FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

Aug. 11, 2008

THOMAS K. KAHN

CLERK

 [DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 07-14108

Non-Argument Calendar

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D.C. Docket No. 05-00174-CV-WLS-1

DR. FREDERICK POLITE,

 

Plaintiff-Appellant, 

versus

DOUGHERTY COUNTY SCHOOL SYSTEM,

SALLY WHATLEY, Individually and in her

Official Capacity as Superintendent of the 

Doughtery County School System,

 Defendants-Appellees. 

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Appeal from the United States District Court

for the Middle District of Georgia 

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(August 11, 2008)

Before EDMONDSON, Chief Judge, CARNES and BARKETT, Circuit Judges.

PER CURIAM:
 Claims against state actors for violations of section 1981 must be brought pursuant to section 1

1983. Butts v. County of Volusia, 222 F.3d 891, 892-94 (11th Cir. 2000). Title VII and section

1983 claims have the same elements where the claims are based on the same set of facts. Rioux v.

City of Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008). 

2

Plaintiff-Appellant Frederick Polite, an African-American male, appeals the

district court’s grant of summary judgment in favor of his former employer

Dougherty County School System (“DCSS”) and DCSS superintendent Sally

Whatley, ending his discrimination and retaliation claims under Title VII, 42

U.S.C. § 2000e-2(a)(1), and 42 U.S.C. §§ 1981, 1983, and dismissing several state

law claims. No reversible error has been shown; we affirm. 

1

Polite formerly worked for DCSS as a math and science teacher. His claims

stem from his failure to be hired as a principal or assistant principal after applying

for several such positions at certain schools in DCSS. Whatley is responsible for

recommending to DCSS persons to be hired. For assistant principals, Whatley

depends on the principal of the hiring school to make a recommendation to her. 

Principals generally rely on a leadership committee at their school to assist them

with interviewing and recommending candidates. The principal makes a

recommendation to Whatley; and she then makes a recommendation to the school

board. In selecting a principal, a selection committee at the school interviews

qualified applicants and recommends its top two or three choices to Whatley. She
3

then evaluates whether the top selection is appropriate and makes a

recommendation to the Board. In her tenure as superintendent, Whatley has

 endorsed to the Board every recommendation made to her by principals and

selection committees. According to Whatley, no one ever had recommended

Polite to her for a principal or assistant principal position; and she never told

anyone not to recommend Polite for a position. 

Polite interviewed with selection committees to be considered for various

principal and assistant principal positions within DCSS. Based on a conversation

he had with Valerie Overstreet-Thomas, the principal at Lamar Reese Elementary

School, he understood that Overstreet-Thomas had recommended him for the

assistant principal position at that school; but Polite never interviewed personally

with Overstreet-Thomas. She informally interviewed Polite over the phone and

planned to recommend him and one other person for the assistant principal

position, but after checking his references, decided against recommending Polite. 

Though she initially told Whatley she planned to recommend Polite, she ultimately

did not recommend him. Polite also stated that Johnny Scott, the principal at

Southside Middle School, “basically promised” him the assistant principal

position there; but then, according to Polite, Scott told him that Whatley would not

allow his recommendation to go through. Scott stated that he told Polite he had
Polite abandoned the following claims by failing to offer argument on them: hostile work 2

environment under Title VII, violations of freedom of speech, association and to petition the

government under section 1983 and the Georgia Constitution, equal protection and due process

violations under section 1983, and state law breach of contract. See Denney v. City of Albany, 247

F.3d 1172, 1182 (11th Cir. 2001) (explaining that issues not briefed on appeal are abandoned). 

4

decided to recommend another person for the position and that he never promised

Polite the position. 

In his complaint, Polite alleged that DCSS and Whatley, by failing to hire

him, unlawfully discriminated against him because of his sex and race. The

district court concluded that Polite had not made a prima facie case of

discriminatory failure to hire. 

On appeal, Polite argues that the district court erred in determining that he

did not make a prima facie case of failure to hire because he was recommended for

the positions in question, but Whatley rejected him. We review a district court’s 2

grant of summary judgment de novo; we view the evidence and all reasonable

factual inferences in the light most favorable to the nonmoving party. Maniccia v.

Brown, 171 F.3d 1364, 1367 (11th Cir. 1999). 

A prima facie case of hiring or promotion discrimination requires a plaintiff

to prove the following things: (1) he belonged to a protected class, (2) he applied

for and was qualified for a job for which the employer was seeking applicants, (3)

despite these qualifications, he was rejected, and (4) after the rejection, the
 No direct evidence of discrimination is alleged. Because this case is a circumstantial evidence

3

case, the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 93 S.Ct.

1817 (1973), applies. 

 The district court concluded that, because Polite never was recommended for a position pursuant 4

to DCSS hiring practices, he had not “applied” for the positions. It is clear that Polite did apply for

the positions but was not recommended for them. This misconstruction of the word “apply” does

not impact on the ultimate correctness of the district court’s decision.

 Polite made clear in his complaint and deposition that he believed only Whatley had 5

discriminated against him. 

5

employer continued to seek applications from persons with similar qualifications

or promoted a person outside the protected class. Perryman v. Johnson Prods. Co.,

Inc., 698 F.2d 1138, 1142 nn.6-7 (11th Cir. 1983). 

3

The district court committed no error when it concluded that Polite did not

make a prima facie case of discriminatory failure to hire. That Polite never was

recommended to Whatley -- either by a principal or selection committee -- for a

position is undisputed; and thus, Whatley never rejected him for a position. See

id. As per hiring policy, Whatley recommended to the Board a candidate who a 4

principal or selection committee had recommended to her. Because Polite never

was recommended to her, she never considered him in her recommendations to the

Board. In his affidavit opposing summary judgment, Polite alleged that 5

Overstreet-Thomas and Scott recommended him to Whatley; but these allegations

were not based on personal knowledge and were contradicted directly by the

deposition testimony of Overstreet-Thomas and Scott, who did have personal
6

knowledge of whether they made such recommendations. See Fed.R.Civ.P.

56(e)(1) (an affidavit opposing summary judgment must be made on personal

knowledge and set out facts that would be admissible in evidence).

We now address Polite’s retaliation claim. He alleged that, during his

employment with DCSS, he complained to Whatley about her “discriminatory

hiring practices.” And shortly after his complaints, he was transferred to a

different school in DCSS. He alleged that the transfer was in retaliation for

complaining about Whatley’s hiring practices. On appeal, Polite argues that the

transfer violated DCSS policy and, thus, was direct evidence of retaliation. 

To establish a prima facie case of retaliation under Title VII, a plaintiff must

show, among other things, that he suffered an adverse employment act. 

Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001). An

adverse employment act is “[a] tangible employment action [that] constitutes a

significant change in employment status such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities or a decision causing a

significant change in benefits.” Webb-Edwards v. Orange County Sheriff’s

Office, 525 F.3d 1013, 1031 (11th Cir. 2008) (internal quotation and citation

omitted). The act must be such that “a reasonable employee would have found the
 The district court correctly granted summary judgment on all Title VII claims against Whatley 6

in her individual capacity: Title VII does not provide for suits against persons in their individual

capacities. Cross v. State of Ala., 49 F.3d 1490, 1504 (11th Cir. 1995). Because the section 1981

claims, brought pursuant to section 1983, against Whatley were brought as a “parallel remedy” for

Title VII violations, summary judgment also was appropriate on those claims. See Underwood v.

Perry CountyComm’n, 431 F.3d 788, 793 (11th Cir. 2005) (Title VII and section 1983 use the same

analytical framework when section 1983 is used as a parallel remedy for a Title VII violation). 

7

challenged action materially adverse.” Burlington N. & Santa Fe. Ry. Co. v.

White, 126 S.Ct. 2405, 2415 (2006).

The district court committed no error in granting summary judgment on

Polite’s retaliation claim because he suffered no adverse employment act. His

teaching job after the transfer involved the same responsibilities, and he had the

same pay. He stated in his deposition that he got along well with the principal at

his new school. Thus, his employment status was not materially adversely

affected by the transfer.

6

On appeal, Polite also challenges the district court’s dismissal of his state

law claims on sovereign immunity grounds. He contends that because DCSS had

liability insurance, it waived its sovereign immunity. Sovereign immunity extends

to the state and all of its departments and agencies and can be waived only by a

legislative act specifically delineating the waiver. Ga. Const. Art. I, § 2, ¶ IX(e). 

While the Georgia Tort Claims Act provides for a limited waiver of the state’s

sovereign immunity for torts of its officers and employees, this waiver expressly
 We briefly address Polite’s remaining arguments. He argues that the district court erred in 7

denying his motion to increase the number of depositions he could take from 10 to 20. But Polite

offers no substantive argument on why this decision was in error; we deem this argument waived.

See Flanigan’s Enters., Inc. of Ga. v. Fulton County, Ga., 242 F.3d 976, 987 n.16 (11th Cir. 2001)

(a party waives an issue where, although the issue was mentioned in passing, the party did not

elaborate or provide any citation of authority in support of the issue). He also argues that the district

court erred in denying his motion to strike Watley’s affidavit in support of summary judgment. But

motions to strike are only appropriately addressed towards matters contained in the pleadings; here,

the affidavit was submitted as part of the motion for summary judgment, which is not a pleading.

See Fed.R.Civ.P. 7(a), 12(f). Contrary to Polite’s unsupported assertions on appeal, nothing

evidences that the district court viewed the evidence in the light most favorable to Defendants or that

Defendants did not seek summary judgment on all of his claims. The record shows that the district

court adequately evaluated and considered the evidence before it and applied the correct legal

standards in deciding the summary judgment motion.

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excludes school districts. O.C.G.A. § 50-21-22(5). Polite has not shown that

DCSS waived its immunity because he points to no legislative act providing for a

waiver. In addition, because Whatley was a state employee whose alleged tort was

committed while acting within the scope of her employment, she also was entitled

to immunity. O.C.G.A. § 50-21-25(a).

AFFIRMED.7