for the purpose of a Title VII retaliation claim.14 See
Burlington, 126 S.Ct. at 2415; Stavropoulos, 361 F.3d at 616-17; Gupta, 212
F.3d at 587. Additionally, the Court explained that in the context of a Title VII
retaliation claim, a materially adverse action “means it well might have dissuaded
a reasonable worker from making or supporting a charge of discrimination.”
Burlington, 126 S.Ct. at 2415.
This more liberal view of what constitutes an adverse employment action
accords an employee protection from a wider range of retaliatory conduct than
would be available under the standard applied in Stavropoulos and Gupta. See
Phelan, 463 F.3d at 781, n. 3 (stating that in Burlington the Court concluded “the
Title VII retaliation provision protects an employee from a wider range of conduct
than the discrimination provision does.”). We therefore are persuaded that the
adverse employment action standard previously applied in this circuit to Title VII
retaliation claims is more stringent than the “materially adverse” standard
14
Thus the district court’s observation that Burlington’s “materially adverse” standard
does not conflict with our prior standard, which requires a “serious and material” change in
terms, conditions, or privileges of employment, is not correct. The two standards are distinct and
different and, as noted, the Burlington standard applies to a wider range of employer conduct. It
should be noted, however, that while the new standard enunciated in Burlington applies to Title
VII retaliation claims, it has no application to substantive Title VII discrimination claims; the
prior standard remains applicable to such claims.
26
announced in Burlington.15 In the instant case, we have no doubt but that
Crawford suffered a materially adverse action in the form of the unfavorable
performance review she received (that affected her eligibility for a merit pay
increase) after she complained of racial discrimination. Such conduct by an
employer clearly might deter a reasonable employee from pursuing a pending
charge of discrimination or making a new one. Burlington, 126 S.Ct. at 2415. We
therefore conclude that not only was district court’s ruling on Crawford’s Title VII
retaliation claim wrong under our prior, narrower standard, but also that it most
certainly is wrong under Burlington’s more liberal standard.
B. Disparate Treatment in Terms and Conditions of Employment
With respect to Crawford’s disparate pay claim, the district court
determined that Brennaman was not a proper comparator for purposes of a straight
15
Some courts have suggested that Burlington has little application in cases such as this
one in which the plaintiff alleges an ultimate employment action rather than a
non-employment-related adverse action. See Thomas v. Potter, 202 Fed.Appx.118, 119 (7th Cir.
2006); Deprado v. City of Miami, 2008 WL 269608, *4 n.1 (11th Cir. February 1, 2008). Under
that view, our prior standard for “ultimate action” retaliation claims might simply be left intact
for those cases that naturally fit within it, leaving the new standard to be applied solely to those
retaliation cases in which only non-employment-related conduct is implicated. We do not read
Burlington to limit its holding in that fashion, however, but rather read it as significantly
broadening the standard for both employment-related and non-employment-related employer
conduct. Moreover, we recognize that the application of two separate retaliation standards could
be unnecessarily confusing and burdensome.
27
salary comparison. We agree with that conclusion.16 See Meeks v. Computer
Assocs. Int'l, 15 F.3d 1013,1019 (11th Cir. 1994) (stating that to establish a prima
facie case of disparate pay, a plaintiff must show she occupies a position similar to
that of a higher paid employee who is not a member of her protected class). Not
only had Brennaman been employed at GSU for several years longer than
Crawford but also Brennaman possessed specialized and highly valued expertise
in the information systems field that Crawford does not claim. See Mulhall v.
Advance Security, Inc., 19 F.3d 586, 599 (11th Cir. 1994).
The district court noted that Crawford also presented what it termed a “more
nuanced pay claim,” i.e., that she was not paid at the proper level for her manager
position while Caucasian employees in the department, including Brennaman,
were paid at the high end of the range for their positions. With respect to this
narrower claim the district court apparently accepted, arguendo, that Brennaman
and the other employees so paid were proper comparators and that Crawford’s
allegations could constitute adverse employment actions. Again relying on its
analysis of Stavropoulos, however, the district court reasoned that Crawford’s
successful grievance, which resulted in an upward adjustment of her salary,
16
Accordingly, any disparate pay claim arising from Crawford’s allegations that her
compensation was not directly commensurate with Brennaman’s compensation, including in
connection with Crawford’s ultimate promotion to assistant director of human resources, fails.
28
resulted in no loss of salary or benefits and thus she had suffered no adverse
employment action.
For essentially the same reasons discussed previously regarding Crawford’s
merit pay increase claim, we conclude that the district court also erred in finding
that Crawford failed to show an adverse employment action in connection with her
disparate pay claim.17 Although Crawford’s salary eventually was adjusted to
$54,740 (without the four percent merit pay increase), she was denied the use or
benefit of that pay raise during the time it should have been in effect. Crawford
therefore has shown that she was subjected to a serious and material change
affecting her compensation that was sufficient to constitute an adverse
employment action for purposes of her disparate pay claim. See Davis, 245 F.3d
at 1240; Phelan, 463 F.3d at 780.
C. Denial of Promotion
For the purpose of its discussion the district court accepted that Crawford
had established a prima facie case of discrimination and retaliation for failure to
promote and therefore proceeded to an analysis under McDonnell Douglas Corp.
17
Crawford does not appear to claim that these actions were retaliatory in nature. To the
extent she does, we find she has failed to make out a prima facie case of retaliation. Even if the
complained-of terms and conditions of Crawford’s employment constituted adverse employment
actions, the evidence supports no connection between them and any protected activity in which
she engaged. Pennington, 261 F.3d at 1266.
29
v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). So doing, the court
rejected Crawford’s contentions that the defendants’ proffered reasons for not
selecting her and eventually eliminating the position were pretextual.
On any Title VII claim the plaintiff bears “the ultimate burden of proving
discriminatory treatment by a preponderance of the evidence.” Earley v.
Champion Int'l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). She may satisfy her
burden by presenting direct evidence of an intent to discriminate or circumstantial
evidence using McDonnell Douglas’s burden-shifting framework. Under this
framework, if the plaintiff establishes a prima facie case, the burden shifts to the
employer to “articulate some legitimate, nondiscriminatory reason” for the adverse
employment action. McDonnell Douglas, 411 U.S. at 802. If the employer does
this, the burden shifts back to the plaintiff to show that the employer's stated
reason was a pretext for discrimination. See id. at 804; Holifield v. Reno, 115 F.3d
1555, 1565 (11th Cir. 1997) (per curiam). The inquiry into pretext requires the
court to determine, in view of all the evidence, “whether the plaintiff has cast
sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a
reasonable factfinder to conclude that the employer's proffered legitimate reasons
were not what actually motivated its conduct.” Combs v. Plantation Patterns, 106
F.3d 1519, 1538 (11th Cir. 1997) (citation and quotations omitted). As with
30
claims of substantive discrimination, Title VII retaliation claims require that
“[o]nce the plaintiff establishes [a] prima facie case, the employer must proffer a
legitimate, non-discriminatory reason for the adverse employment action. If the
employer offers such legitimate reasons for the employment action, the plaintiff
must then demonstrate that the employer's proffered explanation is a pretext for
retaliation.” Holifield, 115 F.3d at 1566.
In analyzing Crawford’s failure to promote claim, we assume, as did the
district court, that Crawford has made out a prima facie case of race discrimination
and retaliation on this issue.18 We disagree, however, with the district court’s
conclusion that no issues of fact remain with respect to whether Crawford has met
her burden of showing the defendants’ reasons for failing to promote her to the
position of director of classification and employment were pretextual. Given the
circumstances surrounding the three postings for the position, and the three
failures to hire Crawford or otherwise fill the position, we find that Crawford has
cast sufficient doubt on the proffered reasons to permit a reasonable factfinder to
conclude that the reasons actually were a pretext for discrimination and retaliation.
18
There is no dispute that, with respect to her discrimination claims, Crawford belongs to
a protected class and was qualified to perform the position of director of employment and
classification. Also, with respect to her retaliation claim, it is undisputed that she engaged in
protected Title VII activity.
31
Combs, 106 F.3d at 1538 (11th Cir. 1997); Holifield, 115 F.3d at 1566.
Specifically, a reasonable jury could conclude that a “lack of consensus” was a
pretextual reason for failing to hire Crawford the first time the position of director
of compensation and employment was advertised: the evidence reflects that
Johnston chose not to make a hiring decision at that time given Nelson’s
assessment that Crawford was the best suited candidate, that Nelson had doubts
about the actual need for the new position, and that Nelson had expressed
concerns over “other incidents in the past” involving Crawford. As to the second
posting, defendants have pointed to no reason whatsoever for failing to offer
Crawford the position. With respect to the third time the job was posted, and
Crawford again was not promoted, a reasonable jury could question whether the
explanation given for not hiring her, indeed for not including her in the interview
process, was a pretext for discrimination and retaliation.
Finally, regarding the decision to eliminate the new position, we agree with
the district court that defendants have come forward with sufficient evidence, in
the form of Wright’s consulting report, to show that the reasons for the decision
were legitimate and non-discriminatory. We further find that, given the
circumstances leading up to the decision – in particular the numerous grievances
and complaints Crawford filed – a jury question exists on the issue of whether
32
defendants’ reasons for eliminating the job were a pretext for retaliation.
Crawford has not, however, come forward with evidence adequate to create a jury
question on the issue of whether defendants’ proffered explanation for the
decision in fact was a pretext for racial discrimination. Crawford has failed to
produce evidence sufficient for a reasonable jury to conclude that Johnston’s
stated reasons for withdrawing the position – which include reliance on Wright’s
independent report and Nelson’s advice, as well as the need to respond to the
University’s budget demands – were not the actual reasons for her decision but
that instead she was motivated by racial bias. Accordingly, with respect to
Crawford’s failure to promote allegations, the retaliation claim may proceed but
the racial discrimination claims may not.
In summary, as to Crawford’s allegations concerning the denial of a merit
pay increase, disparate pay, and the failure to promote, we conclude that genuine
issues of material fact exist that preclude summary judgment. We therefore
reverse and remand Crawford’s Title VII retaliation and race discrimination claims
against GSU and her § 1983 equal protection race discrimination claim against
Carroll for further proceedings consistent with this decision.
D. Qualified Immunity
Because we conclude that Johnston is entitled to qualified immunity we
33
affirm the district court as to the judgment entered in her favor on Crawford’s
§ 1983 equal protection race discrimination claim.19
Qualified immunity may provide complete protection for public officials
sued in their individual capacities. Willingham v. Loughnan, 321 F.3d 1299, 1301
(11th Cir. 2003) (quotations omitted). Where, as in this case, there is no dispute as
to the discretionary nature of the actions complained of, see Holloman ex rel.
Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004), we proceed to the
two-part test established by the Supreme Court for evaluating a claim of qualified
immunity. The threshold question is whether, “[t]aken in the light most favorable
to the party asserting the injury, do the facts alleged show [that the official's]
conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121
S.Ct. 2151, 2156, 150 L.Ed.2d 272 (2001). If a constitutional right would have
been violated under the plaintiff's version of the facts, the court must then
determine “whether the right was clearly established.” Id. “For the law to be
clearly established to the point that qualified immunity does not apply, the law
19
As previously noted, the only claim that remains against Johnston is for race
discrimination, not retaliation. The magistrate judge recommended finding that Johnston was not
subject to liability under § 1983 on the race discrimination claim but that, even if she were,
qualified immunity would shield her. The district court concluded that Crawford had not
suffered any constitutional violations and that it therefore need not consider whether the
individual defendants were entitled to the defense of qualified immunity. Carroll does not rely
on qualified immunity in this appeal but Johnston does make a bare assertion of entitlement to it,
to which Crawford not responded.
34
must have earlier been developed in such concrete and factually defined context to
make it obvious to all reasonable government actors, in the defendant's place, that
what he is doing violates federal law.” Riley v. Newton, 94 F.3d 632, 636 (11th
Cir. 1996) (quotations omitted). Qualified immunity affords “protection to all but
the plainly incompetent or those who knowingly violate the law.” Malley v.
Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 1096, 89 L.Ed.2d 271 (1986). We
have noted that “[i]f the law did not put the officer on notice that his conduct
would be clearly unlawful, summary judgment based on qualified immunity is
appropriate.” Vinyard v. Wilson, 311 F.3d 1340, 1350 (11th Cir. 2002) (quoting
Saucier, 533 U.S. at 202). “The Supreme Court has urged us to apply the
affirmative defense of qualified immunity at the earliest possible stage in litigation
because the defense is immunity from suit and not from damages only.” Marsh v.
Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir. 2001) (en banc).
Johnston’s liability under § 1983 as Carroll’s supervisor must be based on
something more than the theory of respondeat superior. Braddy v. Florida Dep’t.
of Labor and Employment Security, 133 F.3d 797, 801 (11th Cir. 1998). In Brown
v. Crawford, 906 F.2d 667, 671 (11th Cir.1990), we observed that
Supervisor liability occurs either when the supervisor personally
participates in the alleged constitutional violation or when there is a
causal connection between actions of the supervising official and the
35
alleged constitutional deprivation. The causal connection can be
established when a history of widespread abuse puts the responsible
supervisor on notice of the need to correct the alleged deprivation,
and he fails to do so. The deprivations that constitute widespread
abuse sufficient to notify the supervising official must be obvious,
flagrant, rampant, and of continued duration, rather than isolated
occurrences.
906 F.2d at 671 (citations omitted).
First, the evidence taken in the light most favorable to Crawford reflects that
Johnston cursorily approved Carroll’s unfavorable performance evaluation of
Crawford. The evidence also reflects that during Johnston’s forty-five minute
meeting with Crawford regarding her complaint alleging retaliation and
discrimination Johnston seemed indifferent to Crawford’s concerns, and she later
issued a rather dismissive written denial of Crawford’s complaint.20 In addition,
Johnston was involved in the selection process for the new director position the
first time it was posted to the extent she interviewed but declined to endorse one
candidate and did not interview any other candidates because she was not asked to
do so. Ultimately, Johnston agreed with Nelson – whose approval Johnston
testified she needed before hiring a candidate – that the position should not be
filled at that time, in part due to concerns over Crawford’s pending grievances.
20
As noted, the complaint cited, among other issues, the denial of Crawford’s merit pay
increase, the disparity between her pay and that of others in her department, and her nonselection
for the new director position.
36
There is no evidence that Johnston was involved when the position was posted a
second time. With respect to the third posting of the position, Johnston’s
involvement included telling Carroll to broaden the group of selectors, responding
briefly when Carroll informed Johnston that she had narrowed the field of
candidates to three unnamed persons, and again acceding to Nelson’s advice
against filling the position while Crawford’s race discrimination claims were
pending. None of this evidence of Johnston’s involvement in the events of which
Crawford complains is sufficient to show that Johnston personally engaged in any
conduct that constitutes a violation of the equal protection clause, which ensures
the right to be free from intentional discrimination based on race. Williams v.
Consol. City of Jacksonville, 341 F.3d 1261, 1268 (11th Cir. 2003). There is no
hint of a racially discriminatory motive in any of Johnston’s conduct, the most
questionable of which at worst reflects the exercise of poor professional judgment
rather than gross incompetence or the intentional commission of constitutional
violations. In short, none of the actions in which Johnston was personally
involved rises to a level sufficient to divest her of qualified immunity.
Nor does the record support imposing liability against Johnston for Carroll's
alleged constitutional violations because she was aware of widespread abuse by
Carroll and failed to take corrective action. See also Gonzalez v. Reno, 325 F.3d
37
1228, 1234 (11th Cir. 2003). In this case, even if Johnston’s conduct in answering
Crawford’s complaint was ineffectual, insensitive, or otherwise less responsive
than it might have been, it was not constitutionally inadequate for purposes of
qualified immunity. Johnston testified that she did not take any independent
action regarding Crawford’s allegations because she understood, correctly as the
evidence shows, that the claims were being independently investigated by the
OAADP. Moreover, a comprehensive desk audit of Crawford’s position and the
entire human resources department, as ordered by Patton with Johnston’s
encouragement, was subsequently completed by Wright. Thus, as other corrective
action was being taken with respect to Crawford’s complaints, it was unnecessary,
in fact could have been duplicative or counterproductive, for Johnston to act as
well at that time. Because there is no evidence of the existence of widespread
abuse which Johnston failed to redress, and thus no causal connection between
Johnston’s actions and the alleged violations of Crawford’s constitutional rights,
Johnston should not be stripped of the protection of qualified immunity.21
21
As noted, the parties devote little or no attention in this appeal to Johnston’s claim of
entitlement to qualified immunity. We nevertheless note that Crawford argued below that “cat’s
paw” liability applied in this case because Johnston merely “rubber stamped” Carroll’s allegedly
discriminatory conduct. Under a “cat's paw” theory, a non-decisionmaking employee’s
discriminatory animus may be imputed to a neutral decisionmaker when the decisionmaker has
not independently investigated allegations of misconduct. See Llampallas v. Mini-Circuits, Lab,
Inc., 163 F.3d 1236, 1249 (11th Cir. 1998). “In such a case, the recommender is using the
decisionmaker as a mere conduit, or ‘cat's paw’ to give effect to the recommender's
38
IV. Conclusion
For the foregoing reasons, we REVERSE the district court’s grant of
summary judgment to GSU on Crawford’s Title VII retaliation and race
discrimination claims and to Carroll on Crawford’s § 1983 race discrimination
claim. We AFFIRM the district court’s grant of summary judgment to Johnston.
This case is REMANDED to the district court for further proceedings consistent
with this opinion.
REVERSED and REMANDED IN PART; AFFIRMED IN PART.
discriminatory animus.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999)
(per curiam). Here, the evidence does not support the contention that Carroll exercised undue
influence over Johnston. Rather, contrary to Carroll’s wishes, Johnston declined to endorse
Strasner for the new position the first time it was posted. Also, following Nelson’s advice but
against Carroll’s recommendation, Johnston declined to extend an offer to Willis on the job’s
third posting. Finally, because Johnston reviewed Crawford’s complaint and met with her to
discuss the issues it presented – albeit not to Crawford’s satisfaction – Crawford has failed to
show a causal connection between Carroll and Johnston’s actions pursuant to a “cat’s paw”
theory of liability. Id. at 1332.
39