Harris v. Shelby County Board of Education

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.