United States Court of Appeals,
Eleventh Circuit.
No. 95-6261.
Bobby Lee HARRIS, Plaintiff-Appellant,
v.
SHELBY COUNTY BOARD OF EDUCATION, Norma Rogers, individually and
in her official capacity as Superintendent of Education for the
Shelby County Board of Education, Susan Bagley, individually and
in her official capacity as a member of the Shelby County Board
of Education, Donna Morris, individually and in her official
capacity as a member of the Shelby County Board of Education,
etc., et al, Defendants-Appellees.
Nov. 20, 1996.
Appeal from the United States District Court for the Northern
District of Alabama. (No. CV 93-B-1717-S), Sharon L. Blackburn,
Judge.
Before ANDERSON and COX, Circuit Judges, and RONEY, Senior
Circuit Judge.
ANDERSON, Circuit Judge:
On August 19, 1993, plaintiff-appellant Bobby Lee Harris filed
suit against the defendants-appellees, alleging that the
defendants-appellees discriminated against him by failing to select
him for the principalship at Thompson High School because of his
race, in violation of Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e, et seq., as amended, and 42 U.S.C. § 1983, and in
retaliation for his exercise of his constitutionally-protected
right to freedom of speech, in violation of 42 U.S.C. § 1983.
Harris sought declaratory and injunctive relief, including
temporary and permanent injunctions requiring the defendants to
promote him to the principalship at Thompson High School with back
pay and other employment benefits to which he would have been
entitled. On February 24, 1995, the district court entered summary
judgment on behalf of the defendants. Harris filed this appeal.
Facts
In this summary judgment posture, we state the facts by making
all reasonable inferences in favor of Harris. Harris, a black
male, has been employed by the defendant-appellee Shelby County
Board of Education ("the Board") for eighteen years. He served as
an assistant principal at Thompson High School, located in
Alabaster, Alabama, for the six years preceding this litigation.
In May of 1992, the position of principal at Thompson High School
became available, and the Board began soliciting applications to
fill that position. A number of candidates applied, including
Harris. Pursuant to standard Board procedure, all of these
candidates were interviewed and ranked by a committee ("the Rogers
committee") made up of defendant-appellee Dr. Norma Rogers, the
Superintendent of the Shelby County school system, David Wayne
Sumners, the Personnel Director, and Evan Major, the Director of
Instructional Services for the school system. The three candidates
receiving the highest rankings from this selection committee were
then interviewed by a lay committee of citizens. The lay committee
reported its conclusions to Rogers who, consistent with her
responsibility in this regard, made a recommendation to the Board.
The determinations of the lay committee are not binding on the
superintendent, nor are the final numerical rankings. The evidence
presented makes clear that no one can be hired or promoted by the
Board unless Rogers recommends it.
In support of his § 1983 free speech claim, Harris presented
evidence of Rogers' knowledge and motivation with regard to his
exercise of his First Amendment rights. During Harris' interview
with the Rogers committee, Rogers brought up an interview Harris
had given to an Atlanta newspaper. On June 7, 1992, Harris was
quoted in an Atlanta Journal and Constitution article concerning a
rape and gang activity at Thompson High School. Harris stated,
"Alabaster is a powder keg," and noted that he and other black
leaders in the town had warned city leaders about the growing
problem of gangs and race. Jim Yardley, A Town Divided, ATL. JOUR.
AND CONST., June 7, 1992, at M1. In her deposition, Rogers stated
that she asked Harris to tell her about the article. Rogers also
testified that she told Harris that she received numerous phone
calls from parents and students who were upset that their school
was "looking so bad in the eyes of not only our state but other
states." Rogers elaborated on her motivation in discussing this
with Harris, stating:
Well, I just felt that there was so much good that [Harris]
could tell also. It's not that I didn't care for him sharing
the negative, but tell the positive too.
Sumners testified that before the Rogers committee interviewed
Harris, Rogers stated that she was "mad as hell" about the article
and intended to speak with Harris about it at the interview,
despite the fact that Sumners told Rogers that he thought that such
questioning would be inappropriate. Sumners also recalled that at
various times prior to the interview Rogers stated, with reference
to Harris' role in the community, that Harris was "too
controversial."
Harris also presented evidence to support his allegation that
Rogers intentionally discriminated against him because of his race,
in violation of Title VII and § 1983. Specifically, Harris
directed the court to Sumners' deposition for insight into Rogers'
intent and motivation.
Harris' attorney: Did you ever discuss about the placement
of—specifically was there any discussion about the
placement of a black at Thompson High School?
Sumners: Yes.
Q: Between you and Dr. Rogers?
A: Yes.
Q: And what were her comments regarding that?
A: At the time there were, whether real or perceived, I don't
know, some racial problems at Thompson High School.
There had been some talk about, quote, "gang problems,"
you know, depending on who you want to believe and those
type things. And you know, there was talk about Mr.
Harris applying for the position and the statement was
made that—
. . . . .
Yeah. Like I said, you know, a statement was made that
basically that under the circumstances we did not need to
employ a black at Thompson High School.
Q: Now was that made by Dr. Rogers?
A: Yes, it was.
. . . . .
Q: Okay. And of course that would eliminate Mr. Harris from
consideration—
. . . . .
—for the position because he is black?
A: Ah, it would seem so. I mean I cannot not state for a fact
that it would eliminate him, because I would not know Dr.
Rogers' thinking, but it would appear that way.
In addition, Harris presented evidence that prior to the
opening of the principal position, Rogers transferred him
temporarily from his position as assistant principal at Thompson
High School to a position as the At Risk/Attendance Supervisor, a
lower-paying job in the central office of the Shelby County school
system. Sumners testified that Rogers was aware at the time that
Mr. Simmons, the principal at Thompson High School, was preparing
to retire. There was additional evidence from which the jury could
infer that Rogers was attempting to take Harris out of line for the
principalship. Also, Sumners testified that, upon her arrival as
superintendent for Shelby County, Rogers instructed him to
discontinue his statewide recruiting of black applicants for
positions within the school system, a task that he, as Personnel
Director, had undertaken at the direction of Rogers' predecessor.
The Rogers committee ranked Harris seventh, and accordingly he
was not granted an interview with the lay committee. Jim Elliott,
a white male, was ranked highest by the Rogers committee, and
Rogers eventually recommended to the Board that Elliott be hired as
principal at Thompson High School. The district court noted that
while Elliott has more than a decade of experience as a high school
principal, Harris has never served as a principal. Harris was the
assistant principal at Thompson High School for six years prior to
this litigation, and thus had more experience at that particular
institution.1
On the defendants' motion for summary judgment, the district
court found that Harris presented no direct evidence of
discrimination. With regard to Harris' presentation of
circumstantial evidence of discrimination, the court held that
1
Additional facts will be discussed in the relevant parts of
our analysis.
although Harris established a prima facie case of discrimination,
he failed to offer sufficient evidence that the legitimate,
non-discriminatory reason for the Board's hiring of Elliott was
merely a pretext for discrimination. The district court also held
that Harris failed to offer sufficient evidence that his exercise
of his right to freedom of speech was a motivating factor in
Rogers' failure to recommend him for the principalship at Thompson
High School. The court then granted summary judgment to the
defendants.
Standard of review
Our review of a district court's grant of summary judgment is
plenary; we must determine whether there are genuine issues of
material fact, and whether the moving party is entitled to judgment
as a matter of law. N.A.A.C.P. v. Hunt, 891 F.2d 1555, 1559 (11th
Cir.1990). We view the facts in the light most favorable to the
non-movant. Id. at 1559-60. Summary judgment is appropriate when
the evidence favoring a non-moving party is insufficient to support
a jury verdict on its behalf. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986).
Race Discrimination Claims
We evaluate Title VII and 42 U.S.C. § 1983 race
discrimination claims supported by circumstantial evidence using
the framework set out by the United States Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36
L.Ed.2d 668 (1973). Busby v. City of Orlando, 931 F.2d 764, 777
(11th Cir.1991).2 First, the plaintiff has the burden of
establishing a prima facie case of discrimination. McDonnell
Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Second, assuming that
the plaintiff has met this initial burden, the defendant has the
burden to produce a "legitimate, nondiscriminatory reason" for the
allegedly discriminatory employment action. Id. Third, if the
defendant satisfies this burden of production, the plaintiff has an
opportunity to prove by a preponderance of the evidence that the
reasons offered by the defendant are a mere pretext for
discrimination, and to persuade the fact-finder that the defendant
intentionally discriminated against the plaintiff. Id. at 804, 93
S.Ct. at 1824. "The ultimate burden of persuading the trier of
fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff." Texas Dept. of
Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089,
1093, 67 L.Ed.2d 207 (1981).
As noted above, the district court found that Harris
established a prima facie case of discrimination, and that the
defendants met their burden of production by articulating a
legitimate, nondiscriminatory reason for their failure to make
2
Harris argues on appeal that he has presented, through the
testimony of Sumners, both direct and circumstantial evidence of
discriminatory intent behind Rogers' decisions with regard to
Harris' application for the principalship at Thompson High
School. Our review of this testimony leads us to conclude that
while Harris has indeed offered circumstantial evidence of such
intent, given that Rogers' statements could by inference have
more than one possible meaning, Harris has not presented direct
evidence of discrimination. See Rollins v. TechSouth, Inc., 833
F.2d 1525, 1528, n. 6 (11th Cir.1987) ("Direct evidence is
"[e]vidence, which if believed, proves the existence of fact in
issue without inference or presumption.' ") (quoting Black's Law
Dictionary 413 (5th ed. 1979)).
Harris the principal at Thompson High School. The district court
concluded, however, that Harris failed to offer sufficient evidence
to rebut the defendants' legitimate, non-discriminatory explanation
for their actions.
After a Title VII plaintiff makes out a prima facie case, and
the defendant produces a legitimate, nondiscriminatory explanation
for its actions, the McDonnell-Burdine presumption drops from the
case. U.S. Postal Service Bd. of Governors v. Aikens, 460 U.S.
711, 715, 103 S.Ct. 1478, 1481, 75 L.Ed.2d 403 (1983). At that
point, the inquiry is "[whether] the defendant intentionally
discriminated against the plaintiff." Id. (quoting Burdine, 450
U.S. at 253, 101 S.Ct. at 1093).
[T]he plaintiff must, by either direct or circumstantial
evidence, demonstrate by a preponderance of the evidence that
the employer had a discriminatory intent.... Moreover, if the
defendant's proffered reasons are rejected, the trier of fact
may infer the ultimate fact of intentional discrimination.
Batey v. Stone, 24 F.3d 1330, 1334 (11th Cir.1994). The focus of
the case after the defendant has met the burden of production is on
the defendant's subjective intent and the motivation behind the
defendant's adverse employment actions directed at the plaintiff.
It is clear to us on this record that there is conflicting
evidence regarding Rogers' intent during the process of not hiring
Harris as principal at Thompson High School.3 In light of the
3
In the Title VII context, the dispute revolves around
Rogers' intent. She was the decisionmaker responsible for making
employment recommendations to the Board. The record establishes
that the Board can act on a matter like this only upon the
superintendent's recommendation. Harris' Title VII claim is
viable only as to the Board, and Rogers' actions are attributable
to the Board under Title VII. Busby, 931 F.2d at 772 (because
individual capacity suits are unavailable under Title VII,
plaintiffs must sue the employer, but may do so by naming
evidence discussed below, we disagree with the district court's
conclusion that Harris has failed to offer sufficient evidence of
discriminatory intent on the part of Rogers to create a genuine
issue of material fact.
Sumners' testimony provides support for Harris' assertion that
Rogers intentionally discriminated against him during the process
of selecting a new principal for Thompson High School, a process
Rogers substantially controlled. Both Sumners and Major, the other
two members of the Rogers committee, remained employed at her
discretion. There was strong evidence that Rogers' recommendation
was crucial, and that it was rare for the Board to not follow it.
Sumners stated in his deposition that, when she began serving as
superintendent, Rogers ordered him to cease efforts to recruit
black candidates for positions with the Shelby County school
system. There was also evidence that Rogers transferred Harris out
of Thompson High School in an attempt to reduce his chances of
becoming principal there. The strongest evidence of Rogers' racial
motivation can be found in Rogers' statement, as reported by
Sumners and quoted verbatim above, to the effect that "under the
circumstances we did not need to employ a black at Thompson High
School." Although this statement may be open to more than one
interpretation, a fact-finder could reasonably infer that Rogers
supervisory employees as agents of the employer). With regard to
Harris' § 1983 claim, Rogers' actions are not attributable to the
Board. Id. at 776 (respondeat superior unavailable under §
1983). Moreover, there is little or no evidence of racial animus
on the part of individual Board members themselves. We need not
so decide, however, because as discussed below, both Rogers in
her individual capacity and the Board are relieved of liability
under § 1983.
meant that Harris would not be considered for the position because
he is black.
We conclude that there remain genuine issues of material fact
with respect to Rogers' intent. Cf. Pearson v. Macon-Bibb County
Hosp. Authority, 952 F.2d 1274, 1280 (11th Cir.1992) (remanding
Title VII case despite defendants' well-supported explanation for
its adverse employment decision because of conflicting evidence in
the record). It is the responsibility of the ultimate finder of
fact to weigh the evidence and make the appropriate credibility
determinations. See Walls v. Button Gwinnett Bancorp, Inc., 1 F.3d
1198, 1200 (11th Cir.1993). On summary judgment we must view the
facts in the light most favorable to the non-movant, Harris. Hunt,
891 F.2d 1555, 1559-60. So doing, we hold that summary judgment on
the issue of Rogers' racial motivation is inappropriate.
The defendants can nevertheless prevail in large measure if
they can prove that because Elliott is a much more qualified
principal candidate than Harris, Rogers would have made the same
hiring decision even in the absence of any discriminatory intent.
Defendants in Title VII cases may prove as an affirmative defense
that they would have reached the same employment decision even in
the absence of bias. Price Waterhouse v. Hopkins, 490 U.S. 228,
246, 109 S.Ct. 1775, 1788, 104 L.Ed.2d 268 (1989); see also Turnes
v. AmSouth Bank, NA, 36 F.3d 1057, 1062 (11th Cir.1994). Because
of Congress' amendment of Title VII through the Civil Rights Act of
1991, this defense, if proven, effectuates only a limitation on
4
liability, not a complete avoidance of it. Congress added to
Title VII the following language:
[A]n unlawful employment practice is established when the
complaining party demonstrates that race, color, religion, sex or
national origin was a motivating factor for any employment
practice, even though other factors also motivated the practice.
42 U.S.C. § 2000e-2(m) (1995). Under this section, the plaintiff
in a Title VII action prevails whenever he or she proves that one
of the delineated characteristics was a "motivating factor" behind
a particular employment decision, even if there were other, even
legitimate, factors motivating that decision as well. See Preston
v. Com. of Va. ex rel. New River Coll., 31 F.3d 203, 207 (4th
Cir.1994); Pilditch v. Board of Educ. of the City of Chicago, 3
F.3d 1113, 1118 n. 2 (7th Cir.1993), cert. denied, 510 U.S. 1116,
114 S.Ct. 1065, 127 L.Ed.2d 385 (1994); Hannon v. Chater, 887
F.Supp. 1303, 1314 (N.D.Cal.1995).5 Nonetheless, under Title VII
as amended, a defendant can limit its liability by proving that it
would have made the same employment decision even without
considering the improper factor.
On a claim in which an individual proves a violation under
4
In this regard, the 1991 Act legislatively overruled that
part of the plurality's holding in Price Waterhouse which allowed
defendants to completely avoid liability upon proving by a
preponderance of the evidence that they would have taken the same
action in the absence of discriminatory intent. See O'Day v.
McDonnell Douglas Helicopter Co., 79 F.3d 756, 760 (9th
Cir.1996); Robinson v. Southeastern Pennsylvania Transp.
Authority, 982 F.2d 892, 899 (3rd Cir.1993).
5
However, with regard to employment discrimination claims
brought pursuant to 42 U.S.C. § 1983, this affirmative defense
effects a total avoidance of liability, such that if a defendant
proves that it would have taken the same action in the absence of
discriminatory intent, the plaintiff is not entitled to any
relief. See Turnes v. AmSouth Bank, NA, 36 F.3d 1057, 1062 (11th
Cir.1994).
section 2000e-2(m) of this title and a respondent demonstrates
that the respondent would have taken the same action in the
absence of the impermissible motivating factor, the court—
(i) may grant declaratory relief, injunctive relief
(except as provided in clause (ii)), and attorney's fees and
costs demonstrated to be directly attributable only to the
pursuit of a claim under section 2000e-2(m) of this title;
and
(ii) shall not award damages or issue an order requiring
any admission, reinstatement, hiring, promotion, or payment,
described in subparagraph (A).
42 U.S.C. § 2000e-5(g)(2)(B) (1995).
From the facts presented in this summary judgment record, it
is clear that Elliott's qualifications are sufficiently superior to
those of Harris that no juror could conclude that Rogers would not
have made the same decision absent discriminatory intent. At the
time he was considered by the Rogers committee for the
principalship at Thompson High School, Elliott had nine years of
experience as a principal. He held the AA School Administration
certification from the State of Alabama. By contrast, Harris had
no experience as a principal, and in 1992 was only a candidate for
the AA certification. Further, Elliott was named the Outstanding
Secondary School Principal in Alabama in 1992, and was elected
president of the Alabama Association of Secondary School Principals
the same year. In the face of evidence that Elliott not only had
substantial experience as a principal as compared to Harris' total
lack of such experience, but also that Elliott's performance as a
principal was extremely well-regarded statewide, Harris has
presented no evidence to prove that Rogers would have chosen him
instead of Elliott in the absence of bias.
Also significant are Harris' expressions of uncertainty
regarding his readiness to assume a high school principalship, made
to two members of the Shelby County Board of Education. In his
deposition, Board member Leland K. Doebler testified that during
conversations with Harris he learned that Harris was concerned that
he might not be prepared to assume the principalship at Thompson
High School, and that Harris was more interested in serving as the
principal of Thompson Middle School. Doebler stated that he made
Rogers aware of these conversations prior to Elliott's selection as
principal. Board member Donna Morris testified that at the time
the application process opened for the principalship at Thompson
High School, Harris told her that he was not really interested in
the position, but was primarily concerned with insuring that no one
of the same rank as he in the school system was selected over him.
Based on the overwhelming evidence presented to the court
below, the defendants are entitled to summary judgment with regard
to their affirmative defense, namely, that Rogers would have made
the same recommendation to the Board even in the absence of
discriminatory intent. While this is a complete defense to Harris'
§ 1983 employment discrimination claim, as noted above, Harris may
still receive other relief under 42 U.S.C. § 2000e-5(g)(2)(B),
assuming that he proves to the fact-finder on remand that
discrimination based on his race was one motivating factor behind
Rogers' decision not to recommend him for the principalship at
Thompson High School. See 42 U.S.C. § 2000e-2(m); Fuller v.
Phipps, 67 F.3d 1137, 1142 (4th Cir.1995); Tyler v. Bethlehem
Steel Corp., 958 F.2d 1176, 1181 (2nd Cir.), cert. denied, 506 U.S.
826, 113 S.Ct. 82, 121 L.Ed.2d 46 (1992). We therefore remand to
the district court for further proceedings on that issue. As noted
above, Harris' Title VII claim is viable only as to the Board
itself. Thus, the remand affects only that defendant.
Free Speech Claim
Harris argues that he was also denied the principalship at
Thompson High School because he availed himself of his
constitutionally-protected right to freedom of speech. A state
cannot retaliate against a public employee for speech protected
under the First Amendment. Bryson v. City of Waycross, 888 F.2d
1562, 1565 (11th Cir.1989). However, the public employee's right
to free speech is not absolute. Id. (citing Rankin v. McPherson,
483 U.S. 378, 107 S.Ct. 2891, 97 L.Ed.2d 315 (1987)). This circuit
utilizes a four-part test to determine if retaliation on the basis
of protected speech has occurred. First, the court must analyze
"whether the employee's speech may be "fairly characterized as
constituting speech on a matter of public concern.' " Id. (quoting
Rankin, 483 U.S. at 384, 107 S.Ct. at 2897). Speech of public
concern relates to political, social or other issues of interest to
the community, as opposed to issues solely of personal interest.
Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1689, 75
L.Ed.2d 708 (1983). The court continues by "weighing the
employee's first amendment interests against "the interest of the
state, as an employer, in promoting the efficiency of the public
services it performs through its employees.' " Bryson, 888 F.2d at
1565 (quoting Pickering v. Board of Educ., 391 U.S. 563, 568, 88
S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)). Should the employee
prevail on this balancing test, "the fact finder determines whether
the employee's speech played a "substantial part' in the
government's decision to demote or discharge the employee." Id.
(citing Mt. Healthy City School Dist. Bd. of Educ. v. Doyle, 429
U.S. 274, 97 S.Ct. 568, 50 L.Ed.2d 471 (1977)). Finally, if the
employee shows that the speech was a substantial motivating factor
in the state's employment decision, "the state must prove by a
preponderance of the evidence that "it would have reached the same
decision ... even in the absence of the protected conduct.' " Id.
at 1566 (quoting Mt. Healthy, 429 U.S. at 286, 97 S.Ct. at 575).
As set forth above, the evidence in this case warrants the
entry of judgment for the defendants on the question of whether
Rogers would have made the same recommendation even in the absence
of discriminatory intent. The same is true with Harris' free
speech claim. Assuming arguendo that Harris prevails on the first
three steps of the test set forth in Bryson, the defendants
nonetheless have presented overwhelming evidence that Rogers would
have taken the same action even in the absence of Harris' speech.
The evidence is insufficient to support a jury verdict on Harris'
behalf with regard to his § 1983 free speech claim.
Conclusion
Given the factual dispute that awaits resolution with regard
to whether discrimination based on race was a motivating factor
behind Rogers' recommendation, we hold that summary judgment on the
Title VII claim was improperly granted to the defendant Board on
this issue. However, the defendants have established by undisputed
evidence their affirmative defense that Rogers would have made the
same decision notwithstanding any animus she harbored based on
either Harris' race or protected speech. Accordingly, the
defendants are entitled to summary judgment on Harris § 1983 claims
based on race discrimination and free speech. However, we must
remand for further proceedings with respect to the possibility of
limited relief against the defendant Board only as set out in 42
U.S.C. § 2000e-5(g)(2)(B).
AFFIRMED in part, VACATED in part and REMANDED.