Susan Denham v. Alabama State University

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12439
Non-Argument Calendar
____________________
SUSAN DENHAM,
Dr.,
Plaintiff-Appellant,
versus
ALABAMA STATE UNIVERSITY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Alabama
D.C. Docket No. 2:22-cv-00185-SMD
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2 Opinion of the Court 23-12439
____________________
Before B RASHER , ABUDU, and TJOFLAT, Circuit Judges.
PER CURIAM:
In this failure-to-promote discrimination case under Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq.,
Dr. Susan Denham, a white female, claims that her former em-
ployer, Alabama State University (ASU), discriminated against her
on account of her race and sex in denying her a promotion to the
Associate Dean position in ASU’s College of Health Sciences
(COHS). A Magistrate Judge (MJ) granted ASU summary judg-
ment, and Denham appealed.1 Our task, consequently, is to deter-
mine whether the MJ correctly applied the summary judgment
standard to the evidence presented. Holding that he did, we affirm.
I. Background
A. The Associate Dean Position
On November 19, 2019, ASU posted a job listing advertising
a vacancy for the Associate Dean in ASU’s COHS. The position
required that applicants have the “[e]xperience and credentials to
qualify for the rank of associate professor . . . in one of the Col-
lege’s academic departments.” Under ASU’s Faculty Handbook,
1 Both parties consented to a Magistrate Judge conducting all proceedings. See
28 U.S.C. § 636(c)(1) (“Upon the consent of the parties, a full-time United
States magistrate . . . may conduct any or all proceedings in a jury or nonjury
civil matter and order the entry of judgment in the case . . . .”).
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this meant “five academic years of successful teaching experience
at an accredited college/university,” including three years as an “as-
sistant professor.” The Handbook also provided exceptions to
these requirements:
B. Upon recommendation of the Provost and Vice
President for Academic Affairs, the president may
recommend to the Board of Trustees the assign-
ment of academic rank for a new member of the
faculty who serves in a combination of teaching
and administrative roles.
C. Upon recommendation of the dean of the college
involved and the Provost and Vice President for
Academic Affairs, the president may recommend
to the Board of Trustees the assignment of aca-
demic rank for a new member of the faculty solely
on the basis of extraordinary and distinguished na-
tional service to the teaching field.
Dr. Susan Denham, a white female, and Dr. Dartrell Tread-
well, an African–American male, both applied for the Associate
Dean position. At the time of her interview, Denham was a ten-
ured professor within the COHS, with over two decades of experi-
ence in various roles. Denham holds a Bachelor of Science in Oc-
cupational Therapy, a Master of Science in Human Resources Man-
agement, and a Doctorate in Educational Leadership, Policy, and
Law. She has been a licensed occupational therapist since 1990.
At the time of Treadwell’s interview, he had one year of ex-
perience as an assistant professor in Arkansas State University’s
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4 Opinion of the Court 23-12439
physical therapy department. He managed acute inpatient hospi-
tal, geri-psych, and outpatient departments; supervised a team of
eighty therapists across nine nursing facilities; and established a
home health service business offering physical and occupational
therapy. Treadwell holds a Master’s in Public Service Management
and a Doctorate in Physical Therapy.
Dr. Carl Pettis, an African–American male, conducted inter-
views for the position and interviewed Denham and Treadwell.
Pettis serves as ASU’s Provost and Vice President for Academic Af-
fairs. Following the interviews, Pettis recommended Treadwell for
the position, resulting in Treadwell’s appointment.
On April 20, 2022, Denham sued ASU, arguing that she was
passed over for Associate Dean due to her race and gender. The
complaint was framed in one count under Title VII.2 ASU an-
swered, denied liability, and, after discovery, moved the District
Court for summary judgment.
In its motion, ASU argued that Treadwell’s selection was
based on legitimate, nondiscriminatory reasons. ASU asserted that
Treadwell met the minimum qualifications for the position out-
lined in the job posting and that his interview and experience made
him the preferable candidate.
2 See 42 U.S.C. § 2000e–2(a)(1) (declaring it unlawful for an employer “to fail
or refuse to hire . . . any individual . . . because of such individual’s race [or]
sex.”).
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23-12439 Opinion of the Court 5
In response, Denham sought to prove her case through
(1) the McDonnell Douglas framework, (2) the “convincing mosaic”
standard, and (3) a mixed-motive framework. Denham argued that
ASU’s proffered reasons for hiring Treadwell were pretext because
she was more qualified for the position than Treadwell and Pettis’s
subjective reasons for choosing Treadwell could reasonably be dis-
believed.
Ultimately, the MJ granted ASU’s motion. Under the
McDonnell Douglas framework, the MJ found that Denham estab-
lished a prima facie case and that ASU provided a legitimate, non-
discriminatory reason for its decision. Still, Denham failed to cre-
ate a genuine issue of material fact about whether ASU’s proffered
reasons were a pretext for discrimination.
Denham timely appealed.
II. Legal Standard
We review de novo a grant of summary judgment, drawing
all reasonable inferences in the light most favorable to the nonmov-
ing party. Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1362
(11th Cir. 2018). Summary judgment is proper where “there is no
genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “A genuine
issue of material fact exists when ‘the evidence is such that a rea-
sonable jury could return a verdict for the nonmoving party.’”
Bowen, 882 F.3d at 1362 (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986)).
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III. Discussion
Denham advanced three theories for her Title VII claim:
McDonnell Douglas, convincing mosaic, and mixed-motive. On ap-
peal, Denham argues that the MJ failed to view the evidence in the
light most favorable to her. Denham asserts that the evidence
shows that (1) Treadwell did not meet the minimum qualifications
for the Associate Dean position and (2) Pettis’s proffered reasons
for hiring Treadwell are a pretext for discrimination.
A. McDonnell Douglas
Under McDonnell Douglas, the plaintiff’s first task is establish-
ing a prima facie case of discrimination. Vessels v. Atlanta Indep. Sch.
Sys., 408 F.3d 763, 767 (11th Cir. 2005). Once established, the bur-
den shifts to the employer to provide a nondiscriminatory basis for
its decision. Id. at 767–68. “If the employer meets this burden, the
inference of discrimination drops out of the case entirely, and the
plaintiff has the opportunity to show by a preponderance of the
evidence that the proffered reasons were pretextual.” Id. at 768.
1. Denham’s Prima Facie Case
To establish a prima facie case, the plaintiff must show
(1) she “belonged to a protected class,” (2) she “was qualified for
and applied for a position the employer was seeking to fill,” (3) she
was rejected despite her qualifications, and (4) “the position was
filled with an individual outside the protected class.” Id. ASU does
not dispute that Denham established a prima facie case of discrim-
ination. Thus, for purposes of summary judgment, we assume
that Denham is in a protected class, applied and was qualified for
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23-12439 Opinion of the Court 7
Associate Dean, was rejected for the position despite those qualifi-
cations, and Trewadwell was outside her protected class.
2. ASU’s Burden of Production
An employer’s burden to proffer a nondiscriminatory reason
for failing to promote an employee is “exceedingly light.” Perryman
v. Johnson Prods. Co., 698 F.2d 1138, 1141 (11th Cir. 1983). Once an
employer provides a clear and reasonably specific nondiscrimina-
tory reason for its actions, it has met its burden of production. Ves-
sels, 408 F.3d at 770. ASU’s proffered reasons for hiring Treadwell
are that Treadwell interviewed better than Denham and possessed
the clinical experience ASU sought for the position. We hold that
these reasons are sufficient for ASU to have met its burden of pro-
duction. Consequently, our focus shifts to determining whether
these proffered reasons are pretext.
3. Evidence of Pretext
Denham argues that she has raised a genuine issue of mate-
rial fact about ASU’s proffered reasons for hiring Treadwell. To
show pretext, and thus survive summary judgment, the plaintiff
must introduce significantly probative evidence allowing a reason-
able fact finder to determine that the employer’s proffered reasons
are not believable. Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d
1160, 1163 (11th Cir. 2006). This can be done by pointing to weak-
nesses, implausibilities, inconsistencies, incoherencies, or contra-
dictions in the employer’s proffered reasons. Id.
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i. Treadwell’s Qualifications for Associate Dean
First, Denham asserts that Treadwell did not qualify for As-
sociate Dean. Denham argues Pettis improperly relied on the ex-
ceptions outlined in ASU’s Faculty Handbook to recommend
Treadwell. She contends that Pettis unreasonably concluded that
Treadwell’s clinical experience qualified as “extraordinary and dis-
tinguished national service to the teaching field.”
To qualify for Associate Dean, a candidate must possess the
experience and credentials to qualify for the rank of associate pro-
fessor. This includes five years of successful teaching at an accred-
ited college or university, with at least three of those years at the
assistant professor level. Treadwell, with only one year of teaching
experience as an assistant professor, did not meet this requirement.
Still, the ASU Faculty Handbook permits the Provost and
Vice President, here, Pettis, to recommend candidates based on al-
ternative criteria: (1) if the candidate serves in both teaching and
administrative roles, or (2) if the candidate has provided “extraor-
dinary and distinguished national service to the teaching field.”
Pettis relied on these exceptions to recommend Treadwell.
Denham has not provided evidence to challenge Pettis’s jus-
tification for relying on these exceptions. Pettis testified to Tread-
well’s “extraordinary and distinguished national service to the
teaching field,” emphasizing his clinical experience and its rele-
vance to ASU’s student placements nationwide. Pettis testified that
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23-12439 Opinion of the Court 9
he considered Treadwell’s managerial experience in physical ther-
apy a significant contribution to the teaching field because of the
clinical component of several of the COHS’s programs.
“We are not in the business of adjudging whether employ-
ment decisions are prudent or fair.” Damon v. Fleming Supermarkets
of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.1999). “[O]ur sole con-
cern is whether unlawful discriminatory animus motivates a chal-
lenged employment decision.” Id. And Denham has not provided
evidence that unlawful discriminatory animus motivated Pettis’s
recommendation.
Denham’s attempt to compare her case to Bass v. Board of
County Comm’rs, 256 F.3d 1095 (11th Cir. 2001), is not convincing.
In Bass, this Court found sufficient evidence to overcome a sum-
mary judgment motion where the employer promoted an unqual-
ified candidate over a qualified one. Id. at 1109. But the employer
there also had a history of promoting employees based on race,
made a statement about race-conscious efforts, and deviated from
established procedures. Id. at 1105–09. In contrast, Treadwell was
qualified based on Pettis’s application of the exceptions in the
Handbook, and none of the other factors in Bass apply.
Denham also likens her situation to Carter v. Three Springs
Residential Treatment, 132 F.3d 635 (11th Cir. 1998). She argues that
circumventing established procedures can indicate pretext. See id.
at 644. This comparison also falls short. In Carter, the plaintiff pro-
vided evidence that the employer failed to adhere to its policy of
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10 Opinion of the Court 23-12439
posting job vacancies and he submitted ten affidavits of former em-
ployees recounting instances of disparate treatment while on the
job. Id. at 640–41. Denham, on the other hand, has not provided
evidence suggesting that “established rules were bent or broken to
give [Treadwell] an edge in the hiring process.” See id. at 644.
Further, we cannot say that the disparity in Denham’s and
Treadwell’s qualifications is “of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could
have chosen” Treadwell. See Cooper v. S. Co., 390 F.3d 695, 732 (11th
Cir. 2004) (quoting Lee v. GTE Fla., Inc., 226 F.3d 1249, 12554 (11th
Cir. 2000)). Merely showing that the plaintiff was more qualified
than the selected candidate is not enough to show pretext. Id. Ra-
ther, the disparity must be “so apparent as virtually to jump off the
page and slap you in the face.” Id. (quoting Cofield v. Goldkist, Inc.,
267 F.3d 1264, 1268 (11th Cir.2001)). Denham argues that she had
twenty-nine years of clinical experience, while Treadwell had
around fifteen—this does not jump off the page.
ii. ASU’s Proffered Reasons for Selecting Treadwell
Denham also argues that Pettis’s subjective reasons for
choosing Treadwell were pretext. These reasons are that (1) Tread-
well performed better in his interview, and (2) Pettis valued Tread-
well’s clinical and managerial experience.
Under McDonnell Douglas, a subjective reason for an em-
ployer’s decision, such as a candidate’s poor interview perfor-
mance, can be a legitimate, nondiscriminatory reason. Chapman v.
AI Transp., 229 F.3d 1012, 1033 (11th Cir.2000) (en banc). Indeed,
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“[a]n interview is frequently necessary to asses the qualities that
are particularly important in supervisory or professional posi-
tions.” Bass, 256 F.3d at 1106. That said, the employer must provide
a clear and reasonably specific factual basis supporting its subjective
opinion for it to be legally sufficient. Id.
Denham contends that Pettis failed to provide a sufficient
factual basis for his subjective opinions. We disagree. Pettis testi-
fied to his impressions of Treadwell’s interview, noting Treadwell’s
considerable “energy” and “passion,” his focus on student engage-
ment, and his eagerness to establish a strong rapport with students.
Pettis believed Treadwell’s energy would be positively received by
students, and he would be a bonus to the faculty. These are clear
and reasonably specific factual bases. See Chapman, 229 F.3d at 1034
(“[I]t might not be sufficient for a defendant employer to say . . . ‘I
did not like his appearance’ with no further explanation. However,
if [it] said, ‘I did not like his appearance because his hair was un-
combed and he had dandruff all over his shoulders’ . . . the defend-
ant would have articulated a ‘clear and reasonably specific’ basis for
its subjective opinion—the applicant’s bad (in the employer’s view)
appearance.”).
In Chapman, the employer’s articulated reason for its em-
ployment action was partly based on the employee’s poor inter-
view. 229 F.3d at 1033. We noted that the employer had provided
a clear and reasonably specific rationale for considering it a poor
interview. Id. at 1035. The applicant, however, failed to show that
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12 Opinion of the Court 23-12439
a poor interview was pretext because he did not counter the “ob-
jective bases for the subjective reason proffered for not hiring him.”
Id. at 1036. The employer critiqued the applicant for not asking
questions during the interview, not explaining his past employment
history, and not providing concise answers to the questions posed.
Id. Without disputing these points, the applicant could not demon-
strate that the employer’s justification was a pretext, and this Court
affirmed. Id. at 1037.
Denham has failed to offer evidence to rebut Pettis’s testi-
mony. Like the applicant in Chapman, Denham produced no affi-
davits or other evidence to dispute Pettis’s preference for Treadwell
based on the interview. Her sole contradiction of Pettis’s ac-
count—that she responded “Why not?” when asked why she ap-
plied for the position—does not adequately address the detailed
reasons Pettis provided for his decision Denham could have offered
affidavits highlighting her interview strengths, that Pettis did not
bring energy or passion, or statements indicating Pettis had biases.
But she failed to present such evidence.
Further, Denham has not successfully demonstrated that
Pettis’s preference for Treadwell’s clinical experience over hers con-
stitutes a pretext. Pettis’s testimony provided a clear and specific
rationale for this preference: Pettis viewed Treadwell’s clinical and
leadership experiences as beneficial for students during their clini-
cal rotations and valuable for the Associate Dean role. Pettis agreed
that Denham had solid experience but highlighted Treadwell’s lead-
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23-12439 Opinion of the Court 13
ership in supervising a large team of therapists and managing mul-
tiple skilled nursing facilities as key factors in his decision. Denham
did not contest Treadwell’s possession of significant clinical experi-
ence, nor did she claim that her own experience was valued by Pet-
tis.
B. Convincing Mosaic
Denham also argues that the MJ erred in finding that she
failed to create a triable issue of fact under the convincing mosaic
theory. Under this theory, a plaintiff can defeat a summary judg-
ment motion by presenting a “convincing mosaic” of circumstan-
tial evidence that “raises a reasonable inference that the employer
discriminated against [her].” See Smith v. Lockheed-Martin Corp., 644
F.3d 1321, 1328 (11th Cir. 2011). A convincing mosaic can be estab-
lished by pointing to evidence that demonstrates: (1) suspicious
timing, ambiguous statements, or other information from which
discriminatory intent may be inferred; (2) systematically better
treatment of similarly situated employees; and (3) pretext. Lewis v.
City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019).
Like her McDonnell Douglas argument, she contends that a
proper application of the evidence would have shown that (1)
Treadwell was unqualified for the position, (2) Denham had supe-
rior qualifications, and (3) Pettis’s subjective reasons for choosing
Treadwell were pretextual. As discussed, Denham has not provided
evidence to challenge Pettis’s reliance on the Handbook’s excep-
tions for recommending Treadwell, the disparity in qualifications
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14 Opinion of the Court 23-12439
between Denham and Treadwell is not enough to suggest discrim-
ination, and Denham has not shown that Pettis’s reasons for hiring
Treadwell were pretextual. Therefore, we are not convinced she
has presented a convincing mosaic of evidence that would raise a
reasonable inference of discrimination.
C. Mixed‑Motive
Last, Denham argues that the MJ erred in finding that she
did not create a triable issue of fact under a mixed-motive theory.
In mixed-motive cases, at summary judgment, a plaintiff must pro-
duce evidence sufficient to convince a jury that the employer took
an adverse employment action against the plaintiff and that a pro-
tected characteristic was a motivating factor for the adverse em-
ployment action. Qui v. Thomas Cnty. Sch. Dist., 814 F.3d 1227,
1232–33 (11th Cir. 2016); see also 42 U.S.C. § 2000e-2(m).
Denham’s argument, under a mixed-motive theory, reiter-
ates her previous claims that Treadwell was unqualified, Denham
had superior qualifications, and Pettit’s subjective reasons for
choosing Treadwell were pretextual. We reject these arguments
because, as discussed above, Denham has not provided evidence
sufficient to show that her race or sex was a motivating factor in
ASU’s decision to hire Treadwell.
Conclusion
For the reasons discussed above, the MJ’s order granting
ASU summary judgment is
AFFIRMED.
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