Cooper v. Elmore County Board of Education
MEMORANDUM OPINION AND ORDER that defendants' 34 Motion for Summary Judgment is GRANTED; that defendants' 52 , 53 and 54 Motions to Strike and plaintiff's 56 Motion to Continue are DENIED as moot; that a separate judgment will be issued. Signed by Chief Judge William Keith Watkins on 1/26/2012. (cc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
ELMORE COUNTY BOARD OF
EDUCATION, LARRY TEAL,
KITTY GRAHAM, JOEY HOLLEY, )
ROBERT LUSK JR., MARK
NELSON, MARY ANN MCDONALD, )
JEFFERY LANGHAM, and
CASE NO. 2:10-CV-586-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Carolyn Cooper claims that she was discriminated against because of
her race when she was not hired by Defendant Elmore County Board of Education
(“School Board”) as a supplemental route bus driver.1 Ms. Cooper claims Defendants’
actions violated the Equal Protection Clause of the Fourteenth Amendment, as
The individual Defendants include the members of the School Board (Larry Teal, Kitty
Graham, Joey Holley, Robert Lusk Jr., Mark Nelson, and Mary Ann McDonald), as well as Dr.
Jeffery Langham, Superintendent of the Elmore County Public School System, and Ms. Carol
McGalliard, former Assistant Superintendent and Director of Transportation.
enforced by 42 U.S.C. § 1983, and 42 U.S.C. §§ 1981 and 1981a (collectively,
“§ 1981”), as enforced by § 1983.
Before the court is Defendants’ Motion for Summary Judgment (Doc. # 34),
which is accompanied by a supporting brief and evidentiary submissions (Docs. # 34
& 35). Plaintiff filed a response in opposition (Doc. # 40), to which Defendants
replied (Doc. # 41). After careful consideration of the arguments of counsel, the
applicable law and the record as a whole, the court finds that the motion is due to be
II. JURISDICTION AND VENUE
The court properly exercises subject matter jurisdiction over this action,
pursuant to 28 U.S.C. § 1331 and 28 U.S.C. § 1343. Personal jurisdiction and venue
are adequately pleaded and not contested.
III. STANDARD OF REVIEW
On summary judgment, the evidence and the inferences from that evidence
must be viewed in the light most favorable to the nonmovant. See Jean-Baptiste v.
Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010). Hence, “‘facts, as accepted at the
summary judgment stage of the proceedings, may not be the actual facts of the case.’”
Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002) (quoting Priester v. City of
Riviera Beach, 208 F.3d 919, 925 n.3 (11th Cir. 2000)).
“Summary judgment is appropriate if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam) (citation and internal quotation marks
omitted); see Fed. R. Civ. P. 56(a) (“The court shall grant summary judgment if the
movant shows that there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”).
The party moving for summary judgment “always bears the initial responsibility
of informing the district court of the basis for its motion, and identifying those
portions of [the record, including pleadings, discovery materials and affidavits], which
it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp.
v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting
evidence indicating there is no dispute of material fact or by showing that the
nonmoving party has failed to present evidence in support of some element of its case
on which it bears the ultimate burden of proof. Id. at 322–24.
If the movant meets its evidentiary burden, the burden shifts to the nonmoving
party to establish, with evidence beyond the pleadings, that a genuine issue material
to each of its claims for relief exists. Shiver v. Chertoff, 549 F.3d 1342, 1343 (11th
Cir. 2008); Fed. R. Civ. P. 56(c). When the nonmovant fails to set forth specific facts
supported by appropriate evidence sufficient to establish the existence of an element
essential to its case and on which the nonmovant will bear the burden of proof at trial,
summary judgment is due to be granted in favor of the moving party. Celotex Corp.,
477 U.S. at 323 (“[F]ailure of proof concerning an essential element of the nonmoving
party’s case necessarily renders all other facts immaterial.”).
The facts are largely undisputed. Ms. Cooper, a black female, is employed by
the School Board as a regular route bus driver. In addition to her regular route, Ms.
Cooper previously had a contract with the School Board as a supplemental route bus
driver. The duties for regular routes and supplemental routes were the same:
transporting students to and from school. (Pl.’s Dep. 20–21 (Doc. # 34, Ex. A); Defs.’
Resp. to Requests to Admit 2 (Doc. # 40, Ex. C).)
On March 25, 2009, all supplemental bus driver contracts were cancelled to
save money in the Transportation Department’s budget.3 (McGalliard Dep. 23–25
(Doc. # 34, Ex. B); Pl.’s Dep. 91.) At the time, there were thirteen supplemental route
The actual facts may be different than those stated here. See Lee, 284 F.3d at 1190.
Originally, Ms. Cooper claimed that the termination of her contract was based on race.
However, in her deposition she admitted that she was no longer pursuing this claim. (Pl.’s Dep.
bus drivers, including Ms. Cooper. The School Board sought to consolidate the
supplemental routes so that it could hire fewer drivers. The School Board posted the
new supplemental route positions as required by law and advertised them for fourteen
days. Thirteen applicants were interviewed for the job; four were black, and nine
The Interview Process
School Board policy requires that applicants be interviewed by a panel so that
no one person makes the hiring decision. (McGalliard Dep. 38.) Defendant Dr.
Jeffery Langham, Superintendent of the Elmore County Public School System, chose
the interview panel, which was comprised of school administrators. Defendant Carl
Thomas, Director of the Elmore County Technical Center, was selected by the panel
to chair the interview panel because many of the students to be transported in the
supplemental routes were under his supervision. The other members of the interview
panel included Defendants Rashawn Causey, Greg Wilkins, James Carver, and
Originally, fourteen applicants applied. However, one applicant was not interviewed
because the applicant did not have an Alabama driver’s license, as required by the job posting.
(McGalliard Dep. 30; Doc. # 34, Ex. 1 to Ex. D.)
For reasons that are not clear, Mr. Wilkins did not participate in the actual interviews of
applicants. Because Mr. Graves only participated in the first day of interviews, his scores were
excluded from the first day interviewees’ total scores.
Defendant Carol McGalliard, Assistant Superintendent and Director of
Transportation,6 drafted a questionnaire for the interview panel to use in the
interviews. She submitted the questionnaire to Dr. Langham for approval. Ms.
McGalliard also gave the questionnaire to the School Board’s attorney to “make sure
it was fair.” (McGalliard Dep. 43.) Both Dr. Langham and the School Board’s
attorney approved the questionnaire. (Langham Aff. (Doc. # 34, Ex. C).)
The questionnaire had the following ten questions:
1. If you are already employed as a bus driver with the Elmore County
Board of Education, which community do you drive for?
If you are a substitute driver, where do you live and which
community (or communities) do you drive in?
2. Because you are already licensed as a bus driver, what do you see as
the most important job responsibilities as a driver?
3. What experiences do you have as a bus driver? Include regular
routes, field trips and/or special routes[.] Do you have any experience
using a wheelchair lift?
4. Do you consider yourself as a part of a team? In other words, do you
understand that this position will require you to take specific directions
from the Transportation Department regarding route schedules? In
addition to your yes/no answer, explain your philosophy of a team
Ms. McGalliard retired from her position with the Elmore County Board of Education
on March 1, 2011.
5. Dream for a moment. If you could name one thing that could help
make transportation better for the students of Elmore County, what
would it be?
6. As a driver, how do you manage (or maintain discipline [of]) the
students on your bus?
7. If the Transportation Department chose to view a portion of your
daily bus route while transporting students, what would the department
8. Discuss your work ethics with this group[.] One example would be
9. As a driver, have you ever received a letter of reprimand, a letter of
instruction, a letter of concern from the Superintendent and/or
Have you ever been placed on
Administrative Leave by the Superintendent? Have you ever received
complaints from administrators regarding your performance as a bus
driver? If your answer to any of these questions is yes, please explain.
10. As you know, with any interview process, the committee can never
ask all of the right questions[.] What do you need to tell us that you feel
it would be important for this committee to know about you[?] In other
words, why are you the best candidate to transport our precious children?
(Special Route Driver Interview Questions (Doc. # 34, Ex. 1 to Ex. D).) The
interview panel was to score each applicant’s answer on a scale of 0–10, except for
question five, which was not scored. However, a “yes” answer to question nine could
result in negative points, to be subtracted from the applicant’s total score. Mr.
Thomas stated that he scored “each answer by the applicants based on presentation
and how the applicant handled the questions.” (Thomas Aff. ¶ 6 (Doc. # 34, Ex. D).)
The interview panel did not consider seniority “because all applicants had to be
[School] Board employees who were bus drivers and therefore everyone had
experience.” (Thomas Aff. ¶ 8; see also Causey Aff. ¶ 6 (Doc. # 34, Ex. F).) Instead,
the interview panel considered an applicant’s honesty, sincerity, and professionalism.
(Causey Aff. ¶ 6; see also Thomas Aff. ¶ 6.)
The questionnaires, along with each interviewee’s scores, were to be turned
over to Ms. McGalliard, who would rank the interviewees. Based on the consolidated
routes, it would be determined how many bus drivers were needed, and then the top
scorers would be recommended by the Superintendent to the School Board.7
(McGalliard Dep. 30.) The School Board would then vote to approve or disapprove
the Superintendent’s recommendation.
Ms. Cooper’s Interview
Ms. Cooper was interviewed on July 29, 2009, at the Elmore County Technical
Center. The interview panel asked Ms. Cooper all the questions in the questionnaire.
When the interview panel asked Ms. Cooper whether she had received complaints
from administrators (Question 9), Ms. Cooper answered, “No.” Mr. Thomas gave Ms.
Cooper a score of negative four on question nine “because she was not truthful in her
In order to hire personnel, the Superintendent must make a recommendation to the
School Board. (Pl.’s Dep. 67.)
response to the question.”
(Thomas Aff. ¶ 7.)
Mr. Thomas had personally
reprimanded Ms. Cooper twice: once for using a Bluetooth while driving and another
time for the manner in which she reprimanded students on her bus. (Thomas Aff. ¶ 7.)
Ms. Causey gave Ms. Cooper a score of negative two on question nine because Ms.
Cooper “was untruthful in her response.” (Causey Aff. ¶ 7.)
The Interview Results
It was determined that six drivers would be needed to run the same routes that
the thirteen drivers had been running. The top six applicants were to be offered
positions. The applicant who ranked number one turned down the job because it
interfered with his other business interests. The applicant who ranked number five
was not offered a position, because the applicant was not a regular employee with a
regular route. (Pl.’s Dep. 30.) Ms. Cooper ranked twelfth of thirteen and was not
offered a position. (Pl.’s Dep. 68.)
Dr. Langham recommended that the School Board hire the six individuals
submitted to him by the interview panel. Of the six applicants who were hired by the
School Board, two were black and four were white. Ms. Cooper remains employed
as a regular bus driver and receives all benefits associated with that position.
Ms. Cooper brings two employment discrimination claims against Defendants:
an equal protection claim and a § 1981 claim. Though unclear, it appears that Ms.
Cooper is pursuing theories of disparate treatment and disparate impact under each
claim. The individual Defendants assert that they are entitled to qualified immunity
on all claims and further argue that Ms. Cooper cannot meet her burden to establish
discrimination based on race.8 (Defs.’ Summ. J. Br. 1–2 (Doc. # 35).)
Part A will address Ms. Cooper’s official capacity claims against the individual
Defendants. Part B will set out the principles of law governing employment
discrimination claims brought under the Equal Protection Clause and § 1981. Then,
Ms. Cooper’s disparate treatment claims will be addressed in Part C, followed by
analysis of her disparate impact claims in Part D.
Defendants further argue that the individual Defendants are entitled to summary
judgment because Ms. Cooper has not met the Eleventh Circuit’s “heightened pleading
requirement for § 1983 claims filed against individuals.” (Defs.’ Summ. J. Br. 13–14.)
Specifically, Defendants argue that “[t]here is no specification as to what the [Defendants] did
that would be consider[ed] racial animus which caused [Ms. Cooper] not to receive the job in
question.” (Defs.’ Summ. J. Br. 13–14.) However, in Randall v. Scott, 610 F.3d 701 (11th Cir.
2010), the Eleventh Circuit held that “[a]fter Iqbal it is clear that there is no ‘heightened pleading
standard’ as it relates to cases governed by [Federal Rule of Civil Procedure] 8(a)(2), including
civil rights complaints.” Id. at 710. Thus, “[p]leadings for § 1983 cases involving defendants
who are able to assert qualified immunity as a defense shall now be held to comply with the
standards described in Iqbal.” Id. at 709. Additionally, challenges to the sufficiency of the
pleadings should be raised in a 12(b)(6) motion to dismiss.
Official Capacity Claims Against the Individual Defendants
It is unclear from Ms. Cooper’s Second Amended Complaint (Doc. # 30)
whether her § 1983 claims include official capacity claims against the individual
Defendants. “Under the Eleventh Amendment, state officials sued for damages in
their official capacity are immune from suit in federal court.” Jackson v. Ga. Dep’t
of Transp., 16 F.3d 1573, 1575 (11th Cir. 1994); see also Kentucky v. Graham, 473
U.S. 159, 166 (1985) (stating that “an official-capacity suit is, in all respects other
than name, to be treated as a suit against the entity”). Thus, the individual Defendants
are entitled to absolute immunity with regard to any claims for damages against them
in their official capacities. Similarly, the individual Defendants in their official
capacities are not “persons” for purposes of § 1983 monetary relief. Will v. Mich.
Dep’t of State Police, 491 U.S. 58, 70–71 (1989).
Employment Discrimination Claims Brought Under the Equal Protection
Clause and § 1981
Ms. Cooper’s equal protection and § 1981 claims will be analyzed jointly
because employment discrimination claims brought under the Equal Protection Clause
and § 1981 are “subject to the same standards of proof and employ the same analytical
framework.” Bryant v. Jones, 575 F.3d 1281, 1296 n.20 (11th Cir. 2009). The
elements required for a § 1983 claim apply because claims brought under the Equal
Protection Clause and § 1981 must be brought pursuant to § 1983. To establish a
claim under § 1983 against individual defendants in their individual capacities, a
plaintiff must show: (1) a violation of a constitutional right and (2) that the violation
was committed by a person acting under color of state law. Am. Mfrs. Mut. Ins. Co.
v. Sullivan, 526 U.S. 40, 49–50 (1999).
A plaintiff must also prove an additional element when bringing a § 1983 claim
against a local government or its branches.9 A school board can be “liable under
section 1983 only for acts for which [the school board] is actually responsible.”
Marsh v. Butler Cnty., 268 F.3d 1024, 1027 (11th Cir. 2001) (en banc). Thus, a
plaintiff seeking to establish a school board’s liability under § 1983 must “identify a
[school board] ‘policy’ or ‘custom’ that caused [his or her] injury.” Grech v. Clayton
Cnty., Ga., 335 F.3d 1326, 1330 n.6 (11th Cir. 2003) (quoting Gold v. City of Miami,
151 F.3d 1346, 1350 (11th Cir. 1998)); see also Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978) (“[I]t is when execution of a [school board’s] policy or custom,
whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy, inflicts the [constitutional] injury that the [school board] as
an entity is responsible under § 1983.”).
“School boards constitute branches of local government and thus may be subject to
liability under Monell.” Denno v. Sch. Bd. of Volusia Cnty., Fla., 218 F.3d 1267, 1276 n.9 (11th
It is undisputed that the individual Defendants were acting under color of state
law during the hiring process. However, Ms. Cooper’s claims fail because there is no
constitutional violation under either a disparate treatment or a disparate impact theory.
Because evidence is lacking of a constitutional violation, Ms. Cooper cannot show a
basis upon which to establish individual liability against the individual Defendants or
municipal liability against the School Board. As a consequence, the issue of qualified
immunity, raised by the individual Defendants, need not be reached.
Disparate Treatment Theory
General Principles of Disparate Treatment
A prima facie case for race discrimination based on disparate treatment, may
be established in two ways: (1) by presenting direct evidence of discrimination or
(2) by presenting circumstantial evidence using a variation of the four-part test
delineated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Bryant,
575 F.3d at 1296 n.20; see also Damon v. Fleming Supermarkets of Fla., Inc., 196
F.3d 1354, 1358 (11th Cir. 1999) (noting that a prima facie discrimination case can
be established directly or indirectly). Once a plaintiff establishes a prima facie case,
the burden shifts to the employer “to ‘articulate some legitimate, nondiscriminatory
reason’ for the adverse employment action.” Crawford v. Carroll, 529 F.3d 961, 976
(11th Cir. 2008) (quoting McDonnell Douglas, 411 U.S. at 802). If the employer
meets its burden, the burden shifts back to the plaintiff to show that the employer’s
stated reason for the adverse employment action was “pretext” for discrimination. Id.
The pretext inquiry requires a determination, based upon the totality of the evidence,
as to whether the plaintiff “‘has cast sufficient doubt on the defendant’s proffered
nondiscriminatory reasons to permit a reasonable factfinder to conclude that the
employer’s proffered legitimate reasons were not what actually motivated its
conduct.’” Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.
1997)). A plaintiff may meet this burden with the evidence used to establish the prima
facie case. Combs, 106 F.3d at 1528.
Circumstantial Evidence to Prove Disparate Treatment
It is undisputed that Ms. Cooper’s disparate treatment claim is based on
circumstantial evidence, and the record is devoid of any direct evidence of race
discrimination. (Pl.’s Resp. Br. 8 (Doc. # 40) (Ms. Cooper’s claim “is based on
circumstantial evidence . . . .”).) Thus, Ms. Cooper’s claim must be established using
a variation of the four-part test delineated in McDonnell Douglas Corp. v. Green.
A plaintiff may establish a prima facie case of disparate treatment on the basis
of race by showing that (1) she is a member of a protected class; (2) she applied and
was qualified for the position; (3) she was not hired, despite her qualifications; and (4)
the position remained open after she was rejected or the position was filled by a
person outside her protected class. Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th
Cir. 1999); see also Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999);
McDonnell Douglas, 411 U.S. at 802. “Demonstrating a prima facie case is not
onerous; it requires only that the plaintiff establish facts adequate to permit an
inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
It is undisputed that Ms. Cooper can show the first three elements of the prima
facie case. However, the fourth element is disputed. Defendants argue that Ms.
Cooper cannot show element four because two black applicants were chosen for two
of the six slots. (Defs.’ Summ. J. Br. 25.) Ms. Cooper maintains that a prima facie
case may be established, notwithstanding that two of the six individuals hired are in
her protected class because the four white applicants hired were “less qualified” than
she. (Pl.’s Resp. Br. 10, 11–12.) However, even assuming arguendo that Ms. Cooper
can establish a prima facie case, she cannot establish that Defendants’ proffered
reasons for not hiring her are a pretext for racial discrimination.
Defendants assert that Ms. Cooper was not hired because she scored lower than
the six chosen applicants. (Defs.’ Summ. J. Br. 26.) Ms. Cooper scored twelfth of
thirteen. Ms. Cooper’s low score came as a partial result of her perceived dishonesty
in the interview when she told the interview panel that she had not received any
complaints from administrators. In fact, she had been reprimanded by the chairman
of the interview panel, Mr. Thomas. Ms. Cooper does not dispute that she had been
reprimanded and does not offer any evidence to the contrary. Thus, Defendants’
reason for Ms. Cooper’s non-selection is legitimate and nondiscriminatory and
satisfies Defendants’ burden of rebutting the prima facie case.
Ms. Cooper claims that Defendants’ proffered reason “amounts to a pretextual
cover-up for discrimination.” (Pl.’s Resp. Br. 14.) As the basis for this argument, Ms.
Cooper asserts that the hiring process favored white applicants and that her seniority
was not adequately taken into account. However, Ms. Cooper has presented no
evidence of pretext sufficient for a reasonable finder of fact to conclude that
Defendants’ proffered legitimate reason was not what actually motivated their
First, Ms. Cooper repeatedly asserts that Defendants are relying on “a testing
mechanism that is not validated or otherwise has an affirmative showing of being void
of bias and racial prejudice” and that the testing “results in the selection of white
applicants as ‘the best qualified candidates’ at twice that of African–Americans who
are in the pool of applicants.” (Pl.’s Resp. Br. 14.) Neither the questionnaire nor the
hiring results indicate that the hiring decisions were motivated by race. Ms. Cooper
has not presented, nor is the court aware of, any law requiring an employer to have an
interview questionnaire validated as being devoid of bias and racial prejudice when
the questionnaire is neutral on its face. Despite having no legal obligation, Ms.
McGalliard had the School Board’s attorney and Dr. Langham review the questions
she drafted to ensure the questions were fair. Even Ms. Cooper admits that none of
the interview questions discriminated against her. (Pl.’s Dep. 50.) Furthermore, the
undisputed fact is that two black applicants and four white applicants were hired from
an applicant pool consisting of four black applicants and nine white applicants. By
this hiring process, black applicants were hired at a slightly higher percentage (50%)
than that of white applicants (44.4%).
Second, Ms. Cooper asserts that despite her years of experience, she was not
hired. (Pl.’s Resp. Br. 15–16.) In support of this argument, Ms. Cooper asserts that
she had been “driving that supplemental route for eight years,” and she “had
experience with that supplemental route [as opposed to] someone . . . [who had] never
drove a supplemental route.” (Pl.’s Dep. 41.)
Ms. Cooper’s second argument also fails to show pretext. All applicants were
required to have bus driving experience. It is undisputed that driving the supplemental
routes required the same skills needed as driving the regular routes. Defendants
selected a way to differentiate among thirteen applicants, all with experience, to fill
a limited number of positions. Instead of seniority, Defendants chose to value
honesty, professionalism, and sincerity during the interviews. (Causey Aff. ¶ 6; see
also Thomas Aff. ¶¶ 6–7.) Pretext cannot be established “merely by questioning the
wisdom of the employer’s reason.” Pennington v. City of Huntsville, 261 F.3d 1262,
1267 (11th Cir. 2001); see also Rowell v. BellSouth Corp., 433 F.3d 794, 798–99
(11th Cir. 2005) (explaining that “[i]t is by now axiomatic that we cannot second
guess the business decisions of an employer”). While Ms. Cooper may disagree with
Defendants’ decision to not value seniority, these facts do not show pretext.
Based on the totality of the evidence, none of Ms. Cooper’s arguments casts
doubt on Defendants’ proffered reason for not hiring her. The questions were relevant
to the position. Applicants were interviewed by a panel as required by School Board
policy. All applicants were asked the same questions. There is no evidence presented
that any applicant, other than Ms. Cooper, was not candid in his or her interview.
Finally, both black and white applicants were hired.
There is no direct evidence of discriminatory intent, and circumstantially, the
evidence is insufficient to raise a genuine issue of material fact that Ms. Cooper
suffered discrimination because of her race. It is, therefore, unnecessary to inquire
into the School Board’s customs or policies pertaining to employment practices,10 see
Ms. Cooper also argues that a cat’s paw theory of liability should apply because the
School Board “without any questions, independent investigation or discussion regarding [the
interview process] . . . voted to approve the Superintendent’s [racially biased] recommendation.”
(Pl.’s Resp. Br. 13.) The cat’s paw theory allows a plaintiff to establish causation by showing
“that the decisionmaker followed the biased recommendation [of a non-decisionmaker] without
independently investigating the [recommendation].” Stimpson v. City of Tuscaloosa, 186 F.3d
Garczynski v. Bradshaw, 573 F.3d 1158, 1170 (11th Cir. 2009) (“Analysis of a state
entity’s custom or policy is unnecessary . . . when no constitutional violation has
occurred.”), or further into the individual Defendants’ defenses of qualified immunity.
Accordingly, summary judgment for Defendants is due to be entered on the equal
protection and § 1981 disparate treatment claims alleging racial discrimination.
Disparate Impact Theory
A “disparate impact theory prohibits neutral employment practices which, while
non-discriminatory on their face, visit an adverse, disproportionate impact on a
statutorily-protected group.” Joe’s Stone Crab, 220 F.3d at 1274. Typically,
disparate impact claims are brought under Title VII, which contains a provision that
expressly allows disparate impact claims. See 42 U.S.C. § 2000e-2(k)(1)(A). Unlike
Title VII, disparate impact claims brought under §§ 1981 and 1983 require a showing
of purposeful discrimination.11 Gen. Bldg. Contractors Ass’n, Inc. v. Pa., 458 U.S.
375, 391 (1982) (“We conclude, therefore, that § 1981, like the Equal Protection
1328, 1332 (11th Cir. 1999). “[T]he recommender is using the decisionmaker as a mere conduit,
or ‘cat’s paw’ to give effect to the recommender’s discriminatory animus.” Id. Because Ms.
Cooper cannot show that any of the individual Defendants discriminated against her during the
hiring process on the basis of race, this theory also fails.
To establish a prima facie case for a Title VII disparate impact claim, a plaintiff must
show “(1) a specific, facially-neutral employment practice; (2) a significant statistical disparity
in the racial composition of employees benefitting from the practice and those qualified to
benefit from the practice; and (3) a causal nexus between the practice identified and the
statistical disparity.” Price v. M&H Valve Co., 177 F. App’x 1, 10 (11th Cir. 2006); accord
Joe’s Stone Crab, 220 F.3d at 1274.
Clause, can be violated only by purposeful discrimination.”). Because liability under
these statutes are “founded on purposeful discrimination, a showing of disparate
impact through a neutral practice alone is insufficient to prove” a violation. Price,
177 F. App’x at 14–15 (emphasis added) (discussing disparate impact in the context
of § 1981 claims); see also Wallace v. City of New Orleans, 654 F.2d 1042, 1048
(11th Cir. 1981) (“[T]he Title VII standard of disparate impact will not satisfy the
necessity under Section 1983 of proving an intent or purpose to discriminate for
impermissible reasons.”); Crawford v. Marion Cnty. Election Bd., 553 U.S. 181,
207–08 (2008) (The Fourteenth Amendment’s Equal Protection Clause “does not
regard neutral laws as invidious ones, even when their burdens purportedly fall
disproportionately on a protected class.”) (Scalia, J., concurring); Washington v.
Davis, 426 U.S. 229, 241–42 (1976) (“[W]e have not held that a law, neutral on its
face and serving ends otherwise within the power of government to pursue, is invalid
under the Equal Protection Clause simply because it may affect a greater proportion
of one race than of another.).
As discussed supra, Ms. Cooper has not presented any evidence of purposeful
discrimination by Defendants. Furthermore, Ms. Cooper’s hiring data does not raise
any inference of discrimination based on race. Thus, Defendants are entitled to
summary judgment on these claims.
For the foregoing reasons, it is ORDERED that Defendants’ Motion for
Summary Judgment (Doc. # 34) is GRANTED. It is further ORDERED that
Defendants’ motions to strike (Docs. # 52, 53 & 54) and Plaintiff’s Motion to
Continue (Doc. # 56) are DENIED as moot. A separate judgment will be issued.
DONE this 26th day of January, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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