Beverly Bolton v. Baldwin County Public Schools

Filing

Opinion issued by court as to Appellant Beverly J. Bolton. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam. The opinion is also available through the Court's Opinions page at this link http://www.ca11.uscourts.gov/opinions.

Case: 14-14779

Date Filed: 09/24/2015

Page: 1 of 8

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 14-14779
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-00548-C

BEVERLY J. BOLTON,
Plaintiff-Appellant,
versus
BALDWIN COUNTY PUBLIC SCHOOLS,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
________________________
(September 24, 2015)

Before MARTIN, ANDERSON, and EDMONDSON, Circuit Judges.

Case: 14-14779

Date Filed: 09/24/2015

Page: 2 of 8

PER CURIAM:

Beverly Bolton, an African American woman proceeding pro se, appeals the
grant of summary judgment in favor of Baldwin County Board of Education
(“Board”) on her claims of race discrimination and retaliation, in violation of 42
U.S.C. § 2000e-2, 3 (“Title VII”) and 42 U.S.C. § 1981. No reversible error has
been shown; we affirm.
Briefly stated, Bolton’s claims arise from the Board’s refusal to hire Bolton
as a full-time teacher. Following an interview, the school principal recommended
Bolton for an open special-education teaching position at Baldwin County High
School. Shortly thereafter, Bolton attended a new hire orientation, received keys to
her classroom, and began reporting to work.
Under the Board’s standard practice -- of which Bolton was made aware -- a
teacher is not employed formally until her hiring is approved by the Board at a
public meeting. In addition, teachers who have not yet been hired formally by the
Board are considered substitute teachers and are compensated accordingly.
As part of the Board’s approval process, the Board’s Human Resources
Office began working to verify Bolton’s teaching credentials. Bolton was not yet
certified to teach in Alabama; she was instructed and required to register for two
state certification tests: a basic skills test and Praxis II. Bolton was told she needed

2

Case: 14-14779

Date Filed: 09/24/2015

Page: 3 of 8

to register for the next administration of each test before the Board’s next meeting
so that the Board could approve formally Bolton’s hiring. Although Bolton
registered for the state-required certification tests, she failed to register for the next
available testing date, as instructed.
The Human Resources Office also concluded that Bolton failed to provide
proper professional references in support of her employment application. All
applicants were required to submit professional references, defined as references
from “previous supervisors or coworkers.” On her application, however, Bolton
identified her references only as “friends.”
As a result of Bolton’s failure to register properly for the state-required
certification tests and her failure to provide proper professional references, the
Human Resources Office was unable to process Bolton’s application in time for
the Board’s next meeting. The Human Resources Office, together with the school
principal, then decided to cancel Bolton’s recommendation for employment.
Bolton received substitute teacher pay for the days she worked.
Bolton filed a complaint with the Equal Employment Opportunity
Commission (“EEOC”), alleging race discrimination. The EEOC dismissed the
complaint and issued Bolton a right-to-sue letter.
Bolton then filed this civil action against the Board, alleging both race
discrimination and retaliation. The district court concluded that Bolton failed to
3

Case: 14-14779

Date Filed: 09/24/2015

Page: 4 of 8

establish a prima facie case of race discrimination because she failed to show that
she was treated differently than a similarly-situated person outside her protected
class. The district court also determined that the Board had identified legitimate,
non-discriminatory reasons for refusing to hire Bolton full-time and that Bolton
failed to show that the Board’s reasons were pretexts for race discrimination. The
district court next concluded that Bolton failed to establish a prima facie case of
retaliation because she had engaged in no statutorily-protected activity.
We review de novo the district court’s grant of summary judgment,
“construing all facts and drawing all reasonable inferences in favor of the
nonmoving party.” Jones v. UPS Ground Freight, 683 F.3d 1283, 1291-92 (11th
Cir. 2012). We construe liberally pro se pleadings. Tannenbaum v. United States,
148 F.3d 1262, 1263 (11th Cir. 1998).

I.

To establish a prima facie case of race discrimination under both Title VII
and section 1981,1 a plaintiff must prove (1) that she belongs to a protected class;
(2) that she suffered an adverse employment action; (3) that the employer treated

1

“The elements of a claim of race discrimination under 42 U.S.C. § 1981 are also the same as a
Title VII disparate treatment claim in the employment context.” Rice-Lamar v. City of Fort
Lauderdale, 232 F.3d 836, 843 n.11 (11th Cir. 2000).
4

Case: 14-14779

Date Filed: 09/24/2015

Page: 5 of 8

similarly-situated people outside her protected class more favorably; and (4) that
she was qualified to do the job. McCann v. Tillman, 526 F.3d 1370, 1373 (11th
Cir. 2008). To satisfy this initial burden, a plaintiff must show she and the nonminority employees, whom plaintiff alleges were treated more favorably, are
similarly situated in all pertinent respects. Holifield v. Reno, 115 F.3d 1555, 1562
(11th Cir. 1997). Summary judgment is proper if a plaintiff fails to show the
existence of a similarly-situated employee and no other evidence of discrimination
exists. Id.
Bolton has failed to identify a similarly-situated applicant that was treated
more favorably. First, the Board imposed the same procedural requirements on
Bolton as it did on other non-minority teacher applicants. The record shows that
Melissa Miller,2 a white applicant, was required -- like Bolton -- to register for the
next administration of required certification tests before the Board’s next public
meeting.3 Miller was also required to submit professional references in support of
her application. And Miller was entitled only to substitute teacher pay until she
was hired formally by the Board.
2

Bolton raises no challenge to the district court’s determination that Carolina Smoak was no
valid comparator. Bolton has abandoned this argument on appeal. See Timson v. Sampson, 518
F.3d 870, 874 (11th Cir. 2008).
3

Bolton provides no record evidence supporting her contention that Miller needed to take and
was not required to register for the basic skills test. Although we must construe the evidence in
the light most favorable to Bolton, mere conclusions and unsupported factual allegations raise no
genuine issue of fact sufficient to defeat a motion for summary judgment. See Ellis v. England,
432 F.3d 1321, 1326 (11th Cir. 2005).
5

Case: 14-14779

Date Filed: 09/24/2015

Page: 6 of 8

Unlike Bolton, however, Miller complied in full with the Board’s
application instructions and requirements. As a result, Miller’s employment
application was submitted in time for the Board’s next meeting, during which
Miller’s full-time employment was approved. Because Bolton failed to follow
instructions and to satisfy the Board’s application requirements, Miller and Bolton
are not similar in all pertinent respects; and Miller is no valid comparator. See
Holifield, 115 F.3d at 1562. Bolton failed to identify a valid comparator and has
presented no other evidence of discrimination and, thus, has failed to establish a
prima facie case of discrimination. 4 The district court committed no error in
entering summary judgment on Bolton’s race discrimination claim.

II.

About Bolton’s retaliation claim, employers are barred under both Title VII
and section 1981 from retaliating against an employee or an applicant for
employment who engages in statutorily-protected activity. See 42 U.S.C. § 2000e3(a); Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1257-58 (11th Cir.

4

Moreover, even if we assume -- without deciding -- that Bolton could establish a prima facie
case of race discrimination, Bolton has raised no challenge to the district court’s alternative
independent ruling that Bolton failed to show that the Board’s legitimate, non-discriminatory
reasons -- including failure to follow instructions -- for not hiring Bolton were a pretext for race
discrimination. Bolton has abandoned that argument, see Timson, 518 F.3d at 874, and can show
no reversible error.
6

Case: 14-14779

Date Filed: 09/24/2015

Page: 7 of 8

2012). To establish a prima facie case of retaliation, a plaintiff must show that she
engaged in a statutorily-protected activity and suffered an adverse employment
action that was causally related to the protected activity. Id. at 1258. Protected
activities include the filing of a formal complaint, the voicing informally of a
complaint to superiors, or the use of an employer’s internal grievance procedure to
report alleged discrimination. See Rollins v. Fla. Dep’t of Law Enf’t, 868 F.2d
397, 400 (11th Cir. 1989).
Bolton has failed to demonstrate that she engaged in a statutorily-protected
activity. Bolton contends that the Board retaliated against her because she failed to
register properly for the state-required certification tests and retaliated based on
unspecified statements from Bolton’s former employer. Neither of these acts
shows or constitutes statutorily-protected activity. And nothing evidences that
Bolton complained about the Board’s alleged discrimination -- either formally or
informally -- before Bolton’s recommendation for employment was cancelled. 5
Because Bolton has failed to show that she engaged in a statutorily-protected
activity or that the Board’s failure to hire her full-time was causally related to a

5

Although Bolton filed ultimately a complaint of race discrimination with the EEOC, she did so
after the Board had already refused to hire her as a full-time teacher. And Bolton makes no
allegations that she suffered an adverse employment action after, or as a result of, her filing the
EEOC complaint.
7

Case: 14-14779

Date Filed: 09/24/2015

Page: 8 of 8

statutorily-protected activity, she has failed to establish a prima facie case of
retaliation. Summary judgment was proper.
AFFIRMED.

8