United States Court of Appeals,
Eleventh Circuit.
No. 94-6058.
Marcia M. EDWARDS, Plaintiff-Appellant,
v.
WALLACE COMMUNITY COLLEGE, Robert McConnell, Connie Vardaman,
Joyce Howell, B. Gene Burton, Leighann Swindal, Defendants-
Appellees.
April 19, 1995.
Appeal from the United States District Court for the Southern
District of Alabama. (No. CV 92-0265-BH-S), William Brevard Hand,
Judge.
Before KRAVITCH, Circuit Judge, GODBOLD and RONEY, Senior Circuit
Judges.
GODBOLD, Senior Circuit Judge:
Ms. Marcia Edwards appeals from the district court's summary
judgment for defendants. We affirm.
BACKGROUND
After obtaining a right to sue letter from the E.E.O.C.,
Edwards, an African-American, brought several claims pursuant to
Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983 against
the defendants, Wallace Community College Selma (WCCS), Dr. Robert
McConnell, Connie Vardaman, Joyce Howell, and Leighann Swindal,1
alleging racial discrimination. Dr. McConnell, Vardaman, Howell,
and Swindal are all employees of WCCS.
Edwards was employed at WCCS as a word processing specialist,
a newly created position, from September 1990 until her termination
during July 1991. At the time of plaintiff's employment with WCCS
1
Gene Burton, Business Manager of WCCS, originally was named
as a defendant but later was dropped by the plaintiff.
Dr. McConnell was the Vice-President of WCCS, and he acted as
Edwards' supervisor during the last week of her employment;
Vardaman was the secretary for the President, Dr. Julius Brown;
Howell was a secretary and taught computer classes for WCCS
personnel; and Swindal was a secretary for the Business
Manager/Treasurer of WCCS. With the exception of her last week of
employment Edwards was supervised by Dr. Brown.
Edwards alleges that the defendants influenced Dr. Brown to
2
discriminatorily discharge her and that defendants created a
hostile environment, violating her civil rights.
DISCUSSION
I. Standard of Review
For issues on which they would not have the burden of proof at
trial, the defendants, as the moving parties in this motion for
summary judgment, must demonstrate that there is an absence of
evidence supporting Edwards' claims. For issues on which they
would have the burden of proof at trial the defendants must make an
affirmative showing that on all essential elements on which they
have the burden of proof at trial, no reasonable jury could find
for the non-moving party, the plaintiff in the case at bar. See
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th
Cir.1993) (thorough discussion of the standard of review for a
motion for summary judgment). We review de novo the district
court's grant of a motion for summary judgment.
2
While Edwards concedes that Dr. Brown was ultimately
responsible for terminating her, he was not named as a defendant
in this action or any other action relevant to the events at
issue.
II. Title VII
Edwards sues WCCS and Dr. McConnell in his official capacity
3
for alleged violations of Title VII. R. 83 at ¶¶ 4-5. The
remaining individual defendants are not sued pursuant to Title VII.
Id. at ¶¶ 6-8.
A. Disparate Impact
A disparate impact claim under Title VII charges that a
facially neutral practice or test of the employer led to a
discriminatory impact on a particular group and that the test or
practice cannot be justified as a business necessity. Griggs v.
Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d
158 (1971); Stephen v. PGA Sheraton Resort, Ltd., 873 F.2d 276,
279 (11th Cir.1989). A plaintiff must identify a specific
4
employment practice that leads to the disparate impact.
Fitzpatrick, 2 F.3d at 1117. A plaintiff also must make a
comparison of the racial composition of persons in the labor pool
qualified for the position at issue with those persons actually
holding that position, and he/she must demonstrate that the
allegedly discriminatory practice or test is connected to the
disparate impact. Wards Cove Packing Co. v. Atonio, 490 U.S. 642,
657, 109 S.Ct. 2115, 2125, 104 L.Ed.2d 733 (1989). A plaintiff is
3
"Individual capacity suits under Title VII are ...
inappropriate." Busby v. City of Orlando, 931 F.2d 764, 772
(11th Cir.1991).
4
Pursuant to the 1991 amendments to Title VII the plaintiff
may demonstrate that the practices that combine to create the
employer's decisionmaking process cannot be separated. If the
plaintiff makes such a showing, then the decisionmaking process
can be analyzed for disparate impact. 42 U.S.C. § 2000e-
2(k)(1)(A), (B) (1991). Edwards did not allege such a situation.
not required to prove a discriminatory motive. Griggs, 401 U.S. at
432, 91 S.Ct. at 854.
Edwards' disparate impact claim fails because: (1) she
failed to identify a practice or test of WCCS used to terminate
employees that led to a discriminatory impact on African-Americans
and, more specifically, that affected her; (2) she accordingly
failed to connect an allegedly discriminatory practice to the
asserted disparate impact; and (3) she failed to make the required
statistical comparison.5
B. Disparate Treatment
A plaintiff asserting disparate treatment is required to
prove discriminatory animus on the part of the defendant. Texas
Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct.
1089, 1095, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 804-05, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668
(1973). The employee has a cause of action against the employer by
naming either the employer or supervisory employees as agents of
the employer. Busby v. City of Orlando, 931 F.2d 764, 772 (11th
Cir.1991). Edwards contends that WCCS and Dr. McConnell
discriminated against her by discriminatorily discharging her and
by creating and/or permitting a racially hostile work environment.
1. Discharge
To succeed with her discriminatory discharge claim Edwards
must show "(1) that [she] is a member of a protected minority, (2)
5
Although Edwards does present a statistical analysis of the
racial composition of full-time secretarial/clerical personnel at
WCCS, she does not make the required comparison of the personnel
to the racial composition of the labor market for those
positions.
that [she] was qualified for the job from which [she] was
discharged, (3) that [she] was discharged, and (4) that [her]
former position was filled by a non-minority." Jones v. Lumberjack
Meats, Inc., 680 F.2d 98, 101 (11th Cir.1982). See also McDonnell
Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. Edwards failed
to present evidence that her position was filled by a non-minority
following her discharge.6
Edwards correctly says that a prima facie case is not wholly
dependant upon meeting the fourth requirement of the McDonnell
Douglas test. A plaintiff may have a prima facie case based on the
first three requirements despite the fact that the employer hired
a minority to fill the vacancy left by the plaintiff. Howard v.
Roadway Express, Inc., 726 F.2d 1529, 1534-35 (11th Cir.1984).
However, the court must consider whether the fact that a minority
was hired overcomes the inference of discrimination otherwise
created by the evidence presented by the plaintiff. Courts
considering such a situation have looked at several factors
including the length of time between the discharge and the
replacement, whether the replacement by the hired minority occurred
after the filing of an E.E.O.C. complaint, and, if the hired person
had a history with the employer, whether it was a positive history.
See Howard, 726 F.2d at 1525; Jones v. Western Geophysical Co. of
Am., 669 F.2d 280 (5th Cir.1982) (hiring of replacement occurred
almost a year later, after a complaint was filed with the E.E.O.C.,
6
Defendants state that the job duties of the position were
assumed by an African-American hired after Edwards' discharge.
Appellees' Brief at 28 n. 12. Edwards points to no contradictory
evidence.
and the person hired already had been hired and fired for poor
performance by the employer). Edwards has not presented any
evidence that the filling of the vacancy by a minority was
pretextual.
2. Hostile Environment
Edwards has the burden of proof at trial to demonstrate a
hostile environment. As the moving parties in the motion for
summary judgment, the defendants must either "put on evidence
affirmatively negating the material fact or instead demonstrate[ ]
an absence of evidence on the issue." Fitzpatrick, 2 F.3d at 1116.
To survive the motion for summary judgment, Edwards then must "show
that the record in fact contains supporting evidence, sufficient to
withstand a directed verdict motion," or Edwards must "come forward
with additional evidence sufficient to withstand a directed verdict
motion at trial based on the alleged evidentiary deficiency." Id.
at 1116-17.
To succeed at trial with her hostile environment claim
Edwards must demonstrate that the actions of the defendants altered
the condition of the workplace, creating an objectively abusive and
hostile atmosphere. Harris v. Forklift Sys., Inc., --- U.S. ----,
----, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993) ("When the
workplace is permeated with "discriminatory intimidation, ridicule,
and insult' that is "sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive working
environment,' Title VII is violated.") (internal citations
omitted). For example, the racial slurs allegedly spoken by
co-workers had to be so "commonplace, overt and denigrating that
they created an atmosphere charged with racial hostility."
E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th
Cir.1990). In deciding whether a hostile environment was created
factors to consider include the frequency of the discriminatory
conduct, the severity of the discriminatory conduct, whether the
conduct is threatening or humiliating, and whether the conduct
unreasonably interferes with the plaintiff's performance at work.
Harris, --- U.S. at ----, 114 S.Ct. at 372. The employer will be
held liable if it fails to discover a hostile atmosphere and to
take appropriate remedial steps. Busby, 931 F.2d at 785. See also
Henson v. City of Dundee, 682 F.2d 897, 901 (11th Cir.1982). A
plaintiff may have a viable hostile environment claim even if the
racial remarks were not directed at her. Busby, 931 F.2d at 785.
The district court did not err in holding that the summary
judgment record did not substantiate a hostile work environment
claim. We have reviewed the summary judgment material. As the
court held, some of the incidents relied upon were not made known
to Edwards until after her termination and, therefore, could not
have contributed to her subjective view of a hostile environment.
See Harris, --- U.S. at ----, 114 S.Ct. at 370 (the plaintiff must
subjectively view the conduct as hostile). Other alleged
incidents, as the court correctly held, were purely speculation by
Edwards. Still others concerned statements said to have been made
to third parties by fourth parties. Apart from hearsay problems,
there was insufficient information as to when the statements were
made, how knowledge of them was acquired, and when Edwards was
informed of them (if she was). In her answers to interrogatories,
Edwards refers generally to racial references concerning her made
by co-worker Vardaman. These too were not identified as to how
they were made, to whom they were made, and how and when they were
made know to Edwards. Edwards also says that she did not receive
information pertinent to her employment that Caucasian employees
did receive. However, in her deposition she conceded that she
cannot cite any examples of Caucasian employees receiving
information that was withheld from her. Once the evidentiary
materials inappropriately relied upon are laid aside, we cannot say
that the district court erred in holding that Edwards had not met
her burden to defeat summary judgment concerning a hostile
environment.7
III. Section 1983
Edwards asserts claims pursuant to § 1983, alleging that the
defendants violated the equal protection clause of the Fourteenth
Amendment. She contends that the defendants discriminatorily fired
7
Our consideration of this case, especially the hostile
environment issue, has been hampered by plaintiff's brief. A
brief must contain:
a statement of the facts. A proper statement of facts
reflects a high standard of professionalism. It must
state the facts accurately, those favorable and those
unfavorable to the party. Inferences drawn from facts
must be identified as such....
11th Cir.R. 28-2(h)(ii) (1994). Plaintiff's statement of
facts, consuming more than half of her brief, is a mixture
of facts and arguments and inferences. It is larded with
allegations, hearsay, hyperbole, and pejoratives. It makes
no effort to distinguish between inferences and facts or to
present facts unfavorable to the plaintiff. We have
reviewed the record, but without the help to which we are
entitled.
her8 and created a hostile workplace, and she sues the individual
defendants for equitable relief in their official capacities and
for equitable and monetary relief in their individual capacities.
R. 83 at ¶¶ 5-8. To have a cause of action pursuant to § 1983, the
plaintiff must allege that a person deprived her of a federal or
constitutional right and that the person was acting under color of
law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24,
64 L.Ed.2d 572 (1980).
The Supreme Court has defined "acting under color of law" as
acting with power possessed by virtue of the defendant's employment
with the state. West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250,
2255, 101 L.Ed.2d 40 (1988). " "[S]tate employment is generally
sufficient to render the defendant a state actor.' " Id. (quoting
Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct.
2744, 2752 n. 18, 73 L.Ed.2d 482 (1982)). The dispositive issue is
whether the official was acting pursuant to the power he/she
possessed by state authority or acting only as a private
individual. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482,
5 L.Ed.2d 492 (1961). Not all actions by state employees are acts
under color of law. "[C]ases have declined to find liability under
§ 1983 against a co-employee for harassment when the harassment did
8
For the reasons stated above, plaintiff's claim of
discriminatory discharge due to the alleged influence of the
individual defendants upon Dr. Brown is without merit. Moreover,
any influence Dr. McConnell had on Dr. Brown's decision to
discharge plaintiff was proper within his discretionary duties as
Vice-President and as a supervisor of Edwards, so long as his
intent was not discriminatory. Edwards has not presented factual
evidence suggesting that any influence Dr. McConnell had on the
decision to terminate her originated from discriminatory motives.
Therefore, we will address only her § 1983 claim regarding a
hostile environment.
not involve use of state authority or position." Woodward v. City
of Worland, 977 F.2d 1392, 1400 (10th Cir.1992) (defendant law
enforcement officers were not liable under § 1983 for sexually
harassing dispatchers employed by a separate employer); cert.
denied, --- U.S. ----, 113 S.Ct. 3038, 125 L.Ed.2d 724 (1993). See
Hughes v. Halifax County Sch. Bd., 855 F.2d 183 (4th Cir.1988)
(co-workers were not acting with state authority when they taunted
plaintiff and performed a mock hanging of plaintiff), cert. denied,
488 U.S. 1042, 109 S.Ct. 867, 102 L.Ed.2d 991 (1989); Murphy v.
Chicago Transit Authority, 638 F.Supp. 464 (N.D.Ill.1986) (staff
attorneys who sexually harassed fellow staff attorney were not
liable pursuant to § 1983). See also Dang Vang v. Vang Xiong X.
Toyed, 944 F.2d 476 (9th Cir.1991) (citing Murphy for guidance but
concluding that the defendant who was employed by the state to
assist refugees in finding employment and who sexually assaulted
women after enticing them to see him for job hunting purposes was
a state actor liable under § 1983).
We hold that defendants Vardaman, Howell, and Swindal, all
coemployees of Edwards and without any supervisory authority over
Edwards, are not liable pursuant to § 1983. These defendants did
not use their state authority to create an environment hostile to
Edwards. "The mere fact that [the defendants] were state employees
or that the offending acts occurred during working hours is not
enough." Woodward, 977 F.2d at 1401.
Additionally, Edwards is lacking enough admissible factual
evidence to show that the alleged actions of Vardaman, Howell, and
Swindal rose to the level of creating an objectively hostile
workplace. Edwards did not know about the remarks she attributed
to Vardaman until after her (Edwards') termination. Edwards
asserts that Swindal and Howell gave her false information and
withheld information from her that was given to Caucasian
employees, but she does not cite who received such information.
She contends that she was given office space and equipment inferior
to that given to Caucasian employees but cites no examples of such
for comparison. Furthermore, Edwards complains that she did not
receive word processing training until shortly before her
termination, whereas other employees supposedly received such
training from the beginning of their employment. However, Edwards
was hired as a word processing specialist, a newly created
position, presumably with at least a basic understanding of word
processing. Overall, Edwards has made allegations without citing
any substantial concrete evidence for support.
A. Qualified Immunity
"[A]n official in a personal-capacity action may, depending on
his position, be able to assert personal immunity defenses,
[including a defense of qualified immunity]." Kentucky v. Graham,
473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985).
"[G]overnment officials performing discretionary functions,
generally are shielded from liability for civil damages insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,
2738, 73 L.Ed.2d 396 (1982). Except under rare circumstances
government employees will have qualified immunity from suits
against them in their individual capacities. Lassiter v. Alabama
A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) ( en banc ). A
court reviewing a defense of qualified immunity must consider how
the law had been applied in concrete, factual circumstances at the
time of the allegedly discriminatory action. Id.
Discriminatory intent is an element that must be proved in a
disparate treatment claim. However, Edwards has not presented any
concrete evidence of discriminatory intent on the part of Dr.
McConnell. Accordingly, although intent is irrelevant for a
qualified immunity inquiry per se, Harlow, 457 U.S. at 819, 102
S.Ct. at 2738-39, it is relevant if intent is an element of the
underlying alleged constitutional violation. Fiorenzo v. Nolan,
965 F.2d 348, 352 (7th Cir.1992) ("Therefore, at the summary
judgment stage, the district court properly considered whether the
plaintiffs factually supported their allegations as to [the
defendant's] state of mind."); Hull v. Cuyahoga Valley Joint Voc.
Sch. Dist. Bd. of Educ., 926 F.2d 505, 512 (6th Cir.) ("plaintiff
must present direct evidence that the officials' actions were
improperly motivated" by racial discrimination when the officials
have asserted qualified immunity as a defense) (internal quotations
and citation omitted), cert. denied, 501 U.S. 1261, 111 S.Ct. 2917,
115 L.Ed.2d 1080 (1991); Auriemma v. Rice, 910 F.2d 1449, 1453
(7th Cir.1990) (en banc ), cert. denied, 501 U.S. 1204, 111 S.Ct.
2796, 115 L.Ed.2d 970 (1991).9
9
"Qualified immunity does not pertain to claims for
injunctive or declaratory relief, because these claims are
considered to be official capacity claims against the relevant
governmental entity." Martin A. Schwartz & John E. Kirklin, 1
Section 1983 Litigation: Claims, Defenses, and Fees § 9.12 (2d
B. Sovereign Immunity
Suing individuals in their official capacities is "another way
of pleading an action against an entity of which an officer is an
agent." Graham, 473 U.S. at 165, 105 S.Ct. at 3105. A state, a
state agency, and a state official sued in his official capacity
are not "persons" within the meaning of § 1983, thus damages are
unavailable; but a state official sued in his official capacity is
a person for purposes of § 1983 when prospective relief, including
injunctive relief, is sought. Will v. Michigan Dep't of State
Police, 491 U.S. 58, 71, n. 10, 109 S.Ct. 2304, 2312, n. 10, 105
L.Ed.2d 45 (1989). However, because Edwards fails to substantiate
the underlying alleged constitutional violation by Dr. McConnell
with factual evidence, her claim fails.
CONCLUSION
The judgment of the district court is AFFIRMED.
ed. 1991) (footnote omitted). See also Wood v. Strickland, 420
U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214
(1975); Fortner v. Thomas, 983 F.2d 1024, 1029 (11th Cir.1993).
However, since Edwards' underlying claim for discrimination by
Dr. McConnell fails due to a lack of factual evidence, her claims
against him for injunctive relief fail as well.