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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 20-11150 Non-Argument Calendar ________________________
D.C. Docket No. 4:18-cv-00125-RSB-CLR
MAGGIE TSAVARIS, Plaintiff-Appellant,
versus
SAVANNAH LAW SCHOOL, LLC, a Georgia Limited Liability Company, JOHN MARSHALL LAW SCHOOL, LLC, a Delaware Limited Liability Company, JOHN MARSHALL LAW SCHOOL, a Georgia Corporation, JMLS 1422, LLC, a Delaware Limited Liability Company, MICHAEL C. MARKOWITZ, individually, et al., Defendants-Appellees.
________________________
Appeal from the United States District Court for the Southern District of Georgia ________________________
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Before JILL PRYOR, LUCK, and TJOFLAT, Circuit Judges.
PER CURIAM:
This appeal arises from an age discrimination action filed by law professor
Maggie Tsavaris against her former employer Savannah Law School, LLC and its
parent John Marshall Law School, LLC (“SLS”).1 The United States District
Court for the Southern District of Georgia granted summary judgment in favor of
the schools and this appeal followed. For the following reasons, we affirm the
District Court’s decision to grant summary judgment.
I.
A.
Tsavaris began teaching at SLS in 2013 as a tenure-track associate professor.
At SLS, tenure-track professorships are “probationary,” meaning the law school
decides whether to continue the professor’s employment on an annual basis. A
professor becomes eligible for tenure after six years of service.
Reappointment procedures for tenure-track professors are governed by
SLS’s Faculty Handbook. The Handbook vests the authority of reappointment
with the law school’s dean, Malcolm Morris. This authority is customarily
1 Tsavaris also sued Malcolm Morris, Michael Markovitz, John Marshall Law School, and JMLS1422. The District Court granted summary judgment in favor of all Defendants, but Tsavaris challenges only the summary judgment entry for Savannah Law School, LLC and John Marshall Law School, LLC. We refer to them collectively as “SLS.”
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exercised “through recommendations to the Dean by the Retention, Promotion, and
Tenure Committee [“RPT Commitee”] after careful evaluation of the faculty
member’s performance.” When, however, a professor’s “job performance is
inadequate,” the Handbook allows the Dean to simply “choose not to reappoint”
the professor.
To aid the Dean in deciding whether to reappoint a probationary professor,
the Handbook outlines a procedure for the RPT Committee to evaluate the
professor and make a recommendation to the Dean. Each year, the RPT
Committee “evaluate[s] all aspects of the faculty member’s performance with
regard to scholarship, teaching, community service, professional conduct, and
other aspects of the faculty member’s professional duties. The evaluation will
include, among other things, class visitations and analysis of the [faculty
member’s] submitted scholarship.” The RPT Committee then submits a written
recommendation to the Dean about whether the professor should be reappointed.
SLS reappointed Tsavaris as an associate professor each year until 2017. In
January of that year, the RPT Committee recommended that Morris reappoint
Tsavaris for the 2017–2018 academic year. A few weeks later, however, the RPT
Committee sent Morris a memorandum stating that it “had not yet read” Tsavaris’
student evaluations for the fall semester at the time it evaluated Tsavaris’
performance and recommended her reappointment. The student evaluations, which
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the RPT Committee had since read, “raise[d] some concerns” that it thought Morris
may wish to address with Tsavaris. Specifically, “the evaluations . . . contain[ed] a
number of [] negative comments and Scantron responses.” The memorandum
concluded that “[w]e think student evaluations are valuable but should be taken
with a grain of salt,” especially for legal writing classes (which Tsavaris taught).
Shortly after receiving the Committee’s memorandum, Morris visited
Tsavaris’ classroom to observe her teaching as he had done on two previous
occasions. Morris was displeased with the quality of Tsavaris’ teaching and, after
reading Tsavaris’ student evaluations, found that many of her students felt
similarly. Morris said Tsavaris’ teaching was “the worst [he] had ever seen at the
school.”
On January 18, 2017, Morris told Tsavaris that he was considering not
reappointing her for the 2017–2018 academic year. At Tsavaris’ request, Morris
sent Tsavaris a letter explaining his reasons. His reasons were twofold.
First and foremost, Morris was considering not reappointing Tsavaris
because the teaching performance he observed from her fell short of the standard
of “strong teaching” described in the Faculty Handbook. Morris observed “almost
no interaction with the students” when he visited Tsavaris’ classroom. “[I]n one
instance almost the entire class involved little more than [Tsavaris] reading from a
book and explaining . . . what the author was conveying and why it was useful
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information.” “Given your prior teaching experience,” the letter continues, “one
would expect your teaching to be closer to being ‘excellent’ or ‘good’ at this time.”
Second, Tsavaris’ student evaluations confirmed Morris’ impression of her
teaching. Over half of the students in her legal writing class indicated that Tsavaris
“did not hold their attention in class nor ma[ke] good use of class time.” In her
pretrial advocacy course, one third of students said she “did not hold their
attention” and over one third said she “did not make use of class time.” Morris
concluded that these evaluations “confirm my view that the students are not
engaged effectively in the class.”
Tsavaris responded to Morris’ reasons in a letter on January 27, 2017. She
explained that a drug she was taking for pain was interfering with her teaching
ability. She assured Morris that the unsatisfactory teaching he had observed was
due to the drug and informed him that she had stopped taking it “so that [she
could] return to being an excellent professor.” Tsavaris also addressed several
negative student evaluations, either conceding the criticisms and pledging to
improve or rebutting them.
On January 31, 2017, Morris sent Tsavaris a letter informing her that he
would not be reappointing her for the 2017–2018 academic year and that her
employment with SLS would terminate on July 31, 2017. Morris reiterated that
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“the primary but not exclusive reason for the decision is my evaluation of your
teaching.”
After terminating Tsavaris, Morris hired two associate professors—Mark
Hoch and Lauren Knight—to teach the legal writing courses Tsavaris had taught.
Tsavaris estimates that Hoch is in his fifties and Knight in her thirties.
B.
On May 25, 2018, Tsavaris sued SLS in the United States District Court for
the Southern District of Georgia. Her complaint alleged, among other things, that
SLS’s decision not to reappoint her was based on her age (which was sixty), in
violation of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621–634
(“ADEA”).
After discovery, SLS moved for summary judgment, arguing that Tsavaris’
age discrimination claim failed as a matter of law because (1) there was no direct
evidence of discriminatory animus and (2) Tsavaris failed to show a similarly
situated comparator.
The District Court recognized that an ADEA plaintiff can withstand
summary judgment in three potential ways: (1) through direct evidence of age
discrimination; (2) the McDonnell Douglas framework; or (3) by otherwise
presenting a “convincing mosaic of circumstantial evidence that warrants an
inference of intentional discrimination.”
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The Court found that the evidence Tsavaris called “direct” at most suggested
discrimination and was therefore circumstantial. As to the McDonnell Douglas
framework, the Court found that Tsavaris established a prima facie case of age
discrimination but concluded that she failed to show that SLS’s proffered reason
for her nonrenewal (her inadequate teaching performance) was pretext. Finally,
the Court concluded that Tsavaris failed to present a convincing mosaic of
circumstantial evidence because, once again, she failed to show pretext.
On appeal, Tsavaris argues the District Court erred in holding that she did
not (1) present direct evidence; (2) show pretext; or (3) establish a convincing
mosaic of circumstantial evidence. We reject Tsavaris’ arguments and affirm the
District Court.
II.
We review de novo a district court’s order granting summary judgment,
viewing all evidence and drawing all reasonable inferences in favor of the
non-moving party. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th
Cir. 2005). Summary judgment is appropriate when the record shows that there is
no genuine issue as to any material fact and the movant is entitled to judgment as a
matter of law. Fed. R. Civ. P. 56(a).
Under the ADEA, it is unlawful for an employer “to fail or refuse to hire or
to discharge any individual or otherwise discriminate against any individual with
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respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). To prevail on an ADEA
claim, an employee must show that age was the but-for cause of the adverse
employment action. Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
As the District Court correctly noted, an ADEA plaintiff may withstand
summary judgment in three potential ways: (1) through direct evidence of age
discrimination; (2) by carrying her burden under the McDonnell Douglas
framework; (3) or by otherwise presenting a “convincing mosaic of circumstantial
evidence that warrants an inference of intentional discrimination.” We consider
each in turn.
When an ADEA plaintiff presents direct evidence of age discrimination,
summary judgment is improper. Merritt v. Dillard Paper Co., 120 F.3d 1181,
1189 (11th Cir. 1997). We have defined direct evidence as evidence reflecting a
discriminatory attitude correlating to the discrimination complained of by the
employee. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1358
(11th Cir. 1999). “[T]he evidence must indicate that the complained-of
employment decision was motivated by the decision-maker’s ageism.” Id. at
1358–59 (emphasis in original). Thus, “only the most blatant remarks, whose
intent could be nothing other than to discriminate on the basis of age will constitute
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direct evidence.” Id. at 1359 (quotation marks omitted). The quintessential
example is “a management memorandum saying, ‘Fire Earley—he is too old.’” Id.
(quoting Earley v. Champion Intern. Corp., 907 F.2d 1077, 1081 (11th Cir. 1990)).
Conversely, evidence that merely “suggests discrimination” and “leav[es]
the trier of fact to infer” it is not direct evidence. Earley, 907 F.2d at 1081–82
(emphasis in original). The same is true of evidence that is “subject to more than
one interpretation.” Merritt, 120 F.3d at 1189.
We agree with the District Court that Tsavaris failed to present direct
evidence of age discrimination. Tsavaris argues that Morris’ deposition testimony
is direct evidence that he chose not to renew her because of her age. Specifically,
she points to Morris’ statement that the professors whose employment he chose to
renew for 2017–2018 were “younger in time [than Tsavaris], so . . . to the extent
there were issues, they had opportunities to correct them.”
Tsavaris admits, however, that Morris’ statement is ambiguous. By
“younger in time,” Morris could have been referring to the professors’ ages, which
would amount to a direct admission that he chose not to renew Tsavaris because
she was older than other professors. On the other hand, he could have meant that
Tsavaris had more experience as a law professor than the others and therefore less
time to improve before becoming eligible for tenure. Only the former would
amount to direct evidence of age discrimination. See Hazen Paper Co. v. Biggins,
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507 U.S. 604, 612, S. Ct. 1701, 1706 (1993) (while an employee can act based on
characteristics that are correlated with age, the employer must “focus on those
factors directly” and may not “rely on age as a proxy”). By admitting this
ambiguity, Tsavaris defeats her argument that the statement is direct evidence,
since direct evidence must not be “subject to more than one interpretation.”
Merritt, 120 F.3d at 1189.
We conclude, therefore, that the District Court correctly found that Tsavaris’
case was based only on circumstantial evidence.
When a plaintiff attempts to prove her case using only circumstantial
evidence, we generally apply the burden-shifting framework established by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.
1817 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S.
248, 101 S. Ct 1089 (1981). Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th
Cir. 2000) (en banc). This framework puts the initial burden on the plaintiff to
establish a prima facie case of retaliation. McDonnell Douglas, 411 U.S. at 802,
93 S. Ct. at 1824; Eskra v. Provident Life and Acc. Ins. Co., 125 F.3d 1406, 1411
(11th Cir. 1997). Once the plaintiff establishes a prima facie case, the burden of
production shifts to the defendant employer, who must articulate a legitimate,
nondiscriminatory reason for the challenged employment action. Eskra, 125 F.3d
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at 1411. If the defendant articulates one or more such reasons, the plaintiff must
produce evidence sufficient for a reasonable factfinder to conclude that the reasons
given by the employer were pretext and that the real reason was discriminatory.
Id.; St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 507–08, 113 S. Ct. 2742, 2747–
48 (1993).
To show pretext, the plaintiff may demonstrate “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its action that a reasonable factfinder could find
them unworthy of credence.” Alvarez v. Royal Atl. Dev., 610 F.3d 1253, 1265
(11th Cir. 2010) (quotation marks omitted). Simply introducing evidence of
discriminatory animus unconnected to the employer’s proffered reasons is
insufficient. See Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1309 (11th
Cir. 2007).
The District Court found that Tsavaris established a prima facie case of age
discrimination and SLS does not cross-appeal the issue. Therefore, the only
question before us is whether Tsavaris introduced sufficient evidence to show that
SLS’s reason for her nonrenewal was pretext and that the real reason was
discriminatory.
We agree with the District Court that Tsavaris failed to show that SLS’s
proffered reason for her nonrenewal was pretext. SLS’s primary explanation for
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Tsavaris’ nonrenewal was that Morris had personally observed Tsavaris’ teaching
and found it wanting for a professor of Tsavaris’ experience. To a lesser extent,
Morris’ decision was also based on negative student evaluations of Tsavaris’
teaching. By our count, Tsavaris makes six separate pretext arguments. We
address and reject each in turn.
First, Tsavaris attempts to show pretext by arguing that Morris’ deposition
testimony contradicts SLS’s proffered explanation, showing that the real reason
behind her nonrenewal was her age. Specifically, she points to Morris’ statement
that, when making employment decisions, he “takes into context whether these are
young professors who are first starting out and getting their legs firm in the ground
or if these are seasoned professors who . . . should have matured at this point in
their careers.”
While we have recognized that “an employer’s failure to articulate clearly
and consistently the reason for an employee’s discharge may serve as evidence of
pretext,” Hurlbert v. St. Mary’s Health Care Sys., Inc., 439 F.3d 1286, 1298 (11th
Cir. 2006), we are unpersuaded that Morris’ testimony contradicts SLS’s proffered
explanation or in any way supports an inference of discrimination. Immediately
after the statement, Morris was asked whether “youth makes a difference” in his
evaluations. Morris responded “[e]xperience makes a difference,” and clarified
that he meant “young in terms of years . . . in the profession.” Thus, Morris’
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testimony shows only that he considered professors’ experience levels, not their
ages, in evaluating their performance. This is permissible under the ADEA and
perfectly consistent with SLS’s proffered explanation. See Hazen Paper, 507 U.S.
at 611, 113 S. Ct. at 1706–07 (recognizing that “an employee’s age is analytically
distinct from his years of service”).
Second, Tsavaris attempts to show pretext by arguing that SLS treated her
differently than similarly situated comparators. Tsavaris specifically points to her
colleague Shakira Pleasant, who was renewed even though she had performance
evaluations that were at least as negative as Tsavaris’. 2
Even if we assume that disparate treatment of similarly situated comparators
is sufficient to establish pretext, Tsavaris’ argument fails because Pleasant was not
similarly situated. We have required comparators to be “similarly situated in all
material respects.” Lewis v. City of Union City Ga., 918 F.3d 1213, 1218 (11th
Cir. 2019) (en banc). Though a “comparator[] need not be the plaintiff’s
doppelganger[],” she will ordinarily “share the plaintiff’s employment or
2 Tsavaris also relies on the deposition testimony of her colleague Marc Roark to establish disparate treatment of additional comparators. Roark stated that the “RPT committee observed younger . . . professors who raised greater concerns for classroom effectiveness than Professor Tsavaris.” Although the RPT Committee reported these concerns to SLS’s Associate Dean, the professors were nonetheless renewed for the 2017–2018 academic year. Because the record does not specifically identify who these professors were, Tsavaris cannot rely on them as similarly situated comparators. See Jackson v. BellSouth Telecomm., 372 F.3d 1250, 1274 (11th Cir. 2004) (rejecting “non-specific claims of disparate treatment” that “failed to identify any specific” individuals).
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disciplinary history.” Id. at 1226–27 (citation omitted). Put another way, “a
plaintiff and her comparators must be sufficiently similar, in an objective sense,
that they ‘cannot reasonably be distinguished.’” Id. at 1227 (quoting Young v.
United Parcel Serv., Inc., 575 U.S. 206, 135 S. Ct. 1338, 1355 (2015)).
Pleasant’s situation was materially distinct from Tsavaris’ in at least three
respects. First, Pleasant had not been teaching at SLS as long as Tsavaris had. 3
Morris testified that this was an important consideration in evaluating professors
and deciding whether to renew their employment, and it is not for this Court to say
otherwise. See Damon, 196 F.3d at 1361 (“We are not in the business of adjudging
whether employment decisions are prudent or fair.”) Second, the RPT Committee
sent a memo to Morris highlighting Tsavaris’ negative student evaluations.
Neither Pleasant nor any other professor was singled out in a similar manner.
Third, after receiving the RPT Committee’s memo, Morris personally observed
Tsavaris’ teaching and concluded it was the worst he had seen at SLS. There is no
3 Tsavaris argues there is a genuine issue of fact as to whether she had more teaching experience than Pleasant. She gives two reasons. First, while she admits she began teaching at SLS one year before Pleasant, she argues that this one year is insignificant because she did not receive any training for the first semester. Second, she notes that Pleasant was paid a higher salary than she was. According to Tsavaris, this creates an issue of fact as to whether she was more experienced. These points are insufficient to overcome the undisputed fact that Tsavaris was a more senior SLS professor than Pleasant. That Tsavaris received no formal training for a semester and was paid less than Pleasant is immaterial to the issue.
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indication in the record that Morris observed a comparable teaching performance
from Pleasant. For these reasons, Tsavaris failed to establish that Pleasant was a
similarly situated comparator, and we accordingly reject her pretext argument.
Third, Tsavaris argues that pretext follows from the fact that she was the
oldest professor at SLS and the only professor that SLS has ever chosen not to
renew. She also notes that, according to her colleague Marc Roark, Morris’
decision not to renew Tsavaris was “highly unusual[] [and] non-transparent.”
The logic of Tsavaris’ pretext argument seems to be that suspicious
circumstances surrounding an employment decision undermine the employer’s
proffered explanation for the decision. Such an argument flatly contradicts the
principle that “[s]imply introducing evidence of discriminatory animus
unconnected to the employer’s proffered reasons is insufficient to establish
pretext.” Crawford, 482 F.3d at 1309. We therefore reject the argument.
Fourth, Tsavaris argues that Morris routinely failed to observe standard
procedures prescribed by the Faculty Handbook in deciding whether to renew SLS
professors and that this shows pretext. Specifically, Morris disregarded the RPT
Committee’s recommendations in favor of his own “biased and discriminatory
judgment,” resulting in favorable treatment of younger professors over older ones.
We have recognized that “an employer’s deviation from its own standard
procedures may serve as evidence of pretext.” Hurlbert, 439 F.3d at 1299. Here,
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however, Morris acted in accordance with the Faculty Handbook’s procedures.
The Handbook gives Dean Morris alone the authority to make reappointment
decisions. And when a professor’s performance is inadequate, the Handbook
allows the Dean to “choose not to reappoint” the professor regardless of what the
RPT Committee recommends. Tsavaris’ argument is therefore without merit.
Fifth, Tsavaris attempts to show pretext by directly rebutting Morris’
judgment that she was a poor teacher. In some cases, we have said this is a valid
way to show pretext when an employer’s proffered reason for a decision is the
employee’s alleged poor performance. See, e.g., Damon, 196 F.3d at 1364–65
(employee demonstrated pretext by introducing evidence creating a “genuine
dispute of material fact as to his job performance”).
Assuming this theory of pretext applies in the present case, we find that
Tsavaris failed to introduce evidence sufficient to create a genuine issue of fact as
to her teaching performance. In support of her argument, she relies chiefly on the
letter she sent Morris after he warned her that he was considering not renewing her
employment. In that very letter, however, Tsavaris admitted that her performance
had been lackluster and pledged to do better. And, in any case, we require more
than an employee’s subjective disagreement with her employer’s assessment of her
performance to establish pretext. See Chapman, 229 F.3d at 1030 (“A plaintiff is
not allowed to . . . substitute his business judgment for that of the employer.”);
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Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997) (“[A] plaintiff
may not establish that an employer’s proffered reason is pretextual merely by
questioning the wisdom of the employer’s reason.”); Elrod v. Sears, Roebuck &
Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (“Federal courts do not sit as a super-
personnel department that reexamines an entity’s business decisions. . . . Rather,
our inquiry is limited to whether the employer gave an honest explanation of its
behavior.” (quotation marks omitted)).
Finally, Tsavaris argues that Morris did not verify Tsavaris’ experience level
before deciding not to renew her employment, and that this shows that SLS’s
explanation that she was performing poorly for her experience level is pretext.
We reject Tsavaris’ argument because it is flatly contradicted by the record.
Far from showing that Morris assumed that Tsavaris had a certain experience level
merely because of her age, the record shows that he requested and received a list of
SLS’s probationary professors and the dates on which they would be eligible for
tenure a few months before Tsavaris’ nonrenewal. Morris, therefore, did not have
to assume Tsavaris’ experience level.
In sum, Tsavaris failed to show that SLS’s proffered reason for not renewing
her employment was pretext. The District Court therefore properly concluded that
Tsavaris failed to carry her burden under the McDonnell Douglas framework.
C.
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Notwithstanding a plaintiff’s failure to establish a prima facie case of
discrimination under McDonnell Douglas, she may survive summary judgment if
she presents a convincing mosaic of circumstantial evidence that creates a triable
issue about the employer’s discriminatory intent. Smith v. Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff may establish a
convincing mosaic with evidence that demonstrates, among other things: (1)
suspicious timing, ambiguous statements, and other bits and pieces from which an
inference of discriminatory intent might be drawn; (2) systematically better
treatment of similarly situated employees; and (3) that the employer’s justification
is pretextual. Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185 (11th Cir.
2019).
We agree with the District Court that Tsavaris failed to present a convincing
mosaic of circumstantial evidence sufficient to preclude summary judgment. For
the most part, Tsavaris relies on the same evidence to establish a mosaic as she
does to show pretext. Those arguments fail under Smith for the same reasons they
fail under McDonnell Douglas.
The strongest evidence for Tsavaris still only gets her halfway there. Her
colleague Roark stated in an affidavit that Morris told the RPT Committee in
September 2016—four months before he observed her teaching—that he had
resolved not to renew Tsavaris’ employment for the 2017–2018 academic year.
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This is strong evidence that SLS’s proffered explanation is pretext. If Morris made
up his mind to terminate Tsavaris before observing her teaching, then his
observation could not have been the basis for his decision. However, the evidence
is insufficient for a jury to make the further inference that Tsavaris’ age, rather
than some other factor, was the reason for her termination. See Springer v.
Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (“[A]
reason is not pretext for discrimination unless it is shown both that the reason was
false, and that discrimination was the real reason.” (quotation marks omitted)).
The District Court therefore correctly concluded that Tsavaris failed to
present a mosaic of circumstantial evidence sufficient to withstand summary
judgment.
III.
For the foregoing reasons, we affirm the District Court’s decision to enter
summary judgment for SLS.
AFFIRMED.