Case: 13-12048    Date Filed: 02/07/2014   Page: 1 of 13


                                                              [DO NOT PUBLISH]

                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 13-12048
                             Non-Argument Calendar
                           ________________________

                    D.C. Docket No. 3:09-cv-00379-HLA-TEM

JO-ANN MARCELLE BROOKS,

                                                                 Plaintiff-Appellant,

                                          versus

CSX TRANSPORTATION, INC.,

                                                               Defendant-Appellee,

GARY GAMBLE,
in his official capacity as Manager of CSX and individually, et al.,

                                                                         Defendants.
                           ________________________

                   Appeal from the United States District Court
                       for the Middle District of Florida
                         ________________________

                                 (February 7, 2014)

Before TJOFLAT, MARCUS and JORDAN, Circuit Judges.

PER CURIAM:
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      Jo-ann Brooks, an African-American woman over the age of 40, appeals the

district court’s grant of summary judgment in favor of her former employer, CSX,

Transportation, Inc. (“CSX”) in her employment discrimination suit under the Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621; Title VII, 42

U.S.C. § 2000e-2(a); and 42 U.S.C. § 1981.        In her twice-amended complaint,

Brooks alleged several causes of action under each statute, including a

discriminatory failure to promote, discriminatory termination, and unlawful

retaliation. On appeal, Brooks argues that: (1) the court improperly found that her

failure-to-promote claims under the ADEA and Title VII were time-barred; (2) the

court incorrectly found that she failed to establish a prima facie case of race

discrimination under § 1981 for each promotion denial; (3) the court erred in

concluding that she failed to establish a prima facie case of discrimination under

the ADEA, Title VII, and § 1981 based on her termination; and (4) the court erred

in concluding that she failed to demonstrate pretext with respect to her retaliation

claims under ADEA, Title VII, and § 1981. After careful review, we affirm.

      We review a district court’s grant of summary judgment de novo, viewing

the evidence in the light most favorable to the nonmovant. Castleberry v. Goldome

Credit Corp., 

, 785 (11th Cir. 2005).           Summary judgment is

appropriate if the record evidence, including depositions, declarations, and

admissions, shows that there is no genuine issue as to any material fact and that the


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movant is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(a), (c). If the

movant meets its initial burden of demonstrating the absence of a genuine issue of

material fact, then the burden shifts to the nonmovant to come forward with

specific facts showing that there is a genuine issue for trial. 

. Conclusory allegations without specific supporting facts have no probative

value in the summary judgment context. Leigh v. Warner Bros., Inc., 

, 1217 (11th Cir. 2000). An affidavit or declaration used to support or oppose

a motion must be made on personal knowledge. Fed.R.Civ.P. 56(c).

      First, we are unpersuaded by Brooks’s argument that her ADEA and Title

VII failure-to-promote claims were timely.      Title VII requires that a plaintiff

exhaust certain administrative remedies, which begins by filing a timely charge of

discrimination with the EEOC, before filing a suit for employment discrimination.

See 42 U.S.C. §§ 2000e-5. For a charge to be timely in a deferral state like

Florida, it must be filed within 300 days of the last discriminatory act. See

E.E.O.C. v. Joe’s Stone Crabs, Inc., 

, 1271 (11th Cir. 2002). Thus,

only those claims arising within 300 days prior to the filing of the EEOC’s

discrimination charge are actionable. 

violation doctrine permits a plaintiff to sue on an otherwise

time-barred claim where at least one other violation occurred within the statutory

period. Hipp v. Liberty Nat. Life Ins. Co., 

, 1221 (11th Cir. 2001).


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However, the doctrine does not apply to discrete acts of discrimination, such as a

promotion denial or refusal to hire. See Nat’l R.R. Passenger Corp. v. Morgan,

, 114 (2002) (noting that each instance of failure to promote or refusal

to hire is a discrete act of discrimination that constitutes a “separate actionable

unlawful employment practice”) (quotation omitted). Alternatively, a court may

equitably toll a limitations period, but the burden is on the plaintiff to establish that

tolling is warranted. Bost v. Fed. Express Corp., 

, 1242 (11th Cir.

2004). Equitable tolling “is an extraordinary remedy which should be extended

only sparingly,” and is inappropriate when a plaintiff did not file an action

promptly or failed to act with due diligence. 

      Here, all of Brooks’s ADEA and Title VII failure-to-promote claims were

time-barred.    Because Brooks filed her EEOC charge on June 17, 2008, any

discriminatory act she complained of must have occurred within 300 days, or on or

after August 22, 2007, to be timely. Joe’s Stone 

. As

Brooks’s admissions reveal, however, all of the promotion denials occurred before

that date. While she now says she was unaware of certain promotion decisions,

she did not seek to withdraw her admissions before the district court, and thus, that

evidence conclusively established the matter. See Fed.R.Civ.P. 36(b) (noting that

a matter admitted in response to a request pursuant to Rule 36 of the Federal Rules

of Civil Procedure is “conclusively established unless the court, on motion, permits


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the admission to be withdrawn or amended”). Further, Brooks’s equitable tolling

argument is unavailing because she failed to raise it before the district court, and

thus, we need not consider it now. See Access Now, Inc. v. SW Airlines Co., 

, 1331-32 (11th Cir. 2004). Moreover, Brooks’s failure to establish the

timeliness of the latest alleged discriminatory promotion denial precluded the

application of the continuing violation doctrine as to the earlier five promotion

denials. 

.

      We also disagree with Brooks’s claim that she established a prima facie case

of race discrimination under § 1981 for each promotion denial. Like Title VII, §

1981 prohibits discrimination on the basis of race, and we routinely group Title VII

and § 1981 claims together for analytic purposes. 42 U.S.C. § 1981(a) (protecting

against race discrimination only); Jimenez v. Wellstar Health Sys., 

,

1312 (11th Cir. 2010).      In cases like this one, lacking direct evidence of

employment discrimination, we use the McDonnell Douglas framework, in which

the plaintiff must create an inference of discrimination through a prima facie case.

Springer v. Convergys Customer Mgmt. Grp. Inc., 

, 1347 (11th Cir.

2007) (citing McDonnell Douglas Corp. v. Green, 

, 802 (1973)).

      Where a plaintiff alleges intentional discrimination based on a failure to

promote, the prima facie showing requires, inter alia, that the plaintiff was

qualified for and applied for a position, and that despite those qualifications, she


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was rejected. See McCann v. Tillman, 

, 1373, 1375 (11th Cir.

2008). Once a plaintiff makes a prima facie case, the burden shifts to the employer

to articulate a nondiscriminatory reason for its employment action. 

. If the employer meets its burden, the plaintiff must show that the

proffered reason was pretext for discrimination. 

may show pretext

by identifying “weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions,” in the proffered reasons so that “a reasonable factfinder could find

them unworthy of credence.” 

(quotations omitted). A plaintiff must

also show, as part of pretext, that discrimination was the real reason. 

      In the failure-to-promote context, evidence of a disparity in qualifications

between the plaintiff and the candidate selected may establish pretext, regardless of

whether a court looks to that evidence at the prima facie stage. Ash v. Tyson

Foods, Inc., 

, 457 (2006). “A plaintiff must show that the disparities

between the successful applicant’s and [his] own qualifications were of such

weight and significance that no reasonable person, in the exercise of impartial

judgment, could have chosen the candidate selected over the plaintiff.” Brooks v.

Cnty. Comm’n of Jefferson Cnty., Ala., 

, 1163 (11th Cir. 2006). An

employee’s own testimony about his qualifications is “weak and insubstantial”

evidence of comparative qualifications. See Ford v. Gen. Motors Corp., 

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117, 119 (5th Cir. Unit B Sept. 1981)1; see also Vessels v. Atlanta Indep. Sch.

Sys., 

, 769 (11th Cir. 2005) (explaining that a plaintiff making a

prima facie case must satisfy “an employer’s objective qualifications”). Further,

objective “[e]mployment tests can be an important part of a neutral selection

system that safeguards against the very racial animosities Title VII was intended to

prevent.” Ricci v. DeStefano, 

, 584 (2009).

       First, as for the Human Resources (“HR”) Management Trainee position,

even if we assume that Brooks was at least as qualified as the selected candidate,

Brooks failed to present evidence that CSX’s hiring decision was pretextual. The

recruiter for the position said that she did not select Brooks for an interview

because Brooks was not sufficiently qualified; Brooks’s supervisor had not

recommended her for the position; and the successful candidate was the most

qualified applicant. Brooks offered nothing to indicate that these qualifications-

based reasons were not the real reasons for CSX’s decision, or that race-based

animus was. The sole “evidence” Brooks relies on is that the person who received

the job was white. This fact alone, while relevant at the prima facie stage, is

insufficient to show a genuine issue of fact as to pretext, because it does not

establish falsity or that the true reason for the promotion was an impermissible one.

Similarly, as for the Logistics Coordinator position, she also failed to present

1
       Decisions issued by a Unit B panel of the former Fifth Circuit constitute binding
precedent. See Stein v. Reynolds Secs., Inc., 

, 34 (11th Cir. 1982).
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evidence of pretext. The only evidence she identified was that the hiring manager

and the selected candidate were white. This evidence, again, is unavailing in the

summary judgment context.

      As for both Staffing Specialist positions, Brooks did not establish a prima

facie case of discrimination because she conceded that the denial of those positions

was based solely on her age, which is not a protected characteristic under § 1981.

See 42 U.S.C. § 1981(a). As for the Environmental Contracts Supervisor position,

Brooks did not establish a prima facie case of discrimination because she failed to

show that she was qualified for the position. CSX sought applicants who had

experience with several computer programs, including “RAR” and Oracle. In her

phone interview, Brooks admitted that she had only limited experience with

Oracle, and in her deposition, she testified that she did not have experience with

RAR. Further, Brooks’s interview evaluation form showed that she received an

overall rating of “almost meets requirements.” By contrast, the selected candidate

received an overall rating of “meets expectations,” and was responsible for

generating reports using Oracle in her former job.

      Finally, the record demonstrates that Brooks was not equally or more

qualified than the individual selected for the final promotion at issue, manager of

the Personnel Attendance Central Services (“PACS”) computer system.             The

qualifications for the position provided that the selected candidate must have,


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among other things, “functional/technical” competencies, including extensive

knowledge of the PACS system. Brooks was only able to perform one out of the

five PACS functions tested in one of her interview questions, and she only met the

requirements with respect to one out of the remaining six questions. On the other

hand, the selected candidate performed all of the system tasks and met or exceeded

the requirements with respect to the remaining questions as well. Although Brooks

argues that her supervisor intentionally manipulated the PACS Management

interview because he added the PACS task-performance question, she again failed

to produce any evidence tying his inclusion of that question to race-based animus.

      Nor can we conclude that Brooks established a prima facie case of

discrimination under the ADEA, Title VII, or § 1981 based on her termination.

Where a plaintiff alleges discriminatory discipline or termination, we have framed

the prima facie showing to require that (1) the plaintiff is a member of a protected

class, (2) she was subjected to an adverse employment action, (3) the employer

treated similarly situated employees outside the class more favorably, and (4) she

was qualified to do her job. Maniccia v. Brown, 

, 1368 (11th Cir.

1999). In deciding whether employees are similarly situated, we must consider

whether the employees are “involved in or accused of the same or similar conduct

and are disciplined in different ways.” 

courts from second guessing

employers’ reasonable employment decisions, we require that the quantity and


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quality of the comparator’s misconduct be “nearly identical” to the plaintiff’s. 

in treatment by different supervisors or decision-makers can

seldom be the basis for a viable claim of discrimination. Silvera v. Orange Cnty.

Sch. Bd., 

, 1261 n.5 (11th Cir. 2001). “Conclusory allegations of

discrimination, without more, are not sufficient to raise an inference of pretext or

intentional discrimination where an employer has offered extensive evidence of

legitimate, non-discriminatory reasons for its actions.”     Young v. Gen. Foods

Corp., 

, 830 (11th Cir. 1988) (quotations and alterations omitted).

      As an initial matter, Brooks’s counseled brief cites exclusively to Title VII

concerning her disparate termination claim, and contains a single passing reference

to one supervisor’s age. Thus, she has abandoned any age-based discriminatory

termination claim under the ADEA. See Greenbriar, Ltd. v. City of Alabaster, 

, 1573 n.6 (11th Cir. 1989) (holding that a passing reference to an issue

in a party’s appellate brief is insufficient to preserve that issue for appellate

review). Likewise, she never cites § 1981 in her termination discussion asserting

race discrimination, so she has failed to “plainly and prominently” indicate that she

is seeking appellate relief under § 1981 in addition to Title VII. See United States

v. Jernigan, 

, 1283 n.8 (11th Cir. 2003) (“[A] party seeking to raise a

claim or issue on appeal must plainly and prominently so indicate.”).




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      As for her claim under Title VII, Brooks has failed to establish a prima facie

case of race discrimination based on her termination because she relied on

insufficient comparator evidence and presented no other probative evidence of

disparate treatment.     Notably, the evidence in the record revealed that before

Brooks was fired, CSX learned that she had been operating a travel business during

company time and using company resources, and had falsified payroll records by

paying herself for eight hours of work on days when she did not perform that

amount. Brooks testified that she knew of several employees who violated various

company policies, and she presented the affidavit of a coworker who asserted the

same. Nevertheless, the evidence showed that CSX only knew about one of those

employees’ alleged misconduct, and as a result, none of the other employees

constituted valid comparators. Further, although CSX reprimanded the remaining

employee for using company resources for personal business, that employee’s

misconduct was not “nearly identical” to Brooks’s because she did not conduct her

business during working hours or falsify her payroll records.        They also had

different supervisors.    Thus, the employee was an insufficient comparator to

establish an inference of disparate treatment.     And Brooks’s assertion that her

misconduct-related suspension had no basis in CSX’s policies is meritless: CSX’s

Acceptable Use policy expressly says that a violation could result in termination.




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      Finally, we reject the claim that she demonstrated pretext with respect to her

retaliation claims under ADEA, Title VII, and § 1981. If a plaintiff establishes a

prima facie case of retaliation under the McDonnell Douglas framework, then the

employer has an opportunity to articulate a legitimate, non-retaliatory reason for

the challenged employment action as an affirmative defense to liability. Goldsmith

v. Bagby Elevator Co., 

, 1277 (11th Cir. 2008).      The plaintiff bears

the ultimate burden of proving retaliation by a preponderance of the evidence and

that the reason provided by the employer is a pretext for prohibited retaliatory

conduct. 

if we were to assume that Brooks established a prima facie case

of retaliation, CSX offered a legitimate, non-retaliatory reason for Brooks’s

termination: her violation of several company policies. Further, Brooks failed to

produce any evidence demonstrating that CSX’s proffered reason was false or that

the real reason was to retaliate against her for expressing her concerns to upper

management.       As for her claim that the call transcripts CSX relied on in

suspending and ultimately firing her are invalid as evidence of a legitimate, non-

retaliatory reason , we disagree. Contrary to Brooks’s assertion that the transcripts

are “undecipherab[le]” due to heavy redactions, only two transcripts contain

redactions, and those redactions appear to cover only the callers’ personal

information, such as Brooks’s cell phone number and a travel client’s home


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address. Although Brooks contests the other additional investigative methods that

revealed further violations because they were new, she produced no evidence that

the revealed violations were not true and were used by CSX as a pretext to fire her.

      AFFIRMED.




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