[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________ FILED U.S. COURT OF APPEALS No. 08-11220 ELEVENTH CIRCUIT ________________________ JANUARY 30, 2009 THOMAS K. KAHN CLERK D. C. Docket No. 06-01438-CV-RWS-1
DONELLE KEATON,
Plaintiff-Appellant,
versus
COBB COUNTY, GA, MICHELE MARCHANT-WELLMAN, individually and officially, SHONELL SFREDDO, individually and officially,
Defendants-Appellees.
________________________
Appeal from the United States District Court for the Northern District of Georgia _________________________
(January 30, 2009)
Before WILSON and COX, Circuit Judges, and FAWSETT,* District Judge.
* Honorable Patricia C. Fawsett, United States District Court for the Middle District of Florida, sitting by designation. PER CURIAM:
Donelle M. Keaton, an African-American female, appeals the grant of
summary judgment to Cobb County, Georgia, Cobb County Director for the
Juvenile Court Michele Marchant-Wellmon, and Cobb County Clerk for the
Juvenile Court Shonell Sfreddo (collectively “appellees”), in an action brought
pursuant to 42 U.S.C. § 1983 and Title VII of the Civil Rights Act of 1964 (“Title
VII”), 42 U.S.C. §§ 2000e to e-17.
Keaton raises several issues on appeal with respect to appellees’ decision to
deny her the Judicial Administrative Supervisor (“supervisor”) position for which
she applied and was interviewed. First, Keaton argues that the district court erred
by finding that factual issues did not exist regarding appellees’ asserted legitimate
non-discriminatory reason of “greater experience.” Keaton argues in this regard
that Cobb County policy required disqualification of the selected candidate and
that she demonstrated pretext for appellees’ proffered “greater experience” reason
based upon their post hoc actions and their false and inaccurate justifications.
Second, Keaton argues that the court erred by finding that appellees met their
burden of production with a “reasonably specific” explanation for the promotion
decision. Third, Keaton contends that the court erred by granting appellees’
motion for summary judgment because it relied upon Crawford v. City of Fairburn,
Ga., 482 F.3d 1305 (11th Cir.), cert. denied, 128 S. Ct. 495 (2007), and Combs v. 2 Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997), which Keaton asserts
are contrary to Supreme Court precedent as set forth in Reeves v. Sanderson
Plumbing Prods., 530 U.S. 133, 120 S. Ct. 2097 (2000). Fourth, Keaton argues
that the court erred by finding that appellees were entitled to summary judgment
despite Keaton’s assertion that the court should conduct a “mixed motive” analysis.
Finally, Keaton contends that the court erred by granting the individual appellees
summary judgment on her § 1983 claims. For the reasons set forth more fully
below, we affirm.
I. BACKGROUND
In approximately March of 2005, Cobb County advertised job openings in
the Juvenile Court for the positions of Clerk of Juvenile Court (“clerk”) and
supervisor.1 The written job announcements for both positions specified that a
four-year degree was “preferred.” Keaton applied for both positions. Even though
she possessed a four-year degree, Keaton was not selected for either position.
Sfreddo and Marchant-Wellman interviewed Keaton for the supervisor
position. During the interview, Keaton was asked whether clerks at the court
should be able to work a four-day work week. Sfreddo remembered Keaton
indicating that a four-day work week would be acceptable. Sfreddo did not agree
1 Keaton does not challenge the district court’s decision to grant summary judgment to appellees on Keaton’s claims relating to appellees’ decision to select Ms. Sfreddo for the clerk position. 3 with this suggestion. Marchant-Wellman wrote in her interview notes, “4 day
work week won’t work for Clerks”; however, there is no testimony in the record
explaining whether this meant that Keaton advocated or rejected a four-day work
week. Keaton contended that she never advocated a four-day work week during
the interview.
Within approximately two hours of the interview on a Friday, Sfreddo told
Keaton that she was not being selected because Keaton “was not going in the
direction [Sfreddo] wanted to go.” Janice Walker, a white female, was selected
instead. Unlike Keaton, Walker did not possess a four-year degree from a college
or university. In addition, Walker marked on her application that she had a high
school diploma and a paralegal degree when, in fact, she had a GED and a
paralegal “certificate.” Cobb County hiring policies require disqualification of
applicants who make false representations on the application. However, Cobb
County Director of Human Resources Anthony Hagler testified that the county’s
policy does not necessarily require that a candidate be disqualified because of
discrepancies like those on Walker’s job application.
Keaton immediately complained about being passed over for the promotion.
Three days later on Monday, Sfreddo directed an employee, Tammy Yancey, to
create a selection memorandum for the supervisor position. Sfreddo indicated that
the memorandum was prepared according to regular procedure. The memorandum 4 indicated that Walker had ten years of experience in the legal/court setting and five
years of experience in the Juvenile Court. The letter also highlighted four types of
supervisory experience that Walker had: (1) serving as a “back-up supervisor”; (2)
supervising two employees in the Probate Court; (3) supervising trainees; and (4)
supervising a crew of Cobb County inmates who transported records to various
departments. Yancey stated that she created the document based on Walker’s
application, resume, and paralegal certificate, a letter from a judge who stated that
Walker held a supervisor position, and a conversation Yancey had with Sfreddo.
During her deposition, Walker testified that she had not served as a backup
supervisor and that her supervision of the two employees in Probate Court was
during their training. However, Walker also stated that she had supervised trainees
during the entire time she was a deputy clerk and that she was the only person
providing this training.
Keaton alleged in her counseled complaint2 that appellees engaged in
intentional and unlawful race discrimination by denying Keaton both promotions.3
After discovery, appellees filed a motion for summary judgment. In their
2 The complaint was filed against Marchant-Wellman and Sfreddo in both their individual and official capacities. 3 The Equal Employment Opportunity Commission concluded that it was more likely than not that Keaton had been discriminated against in the denial of the supervisor position based upon her race. 5 supporting brief, appellees proffered the following reasons for not selecting Keaton
for the supervisor position: (1) Walker had more experience in the Cobb County
Juvenile Court than Keaton; (2) Walker had supervisory experience that Keaton
lacked; and (3) Keaton’s interview responses. Keaton filed a response in
opposition to appellees’ motion for summary judgment.
The magistrate judge issued a report and recommendation (“R&R”) that
recommended granting summary judgment to appellees with respect to the clerk
position but denying summary judgment as to Keaton’s claims concerning the
decision to promote Walker to the supervisor position. The magistrate also
determined that Sfreddo and Marchant-Wellman were not entitled to qualified
immunity. Specifically, the magistrate concluded that Keaton had cast doubt on
two of the three reasons given by appellees for selecting Walker for the supervisor
position: (1) Keaton’s interview responses; and (2) Walker’s greater supervisory
experience. However, even though Keaton had not “offered any evidence to
undermine the veracity of [appellees’] reason that Walker had better experience,”
the magistrate determined that an exception was warranted to the rule set forth in
Chapman v. AI Transportation, 229 F.3d 1012, 1037 n.30 (11th Cir. 2000) (en
banc), which requires a plaintiff to present sufficient evidence to show that each of
the employer’s proffered reasons are pretextual.
Both parties objected to the magistrate’s R&R. In a footnote in her response 6 to appellees’ objections to the R&R, Keaton asserted that “[e]ven if [the court]
were to accept [appellees’] assertion [about not rebutting each of the proffered
reasons], Keaton is still entitled to the denial of summary judgment based upon the
‘mixed motive’ theory.”
The district court adopted all of the magistrate judge’s findings of fact, and it
agreed with the magistrate’s conclusions of law that recommended granting
summary judgment to appellees with respect to the clerk position. However,
relying on Crawford and Chapman, the court determined that Keaton was:
required to rebut each of the legitimate, nondiscriminatory reasons proffered by [appellees] to survive summary judgment. ‘[Keaton] has not offered any evidence to undermine the veracity of [appellees’] reason that Walker had better experience.’ (R&R at 80.) Therefore, [appellees] are entitled to summary judgment on [Keaton’s] claims relating to the failure to promote [Keaton] to the [supervisor] position.
The district court granted appellees’ motion for summary judgment as to all claims.
II. DISCUSSION
We review a grant of summary judgment de novo and view the evidence in
the light most favorable to the nonmoving party. Crawford, 482 F.3d at 1308.
“Summary judgment should be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” Id. (internal quotation marks omitted)
7 (quoting Fed. R. Civ. P. 56(c)).
“In cases where direct evidence of employment discrimination is lacking, we
analyze the claim under the McDonnell Douglas[ Corp. v. Green, 411 U.S. 792,
802, 93 S. Ct. 1817, 1824 (1973)] framework, which requires the plaintiff to create
an inference of discrimination through [her] prima facie case.” Springer v.
Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1347 (11th Cir. 2007). In
this case, Keaton did not present direct evidence of discrimination and instead
proceeded in accordance with the McDonnell Douglas analysis.
The parties do not dispute that Keaton was able to make out a prima facie
case of racial discrimination based upon the failure to promote.4 Thus, the burden
shifted to appellees to articulate a non-discriminatory basis for their employment
action. Id. at 1347. Once the employer meets this burden, the plaintiff must show
that the proffered reasons were pretextual. Id. “The ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated against the plaintiff
remains at all times with the plaintiff.” Id.
“In order to avoid summary judgment, a plaintiff must produce sufficient
evidence for a reasonable factfinder to conclude that each of the employer’s
4 To establish a prima facie case on the basis of a failure to promote, a plaintiff may demonstrate that: (1) she belonged to a protected class; (2) she was qualified for and applied for a position; (3) despite her qualifications, she was rejected; and (4) the position was filled with someone outside the protected class. Springer, 509 F.3d at 1348 n.2. 8 proffered nondiscriminatory reasons is pretextual.” Chapman, 229 F.3d at 1037
(emphasis added); see also Crawford, 482 F.3d at 1308. In other words, “[a]
plaintiff in a discrimination case based on circumstantial evidence can avoid
judgment as a matter of law by putting on a prima facie case and by producing
evidence sufficient to discredit in the mind of a reasonable juror all of the
defendant’s proffered nondiscriminatory reasons for its actions.” Combs, 106 F.3d
at 1543 (emphasis added). “Provided that the 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.”5 Chapman, 229 F.3d at 1030.
We discuss each of Keaton’s arguments in turn.
A.
Keaton first argues that the district court erred in finding that she had failed
to produce evidence rebutting appellees’ proffered nondiscriminatory reason for
selecting Walker for the supervisor position based on Walker’s greater experience.
Specifically, Keaton argues that she rebutted this proffered reason by
producing evidence: (1) that Walker should not have been considered for the
5 In a footnote in Chapman, we left open the question whether an exception exists to the “well-established rule that a plaintiff must show pretext as to each proffered reason.” Chapman, 229 F.3d at 1037 n.30. We determined that the factual basis for such an exception did not exist in Chapman. Id. 9 position under Cobb County hiring policies because Walker gave a false response
concerning whether she had a high school diploma and a paralegal “degree”; (2)
that appellees manufactured post hoc justifications for selecting Walker in a
selection memorandum that was created after Keaton had complained; (3) that
appellees falsely asserted that Walker had greater “supervisory experience”; (4)
that appellees ignored the preferred criteria of a four-year college degree; and (5)
that appellees dishonestly claimed that Keaton’s interview responses were
problematic. None of these arguments are persuasive.
As a general matter, “[h]iring a less qualified person can support an
inference of discriminatory motivation.” Bass v. Bd. of County Comm’rs, 256
F.3d 1095, 1107 (11th Cir. 2001), recognized as abrogated on other grounds,
Crawford v. Carrol, 529 F.3d 961, 971-74 (11th Cir. 2008). But “[a] plaintiff is not
allowed to recast an employer’s proffered nondiscriminatory reasons or substitute
[her] business judgment for that of the employer.” Chapman, 229 F.3d at 1030
(emphasizing that “federal courts do not sit as a super-personnel department that
reexamines an entity’s business decisions. . . . [r]ather our inquiry is limited to
whether the employer gave an honest explanation of its behavior.” (internal
quotation marks omitted)); see also Alexander v. Fulton County, Ga., 207 F.3d
1303, 1341 (11th Cir. 2000) (stating that “it is not the court’s role to second-guess
the wisdom of an employer’s decisions as long as the decisions are not racially 10 motivated”).
When challenging a promotion decision, “a plaintiff cannot prove pretext by
simply arguing or even by showing that [she] was better qualified than the person
who received the position [she] coveted. A plaintiff must show not merely that the
employment decisions were mistaken but that they were in fact motivated by race.”
Springer, 509 F.3d at 1349 (brackets, quotation marks, and citation omitted).
“Furthermore, a plaintiff must show that the disparities between the successful
applicant’s and [her] own qualifications were of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff.” Id. (citations and quotation marks omitted)
(holding, in light of the selected candidate’s undisputed qualifications, that
Springer’s possession of a four-year degree, which was a preferred qualification
for the job opening she applied for, was insufficient by itself to conclude that the
employer’s proffered reason for promoting the other candidate who did not possess
a four-year degree was pretext).
Keaton’s pretext arguments on appeal can be characterized in two ways,
neither of which satisfies the requirement of rebutting appellees’ proffered
nondiscriminatory reason of promoting Walker based on her greater experience in
the Juvenile Court. First, all five arguments can be characterized as reasons why
Walker should not have been promoted in lieu of Keaton. To the extent Keaton 11 takes this approach, her arguments are facially inadequate because she does not
meet appellee’s “greater experience” argument “head on.” Keaton must address
the fact that Walker had at least one additional year of experience in the Cobb
County Juvenile Court; she cannot simply quarrel with the wisdom of appellees’
decision by pointing to five other reasons why Walker did not deserve the
promotion. Chapman, 229 F.3d at 1030.
Alternatively, Keaton’s arguments regarding Walker’s alleged
misrepresentation and appellees’ post hoc justifications for hiring Walker could be
characterized as challenges to the veracity of the “greater experience” proffered
reason. In essence, Keaton is claiming that she can demonstrate that the “greater
experience” reason is a ruse for discrimination because there is evidence in the
record that appellees hired Walker, despite false representations in her application,
and then manufactured reasons to support their actions.
However, this approach also runs afoul of the “head on” rule, because
Keaton’s arguments do not relate to the proffered reason at issue: that Walker’s
experience was greater. In Bass, we held that an employer’s deviation from
standard procedure in totaling selection criteria scores and relying exclusively
upon interviews, in addition to other evidence suggesting a race-conscious
decision-making process, cast doubt on the employer’s proffered
nondiscriminatory reason that the applicant performed poorly in an interview. 12 Bass, 256 F.3d at 1109. By contrast, the alleged procedural deviation in this case
does not bear on whether appellees actually promoted Walker based on her greater
experience. The alleged misrepresentations in Walker’s application concerned her
educational background, a criteria that is not proffered as a reason for her
selection.6 Furthermore, the inaccuracies in the selection memorandum address
Walker’s greater “supervisory experience,” not Walker’s general experience as an
employee at the Cobb County Juvenile Court. Appellees identify these two types
of experience as separate and distinct reasons for Walker’s selection. Thus, even if
Keaton’s arguments were sufficient to establish the existence of pretext, they
would not do so with respect to the proffered reason at issue on appeal, whether
Walker had greater experience in the Cobb County Juvenile Court. See Chapman,
6 We further note that Keaton’s argument regarding the falsity of Walker’s application is not supported by the record. Keaton failed to present evidence that appellees actually disregarded Cobb County hiring procedures. Initially, Walker marked on her application that she had a high school diploma and a paralegal degree when, in fact, she had a GED and a paralegal “certificate.” Walker stated during her deposition that she wrote “paralegal” in the degree section of the application because she thought there was no such thing as a paralegal degree and it would therefore be obvious that she only had a certificate. Keaton equates these responses to “false representations,” and she further argues that Walker knew the responses were false because she had correctly filled out an application in the past. However, Cobb County Director of Human Resources Anthony Hagler testified that the county’s policy does not necessarily require that a candidate be disqualified because of minor discrepancies like those on Walker’s job application. Keaton does not challenge this testimony. Thus, unlike Bass, the record does not reflect a deviation from hiring procedures. C.f. Bass, 256 F.3d at 1108. Furthermore, we have previously explained that “[t]he mere fact that an employer failed to follow its own internal procedures does not necessarily suggest that the employer was motivated by illegal discriminatory intent or that the substantive reasons given by the employer for its employment decision were pretextual.” Springer, 509 F.3d at 1350 (emphasis in original) (quoting Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995)). Any deviation from procedure that occurred in this case was minimal and does not support an inference of pretext. 13 229 F.3d at 1030 (“Provided that the proffered reason is one that might motivate a
reasonable employer, an employee must meet that reason head on and rebut it . . .
.”).
B.
Keaton next argues that appellees failed to meet their burden of responding
to her prima facie case. As previously mentioned, “if the plaintiff succeeds in
proving the prima facie case, the burden of production shifts to the defendant ‘to
articulate some legitimate, nondiscriminatory reason for the employee’s
rejection.’” Burdine, 450 U.S. at 252-53, 101 S. Ct. at 1093 (quoting McDonnell
Douglas, 411 U.S. at 802, 93 S. Ct. at 1824). As the Supreme Court has explained:
The defendant need not persuade the court that it was actually motivated by the proffered reasons. It is sufficient if the defendant’s evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. To accomplish this, the defendant must clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. Placing this burden of production on the defendant thus serves simultaneously to meet the plaintiff’s prima facie case by presenting a legitimate reason for the action and to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext. The sufficiency of the defendant’s evidence should be evaluated by the extent to which it fulfills these functions.
Burdine, 450 U.S. at 254-55, 101 S. Ct. at 1094-95 (internal citations and footnotes
14 omitted).
Here, although appellees failed to identify evidence to support the proffered
reason of Walker’s “greater experience,” appellees made clear in their motion for
summary judgment that Walker’s “greater experience” was comprised of her ten
years of experience in the legal/court setting and five years of experience with the
Juvenile Court, which was consistent with Walker’s application. In contrast to
Walker’s qualifications, appellees noted that Keaton had a college degree but only
three and one half years’ experience in the Juvenile Court. Keaton’s application
and resume were also contained in the record. Thus, appellees satisfied their
burden of production because they clearly described Walker’s experience in their
motion and the record contained supporting evidence. See Burdine, 450 U.S. at
254-55, 101 S. Ct. at 1094-95. Moreover, the district court correctly accepted
appellees’ reason as legitimate and nondiscriminatory because “greater experience”
is an established reason for selecting a different candidate. See Springer, 509 F.3d
at 1347-48 (more qualified candidate due, in part, to “significant experience”); see
also Cofield v. Goldkist, Inc., 267 F.3d 1264, 1267-68 (11th Cir. 2001) (more
qualified candidate); Moulds v. Wal-Mart Stores, Inc., 935 F.2d 252, 255-56 (11th
Cir. 1991) (greater supervisory experience).
C.
In the event that we reject her first two arguments, Keaton argues that we 15 should apply the exception advocated by the dissent in Chapman. She also argues
that we should disregard Crawford and Combs to the extent these decisions require
plaintiffs to rebut an employer’s proffered reason “head on” because the
requirement is contrary to the Supreme Court’s decisions in Reeves and Hicks. We
disagree with both suggestions.
The Supreme Court stated in Reeves that “a prima facie case and sufficient
evidence to reject the employer’s explanation may permit a finding of liability,”
and, therefore, a plaintiff need not always be required to introduce additional,
independent evidence of discrimination. Reeves, 530 U.S. at 148-49, 120 S. Ct. at
2109. “Proof that the defendant’s explanation is unworthy of credence is simply
one form of circumstantial evidence that is probative of intentional discrimination,
and it may be quite persuasive.” Id. at 147, 120 S. Ct. at 2108. “[O]nce the
employer’s justification has been eliminated, discrimination may well be the most
likely alternative explanation, especially since the employer is in the best position
to put forth the actual reason for its decision.” Id. at 147-48, 120 S. Ct. at 2108-09.
However, such a showing by a plaintiff may not always be adequate to sustain a
finding of liability because “[c]ertainly there will be instances where, although the
plaintiff has established a prima facie case and set forth sufficient evidence to
reject the defendant’s explanation, no rational factfinder could conclude that the
action was discriminatory.” Id. at 148, 120 S. Ct. at 2109; see also Hicks, 509 U.S. 16 at 511, 113 S. Ct. at 2749 (“The factfinder’s disbelief of the reasons put forward by
the defendant (particularly if disbelief is accompanied by a suspicion of mendacity)
may, together with the elements of the prima facie case, suffice to show intentional
discrimination.”).
We discussed Reeves and Hicks in Chapman. See Chapman, 229 F.3d at
1024-26. After discussing these cases and the relevant case law from our circuit,
we maintained that a plaintiff was required to produce sufficient evidence to rebut
each of an employer’s proffered legitimate, nondiscriminatory reasons. Id. at
1037; see also Springer, 509 F.3d at 1347 (citing Reeves). Specifically, the
“employee must meet that reason head on and rebut it, and the employee cannot
succeed by simply quarreling with the wisdom of that reason.” Chapman, 229 F.3d
at 1037. A panel of this Court applied the rule in less direct terms several years
earlier in Combs, 106 F.3d at 1543 (finding that evidence of the selected
candidate’s past financial impropriety could not rebut the employer’s proffered
reason of superior supervisory experience), and the rule has since been applied in
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088, 1092 (11th Cir. 2004) (citing
Chapman and finding that a decision-maker’s statement that “women aren’t
typically in that type of position,” accompanied by the decision-maker’s
concession that the passed over applicant was the “most qualified,” could rebut the
proffered reason that the selected candidate was better qualified”), Crawford, 482 17 F.3d at 1309 (finding that certain statements by a decision-maker “suggest[ed] a
retaliatory animus[] but [did] not respond to the explanation of the City that
Crawford’s performance was unsatisfactory in four other areas of his
responsibility”), and Springer, 509 F.3d at 1350 (concluding that (1) the plaintiff’s
possession of a four-year degree, which was a preferred criteria for the position,
and (2) a decision-maker’s violation of the employer’s internal procedures for
hiring that was unrelated to the employer’s proffered reason of better experience
did not constitute sufficient evidence of pretext). Nevertheless, Keaton argues that
the requirement of meeting a proffered reason “head on” is inconsistent with the
Supreme Court’s decisions in Reeves and Hicks to the extent the rule prevents a
plaintiff from indirectly demonstrating pretext by attacking the employer’s general
credibility.
Keaton’s argument seizes on concerns articulated by the dissent in
Chapman. The dissent maintained that an exception to the “head on” rule should
exist in cases where the plaintiff rebuts some of an employer’s proffered reasons in
a manner that raises sufficient doubt as to the veracity of the employer’s other
proffered reasons that the plaintiff failed to directly rebut. Chapman, 229 F.3d at
1049-50 (“[C]ommon sense also counsels that there are some situations where the
failure of one proffered reason may affect the reliability of other proffered
reasons.”). The majority, neither endorsing nor rejecting the exception, found that 18 the facts of the case did not raise questions about the employer’s credence. Id. at
1037 n.30. Similarly, we conclude that there are no such doubts in this case, and
we therefore are not presented with the question of whether an exception to the rule
in Chapman should be applied. Even if lack of credence might demonstrate pretext
in some cases, Keaton has not shown that the proffered “greater experience” reason
is unworthy of credence in this case. See Reeves, 530 U.S. at 147-48, 120 S. Ct. at
2108-09; Hicks, 509 U.S. at 531-32, 113 S. Ct. at 2760.
The district court adopted the magistrate’s findings that Keaton rebutted two
of appellees’ proffered nondiscriminatory reasons: (1) that Walker had greater
supervisory experience; and (2) that Keaton gave unsatisfactory responses during
her interview. Specifically, the magistrate found that Keaton had created an issue
of material fact as to whether “Sfreddo and Marchant-Wellman gave an honest
explanation concerning Plaintiff’s statements about the flexible schedule.” The
magistrate came to this conclusion because Keaton, in a declaration, denied making
such a statement. Further, Marchant-Wellman’s interview notes stated that a “4
day work week won’t work for Clerks,” which the magistrate found to be evidence
that Keaton did not advocate a four-day work week during the interview.7 The
magistrate also found there to be a dispute between Keaton’s recollection and the
7 The Magistrate made this assumption without any testimony from Marchant-Wellman as to what her note meant. 19 recollection of Marchant-Wellman and Sfreddo concerning whether Keaton said
during the interview that she preferred to work alone. Regarding Walker’s
supervisory experience, the magistrate found that the selection memorandum
drafted by Sfreddo was inaccurate because Walker testified during her deposition
that she did not have the extent of supervisory experience identified in the
memorandum. As a result, the magistrate also concluded that there was an issue of
fact regarding appellees’ proffered reason of selecting Walker due to her greater
supervisory experience.
The district court adopted the magistrate’s finding of pretext with regard to
these proffered reasons, and the district court’s conclusions are not challenged on
appeal. Nevertheless, we are not persuaded that Keaton rebutted these two
proffered reasons in a manner sufficient to cast doubt on the credibility of
appellees’ separate proffered reason of hiring Walker due to her greater experience
in the Juvenile Court.
Regarding Walker’s supervisory experience, Keaton is correct that Sfreddo
directed Yancey to produce a selection memorandum on the Monday following the
announcement of the promotion decision on Friday. However, Keaton exaggerates
the degree to which the memorandum was inaccurate. Walker testified during her
deposition that she did have some supervisory experience. She also stated during
her deposition that she agreed with a letter from a judge who stated that Walker 20 previously held a supervisor position. On the other hand, Walker did, at one point
in the deposition, testify that Sfreddo should have clarified in the memorandum
that Walker supervised two employees while they were in training. Walker also
stated during the deposition that she did not serve as a “backup supervisor,”
contrary to what is stated in the selection memorandum.
We are not presented with the issue of whether these inaccuracies raised a
genuine issue of material fact concerning appellees’ proffered reason of selecting
Sfreddo due to her greater supervisory experience. However, even assuming that
they did, we do not believe that the selection memorandum’s inaccuracies could
have served as sufficient evidence to challenge the credibility of appellees’
assertion that they hired Walker due to her greater experience in the Juvenile
Court.
Put differently, even assuming that the exception to Chapman exists, we do
not think that impeachment over minor inaccuracies regarding one proffered reason
can persuade a reasonable juror to find for the employee on a separate, un-rebutted
reason. This conclusion is consistent with decisions of other circuits where the
exception advocated by the Chapman dissent is recognized. See Narin v. Lower
Merion Sch. Dist., 206 F.3d 323, 332 (3d Cir. 2000) (“[W]ithout evidence of
pretext relevant to the justifications for not hiring Narin for these positions, no
rational trier of fact could find them unworthy of credence.”); Smith v. Chrysler 21 Corp., 155 F.3d 799, 809 (6th Cir. 1998) (“The doubt raised over Chrysler’s
second alternative justification for firing Smith does not translate into an inference
that the true motivation behind Smith’s discharge was his disability. The two
justifications and the sources from which they were derived were separate in nature
. . . .”); Russell v. Acme-Evans Co., 51 F.3d 64, 70 (7th Cir. 1995) (“In the face of
Acme-Evans’ uncontested grounds for transferring Russell, and with no evidence
that Acme-Evans’ true motivation was racial, no reasonable jury could infer from
doubt over whether Russell’s ‘wandering’ played a real rather than pretextual role
in the transfer that the true motivation for the transfer was indeed his race.”).
We come to the same conclusion regarding appellees’ proffered reason of
not selecting Keaton due to her interview responses. Again, we express no opinion
as to whether Marchant-Wellman’s notes and the inconsistencies between Keaton’s
testimony and Sfreddo’s testimony created an issue of material fact with regard to
the proffered reason of Keaton’s unsatisfactory interview responses. However,
even if they did, this evidence would not be sufficient to persuade a reasonable
juror to find against the veracity of a proffered reason that had nothing to do with
Thus, consistent with Reeves and Hicks, Keaton has not produced evidence
sufficient to discredit in the mind of a reasonable juror each of appellees’ proffered
legitimate, nondiscriminatory reasons for its promotion decision. See Reeves, 530 22 U.S. at 147-48, 120 S. Ct. at 2108-09; Hicks, 509 U.S. at 531-32, 113 S. Ct. at
2760; Chapman, 229 F.3d at 1037; Crawford, 482 F.3d at 1308. Like the majority
in Chapman, we do not believe that an exception to the requirement that an
employee must rebut each of the employer’s proffered reasons “head on” is
implicated by the facts of this case. For this reason, we decline to address the issue
of whether the rule articulated in Crawford, Chapman, and Combs is consistent
with Reeves and Hicks.8
D.
Keaton next argues that the district court erred by failing to address her
“mixed motive” argument. However, Keaton has waived this argument because
she effectively raises it for the first time on appeal.9 Narey v. Dean, 32 F.3d 1521,
1526-28 (11th Cir. 1994). Our case law regarding waiver suggests that Keaton’s
single, passing reference to a “mixed motive” theory in a footnote contained in her
response to appellees’ objections to the magistrate’s R&R was not sufficient to
preserve the issue for appeal. See Tallahassee Mem’l Reg’l Med. Ctr. v. Bowen,
815 F.2d 1435, 1446 n.16 (11th Cir. 1987) (stating that a single footnote in an
8 The Chapman majority discussed both Reeves and Hicks. Chapman, 229 F.3d at 1024-26. Because these cases have not been overruled by the Supreme Court or this Court sitting en banc, we are bound to follow them. E.g., United States v. Valladares, 544 F.3d 1257, 1265 (11th Cir. 2008). 9 Although we recognize five exceptions to the rule that “appellate courts generally will not consider an issue or theory that was not raised in the district court,” none of those exceptions are implicated by this case. See Narey, 32 F.3d at 1526-27. 23 initial brief did not sufficiently preserve an issue that was argued in reply brief);
see also United States v. Jernigan, 341 F.3d 1273, 1284 n.8 (11th Cir. 2003)
(holding issue abandoned where, although the defendant made passing references
to an issue in brief, the references were undertaken as background to claims that he
expressly advanced). More importantly, Keaton did not raise the “mixed motive”
issue in her original complaint, and her footnote was sufficient neither to provide
appellees with adequate notice of the new claim nor to amend the original
complaint. See Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1314-15 (11th
Cir. 2004) (holding insufficient Gilmour’s attempt to raise a new claim in response
to the employer’s summary judgment motion and noting that the proper procedure
to assert a new claim would have been to seek to amend the complaint).
E.
Finally, Keaton argues that the district court erred in dismissing the claims
against Marchant-Wellman and Sfreddo. “Although McDonnell Douglas was a
Title VII case, Title VII and section 1983 claims have the same elements where the
claims are based on the same set of facts.” Rioux v. City of Atlanta, Ga., 520 F.3d
1269, 1275 n.5 (11th Cir. 2008). The district court did not err by granting
appellees’ motion for summary judgment on Keaton’s § 1983 claims because
Keaton failed to rebut appellees’ proffered legitimate, nondiscriminatory reason
that Walker had “greater experience.” See supra Part III.A-C. Therefore, 24 Marchant-Wellman and Sfreddo were entitled to summary judgment on this issue.
See Fed. R. Civ. P. 56(c); Rioux, 520 F.3d at 1275 n.5.
III. CONCLUSION
For the foregoing reasons, the district court’s judgment is
AFFIRMED.