Carolyn Lucas v. Secretary, Department of the Army

FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JANUARY 12, 2012
JOHN LEY
CLERK
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 11-11629
Non-Argument Calendar
________________________
D.C. Docket No. 5:09-cv-00038-CLS
CAROLYN LUCAS,
llllllllllllllllllllllllllllllllllllllll Plaintiff-Appellant,
versus
SECRETARY, DEPARTMENT OF THE ARMY,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 12, 2012)
Before DUBINA, Chief Judge, WILSON and FAY, Circuit Judges.
PER CURIAM:

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Appellant Carolyn Lucas, an African-American female proceeding pro se,
appeals the district court’s grant of the Secretary of the Department of the Army’s
(“the Army”) motion for summary judgment as to her complaint alleging two
instances of nonselection due to racial discrimination and retaliation, in violation
of Title VII, 42 U.S.C. § 2000e-16. Lucas argues that the district court erred in1
granting the Army’s motion because the Army’s proffered legitimate,
nondiscriminatory reasons for selecting other candidates are pretextual.
We review a grant of summary judgment de novo. Holloman v. Mail-Well
Corp., 443 F.3d 832, 836 (11th Cir. 2006). Summary judgment is appropriate
when the evidence, viewed in the light most favorable to the nonmoving party,
presents no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Fed.R.Civ.P. 56(a); Holloman, 443 F.3d at 836-37.
The party opposing summary judgment must set forth specific facts showing that
there is a genuine issue for trial. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217
(11th Cir. 2000). In this respect, a mere “scintilla of evidence that there is a
substantial conflict in evidence” is insufficient to support a jury question. Mee
Lucas also brought these claims under 42 U.S.C. § 1981 in the district court, but the1
district court dismissed these claims for lack of subject matter jurisdiction and Lucas does not
address Section 1981 in her appellate brief. Therefore, only Lucas’s Title VII claims are before us
on appeal. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008).
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Indus. v. Dow Chem. Co., 608 F.3d 1202, 1211 (11th Cir. 2010), cert. denied, 131
S. Ct. 936 (2011). Additionally, while we liberally construe pro se briefs, we will
not review on appeal any issues not raised in the parties’ initial briefs, finding
such issues to be abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.
2008).
Title VII explicitly prohibits racial discrimination in federal employment
practices. 42 U.S.C. § 2000e-16(a). Further, an employer may not discriminate
against an employee for opposing any practice made unlawful under Title VII. 42
U.S.C § 2000e-3(a); see also 29 C.F.R. § 1614.101(b) (“No person shall be subject
to retaliation for opposing any practice made unlawful by [T]itle VII of the Civil
Rights Act”).
Where the plaintiff’s Title VII claims rest on circumstantial evidence, we
use the McDonnell Douglas burden-shifting framework. EEOC v. Joe’s Stone
Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). If a plaintiff can establish a
prima facie case of race discrimination, the burden of production shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the challenged
employment decision. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93
S. Ct. 1817, 1824, 36 L. Ed. 2d 668 (1973). If the defendant articulates such a
reason, then the burden shifts back to the plaintiff to prove by a preponderance of
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the evidence that the defendant’s proffered legitimate reason was a pretext for
discrimination. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.
Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981); see also Pennington v. City of Huntsville,
261 F.3d 1262, 1265-66 (11th Cir. 2001) (applying McDonnell Douglas
framework to a Title VII claim of retaliation).
To meet this burden, the plaintiff must show both that (1) the defendant’s
proffered reason is so weak or inconsistent as to be “unworthy of credence” and,
(2) that the real reason is unlawful discrimination. Springer v. Convergys
Customer Mgmt. Group Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2007). The
plaintiff may not recast the defendant's articulated reason, but must “meet it head
on and rebut it.” Id. at 1350 (internal quotation marks omitted). Conclusory
allegations of discrimination are insufficient to raise an inference of pretext
“where an employer has offered extensive evidence of legitimate,
nondiscriminatory reasons for its actions.” Mayfield v. Patterson Pump Co., 101
F.3d 1371, 1376 (11th Cir. 1996) (internal quotation marks omitted). In this
respect, while EEOC agency determinations are generally admissible and may be
“significant evidence,” they are not binding on the district court. Moore v. Devine,
767 F.2d 1541, 1550–51 (11th Cir. 1985), modified on reh'g, 780 F.2d 1559, 1560
(1986) (internal quotation marks omitted).
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In a nonselection case, the plaintiff cannot establish pretext by “simply
arguing or even by showing that [she] was better qualified” than the selectee.
Springer, 509 F.3d at 1349 (quotation omitted). Instead, the plaintiff must prove
that the disparity in qualifications was “of such weight and significance” that no
reasonable, impartial person could have chosen the selectee over the plaintiff. Id.
Generally, in the context of a business deciding how to rank its employees, we will
not “second-guess the business decisions of an employer.” Rowell v. BellSouth
Corp., 433 F.3d 794, 798 (11th Cir. 2005). This holds true even where the
employer acts in good faith on the basis of erroneous information. See Walker v.
NationsBank of Fla., 53 F.3d 1548, 1564 (11th Cir. 1995) (Johnson, J. Specially
concurring). Further, the preselection of a candidate, even if in violation of the
employer’s internal policies, does not necessarily indicate racial discrimination or
retaliation. See Springer, 509 F.3d at 1350.
After reviewing the record and reading the parties’ briefs, we discern no
reversible error. As to Lucas’s nonselection for the GS-14 position, Lucas did not
show any disparity in qualifications of such weight and significance that no
reasonable person could have chosen Rodriguez, nor did the record show that the
panel members intentionally manipulated her scores. Similarly, assuming that
Lucas properly preserved the issue of whether she was more qualified for the GS-
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15 position, Lucas did not establish that Nottingham’s selection was unreasonable.
Finally, the record did not show that any scoring irregularities were intentional.
Because Lucas did not demonstrate that the Army’s articulated legitimate
nondiscriminatory reasons for selecting other candidates were pretexts for
discrimination and retaliation, we affirm the grant of summary judgment in favor
of the Army.
AFFIRMED.
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