USCA11 Case: 22-11560 Document: 26-1 Date Filed: 06/23/2023 Page: 1 of 11
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-11560
Non-Argument Calendar
____________________
AUBRINA BOWENS,
Plaintiff-Appellant,
versus
ESCAMBIA COUNTY BOARD OF EDUCATION,
JOHN KNOTT,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Alabama
D.C. Docket No. 1:20-cv-00532-CG-B
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2 Opinion of the Court 22-11560
____________________
Before ROSENBAUM, JILL PRYOR, and EDMONDSON, Circuit Judges.
PER CURIAM:
Plaintiff Aubrina Bowens appeals the district court’s grant of
summary judgment in favor of Plaintiff’s former employer, the Es-
cambia County Board of Education (“the Board”), and the Board’s
Superintendent, John Knott (collectively, “Defendants”). Plaintiff
asserts against Defendants claims for race discrimination and retal-
iation, in violation of Title VII of the Civil Rights Act, 42 U.S.C. §
2000e (“Title VII”), and 42 U.S.C. § 1981. No reversible error has
been shown; we affirm.
I.
Plaintiff (a black female) was hired by the Board in August
2016 as a non-tenured, probationary teacher. At that time, the Es-
cambia County school system included three Alternative Programs
for teaching students outside of the regular school setting: (1) the
COMPASS program, designed for adjudicated students or students
with mental health issues that prevented them from thriving in a
regular classroom; (2) the STAR program, a pilot program for drop-
out-prevention; and (3) the Alternative School, a school site where
students with disciplinary issues were assigned temporarily in lieu
of expulsion or suspension. When Plaintiff was hired, the
COMPASS and STAR programs were housed at the Escambia
County High School and the Alternative School was housed in its
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22-11560 Opinion of the Court 3
own building. Plaintiff was assigned to teach English Language
Arts at the Alternative School.
At the end of the 2017-18 school year, the Board -- upon
Knott’s recommendation -- decided not to renew the contracts for
the non-tenured teachers then-assigned to the three Alternative
Programs. The non-renewed teachers included Plaintiff, Ashley
Knowles (a white female), Farrah McGill (a white female), and Ter-
rence Hall (a black male). The Board also removed the remaining
two tenured teachers from their assignment with the Alternative
Programs: Yolanda Walters was reassigned to a teaching position
at the high school and Kellie Steele (a white female) resigned her
employment with the school system.
For the 2018-19 school year, the Board combined and re-
structured the three Alternative Programs, including moving the
location of all programs to the building that had previously housed
the Alternative School. The Board posted the open teaching posi-
tions for the restructured programs. Plaintiff knew about the job
postings; she did not apply for any of the available positions.
Knowles was rehired to teach English Language Arts.
Plaintiff later filed this civil action. Plaintiff alleged that the
Board’s non-renewal of her teaching contract was motivated by un-
lawful race discrimination and retaliation.
The district court granted Defendants’ motion for summary
judgment. The district court determined that Defendants had
identified a legitimate, nondiscriminatory reason for the non-re-
newal of Plaintiff’s contract and determined that Plaintiff had failed
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4 Opinion of the Court 22-11560
to show that Defendants’ proffered reason was a pretext for race
discrimination. About Plaintiff’s claim for retaliation, the district
court concluded that Plaintiff failed to establish a prima facie case
because she had not shown that she had engaged in statutorily-pro-
tected activity. The district court also determined that Plaintiff had
failed to show that Defendants’ legitimate, non-retaliatory reason
was pretextual.
II.
We review de novo the district court’s grant of summary
judgment. See Holloman v. Mail-Well Corp., 443 F.3d 832, 836 (11th
Cir. 2006). “Summary judgment is appropriate when the evidence,
viewed in the light most favorable to the nonmoving party, presents
no genuine issue of material fact and compels judgment as a matter
of law in favor of the moving party.” Id. at 836-37.
As an initial matter, the district court cited to and applied
correctly the pertinent summary-judgment standard. Contrary to
Plaintiff’s assertions, nothing evidences that the district court en-
gaged improperly in weighing the evidence or in making imper-
missible credibility determinations.
A. Race Discrimination
Title VII makes it unlawful for an employer to discriminate
on the basis of an employee’s race. See 42 U.S.C. § 2000e-2(a)(1).
Both Title VII and section 1981 “have the same requirements of
proof and use the same analytical framework.” Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Plaintiff bears the
ultimate burden of proving -- by a preponderance of the evidence
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-- that Defendants discriminated unlawfully against her. See Craw-
ford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2008).
To survive a motion for summary judgment, a plaintiff as-
serting a claim for unlawful discrimination in violation of Title VII
“must present sufficient facts to permit a jury to rule in her favor.”
Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220 (11th Cir. 2019)
(en banc). A plaintiff may satisfy her burden in three ways: (1) by
presenting direct evidence of discriminatory intent; (2) by satisfy-
ing the McDonnell Douglas 1 burden-shifting framework; and (3) by
presenting “a ‘convincing mosaic’ of circumstantial evidence that
warrants an inference of intentional discrimination.” Id. at 1220,
n.6.; see Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir.
2011) (addressing the “convincing mosaic” standard).
Under the McDonnell Douglas framework, the plaintiff must
first establish a prima facie case of discrimination, which creates a
presumption of unlawful discrimination against the employee. See
Lewis, 918 F.3d at 1220, 1222. The employer may then rebut that
presumption by articulating legitimate, nondiscriminatory reasons
for the adverse employment acts. Id. at 1221. The burden then
shifts to the employee to produce evidence sufficient to create a
genuine issue of material fact that the employer’s articulated rea-
sons are a pretext for unlawful discrimination. Id.
Here, the district court concluded that Plaintiff established a
prima facie case of race discrimination. An employee establishes a
1 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
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prima facie case of discrimination by showing four elements: “(1)
that she belongs to a protected class, (2) that she was subjected to
an adverse employment action, (3) that she was qualified to per-
form the job in question;” and (4) that she was treated less favora-
bly by her employer than “similarly situated” employees outside
the protected class or was replaced by someone outside her pro-
tected class. Lewis, 918 F.3d at 1220-21; Cuddeback v. Fla. Bd. of Educ.,
381 F.3d 1230, 1235 (11th Cir. 2004) (listing the prima facie elements
for discriminatory discharge). That Plaintiff satisfied the first three
elements is undisputed. About the fourth element, the district
court determined that the evidence -- viewed in Plaintiff’s favor --
showed that Plaintiff had been replaced by a person (Knowles) out-
side Plaintiff’s protected class. 2
The burden then shifted to Defendants to articulate a legiti-
mate, nondiscriminatory reason for deciding not to renew Plain-
tiff’s contract. Defendants contended that, beginning in March
2018, they developed concerns about whether sufficient funding
would be available to continue the Alternative Programs for the
2018-19 school year. In the light of this uncertainty, Defendants
2 The district court determined, however, that Plaintiff was unable to estab-
lish a prima facie case on grounds that she was treated less favorably than was
a similarly-situated person outside her protected class. Plaintiff raised no chal-
lenge to this determination in her initial appellate brief. To the extent Plaintiff
seeks to raise this argument for the first time in her reply brief, that argument
is not properly before us. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678,
683 (11th Cir. 2014) (declining to address an argument raised for the first time
in a reply brief).
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decided (1) not to renew the contracts for any non-tenured teacher
assigned to the three Alternative Programs, and (2) to consolidate
and restructure the Alternative Programs as a cost-saving measure.
Once Defendants identified a legitimate, nondiscriminatory
reason for the employment decision, the burden shifted back to
Plaintiff to demonstrate “that the reasons given by the employer
were not the real reasons for the adverse employment decision.”
See Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en
banc). When -- as in this case -- the employer’s “proffered reason is
one that might motivate a reasonable employer, an employee must
meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.” See
id. at 1030. To satisfy her burden of showing pretext, the employee
must demonstrate “‘weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions’ in the employer’s rationale.” See
Holland v. Gee, 677 F.3d 1047, 1055-56 (11th Cir. 2012). Plaintiff has
failed to do so.
Plaintiff contends that Defendants’ proffered reason is con-
tradicted by evidence that the State Department of Education
made a verbal commitment to provide three years of state funding.
The record demonstrates, however, that the State’s verbal commit-
ment applied only to funding the STAR program: not all programs.
Undisputed evidence demonstrates that -- when Defendants
made the complained-of employment decision (non-renewal) in
May 2018 -- Defendants had no guaranteed source of funding to
continue operating all three Alternative Programs the following
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8 Opinion of the Court 22-11560
school year. Defendants presented evidence that the mental
healthcare provider that had partnered with the Board in running
the COMPASS program in the past had expressed doubt about its
continued involvement for the 2018-19 school year. Absent that re-
lationship, the Board would have been unable to secure funding for
the COMPASS program. Meanwhile, the Alternative School was
funded largely by local (not state) funds in amounts that varied
from year to year.
As purported evidence of pretext, Plaintiff also points to a
statement made by Amy Cabaniss (an administrator who oversaw
the Alternative Programs) that Cabaniss was unaware that the Al-
ternative School had been in danger of closing. This statement --
limited to the Alternative School site -- is not inconsistent with evi-
dence showing that Defendants (1) were concerned about the over-
all funding available to operate all three Alternative Programs for
the 2018-19 school year and (2) believed it was necessary not to re-
new the contracts for existing non-tenured teachers and to restruc-
ture the programs.
On this record, Plaintiff’s evidence failed to show that De-
fendants’ proffered reason was so implausible, inconsistent, or in-
coherent that a reasonable factfinder could infer that the reason
was not the true reason and was, instead, a pretext for unlawful
discrimination.
We also reject Plaintiff’s contention that she demonstrated
unlawful race discrimination under a “convincing mosaic” theory.
“A ‘convincing mosaic’ may be shown by evidence that
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demonstrates, among other things, (1) ‘suspicious timing, ambigu-
ous statements . . ., and other bits and pieces from which an infer-
ence of discriminatory intent might be drawn,’ (2) systematically
better treatment of similarly situated employees, and (3) that the
employer’s justification is pretextual.” Lewis v. City of Union City,
934 F.3d 1169, 1185 (11th Cir. 2019). In this case, Plaintiff has failed
to produce evidence sufficient to demonstrate that Defendants’
stated reason for not renewing Plaintiff’s contract was pretextual:
she cannot satisfy her burden of showing unlawful discrimination
under a “convincing mosaic” theory.
B. Retaliation
Apart from prohibited discrimination, employers are also
barred from retaliating against an employee because of the em-
ployee’s opposition to an employment practice made unlawful un-
der Title VII or section 1981. See 42 U.S.C. § 2000e-3(a); Chapter 7
Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1257-58 (11th Cir. 2012). We
apply the McDonnell Douglas burden-shifting framework to retalia-
tion claims based on circumstantial evidence. See Brown v. Ala. Dep’t
of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).
To establish a prima facie case for retaliation under Title VII
or section 1981, a plaintiff must show that she engaged in statuto-
rily protected activity and that she suffered a materially adverse em-
ployment act that was causally related to the protected activity.
Chapter 7 Tr., 683 F.3d at 1258.
The district court committed no error in concluding that
Plaintiff engaged in no statutorily-protected activity. The record
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shows that Plaintiff, before her contract was not renewed, had
voiced complaints about the timing of her pay increase upon earn-
ing her master’s degree and complaints about her assigned duties
compared with the job duties assigned to Steele. None of Plaintiff’s
written complaints mentioned race or racial discrimination. And
nothing evidences that Plaintiff’s written or verbal complaints oth-
erwise indicated Plaintiff was contending that she was being treated
differently because of her race. Absent any allegation about dis-
crimination based on a protected ground, Plaintiff’s grievances al-
leging unfair treatment were not statutorily-protected conduct. See
Coutu v. Martin Cty. Bd. of Cty. Comm’rs, 47 F.3d 1068, 1074 (11th Cir.
1995) (“Unfair treatment, absent discrimination based on race, sex,
or national origin, is not an unlawful employment practice under
Title VII.” (emphasis in original)).
Plaintiff also says she engaged in protected conduct when
she complained that her son (a student in the Escambia County
school system) had been the target of racial discrimination. Plain-
tiff’s complaints about her son, however, were not made in opposi-
tion to an employment practice made unlawful under Title VII or to
discrimination in the making and enforcement of contracts in vio-
lation of section 1981. Cf. Little v. United Techs., Carrier Transicold
Div., 103 F.3d 956, 959 (11th Cir. 1997) (stating that “not every act
by an employee in opposition to racial discrimination is protected”
and that “[t]he opposition must be directed at an unlawful employ-
ment practice of an employer”).
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Even if Plaintiff could make out a prima facie case of retalia-
tion (which she has not), Defendants have offered a legitimate, non-
retaliatory reason for not renewing Plaintiff’s contract: uncertainty
about funding. As we have already discussed, Plaintiff has failed to
present ample evidence that Defendants’ stated reason was pre-
textual.
AFFIRMED.