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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 18-11081
Non-Argument Calendar
________________________
D.C. Docket No. 2:16-cv-00340-RDP
KENNETH E. DUKES,
Plaintiff-Appellant,
versus
SHELBY COUNTY BOARD OF EDUCATION,
AUBREY MILLER,
President of the Board of Education in his official and individual capacities,
PEG HILL,
Vice President of the Board of Education in her official and individual capacities,
JIMMY BICE,
Member of the Board of Education in his official and individual capacity,
JANE HAMPTON,
Member of the Board of Education in her official and individual capacities, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(March 26, 2019)
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Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.
PER CURIAM:
Kenneth Dukes sued the Shelby County Board of Education, five of its
members, Aubrey Miller, Peg Hill, Jimmy Bice, Jane Hampton, and Kevin Morris
(collectively, the “Board Members”), and Randy Fuller, Shelby County Schools
Superintendent. Dukes claims the Board, the Board Members, and Fuller
discriminated against him by failing to promote him on account of his race, in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and
42 U.S.C. §§ 1981 and 1983. The district court granted summary judgment for the
Board, the Board Members, and Fuller. After careful review, we affirm.
I.
Dukes, an African-American male, started working for Shelby County
Schools in 1986 as a substitute bus driver. He became a regular bus driver in 1988.
Although his stops and exact route are modified every year, his route has covered
the same general area for at least the past 20 years. Between 1989 and 1994,
Dukes also worked as a weekend and summer bus driver for a private company,
Shelby County Area Transportation. In this position, he drove Shelby County
residents to different medical appointments and transported campers from the
airport to a university, where a soccer camp was held.
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Dukes has also held a variety of leadership positions related to bus driving.
He served on a committee that made recommendations about “bus routes, bus
equipment, and apparatus needs, policies with respect to bus drivers” to the
Board’s Transportation Department. He also served as the President of the Shelby
County Education Support Professionals, a division of the Alabama Education
Association for Shelby County Schools. As President, Dukes was the “go-to
person for all [of the other bus drivers’ needs], including routing, bus equipment
concerns, [and] student and parent problems and complaints.” He was also the
Alabama Education Association’s representative for support personnel, which
included the bus drivers employed by the Board. In both these positions, Dukes
says the Board’s Transportation Department contacted him for his expertise on bus
routes, equipment, purchasing, and policies.
Dukes first applied to be a transportation route supervisor in 2012. A panel
of four Shelby County Schools employees interviewed eleven candidates,
including Dukes. The panel ultimately recommended Samuel “Brian” Miller for
the position to Superintendent Fuller, who in turn recommended Brian Miller to the
Board. Brian Miller said in his interview he had five years experience as a full-
time substitute bus driver, which required him to drive throughout Shelby County.
The panel therefore felt Brian Miller would be better suited for the position since
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he had more experience driving in a variety of areas in Shelby County, as opposed
to a single generalized area. The Board ultimately hired Brian Miller.1
After being rejected from the 2012 position, Dukes went and spoke with
Aubrey Miller, the only African-American person on the Board. Dukes told
Aubrey Miller there were no minorities in the Transportation Department, and that
he applied for the position in 2012 but was rejected then as well. In response,
Aubrey Miller told Dukes to let him know when Dukes applied for the
transportation route supervisor position again and he “would keep an eye on it.”
Dukes applied to be a transportation route supervisor again in 2014 when
Shelby County Schools posted another vacancy, and informed Aubrey Miller he
had applied. As with the 2012 transportation route supervisor position, a panel of
four Shelby County Schools employees conducted interviews. Only three
applicants and Dukes were officially “interviewed” for the position. Two of these
applicants, including Brent Copes, had been interviewed two weeks before as part
of the hiring process for a transportation coordinator position. Using a recent
interview for a candidate was standard procedure when a candidate was
interviewed for more than one position in a short timeframe. The panel decided to
1
The Board initially posted a notice of vacancy for two transportation route supervisor
positions. Ultimately, Shelby County Schools decided to fill only one position because Shelby
County Schools needed to reduce expenses when one of Shelby County’s municipalities,
Alabaster, created a separate school district.
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recommend Copes even though he had been disciplined for bringing his special
needs child on a school field trip. The panel noted Copes had previous leadership
experience as a principal and assistant principal.
The Board voted to hire Copes as the transportation route supervisor at a
special meeting two days before its regularly scheduled meeting. Although there
was a quorum at the special meeting, Aubrey Miller was not in attendance. Tom
Ferguson, the Shelby County Schools Deputy Superintendent, presented the
panel’s recommendation of Copes. Ferguson testified he does not know why the
special meeting was called or why the vote couldn’t wait two days. 2 The meeting
minutes from the special meeting note Dukes was in attendance and gave the
invocation, but Dukes says he was not at the meeting.
After being rejected from the 2014 route transportation position, Dukes and
his friend, Bobby Pierson, spoke with Bice, a member of the Board who voted on
Copes’s promotion. Pierson applied for the transportation route supervisor
position in the early 2000s and had also been rejected. Dukes and Pierson asked
Bice why there were no African-American people in the Transportation
Department, and Bice responded that a “black” would be considered if the Board
ever received a decent resume from an African-American person.
2
There is no explanation or any record evidence about why this meeting was called.
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Dukes filed a charge of discrimination with the Equal Employment
Opportunity Commission (“EEOC”) on October 16, 2014. The Board provided
incorrect information to the EEOC in responding to Dukes’s EEOC charge. The
Board misstated who interviewed Copes and also incorrectly told the EEOC that
Copes “developed a computer program that created transportation routes for the
bus routes.” Instead, Copes actually told the panel he used mapping software to
create bus routes.
After receiving his Notice of Rights, Dukes filed suit against the Board, the
Board Members, and Fuller on February 26, 2016. They in turn moved for
summary judgment, and the district court granted their motion. Dukes timely filed
this appeal.
II.
We review de novo the grant of summary judgment. Alvarez v. Royal Atl.
Developers, Inc.,
610 F.3d 1253, 1263 (11th Cir. 2010). “We will affirm if, after
construing the evidence in the light most favorable to the non-moving party, we
find that no genuine issue of material fact exists and the moving party is entitled to
judgment as a matter of law.”
Id. at 1263–64; Fed. R. Civ. P. 56(a).
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III.
Dukes claims intentional race-based discrimination, which can be proved
through circumstantial evidence. 3 A plaintiff can establish intentional
discrimination through circumstantial evidence in two ways. He may either satisfy
the burden-shifting framework established in McDonnell Douglas Corp. v. Green,
411 U.S. 792,
93 S. Ct. 1817 (1973), Flournoy v. CML-GA WB, LLC,
851 F.3d
1335, 1339 (11th Cir. 2017), or present a “convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination.” Smith v.
Lockheed-Martin Corp.,
644 F.3d 1321, 1328 (11th Cir. 2011) (quotation marks
omitted). Dukes argues that he has shown intentional discrimination through both
methods. We address each in turn.
A.
Under the McDonnell Douglas burden-shifting framework, the plaintiff
bears the initial burden of establishing a prima facie case, which creates a
rebuttable presumption of discriminatory intent.
Flournoy, 851 F.3d at 1339. The
defendant must then rebut that presumption by producing evidence of a legitimate,
nondiscriminatory reason for its action.
Id. If the defendant meets this burden of
3
Dukes brings his race discrimination claims under both Title VII and § 1981. Because
we evaluate Title VII claims and § 1981 claims under the same analytic framework, we address
Dukes’s claims with the understanding that the same analysis applies to both. Standard v.
A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998).
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production, the plaintiff must then establish that the defendant’s proffered reason is
only pretext for unlawful discrimination. Id.; see also Kidd v. Mando Am. Corp.,
731 F.3d 1196, 1202 (11th Cir. 2013).
The Board, the Board Members, and Fuller do not dispute Dukes established
a prima facie case of race discrimination. And Dukes does not dispute that they
presented legitimate non-discriminatory reasons for hiring Miller and Copes over
him. Instead, they disagree about whether Dukes showed the Board’s reasoning
for hiring Miller and Copes was pretextual.
A reason for a legitimate employment decision is not pretext “unless it is
shown both that the reason was false, and that discrimination was the real reason.”
Brooks v. Cty. Comm’n of Jefferson Cty., Ala.,
446 F.3d 1160, 1163 (11th Cir.
2006) (quoting St. Mary’s Honors Ctr. v. Hicks,
509 U.S. 502, 515,
113 S. Ct.
2742, 2752 (1993)). When pretext turns on the relative qualifications of a plaintiff
and another successful applicant, we do not decide who the defendant employer
should have hired.
Kidd, 731 F.3d at 1206. Instead, we look to the qualifications
of the plaintiff and the selected applicant and determine whether the difference
between the two is 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. (quotation marks omitted). We do not reexamine business
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judgments.
Id. Our job is to determine “whether the employer gave an honest
explanation to justify its hiring decision.”
Id. at 1207 (quotation marks omitted).
Dukes argues the Board’s proffered reasons for hiring Brian Miller and
Copes over him were pretextual because no reasonable person could have hired
them over him. This argument does not prevail. Both Brian Miller and Copes had
bus driving experience, as did Dukes. The panel decided to recommend Brian
Miller instead because he drove a variety of routes as a full-time substitute bus
driver, and the panel felt this experience made him a better candidate. In contrast,
Dukes drove the same route every day in the same area when he worked for Shelby
County Schools and thus lacked that experience. Although Dukes did have varied
experience when he drove for Shelby County Area Transportation, he did not work
in that position full-time or have the same depth of experience as Brian Miller.
Similarly, the panel felt Copes’s experience as a principal and assistant
principal made him a better candidate because the transportation supervisor
position was a leadership position. While it is true Dukes also had leadership
experience, he never supervised other bus drivers, like Copes had done in the past.
And although Copes received a written reprimand, his conduct was not so
egregious that a reasonable person could not have hired him over Dukes.
Considering these things, we cannot say that Brian Miller and Copes were so
unqualified that no reasonable person could have selected them over Dukes. If we
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did, we would be questioning the Board’s business judgment as to which
experiences to value most, which we cannot do. See
id. at 1207 (rejecting a
plaintiff’s pretext argument where her argument called into question the defendant
company’s business judgment but not the company’s honesty in making hiring
decisions).
B.
Dukes also argues the circumstances surrounding the Board’s decision to
hire Brian Miller and Copes over him show a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination. See
Smith,
644 F.3d at 1328.
In addition to the burden-shifting framework established in McDonnell
Douglas and Burdine, a plaintiff can also establish intentional discrimination by
presenting “a convincing mosaic of circumstantial evidence that would allow a jury
to infer intentional discrimination by the decisionmaker.” Id.; see also Chapter 7
Tr. v. Gate Gourmet, Inc.,
683 F.3d 1249, 1256 (11th Cir. 2012) (stating that
summary judgment is not proper if the plaintiff’s circumstantial evidence is
sufficient to raise a reasonable inference that the employer discriminated against
him or her).
In Smith, the record contained sufficient circumstantial evidence from which
a jury could infer the employer displayed a racially discriminatory animus toward a
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white employee by firing him.
Id. at 1347. The employee offered evidence that
his employer used a discipline “matrix” that considered his white race in setting his
discipline.
Id. at 1336, 1341. The employee also presented numerous other
incidents where the discipline meted out to African-American employees was
considerably less severe than that to white employees.
Id. at 1338–41; see also
Chapter
7, 683 F.3d at 1256 (holding the plaintiff had shown enough
circumstantial evidence to survive summary judgment where the employer’s
human resources director testified the plaintiff’s pregnancy was a “substantial or
motivating factor” in her termination and her employer sent plaintiff’s supervisor a
letter stating that he had violated Title VII when he terminated her).
In contrast, in Connelly v. Metropolitan Atlanta Rapid Transit Authority,
764 F.3d 1358 (11th Cir. 2014), the plaintiff had not shown sufficient
circumstantial evidence to create a reasonable inference of racial discrimination.
Id. at 1364. The plaintiff—a white male—claimed he was fired because he was
white.
Id. at 1359. The only “even remotely race-related” evidence the plaintiff
presented was that his supervisor, who was an African-American woman, referred
to herself in a racist, derogatory manner and socialized with other African-
American employees.
Id. at 1364–65.
The question then is whether Dukes has presented sufficient evidence along
the lines of Smith and Chapter 7 to survive summary judgment. Dukes claims the
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following facts establish a reasonable inference of racial discrimination: (1) the
specially called meeting where Copes was hired despite Aubrey Miller’s absence
and the meeting minutes incorrectly stated Dukes was there; (2) the Board’s
misstatement of Copes’s qualifications in their position statement to the EEOC; (3)
the fact that no African-American people are employed in the Transportation
Department; (4) the removal of the second opening for a transportation route
supervisor in 2012; (5) Bice’s comment about receiving American-American
resumes; and (6) Copes’s hiring despite receiving a reprimand.
These facts are not sufficient to “present[] a convincing mosaic of
circumstantial evidence that would allow a jury to infer” the defendants decided
not to promote Dukes because of his race.
Smith, 644 F.3d at 1328. Dukes
presents no evidence that the Board’s decision to call a special meeting was
racially discriminatory. While the reasons for the special meeting are unknown,
Dukes fails to point to any evidence that the Board intentionally excluded Aubrey
Miller. The record does not reveal why Aubrey Miller was not in attendance.
Neither does Dukes present any evidence that the Board lied about his attendance
to conceal their discriminatory hiring. Similarly, Dukes points to no evidence that
Copes’s reprimand was disregarded so that a white employee could take his spot or
that the 2012 position was removed to avoid hiring him. To the contrary, in both
Smith and Chapter 7, it was clear that the person’s race or protected status was
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considered when making employment determinations. See
Smith, 644 F.3d at
1328–40; Chapter
7, 683 F.3d at 1256.
Neither are we persuaded by Dukes’s statement that the Transportation
Department employs no African-American people. He has not offered any
comparative information that makes this “otherwise anecdotal information
significant” or shows this is a product of race discrimination. Evans v. McClain of
Ga., Inc.,
131 F.3d 957, 963 (11th Cir.1997) (“Statistics without any analytical
foundation are virtually meaningless.” (quotation marks omitted)); Wilson v. B/E
Aerospace, Inc.,
376 F.3d 1079, 1088 (11th Cir. 2004) (deeming the plaintiff’s
statistical evidence not probative because the plaintiff did not provide any other
relevant information, including the number of people in the plaintiff’s protected
class that expressed interest in the position the plaintiff wanted).
Dukes also argues that Bice’s comment as a Board Member about African-
American resumes would allow us to infer intentional discrimination. But the
record shows the Board does not receive information about unsuccessful
applicants. The Board receives only information about the Superintendent’s
recommended candidate. And this information is limited to only the job title,
location of the position, and the recommended candidate’s name. Given these
undisputed facts, Bice’s comment does not allow us to infer intentional
discrimination by the Board, the Board Members, or Fuller.
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The most compelling piece of circumstantial evidence is the erroneous
statements made in the Board’s EEOC position statement. While we have yet to
address the issue directly, the Fifth Circuit, in a case upon which Dukes relies, has
held that erroneous statements made in an EEOC position statement can be
circumstantial evidence of discrimination. Burton v. Freescale Semiconductor,
Inc.,
798 F.3d 222, 237 (5th Cir. 2015); see also Miller v. Raytheon Co.,
716 F.3d
138, 144 (5th Cir. 2013). But even considering the erroneous EEOC statement, it
alone cannot create a convincing mosaic of circumstantial evidence that would
allow a reasonable jury to infer intentional discrimination. As our precedent in
Smith and Chapter 7 show, considerably more evidence demonstrating that an
employer considered race is required than what Dukes has presented here.4 See
Smith, 644 F.3d at 1328–1340; Chapter
7, 683 F.3d at 1256.
AFFIRMED.
4
Because we can affirm the district court’s grant of summary judgment on any basis
supported by the record, we need not decide whether the Board Members or Fuller are entitled to
qualified immunity. See McCullum v. Orlando Reg’l Healthcare Sys., Inc.,
768 F.3d 1135, 1141
(11th Cir. 2014).
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