USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 1 of 13
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-13283
Non-Argument Calendar
____________________
HARRY W. TOLLEY, JR.,
Plaintiff-Appellant,
versus
MERCER UNIVERSITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:20-cv-02453-VMC
____________________
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 2 of 13
2 Opinion of the Court 22-13283
Before NEWSOM, GRANT, and ANDERSON, Circuit Judges.
PER CURIAM:
Dr. Harry W. Tolley, Jr., a white man, alleges that Mercer
University racially discriminated against him by rejecting his
application for an open position on the faculty of Mercer’s McAfee
School of Theology in violation of Title VII and
42 U.S.C. § 1981.
Tolley has aired evidence tending to show that Mercer’s hiring
process was infected with an invidious focus on the race of the
candidates. But because he cannot show that the decisionmakers
at Mercer ever knew Tolley’s race specifically, his discrimination
claims cannot survive. We accordingly affirm the district court’s
grant of summary judgment for Mercer.
I.
In 2018, a tenure track position for a professor of New
Testament Studies opened at the McAfee School at Mercer after
the incumbent, a black man, retired. At that time, McAfee served
a student population that was approximately fifty percent black. By
contrast, only two of McAfee’s twelve faculty members were black,
including the retiring professor. McAfee’s accreditation agency
had recently flagged this disparity and urged the school to close this
gap by adding greater racial diversity to its faculty when
conducting new hiring. The New Testament Studies position was
the first opening on the faculty following this recommendation.
To fill the position, the interim dean of McAfee, Gregory
DeLoach, appointed three faculty members to serve on a search
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 3 of 13
22-13283 Opinion of the Court 3
committee: Dr. Karen Massey, Dr. Dave Garber, and Dr. Nancy
deClaissé-Walford. DeLoach himself attended the vast majority of
the committee’s meetings and frequently contributed to its
discussions, though he did not formally have a vote. This
committee established qualifications for the position and posted a
formal job description on Mercer’s HR website in September 2018.
A total of 109 candidates applied, including Dr. Tolley.
Tolley’s formal credentials for the position included a Ph.D.
in the New Testament and Ancient Mediterranean history and
archaeology, several publications, and multiple adjunct
professorships. He was also distantly related to a current faculty
member at McAfee, Dr. Loyd Allen. The two spoke over the
phone about the open position. According to Tolley’s notes, Allen
told him that he assumed that Tolley, whom he had never met,
was a white man. Allen told Tolley that this fact would likely hurt
Tolley’s candidacy because “being female and a person of color”
were advantages for being hired by McAfee. He further admitted,
per Tolley, that McAfee was intent on hiring a black person to
replace the retiring black faculty member. Though Allen did not
serve on the search committee, he promised to vouch for Tolley.
He followed through by telling Garber, a committee member, that
the two had spoken.
To pare down the candidate pool, each committee member
first individually reviewed the applications before convening as a
group to discuss the standouts. Though Mercer’s HR department
collected demographic data from applicants for statistical purposes,
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 4 of 13
4 Opinion of the Court 22-13283
this information was not passed along to the search committee.
The applicant files that reached the committee thus did not
systematically contain any information about the candidates’ race.
In at least some cases, however, the committee was aware
of—and considering—applicants’ race when reviewing their files.
For example, some applicants explicitly self-identified their race in
their cover letters. In one case, Dr. Walford emailed the other
members of the committee flagging the application of “a really nice
white guy” with whom she was personally familiar, but
recommended against interviewing him, stating that she “like[d]
him very much. But he is a white male . . . sigh!”
Ultimately, the committee invited fourteen applicants to
interview. Dr. Tolley was not one. No committee member could
independently remember why he had not made the cut, but after
re-reviewing his application during this litigation, they testified
that, although Tolley had met the formal qualifications for the
position, the committee members did not believe his research
focus aligned with their pedagogical goals for the position, among
other drawbacks. Tolley did not mention his race in his application
materials, and all members of the committee submitted sworn
affidavits in this litigation that they were not aware of his race when
evaluating his candidacy.
After conducting interviews, the committee narrowed their
search down to three finalists, each of whom was invited to McAfee
to deliver a guest lecture and meet with faculty and administration
members. Following these visits, the search committee eliminated
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 5 of 13
22-13283 Opinion of the Court 5
one finalist from contention due to her relative inexperience, then
presented the others—a black woman and a white man who had
just finished a two-year teaching fellowship at McAfee—to the full
faculty for discussion and a vote. According to the committee
members, both candidates had impressed during their visits.
Around this time, a faculty member not on the search
committee emailed Dean DeLoach about diversity issues at the
school. This professor exhorted DeLoach to “invest in radical
change on the racial front at McAfee” by strategically maneuvering
incumbent faculty into early retirements so that McAfee could
“hire not just one but a critical mass (2-4) of black faculty” to
replace them. DeLoach thanked this professor for his
“impassioned and important note,” responding that “all things
being equal a person of color would be preferred” for the open
position. He also noted that, though the search committee
preferred to hire the black finalist, the situation was
“extraordinarily complicated” because students at McAfee—
including, DeLoach specifically noted, several black students—had
circulated petitions supporting the white finalist.
Two votes of the McAfee faculty were held. After the first,
which was inconclusive, the faculty held a discussion about the two
finalists before voting again. Dean DeLoach’s notes from this
meeting reflect that race featured prominently in multiple faculty
members’ judgments. One professor said of the black finalist, “her
race is a plus.” Another noted that her being black would help
connect McAfee with local “black churches” and that she would be
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 6 of 13
6 Opinion of the Court 22-13283
a good complement to the only other black member of McAfee’s
faculty. The discussion of the white finalist’s race was much more
equivocal. While student comments defended him as a “white guy
that gets it” and as “working on his whiteness,” some faculty
members derided him as the “embodiment of white” which “may
be problematic” and noted that McAfee “need[s] more diversity.”
The faculty also discussed McAfee’s accreditor’s recommendation
that McAfee hire more black faculty to better match its student
body demographics.
In the end, the black finalist won the second vote
overwhelmingly and was offered the position. Contrary to
Mercer’s document retention policy, which requires employees to
maintain all job search related materials for three years, Dr. Massey
and Dr. Walford prematurely destroyed the handwritten notes
they had accumulated during their service on the search
committee.
Tolley sued Mercer under Title VII and
42 U.S.C. § 1981,
alleging that McAfee had rejected his application for the
professorship because he was white. After discovery, the district
court adopted the magistrate judge’s recommendation that Mercer
be granted summary judgment. This appeal follows.
II.
We review a district court’s grant of summary judgment de
novo, viewing the evidence in the light most favorable to the
nonmoving party and drawing all reasonable inferences in their
favor. Sutton v. Wal-Mart Stores East, LP,
64 F.4th 1166, 1168 (11th
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 7 of 13
22-13283 Opinion of the Court 7
Cir. 2023). Summary judgment is appropriate when “there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
III.
Tolley argues that Mercer discriminated against him on the
basis of race in violation of Title VII under both a single-motive and
mixed-motive theory. 1 Under a single-motive theory, a plaintiff
typically proves discrimination through circumstantial evidence
using the McDonnell Douglas burden-shifting framework. To
succeed, the plaintiff must first establish a prima facie case of
discrimination. See Patterson v. Georgia Pac., LLC,
38 F.4th 1336,
1344–45 (11th Cir. 2022). In a traditional failure-to-hire case, the
plaintiff establishes a prima facie case by demonstrating that: (1) he
was a member of a protected class; (2) he applied and was qualified
for a position for which the employer was accepting applications;
(3) despite his qualifications, he was not hired; and (4) the position
remained open or was filled by another person outside of his
protected class. EEOC v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265, 1273
(11th Cir. 2002).
By establishing a prima facie case, the plaintiff creates a
rebuttable presumption that the employer unlawfully
1 Tolley also argues that Mercer discriminated against him in violation of
§ 1981. Because discrimination claims under § 1981 are analyzed using the
same analytical framework as single-motive Title VII discrimination claims,
our analysis under that statute applies equally to both. See Lewis v. City of Union
City,
918 F.3d 1213, 1220 & n.5 (11th Cir. 2019) (en banc).
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 8 of 13
8 Opinion of the Court 22-13283
discriminated against him.
Id. at 1272. The burden then shifts to
the employer to rebut this presumption by producing evidence that
its action was taken for some legitimate, nondiscriminatory reason.
Id. If the employer meets its burden of production, the
presumption of discrimination is rebutted, and the plaintiff must
show that the proffered reason really is a pretext for unlawful
discrimination.
Id. at 1272–73.
If the employer’s stated reason for its action is legitimate—
in other words, if it might motivate a reasonable employer to act—
then to show that it is pretextual, the plaintiff must address “that
reason head on and rebut it.” Patterson, 38 F.4th at 1352 (quotation
omitted). A plaintiff cannot rebut a reason “by simply quarreling
with the wisdom of” it. Id. (quotation omitted). Instead, he must
point to “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” such that a reasonable factfinder
could find the employer’s offered reasons “unworthy of credence.”
Id. (quotation omitted).
As an alternative to the McDonnell Douglas burden-shifting
framework, a plaintiff can also survive summary judgment on his
single-motive discrimination claim if he presents 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). While plaintiffs are not limited to
particular forms of circumstantial evidence, our cases have
identified three, nonexclusive categories that can raise a reasonable
inference of unlawful conduct: (1) “evidence of suspicious timing,
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 9 of 13
22-13283 Opinion of the Court 9
ambiguous statements, or other information from which unlawful
intent may be inferred;” (2) “evidence of systematically better
treatment of similarly situated employees;” or (3) “evidence that
the employer’s justification for its action is pretextual.” Berry v.
Crestwood Healthcare LP,
84 F.4th 1300,
2023 WL 7095309, at *6
(11th Cir. 2023).
Unlike with a single-motive discrimination claim, a claim of
mixed-motive discrimination under Title VII requires a plaintiff to
show that illegal bias was a “motivating factor for an adverse
employment action, even though other factors also motivated the
action.” Quigg v. Thomas Cnty. Sch. Dist.,
814 F.3d 1227, 1235 (11th
Cir. 2016) (quotation omitted). To survive summary judgment, a
plaintiff must offer “evidence sufficient to convince a jury that: (1)
the defendant took an adverse employment action against the
plaintiff; and (2) a protected characteristic was a motivating factor
for the defendant’s adverse employment action.”
Id. at 1239
(alteration adopted and quotation omitted).
With respect to Tolley’s single-motive discrimination claim,
the parties on appeal have briefed only the issue of pretext. In the
McDonnell Douglas analysis, we therefore assume that Tolley stated
a prima facie case of discrimination and that Mercer’s proffered
explanation—namely, that Tolley’s research agenda did not fit
McAfee’s vision for the position—adequately rebutted it. In the
convincing mosaic analysis, we ask whether Tolley has presented
enough evidence to permit a jury to infer intentional
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 10 of 13
10 Opinion of the Court 22-13283
discrimination. We focus, as the district court did, on the issue of
Mercer’s knowledge of Tolley’s race.
At the pretext stage, “our sole concern is whether unlawful
discriminatory animus motivates a challenged employment
decision.” Damon v. Fleming Supermarkets of Florida, Inc.,
196 F.3d
1354, 1361 (11th Cir. 1999). To show that the members of the
search committee acted with the requisite discriminatory intent,
Tolley must prove a threshold fact: that they actually knew what
race he was when they decided not to hire him. Without that
knowledge, Tolley cannot show that Mercer’s explanation for not
hiring him was pretextual, because “racial discrimination is an
intentional wrong” and an “empty head means no discrimination.”
Silvera v. Orange Cnty. Sch. Bd.,
244 F.3d 1253, 1262 (11th Cir. 2001)
(alteration adopted and quotation omitted). Accordingly, “an
employer cannot intentionally discriminate against an individual
based on his [race] unless the employer knows the individual’s
[race].” Lubetsky v. Applied Card Sys., Inc.,
296 F.3d 1301, 1306 (11th
Cir. 2002).
Tolley, unlike other candidates, did not voluntarily disclose
his race on his application materials. Each of the three search
committee members—Massey, Garber, and Walford—as well as
Dean DeLoach submitted sworn affidavit testimony disclaiming
any knowledge of Tolley’s race before they struck his application.
To rebut the conclusion that the search committee was unaware
of his race, Tolley submits that, after he spoke to Dr. Allen about
his application, Allen then spoke to Garber, a committee member.
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 11 of 13
22-13283 Opinion of the Court 11
Allen testified that he “probably” mentioned to Garber that he and
Tolley were distant familial relations—specifically, that Tolley was
Allen’s cousin’s niece’s husband. From this, Tolley argues that
Garber would then have assumed that Tolley, like Allen, must be
white. 2
Tolley’s argument fails in two respects. First, Tolley can
only speculate that Garber would have assumed from the fact that
Tolley and Allen were distantly related by marriage that Tolley and
Allen were the same race. Such “unsupported speculation” will not
defeat invocation of summary judgment against a plaintiff. Cordoba
v. Dillard’s, Inc.,
419 F.3d 1169, 1181 (11th Cir. 2005) (quotation
omitted). Second, Tolley provides no evidence to support the
inference that, even if Garber suspected Tolley was white, this
information was then communicated to Massey and Walford, the
other two decisionmakers on the committee. Absent evidence of
actual knowledge, we cannot impute Garber’s suspicions about
Tolley’s race to the committee as a whole. See Silvera,
244 F.3d at
1261–62. 3
2 Mercer argues that the committee had most likely already rejected Tolley’s
application before he and Allen spoke, meaning that any statement by Allen
to Garber played no role in the decision not to hire Tolley. The record is not
definitive as to the timing of these events. Because we construe all ambiguities
in Tolley’s favor when reviewing the district court’s summary judgment
order, we assume that Allen’s conversations with Tolley and Garber occurred
before the committee struck Tolley’s application.
3 Tolley also argues that we should infer pretext from Dr. Massey and Dr.
Walford prematurely destroying their handwritten notes about the search
process. It is possible that those notes would have revealed actual knowledge
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 12 of 13
12 Opinion of the Court 22-13283
Tolley also points to other pieces of circumstantial evidence
that McAfee was intent on hiring a black person for the position.
Specifically, he flags recommendations by McAfee’s accreditor to
diversify its faculty, an email from Walford characterizing a
particular white applicant’s race as a negative, a statement by Dean
DeLoach saying they “preferred” to hire a person of color for the
position, and comments from the faculty vote on the two finalists
indicating that race heavily influenced the outcome. But these
pieces of evidence, which carry varying weight in the pretext
analysis, go toward the question of whether McAfee discriminated
against white candidates whose race they were aware of. Without
more, this circumstantial evidence does not defeat the committee
members’ sworn testimony disclaiming any knowledge of Tolley’s
race before striking his application.
Because Tolley cannot raise a triable issue of fact with
respect to Mercer’s knowledge of his race, summary judgment for
Mercer on his single-motive discrimination claim was appropriate.
by Massey and Walford of Tolley’s race. Deviations from an employer’s
standard procedures may serve as evidence of pretext. Hurlbert v. St. Mary’s
Health Care Sys., Inc.,
439 F.3d 1286, 1299 (11th Cir. 2006). But we generally
will not draw adverse inferences from a party’s failure to preserve evidence
unless absence of that evidence is predicated on bad faith. Bashir v. Amtrak,
119 F.3d 929, 931 (11th Cir. 1997). Tolley has provided no evidence rebutting
the magistrate judge’s conclusion that the professors destroyed their notes for
non-nefarious reasons—essentially, spring cleaning. We are not obligated to
make an adverse inference against Mercer about the content of these notes
because Tolley has not presented any evidence that the notes were destroyed
in bad faith, as opposed to out of mere negligence.
Id.
USCA11 Case: 22-13283 Document: 31-1 Date Filed: 11/29/2023 Page: 13 of 13
22-13283 Opinion of the Court 13
So too with his mixed-motive discrimination claim: if Mercer never
knew Tolley’s race, it cannot have been a motivating factor in
Mercer’s decision not to hire him.
We do not discount the evidence uncovered by Tolley
during discovery of Mercer’s relentless focus on race. But whether
the committee racially discriminated against other white
applicants—indeed, whether they would have racially discriminated
against Tolley had they known he was white—does not bear on
whether the committee did unlawfully discriminate against him
here. Employment discrimination “is about actual knowledge, and
real intent, not constructive knowledge and assumed intent.”
Silvera,
244 F.3d at 1262. 4
* * *
We AFFIRM the district court’s grant of summary
judgment in favor of Mercer.
4 Because we affirm the district court’s grant of summary judgment to Mercer
on the ground that Mercer did not know Tolley’s race, we need not address
the parties’ arguments as to whether the ministerial exception would apply
here.
