Charnetta Gadling-Cole v. Board of Trustees of The Unive

Filing

Opinion issued by court as to Appellant Charnetta Gadling-Cole. 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: 15-14781

Date Filed: 01/27/2017

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-14781
Non-Argument Calendar
________________________
D.C. Docket No. 2:12-cv-02882-SLB

CHARNETTA GADLING-COLE,
PhD,
Plaintiff - Appellant,
versus
MARK LAGORY, et al.,
Defendants,
BOARD OF TRUSTEES OF THE UNIVERSITY OF ALABAMA, THE,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(January 27, 2017)

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Before WILSON, ROSENBAUM, and JULIE CARNES, Circuit Judges.
PER CURIAM:
Plaintiff Charnetta Gadling-Cole (“Plaintiff”) sued her former employer,
Defendant Board of Trustees of the University of Alabama (“Defendant”) under
Title VII of the Civil Rights Act of 1964, alleging that her termination was a
product of racial discrimination. Because Plaintiff has not demonstrated that
Defendant’s reasons for her termination are pretextual and that unlawful
discrimination is the real reason, we affirm the district court’s grant of summary
judgment in Defendant’s favor.
I. INTRODUCTION
A. Factual Background
On March 2, 2009, Charnetta Gadling-Cole (“Plaintiff”) received an offer
for a full-time appointment as an Assistant Professor in the Department of
Sociology and Social Work at the University of Alabama at Birmingham (“UAB”).
Her initial appointment was for a two-year period, effective August 15, 2009, and
was renewable annually for five years or until tenure was granted. Her
appointment letter stated that if she did not complete her outstanding PhD
requirements by the appointment start date, her appointment position would be as
an Instructor, and if she did not complete her degree requirements by February 15,
2010, her appointment would not be extended past the initial two-year period.
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Plaintiff did not meet the February 15 deadline, and was informed in October 2010
that her contract would terminate May 14, 2011. Plaintiff did complete her degree
requirements by November 2010, however, and she was offered a full-time
Assistant Professor position beginning August 15, 2011, by Dr. Thomas
DiLorenzo, Dean of the College of Arts and Sciences. The appointment was
renewable annually and would expire at the end of the seventh year (2017-2018
academic year) if she did not receive tenure.
During the course of her employment with UAB, Plaintiff received several
performance reviews. Her 2010 evaluation, given in June 2011 by Dr. William
Cockerham (then interim chair of the Department of Sociology and Social Work),
indicated an overall “positive record in 2010.” Dr. Cockerham noted that Plaintiff
was the only tenure-track faculty member in the Department who did not publish
anything in 2010, but also indicated this was mitigated somewhat by her being
pregnant and completing her PhD requirements. Dr. Cockerham also noted that
Plaintiff’s record of service was “excellent,” but that her teaching results were
mixed, including receiving the lowest student course evaluation in the Department
for any course taught by faculty. Dr. Cockerham closed the review by advising
Plaintiff that she would need to publish regularly and be attentive in making
changes to her teaching in order to have consistently good evaluations. Plaintiff
disagreed with Dr. Cockerham’s evaluation of her 2010 record.
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Between July 2011 and February 2012, Plaintiff filed four complaints of
racial and gender discrimination and retaliation with the EEOC. The first
complaint alleged that Plaintiff was harassed by Dr. Mark LaGory (who preceded
Dr. Cockerham as the chair of Plaintiff’s Department) and Dr. Cockerham during
her maternity leave (September 2010–January 2011) regarding her submission of
leave paperwork and completion of her PhD requirements, as well as that Dr.
Cockerham failed to update her employment contract to note that she received her
PhD.
Plaintiff’s second complaint alleged that Dr. Cockerham retaliated against
Plaintiff for filing an EEOC complaint by not submitting a letter of support for her
grant proposal, not submitting paperwork for an international course she had
developed, not granting her relief time to participate in certain programs, not
giving her credit and pay for teaching twelve independent study courses, not giving
her a raise or information about Department changes, and not providing assistance
with an overloaded online course.
Plaintiff alleged in her third complaint that Dr. Lisa Baker, chair of the
Department of Social Work, 1 continued to retaliate against Plaintiff. Specifically,
Plaintiff alleged that Dr. Baker tried to sabotage an initiative proposed by Plaintiff,
“attempted to be unaware” of Plaintiff’s research agenda and work efforts, did not

1

In 2011, Department of Sociology and Social Work split into two separate departments.
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provide Plaintiff with time to work on outside programs, and added administrative
tasks to Plaintiff’s workload.
Plaintiff’s fourth complaint alleged that Dr. Baker retaliated against Plaintiff
by issuing Plaintiff a written warning, making false statements about her work
ethic and accomplishments, not allowing her to teach a writing course she had
developed and taught previously, sending harassing emails, and saying that
Plaintiff could not be trusted because she filed an EEOC complaint. Plaintiff
received a Dismissal and Notice of Rights for all four of her EEOC complaints on
June 6, 2012.
In April 2012, Dr. Cockerham reviewed Plaintiff’s performance for January
through September 2011. Dr. Cockerham indicated that Plaintiff’s overall level of
contribution to the Department was the lowest of any faculty member, and that she
was “extraordinarily uncooperative in discussing faculty business and
ignored . . . advice.” Plaintiff’s teaching scores in 2011 did not exceed the
Department average, and Plaintiff did not have any publications prior to October
2011. Dr. Cockerham concluded that Plaintiff’s performance was unsatisfactory
and recommended that Plaintiff not be reappointed.
Plaintiff received a full 2011 evaluation from Dr. Baker. Dr. Baker similarly
concluded that Plaintiff’s performance did not meet expectations. Dr. Baker noted
that Plaintiff’s scholarly productivity was low, that Plaintiff’s teaching scores in
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2011 were among the lowest in the Department, and that her service to the
Department needed significant improvement. In a separate letter from Dr. Baker
dated May 11, 2012, Plaintiff received notice that her appointment would not be
renewed and her last date of employment would be May 15, 2013. The letter
stated that the non-renewal of Plaintiff’s contract was based on having few
publications and low teaching evaluations, failing to contribute to the Department
and to fulfill other campus obligations, demonstrating disrespectful and
antagonistic behavior, and violating Department and university procedures.
B. Procedural History
Plaintiff sued Defendant under Title VII of the Civil Rights Act of 1964,
alleging racial and gender discrimination and retaliation. Plaintiff also sued Drs.
LaGory, Cockerham, Baker, and DiLorenzo under 42 U.S.C. § 1983 for racial and
gender discrimination and retaliation. The district court granted a motion to
dismiss as to all claims except the Title VII racial discrimination claim against
Defendant. Defendant moved for summary judgment on the remaining Title VII
claim, which the district court granted. Plaintiff appeals the district court’s grant of
summary judgment.

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II. DISCUSSION
A. Plaintiff’s Title VII Discrimination Claim
Title VII prohibits an employer from discriminating against an individual on
the basis of race. 42 U.S.C. § 2000e-2(a)(1). When a Title VII plaintiff offers only
circumstantial evidence of discrimination, as is the case here, that claim is
analyzed through the three-part McDonnell Douglas burden shifting framework.
Burke-Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006). Under this
framework, a plaintiff must establish a prima facie case of racial discrimination,
which requires “establish[ing] facts adequate to permit an inference of
discrimination.” Rioux v. City of Atlanta, 520 F.3d 1269, 1275 (11th Cir. 2008).
Specifically, Plaintiff must show that she: (1) is a racial minority; (2) was
subjected to adverse employment action; (3) was treated less favorably than
similarly situated, non-minority employees; and (4) she was qualified to do the job.
See Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
The inference of discrimination is rebuttable, and “the burden of producing
evidence that the employer’s action was taken for a legitimate, non-discriminatory
reason then shifts to the employer.” Rioux, 520 F.3d at 1275. Because this is a
burden of production, not proof, the burden is easy to satisfy. Holifield, 115 F.3d
at 1564; Lee v. Russell Cty. Bd. of Educ., 684 F.2d 769, 773 (11th Cir. 1982).
Once satisfied, the burden shifts back to the plaintiff to demonstrate that the
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“articulated reason for the adverse employment action is a mere pretext for
discrimination,” which merges with the plaintiff’s ultimate burden of showing
intentional discrimination. Holifield, 115 F.3d at 1565.
The pretext inquiry looks at the employer’s beliefs, not the employee’s own
perceptions of her performance. Id.; see also Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (noting that the pretext inquiry does not
focus “on reality as it exists outside of the decision maker’s head”). Thus, the
plaintiff must show both that the employer’s given reasons for the adverse
employment action are ill-founded, and that unlawful discrimination was the true
reason. Alvarez, 610 F.3d at 1267. The court does not “second-guess the wisdom
of an employer’s business decisions,” and a Title VII case is not the place for
plaintiffs to “litigate whether they are, in fact, good employees.” Id. at 1266
(quoting Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.2002)).
We assume without deciding, as did the district court, that Plaintiff has set
out a prima facie case of discrimination. 2 We thus now look to see whether
Defendant has articulated any legitimate, non-discriminatory reasons for Plaintiff’s

2

Concerning the elements of the prima facie case, the parties dispute only whether Plaintiff has
shown that she was treated less favorably than a proper comparator. Because Plaintiff’s claim
ultimately fails on the pretext step of the analysis, we need not address the issue of a proper
comparator to decide the case against Plaintiff. Alvarez, 610 F.3d at 1265 (“It matters not
whether [a plaintiff] has made out a prima facie case if she cannot create a genuine issue of
material fact as to whether [a defendant’s] proffered reasons for firing her are pretext masking
discrimination.”).
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termination. In its motion for summary judgment, Defendant set out fourteen
reasons justifying Plaintiff’s termination.3 Finding evidence in the record to
support each of Defendant’s articulated reasons as being legitimate, nondiscriminatory reasons for Plaintiff’s termination, we agree with the district court
that Defendant has met its burden on this step of the McDonnell Douglas analysis.
B. Whether Plaintiff has Shown Evidence of Pretext

3

Defendant offers the following reasons for Plaintiff’s termination:
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Plaintiff had no publications in 2010.
Plaintiff was the only tenure-track faculty member in 2010 in the Department of
Sociology and Social Work who did not publish anything in 2010.
Plaintiff had the lowest student course evaluation in 2010 in the Department of
Sociology and Social Work for [a statistics course].
Plaintiff was told in her 2010 annual evaluation she needed to publish regularly and
make any necessary changes to have consistently good teaching evaluations.
Plaintiff’s student evaluation scores in 2011 did not exceed the average for the
Department of Social Work.
Plaintiff had no publications prior to October, 2011.
Plaintiff’s level of contribution during the first ten months of 2011 was the lowest of
any serving faculty member in the Department of Sociology and Social Work.
Plaintiff was uncooperative in discussing faculty and Department business.
Plaintiff’s research and scholarship productivity in 2011 was low.
Plaintiff’s teaching scores in 2011 were among the lowest in the Department of Social
Work.
Plaintiff’s service to the Department and interaction with colleagues was subpar.
Plaintiff’s participation in the Health Disparities Research Training Program
(“HDRTP”) was problematic both in attendance and with a grant, and Plaintiff only
participated in 60.7% of the Resource Center for Minority Aging Research
(“RCMAR”) learning sessions.
Plaintiff’s participation in the Geriatric Education Center Faculty Scholar Program
(“GEC FSP”) was poor.
Plaintiff failed to meet expectations for a tenure-track faculty member.
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We now turn to the question of whether Plaintiff has adequately rebutted
these reasons as merely pretexual and established that unlawful discrimination was
the real reason for her termination. We conclude she has not.
As an initial matter, we note that Plaintiff has waived any arguments
concerning pretext. To properly assert arguments of pretext, Plaintiff must raise
the issue “plainly and prominently” in her briefs, and it is insufficient to address
the issue through mere passing references or in a perfunctory manner without
support. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 680–82 (11th
Cir. 2014). A party abandons any issue not properly briefed in this way. Access
Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004). Plaintiff does
not mention pretext at all in her opening brief, and in her reply brief simply notes
what sort of evidence may be offered to show evidence of pretext, but does not
discuss any particular evidence in this case. By failing to address the issue of
pretext, Plaintiff has abandoned her challenge to the district court’s judgment on
that ground, essentially waiving her claim altogether. See Sapuppo, 739 F.3d at
680 (“When an appellant fails to challenge properly on appeal one of the grounds
on which the district court based its judgment, he is deemed to have abandoned any
challenge of that ground, and it follows that the judgment is due to be affirmed.”).
Plaintiff’s claim fails even considering Plaintiff’s pretext arguments made to
the district court. We agree with the district court that Plaintiff failed to adequately
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rebut as pretextual each of Defendant’s proffered reasons for her termination.
Plaintiff has not refuted as factually incorrect Defendant’s reasons related to
Plaintiff’s lack of publications or low teaching scores, nor has Plaintiff shown that
Dr. Baker did not rely on these reasons when declining to renew Plaintiff’s
contract. Similarly, though Plaintiff “disagrees” with the more subjective
conclusions about her performance, she offers no evidence to rebut these reasons
or otherwise show that Dr. Baker did not rely on these reasons as well when
terminating Plaintiff. Giving weight here to Plaintiff’s excuses or reasons for
disagreement would be engaging in the sort of second-guessing of business
decisions that is beyond our province in Title VII cases. Plaintiff has not shown
that Defendant’s proffered reasons for her termination are a pretext for racial
discrimination, and thus her discrimination claim fails.
III. CONCLUSION
Once a defendant employer under Title VII has articulated legitimate, nondiscriminatory reasons for terminating an employee, the plaintiff’s claim survives
summary judgment only if the plaintiff can rebut these reasons as pretextual.
Plaintiff has failed to rebut as pretextual Defendant’s reasons for her termination,
and so the district court properly granted Defendant’s motion for summary
judgment. The district court’s judgment is AFFIRMED.

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