The opinion
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-13415
Non-Argument Calendar
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D.C. Docket No. 5:12-cv-02006-IPJ
JOY LYNETTE OWENS,
Plaintiff-Appellee,
versus
JACKSON COUNTY BOARD OF EDUCATION,
Defendant,
KENNETH HARDING,
in his official and individual capacities,
Defendant-Appellant.
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Appeal from the United States District Court
for the Northern District of Alabama
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(March 31, 2014)
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Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.
PER CURIAM:
Kenneth Harding, the Superintendent for the Jackson County School
District, appeals the district court’s decision denying his motion for summary
judgment based on qualified immunity. He contends that he should have been
granted summary judgment on both the retaliation and discrimination claims
brought against him under the Fourteenth Amendment’s Equal Protection Clause.
I.
Viewing the evidence in the light most favorable to Joy Owens, the facts for
present purposes are these. She has worked as a teacher in Alabama’s Jackson
County School District since 1988. From May 2010 to May 2012, she
unsuccessfully applied for sixteen different administrative positions in the School
District: seven as a school principal, six as an assistant principal, and three in
supervisory roles at the central office. Fourteen of those sixteen positions were
filled by men. 1 During that time, Harding voiced his belief that women should not
be in administrative positions.
1
As for the two women who were hired, Owens’ brief points to evidence in the record
suggesting that in both instances unusual circumstances overbore Harding’s discriminatory
attitude. According to an affidavit from a teacher familiar with the hiring of the first woman,
Harding was going to hire a man, but a state senator personally lobbied Haring and persuaded
him to hire the woman. The record indicates that the other woman was hired after Owens filed
an EEOC charge. Owens argues in her brief that, based on the timing, it can be inferred that the
woman was hired to minimize the appearance of discrimination if Owens filed a lawsuit.
2
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Under Alabama law, the sixteen positions could not be filled until a
candidate was nominated by Harding and appointed by the Jackson County Board
of Education. See Ala. Code § 16-12-16. Harding used different methods for
choosing his nominees. For the seven principal positions, Harding had a
committee system to help him make nominations. Harding interviewed the
candidates first, then the committee (whose members had been picked by Harding)
interviewed the candidates. Then Harding and the committee would discuss the
candidates, and Harding would nominate one to the Board. For the six assistant
principal positions, Harding nominated whomever that school’s principal
recommended, though he and the principal conferred about which candidates the
principal would interview before making a recommendation. For the three central
office positions, Harding selected the nominees himself.
Owens’ lawsuit pleaded two claims. Her first claim was against the Board
under Title VII for gender discrimination and retaliation. Her second claim was
against the Board and Harding under 42 U.S.C. § 1983 for gender discrimination
and retaliation in violation of her rights under the Equal Protection Clause of the
Fourteenth Amendment. The defendants filed a joint motion for summary
judgment, arguing that there was insufficient evidence in the record to support any
of Owens’ claims of discrimination and retaliation. In addition, Harding asserted
an affirmative defense of qualified immunity. The district court denied the motion
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in its entirety. This is Harding’s interlocutory appeal from the denial of his motion
for summary judgment based on qualified immunity. See 28 U.S.C. § 1291.
II.
“We review de novo a district court’s denial of summary judgment based on
qualified immunity, applying the same legal standards that governed the district
court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).
Defendants are entitled to summary judgment based on their qualified immunity
only if “the law preexisting the defendant official’s supposedly wrongful act was
already established to such a high degree that every objectively reasonable official
standing in the defendant’s place would be on notice that what the defendant
official was doing would be clearly unlawful given the circumstances.” Morton v.
Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013) (quotation marks omitted).
A.
Harding contends that the district court erred by denying summary judgment
on Owens’ Fourteenth Amendment retaliation claim. This Court has held that a
claim of gender-based retaliation “simply does not implicate the Equal Protection
Clause.” Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997); see also
Ratliff v. DeKalb Cnty., Ga., 62 F.3d 338, 340 (11th Cir. 1995) (“[N]o clearly
established right exists under the equal protection clause to be free from
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retaliation.”). As a result, Harding is entitled to summary judgment on Owens’
retaliation claim.
B.
Harding also contends that he should have been granted summary judgment
on Owens’ discrimination claim. He makes two arguments in support of that
contention.
First, Harding asserts that he chose his nominees for principal based on his
committees’ recommendations and his nominees for assistant principal based on
his principals’ recommendations, and therefore a reasonable official in his position
would not have thought his actions were unlawful. Assuming that relying on those
recommendations would have been objectively reasonable, evidence in the record
creates a genuine issue of material fact as to whether Harding did rely on the
recommendations. Owens points to evidence showing that: (1) Harding would, in
his own words, “pray about” each decision and ultimately make it himself; (2)
Harding picked the committee members himself; and (3) Harding engaged in
activity that implied he had preselected the candidate he wanted for a job,
including lessening the job requirements so that the preselected candidate would be
qualified for the position and discouraging others from applying. Because we must
view the evidence in the light most favorable to Owens and draw all inferences in
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her favor, there is a genuine issue about whether Harding chose his nominees in the
manner he claims. He is not entitled to summary judgment on that ground.
Harding also argues that Owens failed to present evidence raising a genuine
issue of material fact as to his discriminatory intent.2 She did. The affidavit of
Sheila Cornelison attested that Harding had told her on multiple occasions that:
“he did not want females in administration positions,” he thought “females do not
make good administrators because they are too emotional and hardnosed,” he
believed “females don’t have the personality and fortitude to be principals,” and he
“had a lot less problems out of the male principals.” That is sufficient evidence to
permit Owens to survive summary judgment.
III.
We REVERSE the district court’s decision to deny summary judgment on
Owens’ retaliation claim against Harding, AFFIRM the district court’s decision to
deny summary judgment on Owens’ discrimination claim against Harding, and
REMAND for further proceedings consistent with this opinion.
AFFIRMED in part; REVERSED in part; and REMANDED.
2
Owens argues that we lack jurisdiction to review this portion of Harding’s appeal
because he is simply second-guessing the district court’s determination that there is sufficient
evidence to survive summary judgment. See generally Johnson v. Jones, 515 U.S. 304, 115 S.Ct.
2151 (1995). We do, however, have jurisdiction to decide this issue because it “is part and
parcel of the qualified immunity inquiry, not a separate question.” Hartley v. Parnell, 193 F.3d
1263, 1271 (11th Cir. 1999). More specifically, Harding’s argument that Owens failed to present
sufficient evidence that he had the discriminatory intent necessary to violate her equal protection
rights is part and parcel of his qualified immunity defense. See Mencer v. Hammonds, 134 F.3d
1066, 1070 (1998).
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