Fagale S. Grant v. Elmore County Board of Education

USCA11 Case: 22-11448 Document: 35-1 Date Filed: 01/19/2023 Page: 1 of 8

[DO NOT PUBLISH]

In the

United States Court of Appeals

For the Eleventh Circuit

____________________

No. 22-11448

Non-Argument Calendar

____________________

FAGALE S. GRANT,

Plaintiff-Appellant,

versus

ELMORE COUNTY BOARD OF EDUCATION,

DALE BAIN,

in his Official and or Individual capacities as

member of of the Elmore County Board of

Education,

DAVID JONES,

in his Official and or Individual capacities as

member of of the Elmore County Board of

Education,

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2 Opinion of the Court 22-11448

LEISA FINLEY,

in her Official and or Individual capacities as

member of of the Elmore County Board of

Education,

WENDELL SAXON, et al.,

in his Official and or Individual capacities as

member of of the Elmore County Board of

Education,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Middle District of Alabama

D.C. Docket No. 2:19-cv-00058-JTA

____________________

Before NEWSOM, GRANT and DUBINA, Circuit Judges.

PER CURIAM:

Appellant Fagale Grant, an African-American female who

formerly worked as a teacher, appeals the grant of summary judg-

ment to the defendants, including seven members of the Elmore

County Board of Education, Board Superintendent, Richard Den-

nis, and the Elmore County Board of Education (the “Board”), on

her claims of, inter alia, race and age discrimination. Grant argues

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22-11448 Opinion of the Court 3

that she presented a “convincing mosaic” of circumstantial evi-

dence that would allow a reasonable jury to infer that the defend-

ants intentionally discriminated against her based on her race and

that led to the termination of her employment. Additionally, Grant

argues that she has met her burden in showing a prima facie case

of age discrimination, in addition to also presenting a “convincing

mosaic” of circumstantial evidence that would allow a reasonable

jury to infer that the defendants intentionally discriminated against

her based on her age in connection with her termination.1 Having

read the parties’ briefs and reviewed the record, we affirm the dis-

trict court’s 2 grant of summary judgment to the defendants.

I.

When appropriate, we will review a district court’s order

granting summary judgment de novo, “viewing all the evidence,

and drawing all reasonable inferences, in favor of the non-moving

party.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th

Cir. 2005).

1 Grant also alleged claims of discrimination based on disability and violation

of her First Amendment and due process rights. Following a concession by

Grant, the district court granted summary judgment to the defendants on

those claims. Because she does not challenge the district court’s disposition of

those claims on appeal, she has abandoned them. United States v. Campbell,

26 F.4th 860, 872-73 (11th Cir. 2022) (en banc), petition for cert. denied, 143 S.

Ct. 95 (2022).

2 The parties consented to have a magistrate judge enter a dispositive final

judgment in this case pursuant to 28 U.S.C. § 636, et seq.

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4 Opinion of the Court 22-11448

However, an issue that was not raised in the district court

and is raised for the first time on appeal in a civil case is considered

forfeited, and we will not address its merits absent extraordinary

circumstances. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324,

1331-32 (11th Cir. 2004); Campbell, 26 F.4th at 872-73. “But once

a party has preserved an issue, it may make any argument in sup-

port of that claim; parties are not limited to the precise argu-

ments they made below.” United States v. Brown, 934 F.3d 1278,

1306-07 (11th Cir. 2019) (quotation marks omitted). Similarly, is-

sues not raised in an appellant’s initial brief are deemed abandoned

and will not be addressed absent extraordinary circumstances.

Campbell, 26 F.4th at 872-73; see Sapuppo v. Allstate Floridian Ins.

Co., 739 F.3d 678, 680 (11th Cir. 2014) (stating an appellant must

clearly and specifically identify in her brief any issue she wants the

appellate court to address). Moreover, a district court's judgment

should be affirmed if an appellant fails to challenge each of the

court's independent, alternative grounds for its ruling. Id.

The record here demonstrates that Grant argues for the first

time on appeal that she established a “convincing mosaic” of cir-

cumstantial evidence allowing a jury to infer the defendants’ inten-

tional race discrimination, in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e-2; 42 U.S.C. §

1981; and 42 U.S.C. § 1983. As she has not argued that extraordi-

nary circumstances exist warranting an examination of the issue on

the merits, however, we conclude that she has forfeited the argu-

ment on appeal.

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22-11448 Opinion of the Court 5

Additionally, Grant fails to challenge the district court’s find-

ing that she did not establish a prima facie case of race discrimina-

tion under McDonnell Douglas Corporation v. Green, 411 U.S.

792, 93 S. Ct. 1817 (1973). Although the evidence showed that her

employment ended after she announced an intent to voluntarily

retire, there was no evidence that she suffered an adverse employ-

ment action or that the defendants treated a similarly situated com-

parator more favorably than her. Thus, she has abandoned any

challenge to this argument on appeal. Accordingly, we affirm the

district court’s grant of summary judgment to the defendants as to

Grant’s claims of race discrimination.

II.

The Age Discrimination in Employment Act (“ADEA”),

29 U.S.C. § 623(a)(1), prohibits certain actions by an employer, in-

cluding the termination of an employee based on her age, which

must be age 40 or older. Mazzeo v. Color Resolutions Int’l, LLC,

746 F.3d 1264, 1270 (11th Cir. 2014); see also 29 U.S.C. § 623(a). A

plaintiff may support a claim under the ADEA through either direct

evidence or circumstantial evidence. Mazzeo, 746 F.3d at 1270. To

ultimately prevail, a plaintiff must prove by a preponderance of the

evidence (which may be direct or circumstantial), that age was the

“but-for” cause of the challenged employer decision. Id.

A plaintiff can employ different frameworks to survive sum-

mary judgment by using circumstantial evidence to support her

ADEA claim. See Sims v. MVM, Inc., 704 F.3d 1327, 1333 (11th Cir.

2013) (ADEA case discussing the frameworks under McDonnell

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6 Opinion of the Court 22-11448

Douglas and Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328

(11th Cir. 2011)). Most commonly, a plaintiff alleging that her age

was her employer’s only motivation in discriminating against her

uses the burden-shifting framework established in McDonnell

Douglas. Under the McDonnell Douglas burden-shifting frame-

work, a plaintiff must first establish a prima facie case of age dis-

crimination. Mazzeo, 746 F.3d at 1270. If the plaintiff does so, the

burden of production shifts to the employer to articulate a legiti-

mate, nondiscriminatory reason for the challenged employment

action. Id. If the defendant articulates at least one such reason, the

plaintiff is then given the opportunity to show that the employer’s

stated reason is merely a pretext for discrimination. See id.

In age discrimination cases, there are several ways to prove

a prima facie case within the greater McDonnell Douglas frame-

work, and the appropriate method depends on the facts of the case.

See id. at 1270-71. Under a discriminatory-discharge theory, a

plaintiff may establish a prima facie case by showing that: (1) she

was a member of a protected group; (2) she was subject to an ad-

verse employment action; (3) a substantially younger person filled

the position from which the plaintiff was fired; and (4) she was qual-

ified for the job in question. Id. at 1270 (citation omitted). By con-

trast, under a reduction-of-force analysis, a plaintiff may show that

where the employer eliminated her position: (A) she belonged to a

protected group; (B) she was qualified for the position held or to

assume another position at the time of discharge; and (C) sufficient

evidence exists from which a reasonable jury could find that the

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22-11448 Opinion of the Court 7

employer intended to discriminate based on age through its em-

ployment decision. Id. at 1271. Generally, a discriminatory-dis-

charge analysis is appropriate where the plaintiff’s position exists

after she was terminated and filled by a younger person, and a re-

duction-in-force analysis is appropriate where the employer elimi-

nates the plaintiff’s position. See id. at 1270-71.

We presume that resignations are voluntary, unless an em-

ployer forces the employee to resign by coercion, duress, or mis-

representation of a material fact. Hargray v. City of Hallandale,

57 F.3d 1560, 1568 (11th Cir. 1995). There are several factors a

court should consider in evaluating whether a resignation was

forced, including whether the employee: (1) was given some alter-

native to resignation; (2) understood the nature of the choice given;

(3) had a reasonable time in which to choose; (4) was allowed to

choose the effective date of the resignation; and (5) had the advice

of counsel. Id. A resignation may be voluntary even when the only

other alternative is facing possible termination for cause. Id.

The record shows that the district court did not err in grant-

ing summary judgment on Grant’s age discrimination claim be-

cause Grant voluntarily set in motion the events which resulted in

her retirement. Grant was aware that the school Superintendent

annually distributed a memorandum in February asking teachers

whether they would return the following school year, which ena-

bled the system to identify upcoming vacancies, advertise those po-

sitions, and hire as needed. Having decided in December of 2016

to retire, she responded to the Superintendent’s inquiry by

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8 Opinion of the Court 22-11448

indicating that she would retire and by providing a letter affirming

this decision. Grant took no affirmative steps to rescind this or to

inform the Board or the Superintendent that her retirement was

contingent upon receiving disability retirement. Thus, considering

the totality of the circumstances, Grant’s separation from employ-

ment was the natural result of her own action and was not a result

of coercion, duress, or misrepresentation of a material fact. Har-

gray, 57 F.3d at 1568. Additionally, Grant’s “convincing mosaic”

argument fails for the same reason discussed above, as she failed to

preserve that argument for appeal. Thus, we affirm in this respect

as well.

Accordingly, based on the aforementioned reasons, we af-

firm the district court’s grant of summary judgment to the defend-

ants on Grant’s claims of race and age discrimination in her em-

ployment.

AFFIRMED.