Jo-Ann Marcelle Brooks v. CSX Transportation, Inc. ( 2014 )

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 13-12048
Non-Argument Calendar
________________________
D.C. Docket No. 3:09-cv-00379-HLA-TEM
JO-ANN MARCELLE BROOKS,
Plaintiff-Appellant,
versus
CSX TRANSPORTATION, INC.,
Defendant-Appellee,
GARY GAMBLE,
in his official capacity as Manager of CSX and individually, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(February 7, 2014)
Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.
PER CURIAM:
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Jo-ann Brooks, an African-American woman over the age of 40, appeals the
district court’s grant of summary judgment in favor of her former employer, CSX,
Transportation, Inc. (“CSX”) in her employment discrimination suit under the Age
Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621; Title VII, 42
U.S.C. § 2000e-2(a); and 42 U.S.C. § 1981. In her twice-amended complaint,
Brooks alleged several causes of action under each statute, including a
discriminatory failure to promote, discriminatory termination, and unlawful
retaliation. On appeal, Brooks argues that: (1) the court improperly found that her
failure-to-promote claims under the ADEA and Title VII were time-barred; (2) the
court incorrectly found that she failed to establish a prima facie case of race
discrimination under § 1981 for each promotion denial; (3) the court erred in
concluding that she failed to establish a prima facie case of discrimination under
the ADEA, Title VII, and § 1981 based on her termination; and (4) the court erred
in concluding that she failed to demonstrate pretext with respect to her retaliation
claims under ADEA, Title VII, and § 1981. After careful review, we affirm.
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmovant. Castleberry v. Goldome
Credit Corp., 408 F.3d 773, 785 (11th Cir. 2005). Summary judgment is
appropriate if the record evidence, including depositions, declarations, and
admissions, shows that there is no genuine issue as to any material fact and that the
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movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a), (c). If the
movant meets its initial burden of demonstrating the absence of a genuine issue of
material fact, then the burden shifts to the nonmovant to come forward with
specific facts showing that there is a genuine issue for trial. Castleberry, 408 F.3d
at 786. Conclusory allegations without specific supporting facts have no probative
value in the summary judgment context. Leigh v. Warner Bros., Inc., 212 F.3d
1210, 1217 (11th Cir. 2000). An affidavit or declaration used to support or oppose
a motion must be made on personal knowledge. Fed.R.Civ.P. 56(c).
First, we are unpersuaded by Brooks’s argument that her ADEA and Title
VII failure-to-promote claims were timely. Title VII requires that a plaintiff
exhaust certain administrative remedies, which begins by filing a timely charge of
discrimination with the EEOC, before filing a suit for employment discrimination.
See 42 U.S.C. §§ 2000e-5. For a charge to be timely in a deferral state like
Florida, it must be filed within 300 days of the last discriminatory act. See
E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1271 (11th Cir. 2002). Thus,
only those claims arising within 300 days prior to the filing of the EEOC’s
discrimination charge are actionable. Id.
The continuing violation doctrine permits a plaintiff to sue on an otherwise
time-barred claim where at least one other violation occurred within the statutory
period. Hipp v. Liberty Nat. Life Ins. Co., 252 F.3d 1208, 1221 (11th Cir. 2001).
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However, the doctrine does not apply to discrete acts of discrimination, such as a
promotion denial or refusal to hire. See Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 114 (2002) (noting that each instance of failure to promote or refusal
to hire is a discrete act of discrimination that constitutes a “separate actionable
unlawful employment practice”) (quotation omitted). Alternatively, a court may
equitably toll a limitations period, but the burden is on the plaintiff to establish that
tolling is warranted. Bost v. Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir.
2004). Equitable tolling “is an extraordinary remedy which should be extended
only sparingly,” and is inappropriate when a plaintiff did not file an action
promptly or failed to act with due diligence. Id. (quotation omitted).
Here, all of Brooks’s ADEA and Title VII failure-to-promote claims were
time-barred. Because Brooks filed her EEOC charge on June 17, 2008, any
discriminatory act she complained of must have occurred within 300 days, or on or
after August 22, 2007, to be timely. Joe’s Stone Crabs, 296 F.3d at 1271. As
Brooks’s admissions reveal, however, all of the promotion denials occurred before
that date. While she now says she was unaware of certain promotion decisions,
she did not seek to withdraw her admissions before the district court, and thus, that
evidence conclusively established the matter. See Fed.R.Civ.P. 36(b) (noting that
a matter admitted in response to a request pursuant to Rule 36 of the Federal Rules
of Civil Procedure is “conclusively established unless the court, on motion, permits
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the admission to be withdrawn or amended”). Further, Brooks’s equitable tolling
argument is unavailing because she failed to raise it before the district court, and
thus, we need not consider it now. See Access Now, Inc. v. SW Airlines Co., 385
F.3d 1324, 1331-32 (11th Cir. 2004). Moreover, Brooks’s failure to establish the
timeliness of the latest alleged discriminatory promotion denial precluded the
application of the continuing violation doctrine as to the earlier five promotion
denials. Hipp, 252 F.3d at 1221.
We also disagree with Brooks’s claim that she established a prima facie case
of race discrimination under § 1981 for each promotion denial. Like Title VII, §
1981 prohibits discrimination on the basis of race, and we routinely group Title VII
and § 1981 claims together for analytic purposes. 42 U.S.C. § 1981(a) (protecting
against race discrimination only); Jimenez v. Wellstar Health Sys., 596 F.3d 1304,
1312 (11th Cir. 2010). In cases like this one, lacking direct evidence of
employment discrimination, we use the McDonnell Douglas framework, in which
the plaintiff must create an inference of discrimination through a prima facie case.
Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344, 1347 (11th Cir.
2007) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).
Where a plaintiff alleges intentional discrimination based on a failure to
promote, the prima facie showing requires, inter alia, that the plaintiff was
qualified for and applied for a position, and that despite those qualifications, she
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was rejected. See McCann v. Tillman, 526 F.3d 1370, 1373, 1375 (11th Cir.
2008). Once a plaintiff makes a prima facie case, the burden shifts to the employer
to articulate a nondiscriminatory reason for its employment action. Springer, 509
F.3d at 1347. If the employer meets its burden, the plaintiff must show that the
proffered reason was pretext for discrimination. Id. A plaintiff may show pretext
by identifying “weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions,” in the proffered reasons so that “a reasonable factfinder could find
them unworthy of credence.” Id. at 1348-49 (quotations omitted). A plaintiff must
also show, as part of pretext, that discrimination was the real reason. Id. at 1349.
In the failure-to-promote context, evidence of a disparity in qualifications
between the plaintiff and the candidate selected may establish pretext, regardless of
whether a court looks to that evidence at the prima facie stage. Ash v. Tyson
Foods, Inc., 546 U.S. 454, 457 (2006). “A plaintiff must show that the disparities
between the successful applicant’s and [his] 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.” Brooks v.
Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006). An
employee’s own testimony about his qualifications is “weak and insubstantial”
evidence of comparative qualifications. See Ford v. Gen. Motors Corp., 656 F.2d
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117, 119 (5th Cir. Unit B Sept. 1981)1; see also Vessels v. Atlanta Indep. Sch.
Sys., 408 F.3d 763, 769 (11th Cir. 2005) (explaining that a plaintiff making a
prima facie case must satisfy “an employer’s objective qualifications”). Further,
objective “[e]mployment tests can be an important part of a neutral selection
system that safeguards against the very racial animosities Title VII was intended to
prevent.” Ricci v. DeStefano, 557 U.S. 557, 584 (2009).
First, as for the Human Resources (“HR”) Management Trainee position,
even if we assume that Brooks was at least as qualified as the selected candidate,
Brooks failed to present evidence that CSX’s hiring decision was pretextual. The
recruiter for the position said that she did not select Brooks for an interview
because Brooks was not sufficiently qualified; Brooks’s supervisor had not
recommended her for the position; and the successful candidate was the most
qualified applicant. Brooks offered nothing to indicate that these qualifications-
based reasons were not the real reasons for CSX’s decision, or that race-based
animus was. The sole “evidence” Brooks relies on is that the person who received
the job was white. This fact alone, while relevant at the prima facie stage, is
insufficient to show a genuine issue of fact as to pretext, because it does not
establish falsity or that the true reason for the promotion was an impermissible one.
Similarly, as for the Logistics Coordinator position, she also failed to present
1
Decisions issued by a Unit B panel of the former Fifth Circuit constitute binding
precedent. See Stein v. Reynolds Secs., Inc., 667 F.2d 33, 34 (11th Cir. 1982).
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evidence of pretext. The only evidence she identified was that the hiring manager
and the selected candidate were white. This evidence, again, is unavailing in the
summary judgment context.
As for both Staffing Specialist positions, Brooks did not establish a prima
facie case of discrimination because she conceded that the denial of those positions
was based solely on her age, which is not a protected characteristic under § 1981.
See 42 U.S.C. § 1981(a). As for the Environmental Contracts Supervisor position,
Brooks did not establish a prima facie case of discrimination because she failed to
show that she was qualified for the position. CSX sought applicants who had
experience with several computer programs, including “RAR” and Oracle. In her
phone interview, Brooks admitted that she had only limited experience with
Oracle, and in her deposition, she testified that she did not have experience with
RAR. Further, Brooks’s interview evaluation form showed that she received an
overall rating of “almost meets requirements.” By contrast, the selected candidate
received an overall rating of “meets expectations,” and was responsible for
generating reports using Oracle in her former job.
Finally, the record demonstrates that Brooks was not equally or more
qualified than the individual selected for the final promotion at issue, manager of
the Personnel Attendance Central Services (“PACS”) computer system. The
qualifications for the position provided that the selected candidate must have,
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among other things, “functional/technical” competencies, including extensive
knowledge of the PACS system. Brooks was only able to perform one out of the
five PACS functions tested in one of her interview questions, and she only met the
requirements with respect to one out of the remaining six questions. On the other
hand, the selected candidate performed all of the system tasks and met or exceeded
the requirements with respect to the remaining questions as well. Although Brooks
argues that her supervisor intentionally manipulated the PACS Management
interview because he added the PACS task-performance question, she again failed
to produce any evidence tying his inclusion of that question to race-based animus.
Nor can we conclude that Brooks established a prima facie case of
discrimination under the ADEA, Title VII, or § 1981 based on her termination.
Where a plaintiff alleges discriminatory discipline or termination, we have framed
the prima facie showing to require that (1) the plaintiff is a member of a protected
class, (2) she was subjected to an adverse employment action, (3) the employer
treated similarly situated employees outside the class more favorably, and (4) she
was qualified to do her job. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999). In deciding whether employees are similarly situated, we must consider
whether the employees are “involved in or accused of the same or similar conduct
and are disciplined in different ways.” Id. To prevent courts from second guessing
employers’ reasonable employment decisions, we require that the quantity and
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quality of the comparator’s misconduct be “nearly identical” to the plaintiff’s. Id.
Further, differences in treatment by different supervisors or decision-makers can
seldom be the basis for a viable claim of discrimination. Silvera v. Orange Cnty.
Sch. Bd., 244 F.3d 1253, 1261 n.5 (11th Cir. 2001). “Conclusory allegations of
discrimination, without more, are not sufficient to raise an inference of pretext or
intentional discrimination where an employer has offered extensive evidence of
legitimate, non-discriminatory reasons for its actions.” Young v. Gen. Foods
Corp., 840 F.2d 825, 830 (11th Cir. 1988) (quotations and alterations omitted).
As an initial matter, Brooks’s counseled brief cites exclusively to Title VII
concerning her disparate termination claim, and contains a single passing reference
to one supervisor’s age. Thus, she has abandoned any age-based discriminatory
termination claim under the ADEA. See Greenbriar, Ltd. v. City of Alabaster, 881
F.2d 1570, 1573 n.6 (11th Cir. 1989) (holding that a passing reference to an issue
in a party’s appellate brief is insufficient to preserve that issue for appellate
review). Likewise, she never cites § 1981 in her termination discussion asserting
race discrimination, so she has failed to “plainly and prominently” indicate that she
is seeking appellate relief under § 1981 in addition to Title VII. See United States
v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a
claim or issue on appeal must plainly and prominently so indicate.”).
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As for her claim under Title VII, Brooks has failed to establish a prima facie
case of race discrimination based on her termination because she relied on
insufficient comparator evidence and presented no other probative evidence of
disparate treatment. Notably, the evidence in the record revealed that before
Brooks was fired, CSX learned that she had been operating a travel business during
company time and using company resources, and had falsified payroll records by
paying herself for eight hours of work on days when she did not perform that
amount. Brooks testified that she knew of several employees who violated various
company policies, and she presented the affidavit of a coworker who asserted the
same. Nevertheless, the evidence showed that CSX only knew about one of those
employees’ alleged misconduct, and as a result, none of the other employees
constituted valid comparators. Further, although CSX reprimanded the remaining
employee for using company resources for personal business, that employee’s
misconduct was not “nearly identical” to Brooks’s because she did not conduct her
business during working hours or falsify her payroll records. They also had
different supervisors. Thus, the employee was an insufficient comparator to
establish an inference of disparate treatment. And Brooks’s assertion that her
misconduct-related suspension had no basis in CSX’s policies is meritless: CSX’s
Acceptable Use policy expressly says that a violation could result in termination.
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Finally, we reject the claim that she demonstrated pretext with respect to her
retaliation claims under ADEA, Title VII, and § 1981. If a plaintiff establishes a
prima facie case of retaliation under the McDonnell Douglas framework, then the
employer has an opportunity to articulate a legitimate, non-retaliatory reason for
the challenged employment action as an affirmative defense to liability. Goldsmith
v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008). The plaintiff bears
the ultimate burden of proving retaliation by a preponderance of the evidence and
that the reason provided by the employer is a pretext for prohibited retaliatory
conduct. Id.
Here, even if we were to assume that Brooks established a prima facie case
of retaliation, CSX offered a legitimate, non-retaliatory reason for Brooks’s
termination: her violation of several company policies. Further, Brooks failed to
produce any evidence demonstrating that CSX’s proffered reason was false or that
the real reason was to retaliate against her for expressing her concerns to upper
management. As for her claim that the call transcripts CSX relied on in
suspending and ultimately firing her are invalid as evidence of a legitimate, non-
retaliatory reason , we disagree. Contrary to Brooks’s assertion that the transcripts
are “undecipherab[le]” due to heavy redactions, only two transcripts contain
redactions, and those redactions appear to cover only the callers’ personal
information, such as Brooks’s cell phone number and a travel client’s home
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address. Although Brooks contests the other additional investigative methods that
revealed further violations because they were new, she produced no evidence that
the revealed violations were not true and were used by CSX as a pretext to fire her.
AFFIRMED.
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