Enrique R. Suarez v. School Board of Hillsborough County Florida and its Employees, et al.

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-12891
Non-Argument Calendar
________________________
D.C. Docket No. 8:13-cv-01238-EAK-MAP
ENRIQUE R. SUAREZ,
Plaintiff - Appellant,
versus
SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA
AND ITS EMPLOYEES,
JAMES GOODE, Supervisor of Teacher Recruitment ,
JOHN COBB, Principal, Farnell Middle School,
OLANIYIO POPOOLA, Principal, Leto Adult Education,
MATTHEW ROMANO, Assistant Principal,
King High School et al.,
Defendants - Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(January 19, 2016)
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Before WILSON, JORDAN, and ROSENBAUM, Circuit Judges.
PER CURIAM:
Enrique Suarez, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of the School Board of Hillsborough County on his
employment discrimination claims.
In 2012 and 2013, Mr. Suarez, a 60-year-old Hispanic male, applied for
approximately 31 teaching and administrative positions within the Hillsborough
County school district. When he was not hired, Mr. Suarez sued the School Board
of Hillsborough County and several of its employees alleging defamation,
employment discrimination on the basis of race and national origin, under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and age discrimination,
under the Age Discrimination in Employment Act, 29 U.S.C. § 623.
After Mr. Suarez filed his ten-count second amended complaint, the district
court dismissed his defamation claims with prejudice. In November of 2014, the
School Board moved for summary judgment on the seven remaining employment
discrimination claims. The district court granted the School Board’s motion in
June of 2015. Mr. Suarez now appeals.
Mr. Suarez argues that the district court erred in granting summary judgment
because he had put forward sufficient evidence to establish a prima facie case of
race, national origin, and age discrimination. Alternatively, Mr. Suarez contends
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that the district court should have denied the School Board’s summary judgment
motion as a matter of discretion. Because we find no genuine dispute as to any
material fact, and conclude that the School Board is entitled to judgment as a
matter of law, we affirm the district court’s grant of summary judgment.
I
We review a district court’s grant of summary judgment de novo, viewing
the evidence in the light most favorable to the nonmoving party. See Schwarz v.
City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008). Although we
liberally construe the filings and briefs of pro se litigants, “issues not briefed on
appeal by a pro se litigant are deemed abandoned.” Timson v. Sampson, 518 F.3d
870, 874 (11th Cir. 2008).
Federal Rule of Civil Procedure 56 mandates the entry of summary
judgment where, after adequate time for discovery, the record shows that there is
no genuine issue of material fact and the moving party is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
322 (1986). A party asserting that a fact is genuinely disputed must support his
assertion by “citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits or
declarations, stipulations . . . , admissions, interrogatory answers, or other
materials.” Fed. R. Civ. P. 56(c). The substantive law identifies what facts are
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material to a claim, and only disputes over facts that might affect the outcome of
the suit will preclude the entry of summary judgment. See Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Thus, no genuine issue of fact exists
“unless the non-moving party establishes, through the record presented to the
court, that it is able to prove evidence sufficient for a jury to return a verdict in its
favor.” Cohen v. United Am. Bank of Cent. Fla., 83 F.3d 1347, 1349 (11th Cir.
1996) (citation omitted).
II
Title VII provides that it is unlawful for an employer to discriminate against
any individual with respect to employment based on the individual’s race, color,
religion, sex, or national origin. See 42 U.S.C. § 2000e-2(a)(1). Under the ADEA,
it is unlawful for an employer to discharge or otherwise discriminate against an
employee who is at least 40 years old on the basis of age. See 29 U.S.C. § 623(a).
We analyze both Title VII and ADEA claims under the McDonnell Douglas
burden-shifting framework. See Mazzero v. Color Resolutions Int’l, LLC, 746 F.3d
1264, 1270 (11th Cir. 2014). See generally McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802–03 (1973). Under this framework, the plaintiff must first create
an inference of discrimination by making out a prima facie case. See Vessels v.
Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). To establish a prima
facie case under Title VII for a failure-to-hire claim, a plaintiff bears the burden of
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proving that (1) he is a member of a protected class; (2) he applied and was
qualified for the position; (3) he was rejected; and (4) an individual outside his
protected class was hired for the position. See id. To establish a prima facie case
under the ADEA, the plaintiff bears the burden of proving that (1) he was a
member of the protected class (i.e., at least 40 years old at the time of the adverse
employment action); (2) he was subject to an adverse employment decision; (3) the
position he sought was filled by a substantially younger person; and (4) he was
qualified for the position. See Chapman v. AI Transp., 229 F.3d 1012, 1043 (11th
Cir. 2000) (en banc). Age discrimination claims also require that the plaintiff
ultimately show that his age was the “but-for” cause of the adverse employment
decision. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 177 (2009).
Once a prima facie case is established, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for the challenged employment
action. See id. at 767. Subjective evaluations of a job candidate are often critical
to the decision-making process and can constitute a legally sufficient, legitimate
non-discriminatory reason for an adverse employment decision if the employer
articulates a clear and reasonably specific factual basis upon which it based its
subjective opinion. See Chapman, 229 F.3d at 1033–34.
If the employer meets this burden, the inference of discrimination drops out
of the case entirely, and the plaintiff bears the burden of demonstrating that the
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employer’s proffered reasons for its decision were pretextual. See Vessels, 408
F.3d at 768.
III
Because we write for the parties, we assume familiarity with the underlying
facts of the case and recite only what is necessary to resolve this appeal.
The only claims that remained at issue for summary judgment stemmed from
Mr. Suarez’s allegations of discriminatory failure to hire for an Elementary
Supervisor/Generalist position (Count 1), a Magnet Social Studies position at
Young Creative Science Center (Counts 2 and 7), a Spanish position at Farrell
Middle School (Count 3) and at Strawberry Crest High School (Count 9), an
International Baccalaureate position at Robinson High School (Count 6), and an
English Language Learner position at Riverview High School (Count 8). We will
discuss each in turn.
A
Mr. Suarez did not establish a prima facie case of race, national origin, or
age discrimination for the School Board’s failure to hire him for the Elementary
Supervisor/Generalist position (Count 1). In 2012, the School District advertised
two openings for this position. The requisite qualifications for the position,
according to the job announcement, included: “Experience: Three years of
increasingly responsible experience in elementary administration as principal or
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assistant principal, with at least three years of related management or supervisory
experience preferred. Elementary experience preferred.” Mr. Suarez applied for
the position, and, in his application, acknowledged that he did not have
administrative, supervisory, or management experience in public schools. He was
never a principal, assistant principal, or administrator for an elementary school.
Because he did not meet the hiring criteria for the position, Mr. Suarez was not
offered an interview. The School Board ultimately hired Deborah Talley, a 54-
year-old Hispanic female, and Debbie Mills, a 54-year-old Caucasian female, for
the openings. Both were former principals in the School District who met the
relevant hiring criteria for the position.
Although Mr. Suarez is a member of the class of people protected under
Title VII and the ADEA, he has not established that he possessed the requisite
qualifications for the position to which he applied. Indeed, his qualifications for
the job were inferior to those possessed by Ms. Talley and Ms. Mills—both former
school principals. The job description clearly stated, and the affidavit submitted by
the general director of elementary education confirmed, that the position required
applicants to have three years of experience as a principal or assistant principal.
The School Board’s decision to offer the jobs to qualified applicants does not
suggest discrimination.
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Furthermore, Mr. Suarez has not established that the job was offered to
individuals outside of his protected class to establish a prima facie Title VII case
(Ms. Talley is also Hispanic), nor did he show that the job was offered to
substantially younger applicants to establish a prima facie ADEA case (Ms. Talley
and Ms. Mills were only six years younger than Mr. Suarez).1 Mr. Suarez’s
assertion, unsupported by documentary evidence, that experience as a former
principal was not required for the job did not rebut the School Board’s legitimate,
non-discriminatory reason for offering the position to candidates that met the
advertised, objective hiring criteria. Accordingly, the district court did not err in
granting summary judgment as to Count 1.
1 We recognize that we have previously held, in cases where plaintiffs presented
substantial evidence of discriminatory animus beyond mere age difference, that a smaller age
difference was sufficient to meet the “substantially younger” element of the ADEA prima facie
case. See Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1360 (11th Cir. 1999)
(holding that a 37-year-old was “substantially younger” than a 42-year-old plaintiff); Carter v.
DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir. 1997) (holding that a 39-year-old was
“substantially younger” than a 42-year-old). But we agree with the district court that, in this
case, Mr. Suarez failed to create an inference of discrimination because a six-year age difference,
without more, does not establish that Mr. Suarez’s age was the but-for cause of the School
Board’s failure to hire him. See O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308,
312 (1996) (“The prima facie case requires evidence adequate to create an inference that an
employment decision was based on an illegal discriminatory criterion.”). See also Steele v.
United States VA, 2011 WL 2160343 at *10 (M.D. Fla. June 1, 2011) (concluding that a 13–year
age difference, without more, is insufficient to meet this standard); Matthews v. City of Dothan,
2006 WL 3742237 at *12 (M.D. Fla. Dec. 18, 2006) (ruling that a six-year age difference was
insufficient to create an inference of age discrimination, when no other evidence of
discriminatory animus was present).
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B
Mr. Suarez also brought claims based on the School Board’s failure to hire
him for the Magnet Social Studies position at the Young Creative Science Center
(Counts 2 and 7). Dr. James Goode, the School District’s manager of applications,
forwarded Mr. Suarez’s resume to the Young Center and emailed Mr. Suarez
regarding the open position. A secretary at the Young Center also emailed Mr.
Suarez inviting him for an interview once he submitted an application. Mr. Suarez
did not timely submit an application for the opening or contact the Young Center
for an interview. After conducting interviews, the school hired Elizabeth Heidt, a
23-year-old Caucasian, for the position. Ms. Heidt taught as a substitute in that
class, understood the program, was a social studies major, and interviewed well.
According to Mr. Suarez, he did not open the email from the Young Center until
after the position had been filled because it was sent to an email address he rarely
checked.
Mr. Suarez failed to establish a prima facie case of discrimination as to
Counts 2 and 7, under Title VII and the ADEA, because he did not apply for the
Magnet Social Studies position at the Young Creative Science Center. See Walker
v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1275 (11th Cir. 2002) (“The
application requirement is important to establishing th[e] presumption [of
discrimination] because it shows that the decision-maker knew about the plaintiff
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and the plaintiff’s interest in the position.”). Although Mr. Suarez argues that
sending the invitation to his secondary email address was a conspiracy to
discriminate against him, he offers no evidence to support this claim and it does
not rebut the School Board’s legitimate non-discriminatory reasons for failing to
hire him. We conclude, therefore, that summary judgment was properly granted in
favor of the School Board on Counts 2 and 7.
C
Mr. Suarez challenges the decision not to hire him for positions teaching
Spanish at Farrell Middle School (Count 3) and Strawberry Crest High School
(Count 9). The School Board argued that Mr. Suarez could not show intentional
discrimination or pretext because he lacked the qualifications for the Spanish-
teaching positions at both schools. Although Mr. Suarez is a native Spanish
speaker, he lacked a foreign language degree, foreign language teaching
experience, and a Spanish teaching certification. The candidates who were hired
for the positions had these qualities, and the candidate selected to teach at
Strawberry was also Hispanic (and thus not outside Mr. Suarez’s protected class).
Mr. Suarez’s conclusory assertions related to his “outstanding academic and work
experience all over the world” are not sufficient to rebut the School Board’s
legitimate, non-discriminatory reasons for hiring other candidates. See Chapman,
229 F.3d at 1030 (explaining that a plaintiff “must meet [the proffered] reason
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head on and rebut it, and the employee cannot succeed by simply quarreling with
the wisdom of that reason”). Because Mr. Suarez failed to make out a prima facie
case and/or show pretext, we find no genuine issue of material fact. The School
Board was entitled to judgment as a matter of law as to Counts 3 and 9.
D
Mr. Suarez challenges the failure to hire him for an International
Baccalaureate position at Robinson High School (Count 6). The School Board
acknowledged that Mr. Suarez interviewed for the position after filling out a
magnet application. It was clear from his application, however, that he was not the
best candidate to teach a deep philosophical course, as the position required. His
application included numerous errors, as well as incomplete or nonresponsive
answers. In his interview, he was abrasive, interrupted his interviewers, showed
poor communication skills, demonstrated a lack of understanding of the IB
program, and gave unsatisfactory answers. He had no background in philosophy
or anthropology, and he did not have experience teaching in an IB program.
Because of these issues, Mr. Suarez received a magnet screening score of 1 out of
5. The candidate who was hired for the position majored in anthropology and,
during her interview, demonstrated a thorough understanding of the material and a
clear grasp on how to effectively teach the course.
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The district court did not err in granting summary judgment on Count 6
because Mr. Suarez’s low score in a magnet screening evaluation—which was
based on his poor performance in a screening interview, his lack of credentials, and
his unsatisfactory application answers—was a legitimate, non-discriminatory
reason for not hiring him. Mr. Suarez’s own conclusions regarding his skills and
experience did not rebut the School Board’s proffered justifications. Because Mr.
Suarez failed to present evidence tending to show that the School Board’s reliance
on this evaluation was a pretext for discrimination, that argument is not persuasive.
E
Finally, Mr. Suarez claimed that he was denied an English Language
Learner position at Riverview High School (Count 8) because of his race, national
origin, and age. But Mr. Suarez failed to establish that he was qualified to teach in
the English Language Learners program because he did not have the requisite
certification for that position. The candidate who was given the position had
taught ELL before, was certified, and interviewed well. Mr. Suarez only offered
his own conclusions about his experience, but did not show evidence of pretext or
discrimination. Accordingly, summary judgment on this claim was also properly
granted.
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IV
Mr. Suarez either failed to offer evidence to establish a prima facie case or
demonstrate pretext (or both) for each of his claims. We readily conclude that all of
the School Board’s proffered reasons for its hiring decisions were legitimate and
non-discriminatory. Mr. Suarez presented no evidence to the district court to
suggest that these reasons are unworthy of belief or merely pretext. There was no
evidence, for example, showing that the reasons were factually baseless or
insufficient to motivate the School Board’s hiring decisions. Indeed, Mr. Suarez
failed to support any of his assertions with citations to affidavits, documents,
emails, or any other evidence that responded to the evidence introduced by the
School Board, as is required by Rule 56(c). Mr. Suarez’s appellate brief, even
liberally construed, also fails to challenge the School Board’s non-discriminatory
justifications. We find, therefore, that summary judgment was appropriate as to all
of Mr. Suarez’s claims.
We affirm the district court’s grant of the School Board’s motion for
summary judgment.
AFFIRMED.
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