FILED 

 U.S. COURT OF APPEALS

 ELEVENTH CIRCUIT 

 November 10, 2004 

 THOMAS K. KAHN 

 CLERK

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 03-12230

________________________

D. C. Docket No. 00-02231-CV-ODE-1

CORNELIUS COOPER, 

MICHAEL EDWARDS, et al.,

Plaintiffs-Appellants,

versus

SOUTHERN COMPANY,

GEORGIA POWER COMPANY, et al., 

 Defendants-Appellees.

________________________

Appeal from the United States District Court

for the Northern District of Georgia

_________________________

(November 10, 2004)

Before ANDERSON, CARNES and MARCUS, Circuit Judges.

MARCUS, Circuit Judge:

Cornelius Cooper and six other plaintiffs appeal from the district court’s

orders denying class certification in their employment discrimination suit and

entering final summary judgment in favor of the defendants, the Southern
The plaintiffs/appellants are Cornelius Cooper, Michael Edwards, Charcella Green,

1

Patricia Harris, Sarah Jean Harris, Irene McCullers, and Carolyn Wilson.

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Company, Georgia Power Company, Southern Company Services, Inc., and

Southern Company Energy Solutions, Inc. Seven current or former employees of 1

the various defendants brought this putative class action, alleging violations of

Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e, et seq.,

and 42 U.S.C. § 1981 (“Section 1981”). The plaintiffs claimed discrimination in

promotions and compensation, and sought declaratory and injunctive relief, back

pay, and compensatory and punitive damages. After denying class certification,

the district court entered seven separate orders of summary judgment in favor of

the defendants. 

After painstaking review of the record, as well as careful consideration of

the briefs and oral argument, we conclude that the district court did not abuse its

discretion in denying class certification, because the plaintiffs demonstrated

neither that they had satisfied the commonality and typicality requirements of

Federal Rule of Civil Procedure 23(a), nor that damages were incidental to

equitable and declaratory relief or that common questions of law or fact

predominated, as required under Federal Rule of Civil Procedure 23(b)(2) or

(b)(3). In addition, we are persuaded by none of the plaintiffs’ arguments
The plaintiffs subsequently amended their Complaint in August, 2000. After the 2

defendants answered the Amended Complaint, and the district court granted permission to amend

and supplement the Amended Complaint, the plaintiffs filed a Third Amended Complaint on

December 11, 2000. Unless otherwise noted, throughout this opinion references to the

“Complaint” are to the plaintiffs’ Third Amended Complaint.

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regarding the individual summary judgment orders and, accordingly, affirm in all

respects the judgments of the district court.

I.

The complex facts and procedural history underlying this appeal are these. 

Seven African-American past or present employees of the defendant companies

filed suit on July 27, 2000, alleging that the Southern Company and several of its

subsidiaries -- Georgia Power Company, Southern Company Services, Inc. and

Southern Company Energy Solutions, Inc. -- unlawfully discriminated against

their employees on account of race. The plaintiffs alleged that the defendants 2

discriminated against them in connection with promotion opportunities and

performance evaluations, as well as in terms of compensation, and claimed that the

defendants tolerated a racially hostile working environment. Notably, the

plaintiffs sought to represent a Rule 23 class that they described in the following

terms:

All African-American persons employed by Southern Company’s

Corporate Office, Georgia Power Company, Southern Company

Services, Inc. or Southern Company Energy Solutions, Inc., in the

United States at any time from July, 1998 to the present, who are
Non-exempt employees are covered by the requirements of the Fair Labor Standards Act 3

(“FLSA”), 29 U.S.C. § 201 et seq., including, for example, its overtime provisions. Exempt

employees are not covered by the FLSA.

4

subject to the Defendants’ employment, personnel and human

resources policies and practices and who have been, continue to be, or

may in the future be adversely affected by the Defendants’ racially

discriminatory employment policies and practices (“the Class”).

Cooper v. Southern Co., 205 F.R.D. 596, 598-99 (N.D. Ga. 2001). At the time suit

was filed, the proposed class included approximately 2,400 individuals residing in

Georgia, Alabama, Florida, and Mississippi, and working at locations dispersed

throughout the four states. The proposed class consisted of entry-level manual

laborers and skilled professionals, among others, and encompassed exempt, nonexempt, unionized and non-unionized workers.

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In essence, the plaintiffs maintain that the various defendant companies

share a common system for personnel decision-making, which constitutes a

“common policy or practice” that is appropriately challenged on a class-wide

basis. Specifically, plaintiffs say that there are “common promotion and

compensation policies and practices, which give managers unfettered discretion to

make subjective, non-job-related decisions.” Appellants’ Brief at 2. According to

plaintiffs, these “common policies and practices . . . foster a pattern or practice of
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race discrimination or have a disparate impact on black employees,” id., and

plaintiffs sought to redress the claimed wrongdoing in the form of a class action.

A.

The defendants include four companies that provide a wide range of energyrelated products and services throughout the southeastern United States. The

Southern Company (“TSC”) is a holding company that itself has no employees,

but which owns stock in the other defendant companies, all Southern Company

subsidiaries. TSC is a Delaware corporation that is domesticated under the laws of

Georgia and maintains its corporate headquarters in Atlanta, Georgia. In addition,

TSC is the corporate parent of various other utility companies not directly

involved in the lawsuit.

Georgia Power Company (“GPC”) is the Southern Company’s largest

subsidiary, and provides electricity to approximately 1.9 million customers in 153

of Georgia’s 159 counties. GPC employs approximately 9,000 employees in the

state of Georgia, some 44% of whom are covered by a collective bargaining

agreement (“CBA”) with the International Brotherhood of Electrical Workers

(“IBEW”), Local No. 84. GPC’s operations are extremely diversified, and its

facilities, workforce, and management are dispersed across the entire state of

Georgia. Certain functions within GPC are divided among different regions in the
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state, and widely divergent operating and management structures exist within

different regions. Thus, for example, GPC’s Customer Operations function across

16 regions that have very different workforces. The expansive and rural Southeast

Region has very different characteristics with respect to technology, customer

service, and distribution capacity than does the metropolitan Atlanta region, a

dense and highly-populated area that includes numerous commercial clients.

Southern Company Energy Solutions (“SCES”), in turn, is a non-regulated,

non-utility subsidiary of the Southern Company that develops for sale various

energy-related products and services. SCES consults with commercial and

industrial clients on energy efficiency, provides energy efficiency and

environmental programs and services, and offers other services to commercial and

residential customers. Most of the fewer than 300 employees employed by SCES

are exempt employees whose compensation is determined by sales commissions;

none of SCES’s employees is a member of a union.

Finally, Southern Company Services (“SCS”) provides the other defendants

with human resources services and administers common compensation and

promotion policies. SCS also provides various public relations and employee

relations services to the other defendant companies. SCS employs approximately

3,500 non-unionized employees who work primarily in Georgia and Alabama,
In 1998, for example, grade E5 ranged from $42,396 to $67,837, and grade E3 ranged 4

from $34,020 to $54,432. Thus, an employee with a salary at the upper range of one grade might

receive a higher salary than an employee with a salary in the lower range of the next higher

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although they also coordinate services in Mississippi, Florida, New York, and

Washington, D.C.

The differences in management structures, working environments, and

criteria for employment decisions vary substantially among the defendant

companies. The promotion and compensation decisions affecting laborers

involved in electrical power transmission and distribution, for example, take into

account very different criteria than do decisions involving the professional and

managerial ranks of the companies. Similarly, the more than 200 locations in

which employees of the different defendants work are spread throughout a widely

dispersed geographical area and encompass an extremely diverse range of working

environments. 

While the operations and workforces of the defendant companies are

substantially different, they are linked in several ways. All the defendants

maintain a common job, salary, and pay-grade system that dictates salary ranges

for both exempt and non-exempt employees. Non-exempt employees are

classified from grade NE1 through NE9; exempt employees are classified at

grades E1 through E15. Salary ranges for each grade vary significantly. While

4
grade. This could result in a white employee in a lower salary grade receiving a higher salary

than a black employee in a higher salary grade. The plaintiffs say that the defendants exploited

this possibility to mask racial discrimination. 

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the same pay-grade system is used within all of TSC’s subsidiaries, the workforces

within the different companies are strikingly different. Not every position exists

in every company, and in some subsidiaries the job responsibilities for a given

position differ greatly from the responsibilities for the same position in another

subsidiary. Job positions may also correspond to different pay-grade ranges

within different subsidiaries.

The terms of compensation for unionized workers are strictly governed by

the terms of the CBA, giving managers precious little discretion over salary and

similar issues. For non-unionized workers, hiring and promotion decisions are

made by managers of various rank based in geographically dispersed facilities

within each of the defendant companies. Different managers assign various

weights to different qualifications in making their employment decisions, and

managers have the discretion to utilize a wide range of processes and procedures

when making compensation and promotion decisions. 

Several different types of promotions are available to non-unionized

employees. Most competitive job openings -- jobs open to any qualified employee

-- are posted on a computer intranet system known as “JobNet,” which is
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accessible to employees within each TSC subsidiary. SCS recommends

standardized processes for filling JobNet positions, but managers within the

various subsidiaries retain discretion in choosing whether to post job vacancies. 

Other promotions occur outside the context of the competitive promotions

available on JobNet. For example, employees can advance within their own “job

family.” These “progressive promotions” occur when employees meet predetermined performance goals or demonstrate satisfactory work over a given

period. Under these circumstances, an employee may be promoted, for example,

from an Operator II position to an Operator I position. These promotions are not

competitive since they do not involve unfilled positions, but rather are available

only to employees progressing individually within their own job family. 

SCS also provides numerous programs and procedures designed to assist

managers within the other defendant companies in evaluating employees and

making compensation and promotion decisions. These procedures are designed to

ensure that employees are evaluated, compensated, and promoted based on jobrelated factors, in accordance with the companies’ strict prohibitions on

discrimination on account of race. Thus, for instance, SCS provides the defendant

companies with resources to assist managers in promotion decisions, including

structured interview guidelines designed to evaluate job-related skills. SCS also
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recommends that employees receive regular written and oral evaluations, and

develops specific evaluation forms for this purpose. 

SCS and the other defendants have all developed affirmative action plans to

address workforce diversity, and they also provide professional development and

professional mentoring programs to facilitate employees’ professional growth. 

SCS’s Equal Employment Opportunity (“EEO”) Department has primary

responsibility for ensuring compliance with anti-discrimination and equal

opportunity laws. The EEO Department’s policy is to investigate discrimination

complaints, and if any discrimination or harassment is revealed, to take remedial

action to eliminate the discrimination or harassment. SCS’s EEO Department also

acts in conjunction with Compliance Officers within each defendant company to

conduct annual compliance surveys. Every individual employee within the

defendant companies receives an annual compliance questionnaire, which asks

whether the employee is aware of any incidents of discrimination or harassment.

The EEO Department also conducts quarterly Equal Employment

Opportunity reviews designed to ensure that all the defendant companies comply

not only with the applicable anti-discrimination laws, but also with their own

internal policies. In these reviews, the EEO Department evaluates the hiring,

promotion, and compensation practices of randomly selected departments within
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the various defendant companies, with the goal of remedying any inconsistencies

that may exist between a department’s practice and the defendant’s EEO policies.

The defendant companies have also implemented various training programs

to promote compliance with all EEO policies and anti-discrimination laws. Many

of the defendants’ managers are required to attend “FEDLAW,” a one-day seminar

that provides an overview of the federal anti-discrimination laws applicable to the

defendants’ workplaces. The defendants also encourage their employees and

managers to attend another one-day training session, the “Civil Treatment”

seminar. In the “Civil Treatment” training, employees are reminded of the

defendants’ anti-discrimination policies and encouraged to report any violations.

Finally, all employees of SCS and SCES are entitled to raise EEO concerns

with SCS’s Employee Concerns department, and unionized employees at GPC

may raise discrimination complaints with their union stewards, pursuant to

successive agreements between GPC and Local 84 of the IBEW. GPC employees

may also bring complaints to the Corporate Concerns Department or the Corporate

Security Department.

B.

The seven named plaintiffs are African Americans who work (or formerly

worked) in a wide assortment of union and non-union positions within GPC, SCS
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and SCES, and who have been subjected to compensation and promotion decisions

made by different managers utilizing different procedures. We analyze in detail

the individual claims of each plaintiff in Section III, infra, which addresses each of

the summary judgment orders, but offer here a brief summary of each plaintiff’s

work history in order to measure his or her claims against the standards embodied

in Rule 23 of the Federal Rules of Civil Procedure.

Cornelius Cooper (“Cooper”) works as a Lineman for GPC in Atlanta,

Georgia, where he has been employed since 1973. At the time the suit was filed,

Cooper had been employed by GPC for some 28 years. He has been a union

member during his employment at GPC, and thus, his compensation and

promotions within the bargaining unit have been governed by the terms of the

CBA. Cooper received his current Lineman position in 1981 and has not been

promoted since, in spite of positive work evaluations; he claims that less qualified

white employees have been promoted while he could not advance for nearly 20

years.

Cooper has not taken the First Line Supervisor test, nor has he applied for a

Foreman position since at least 1990, because no Foreman positions have been

open in that time. He has not applied to be a crew leader. However, Cooper

maintains that he suffered discrimination when he was denied two promotions in
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1998. The first position that Cooper was denied was as a Lighting Coordinator, an

opening that was posted on JobNet in July 1998. Later that year, Cooper applied

for and was denied a non-union Methods & Training Specialist (“Trainer”)

position at the Klondike Training Center. Of several Trainer jobs open at the time,

at least one was awarded to an African-American employee, Charlie Johnson. 

Michael Edwards (“Edwards”) had worked at GPC for 13 years when this

suit was commenced. Like Cooper, Edwards has held a variety of union positions

in which his compensation and promotions were subject to the terms of the CBA. 

Over the course of his employment with GPC, Edwards worked in several

different departments of the company, based in different cities throughout

Georgia. He maintains that he has been denied various promotions to union

positions, especially in the two years immediately before the suit was filed, and

was frequently denied even an opportunity to interview for these positions. 

In April 2000, Edwards did interview for a Cable Locator position, but was

denied the job. Edwards says that he was fully qualified for the position, having 

worked for 5 months as a Cable Locator in a temporary capacity, and having

worked as a Lineman, which involved more extensive and difficult responsibilities

than a Cable Locator. In spite of his qualifications, Edwards did not receive the

job, which was instead given to a white co-worker whom Edwards argues was less
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qualified. Edwards was denied the Cable Locator position after his interviewers

found his demeanor “too relaxed.”

During his tenure at GPC, Edwards suffered injuries to his back, and as a

result he has had several extended absences and light duty assignments. Between

May and November, 1998, Edwards took a medical leave from GPC, returning to

take a temporary position which he held until its elimination in April 2000. Since

that time he has been out of work on disability leave. 

Edwards filed a complaint with the EEOC in 1999, alleging a violation of

the Americans with Disabilities Act (“ADA”), but he did not allege any race-based

discrimination at that time. Less than a week prior to the filing of this suit,

however, he lodged a complaint with the EEOC that alleged individual and classwide racial discrimination. On appeal, Edwards raises three other promotion

claims that were not included in the Complaint.

Charcella Green (“Green”) had been employed at GPC for 17 years when

this suit was filed. For the last 11 of those years she worked as an Education

Services Coordinator, after having been employed in various capacities since

initially joining GPC as a temporary intern in 1983. While Green advanced

through various positions at GPC, she acquired several educational credentials. 

Prior to joining GPC, Green received a B.S. degree in Human Services
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Administration from Mercer University, and in 1983 she was awarded a Master of

Social Work degree. While working at GPC, she continued her education,

eventually receiving a Ph.D. from Clark Atlanta University.

From 1996 until her department was eliminated in 2002, Green worked at

GPC’s headquarters in Atlanta in a range of exempt positions in the Educational

Services department. She complains that she was wrongfully denied an

Educational Services Manager position in 1996 and a Community Advisor

position in 1997. On July 11, 1998, Green was again denied a Manager of

Educational Services position that was awarded to a white employee. Green also

says that she has been compensated at a less favorable rate than white employees. 

Patricia Harris (“P. Harris”) voluntarily resigned from SCS in August 1999,

prior to the commencement of this case. P. Harris began working at GPC in 1990,

and became an employee of SCS in 1997, when she began working as a Market

Research Analyst in Atlanta. P. Harris did not apply for any promotions during

the relevant period and did not file any complaints with the EEOC. However, she

maintains that she was only granted her Market Research Analyst position after

repeatedly complaining -- including to a GPC Vice President -- about the difficulty

of advancing. P. Harris contends that her white counterparts were promoted much
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more easily, and says that once she began working as a Market Research Analyst,

she was provided with less training and support than her white colleagues.

P. Harris also claims that she suffered discrimination in compensation on

account of race, observing that she was paid at the low end of her salary grade,

while white colleagues were more generously compensated, notwithstanding their

being less qualified. Indeed, P. Harris points out that she earned a Master of

Business Adminstration degree, while her white co-workers lacked that credential. 

Sarah Jean Harris (“S.J. Harris”) was employed by GPC from 1979 until

2000, working in various non-exempt, non-union customer services positions in

Lawrenceville, Duluth, and Gwinnet, Georgia. Hired in 1979 as a General Clerk,

she had been promoted to Operating Assistant by 1989. In 1994, S.J. Harris was

assigned to work in Duluth as a Secretary; her job title was changed to Region

Support Representative in 1997. Working as a Region Support Representative,

S.J. Harris was the only African-American employee in an 18-person department. 

She alleges that she was discriminated against in her employee evaluations,

claiming that she received lower evaluation scores than she deserved, while white

employees received inappropriately positive evaluations. She also observes that

she received only “minuscule” salary increases during her tenure, and has

therefore received lower compensation than white employees.
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S.J. Harris did not apply for any promotions during the relevant period and

has brought no promotion claims. However, in addition to raising her

compensation discrimination claims, S.J. Harris contends that she was wrongfully

fired in retaliation for her involvement in this lawsuit. GPC denies any retaliatory

motive and contends that she was fired for disciplinary reasons, after having

received several negative evaluations and having been placed in a disciplinary

program. While on “last-chance” probation, S.J. Harris was again disciplined, and

then was terminated. 

Irene McCullers (“McCullers”) was hired by GPC in 1978, and worked in

several clerical positions until 1997, when she was transferred to SCS. Since

1997, McCullers has worked at SCS as a non-exempt Processing Operator I in the

Information Management Services Department. Altogether, McCullers had spent

23 years working for the defendant companies at the time suit was filed. 

McCullers alleges that she was discriminated against in terms of her

compensation, promotions, and performance evaluations.

Specifically, McCullers contends that within her department there are six

employees working as Processing Operators: two African-American and two white

employees hold Processing Operator I titles, and two white employees hold

Processing Operator Senior positions. McCullers alleges that she and her African-
18

American colleague are victims of racial discrimination in that they are the lowest

paid employees. McCullers adds that she is paid approximately 10% less than her

white colleagues, even though she has an associates degree in business

administration, while the white employees have no more than a high school

education.

McCullers also maintains that she has been discriminated against in

promotions. She avers that at the time her department was reorganized in 1997,

she was discriminatorily denied a progressive promotion from Processing Operator

I to Processing Operator Senior, while at least one white counterpart was

promoted to the senior position. In the two years before this litigation

commenced, McCullers was again denied a promotion to Processing Operator

Senior, while another white colleague was promoted. 

Finally, Carolyn Wilson (“Wilson”), the seventh of the named plaintiffs,

began working for the defendants in 1985, when she was hired by GPC as an

employee in its Customer Service Operations. In 1997, she was hired as a Project

Analyst in the Finance Center at SCES. Wilson maintains that she experienced

racial discrimination in promotion and compensation decisions, as well as with

respect to her performance evaluations. Wilson says that she uniformly performed

her job well and received positive performance evaluations, and yet was denied
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numerous promotions for which she was qualified. She adds that while she

applied for approximately 15 promotions within the defendant companies, she was

granted only 3 interviews, and was denied several promotions because of her race. 

In November 1997, Wilson applied for and was granted a Project Analyst Senior

position at SCES, which she learned of through the JobNet system, but her

position was re-classified as a Project Analyst III, a lower- level position than she

had sought. The following year, Wilson applied for and was offered a Customer

Service Representative position, but turned it down. 

At approximately the same time this lawsuit was commenced, Wilson filed a

charge with the EEOC, but she did not identify the specific event or events that 

constituted the discrimination she faced, instead alleging discrimination more

generally. She maintains that she is compensated less favorably than at least four

white colleagues who perform the same job as she does, even though they are

classified at the same, or lower, salary grades. 

To summarize, of the seven named plaintiffs, three no longer worked for

any of the defendants at the time this case was commenced (Edwards, P. Harris,

and S.J. Harris). Of the four remaining employees, one held a position which was

covered by the CBA (Cooper), two held exempt positions outside senior
20

management (Green and Wilson), and one held a non-exempt position

(McCullers). 

Although at various times during their employment with the defendants,

some of the plaintiffs worked in Georgia locations outside metropolitan Atlanta,

most of them were employed in Atlanta for most or all of their tenures. Several of

the named plaintiffs worked in office environments characteristic of the central

administrative operations that took place in Atlanta, and even Edwards and

Cooper -- who labored in connection with the direct delivery of electricity --

worked in more developed urban areas of Georgia. None of the named plaintiffs

worked in the less densely populated, rural areas of the state, and although the

plaintiffs sought to represent a broad class including employees based throughout

Florida, Mississippi, and Alabama, none of them worked within these states. 

All of the plaintiffs complained of discrimination in either compensation or

promotion, and while none of the plaintiffs produced direct evidence that the

personnel decisions in their individual cases were motivated by race, each plaintiff

alleged that he or she was victimized by a common policy of subjective decisionmaking that allowed discrimination to persist in the defendant companies. 

Specifically, the plaintiffs’ Complaint asserted that there was a class-wide

“continuing pattern and practice of racial discrimination,” that they and the
As a preliminary matter, the defendants suggest that if we affirm the district court’s 5

summary judgment orders as to each of the named plaintiffs, the class certification issue is moot. 

This position has intuitive appeal, since it might seem improbable that plaintiffs whose own

claims cannot survive summary judgment could represent a larger class of plaintiffs. That is, if

we affirm the final orders of summary judgment on the named plaintiffs’ claims, it would appear

unnecessary to reach the class certification issue, because even if other class members retained

valid claims, they would have no representative plaintiffs to prosecute their claims. See

Satterwhite v. City of Greenville, 634 F.2d 231, 234 (5th Cir. 1981) (en banc) (Gee, C.J.,

dissenting) (arguing that requiring an appellate court to revisit the class certification issue even if

the named plaintiffs’ claims fail could lead to the “extreme” result “that a class need have no

personal representative at all: only a putative cause and a counsel”).

The plaintiffs, on the other hand, have directed our attention to Martinez-Mendoza v.

Champion International Corp., 340 F.3d 1200 (11th Cir. 2003), in which a panel of this Court

held that “even after finding against plaintiffs on the merits, the [district] court should have

determined whether the class action could be maintained, and whether the plaintiffs could

represent that class.” Id. at 1215. Martinez-Mendoza reflects established Circuit precedent that

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putative class members were subjected to discriminatory treatment, and that the

defendants’ policies and practices “had an ongoing disparate impact.”

Two major issues are presented in this appeal. First, plaintiffs argue that the

district court abused its discretion when it denied their motion for class

certification under Rule 23 of the Federal Rules of Civil Procedure. Second, they

say that the district court erred when it granted summary judgment in favor of the

defendants on each of the seven named plaintiffs’ individual claims. We address

each of these issues in turn.

II.

We begin with the plaintiffs’ basic argument that the district court abused

its discretion when it denied their motion for class certification. In denying the 5
requires us to revisit the class certification issue even if we affirm summary judgment for the

defendants. 

In White v. I.T.T., 718 F.2d 994 (11th Cir. 1983), a panel of this Court explained that

where

a plaintiff brings both an individual and class action; the class action is dismissed

pretrial; he loses his individual claim at trial and then appeals the dismissal of his

class action . . . we have remanded the case to the district court to determine (1)

the presence of a live controversy involving the proposed class, and if one is

present, (2) whether, pursuant to Rule 23, the action is appropriate for class

certification and the appellant is a proper representative of the proposed class (or

if not, whether there exists an appropriate class representative who can be

substituted for the appellant).

Id. at 997-98. It is “[t]he law of this circuit . . . [that] a plaintiff’s capacity to act as representative

of the class is not ipso facto terminated when he loses his case on the merits.” MartinezMendoza, 340 F.3d at 1215; see also Satterwhite, 634 F.2d at 231-32; Armour v. City of

Anniston, 654 F.2d 382, 383 (5th Cir. Unit B Aug.1981) (per curiam). (In Bonner v. City of

Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc), this Court adopted as binding

precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.).

Under the law of this Circuit, a live controversy involving a putative class may continue 

even when the claim of a specific plaintiff fails. Thus, even if we affirm each summary judgment

order entered against the individual plaintiffs, the class certification issue may not be moot, and

we are still required to address the district court’s denial of class certification.

 Rule 23(a) provides that: 6

One or more members of a class may sue or be sued as

representative parties on behalf of all only if (1) the class is so

numerous that joinder of all members is impracticable, (2) there are

questions of law or fact common to the class, (3) the claims or

defenses of the representative parties are typical of the claims or

defenses of the class, and (4) the representative parties will fairly

and adequately protect the interests of the class.

22

plaintiffs’ motion, the district court first considered the plaintiffs’ anecdotal and

statistical evidence, before concluding that the plaintiffs could not satisfy the basic

requirements of Rule 23(a) of the Federal Rules of Civil Procedure.6
Fed R. Civ. P. 23(a). We refer to these four requirements as the numerosity, commonality,

typicality, and adequacy criteria. See Prado-Steiman v. Bush, 221 F.3d 1266, 1278 (11th Cir.

2000).

Rule 23(b) provides, in pertinent part, that: 7

[a]n action may be maintained as a class action if the prerequisites

of subdivision (a) are satisfied, and in addition:

. . . . 

(2) the party opposing the class has acted or refused to act on

grounds generally applicable to the class, thereby making

appropriate final injunctive relief or corresponding declaratory

relief with respect to the class as a whole; or

(3) the court finds that the questions of law or fact common to the

members of the class predominate over any questions affecting

only individual members, and that a class action is superior to other

available methods for the fair and efficient adjudication of the

controversy. The matters pertinent to the findings include: (A) the

interest of members of the class in individually controlling the

prosecution or defense of separate actions; (B) the extent and

nature of any litigation concerning the controversy already

commenced by or against members of the class; (C) the desirability

or undesirability of concentrating the litigation of the claims in the

particular forum; (D) the difficulties likely to be encountered in the

management of a class action.

Fed R. Civ. P. 23(b).

23

Alternatively, the district court held that individual questions of law and fact

plainly outweighed any common questions, and therefore that this suit was not

appropriate for certification under either subsection (2) or (3) of Rule 23(b) of the

Federal Rules of Civil Procedure. The plaintiffs maintain that the district court’s 7

denial of class certification results from “fundamental errors of law and a
24

fundamental misconception of the role of the court in ruling on a motion for class

certification.” Appellants’ Brief at 8. We remain unpersuaded.

A.

Questions concerning class certification are left to the sound discretion of

the district court. Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1386 (11th

Cir. 1998) (en banc); Freeman v. Motor Convoy, Inc., 700 F.2d 1339, 1347 (11th

Cir. 1983). “A district court’s decision whether or not to certify a class under Rule

23 of the FRCP is reviewed for abuse of discretion. As long as the district court’s

reasoning stays within the parameters of Rule 23’s requirements for the

certification of a class, the district court decision will not be disturbed.” Hines v.

Widnall, 334 F.3d 1253, 1255 (11th Cir. 2003) (citations omitted). 

Even if we would have certified a class, that does not mean the district court

abused its discretion in declining to do so. Id.; see also Shroder v. Suburban

Coastal Corp., 729 F.2d 1371, 1374 (11th Cir. 1984). Indeed, the distinguishing

hallmark of abuse-of-discretion review is that it “presupposes a zone of choice

within which the trial courts may go either way.” Kern v. TXO Prod. Corp., 738

F.2d 968, 971 (8th Cir. 1984).

By definition . . . under the abuse of discretion standard of review

there will be occasions in which we affirm the district court even

though we would have gone the other way had it been our call. That
25

is how an abuse of discretion standard differs from a de novo

standard of review. As we have stated previously, the abuse of

discretion standard allows “a range of choice for the district court, so

long as that choice does not constitute a clear error of judgment.”

Rasbury v. I.R.S., 24 F.3d 159, 168 (11th Cir. 1994) (quoting United States v.

Kelly, 888 F.2d 732, 745 (11th Cir. 1989) (citation omitted)). 

First, the plaintiffs argue that the district court erred by “reaching the

merits” of the plaintiffs’ claim at the preliminary stage of class certification. Thus,

we are required to determine whether the trial court properly assessed the

plaintiffs’ evidence only to the extent necessary to decide the issue of class

certification, or whether the trial judge impermissibly usurped the role of the jury

by ruling on the merits of the plaintiffs’ statistical and expert evidence. After

thorough review of this record, we are satisfied that the district court did not

improperly invade the jury’s province when it conducted (as it was required to do

in this case) a rigorous analysis of the evidence proffered by the parties at the class

certification stage.

The plaintiffs rely on the Supreme Court’s often-cited admonition in Eisen

v. Carlisle & Jacqueline, 417 U.S. 156, 94 S. Ct. 2140, 40 L. Ed. 2d 732 (1974),

that “nothing in either the language or history of Rule 23 . . . gives a court any

authority to conduct a preliminary inquiry into the merits of a suit in order to
26

determine whether it may be maintained as a class action.” Id. at 177, 94 S. Ct. at

2152. However, we have noted that “[w]hile it is true that a trial court may not

properly reach the merits of a claim when determining whether class certification

is warranted, this principle should not be talismanically invoked to artificially

limit a trial court’s examination of the factors necessary to a reasoned

determination of whether a plaintiff has met her burden of establishing each of the

Rule 23 class action requirements.” Love v. Turlington, 733 F.2d 1562, 1564

(11th Cir. 1984) (citation omitted). 

Indeed, both the Supreme Court and this Court have noted since Eisen that

evidence pertaining to the requirements embodied in Rule 23 is often intertwined

with the merits, making it impossible to meaningfully address the Rule 23 criteria

without at least touching on the “merits” of the litigation. See Coopers & Lybrand

v. Livesay, 437 U.S. 463, 469 n.12, 98 S. Ct. 2454, 2458 n.12, 57 L. Ed. 2d 351

(1978) (“Evaluation of many of the questions entering into determination of class

action questions is intimately involved with the merits of the claims.” (citation

omitted)); Nelson v. U.S. Steel Corp., 709 F.2d 675, 679 (11th Cir. 1983)

(explaining that Rule 23(a) evidence “is often intertwined with the merits”). 

As the Supreme Court has noted, the bare allegation that racial

discrimination has occurred “neither determines whether a class action may be
27

maintained . . . nor defines the class that may be certified.” Gen. Tel. Co. of the

Southwest v. Falcon, 457 U.S. 147, 157, 102 S. Ct. 2364, 2370, 72 L. Ed. 2d 740

(1982). Rather, before a district court determines the efficacy of class

certification, it may be required to make an informed assessment of the parties’

evidence. That a trial court does so does not mean that it has erroneously

“reached the merits” of the litigation. See Kirkpatrick v. J.C. Bradford & Co., 827

F.2d 718, 722 (11th Cir. 1987). 

In this case, the district court was obliged to make some preliminary

assessment of the plaintiffs’ evidence to determine, at the very least, whether the

named plaintiffs were claiming discrimination that was common to the members of

the putative class. Indeed, the district court would have erred if it had certified a

class without first determining that the named plaintiffs had claims common to

those of the unnamed class members. 

B.

We turn, then, to whether the court’s substantive determinations at the class

certification stage amounted to an abuse of discretion. The plaintiffs say that the

district court erred by concluding that they had failed to establish the
The district court concluded that because they failed the commonality and typicality

8

requirements under Rule 23(a), the named plaintiffs could not adequately represent the other

putative class members. See Cooper, 205 F.R.D. at 627. The district court did, however,

determine that the plaintiffs’ counsel were “capable and experienced lawyers who would more

than adequately represent the class, were a class certified.” Id. The defendants do not challenge

this conclusion concerning the adequacy of plaintiffs’ representation.

28

commonality, typicality, and adequacy requirements of Rule 23(a). They claim 8

that there were questions of law and fact common to the entire class and that the

claims of the named plaintiffs were in fact typical of all the class members. 

The four basic requirements of Rule 23(a) are “designed to effectively limit

class claims to those ‘fairly encompassed’ by the named plaintiffs’ individual

claims.” Prado-Steiman, 221 F.3d at 1278 (quoting Falcon, 457 U.S. at 156, 102

S. Ct. at 2370) (internal quotation marks omitted). As the district court put it, Rule

23(a) is designed to ensure that “the common bond between the class

representatives’ claims and those of the class is strong enough so that it is fair for

the fortunes of the class members to rise or fall with the fortunes of the class

representatives.” Cooper, 205 F.R.D. at 608-09. 

The typicality and commonality requirements are distinct but interrelated, as

the Supreme Court has made clear:

The commonality and typicality requirements of Rule 23(a) tend to

merge. Both serve as guideposts for determining whether under the

particular circumstances maintenance of a class action is economical

and whether the named plaintiff’s claim and the class claims are so
29

interrelated that the interests of the class members will be fairly and

adequately protected in their absence. 

Falcon, 457 U.S. at 157 n.13, 102 S. Ct. at 2370 n.13. We have similarly

explained that “the commonality and typicality requirements of Rule 23(a)

overlap. Both requirements focus on whether a sufficient nexus exists between the

legal claims of the named class representatives and those of individual class

members to warrant class certification.” Prado-Steiman, 221 F.3d at 1278. 

“A class representative must possess the same interest and suffer the same

injury as the class members in order to be typical under Rule 23(a)(3).” Murray v.

Auslander, 244 F.3d 807, 811 (11th Cir. 2001). “[T]ypicality measures whether a

sufficient nexus exists between the claims of the named representatives and those

of the class at large.” Prado-Steiman, 221 F.3d at 1279. 

While not entirely dissimilar to the typicality requirement, Rule 23(a)’s

commonality requirement measures the extent to which all members of a putative

class have similar claims. “Traditionally, commonality refers to the group

characteristics of the class as a whole [while] typicality refers to the individual

characteristics of the named plaintiff in relation to the class.” Id. Under the

commonality requirement, “a class action must involve issues that are susceptible

to class-wide proof.” Murray, 244 F.3d at 811. 
30

Neither the typicality nor the commonality requirement “mandates that all

putative class members share identical claims, and . . . factual differences among

the claims of the putative class members do not defeat certification.” Baby Neal v.

Casey, 43 F.3d 48, 56 (3d Cir. 1994) (citation omitted); see also Prado-Steiman,

221 F.3d at 1279 n.14; Appleyard v. Wallace, 754 F.2d 955, 958 (11th Cir. 1985). 

Nevertheless, the named plaintiffs’ claims must still share “the same essential

characteristics as the claims of the class at large.” Appleyard, 754 F.2d at 958

(citation and internal quotation marks omitted).

As for the typicality requirement, the district court concluded that while

some of the named plaintiffs had claims that could be typical of subgroups within

the larger class, collectively the named plaintiffs did not have claims typical of the

entire class. Thus, for example, plaintiff Edwards’s claims were uniquely tied to

issues relating to his disability; plaintiff S.J. Harris’s claims could not be divorced

from the disciplinary issues relating to her case; and although Cooper’s claims

were typical of union members denied promotion to non-union jobs, they were not

typical of those union members who might have complaints relating to the denial

of union positions. 

Similarly, none of the named plaintiffs had claims typical of members of the

putative class who were denied senior management positions, nor did any of the
31

named plaintiffs have compensation claims typical of upper-management

employees. And while the plaintiffs’ claims may have been typical of some

subclasses of the defendants’ workforce, it is not certain that their claims would be

typical of other subclasses. Thus, for example, the specific job-related criteria

GPC uses to make employment decisions affecting its rural power-delivery

operations may be very different from the criteria underlying decisions about

employees in their administrative offices. As a result, the named plaintiffs did not

present claims typical of the full range of employees in their putative class. 

The plaintiffs argue, nevertheless, that the district court erred by focusing on

the idiosyncratic features of the different named plaintiffs’ claims instead of

acknowledging that the claims of the plaintiffs and the members of the larger class

were based on the same legal theories. That is, the plaintiffs say that their

individual injuries “arise out of the same pattern and practice [of discrimination]

and same [discriminatory] policies that give rise to the injuries of the class

members.” Appellants’ Brief at 18. 

We reiterate that our review is only for abuse of discretion, and that whether

we would have certified the class in the first instance -- or even some grouping of

subclasses -- is not dispositive. Hines, 334 F.3d at 1257; see also Shroder, 729

F.2d at 1374. Here, the district court’s analysis as to typicality fell within the
32

range of choice permissible on abuse-of-discretion review and did not represent a

clear error in judgment. See Kelly, 888 F.2d at 745. 

First, the compensation and promotion decisions affecting each of the

named plaintiffs were made by individual managers in disparate locations, based

on the individual plaintiffs’ characteristics, including their educational

backgrounds, experiences, work achievements, and performance in interviews,

among other factors. In Love v. Turlington, we held that the district court had not

abused its discretion in denying class certification based on the plaintiffs’ failure

to meet the typicality and commonality requirements. 733 F.2d at 1564. That case

involved a challenge to Florida’s SSAT-I, a test designed to identify high school

students who had failed to master one of the state’s academic performance

standards. Students failing the test were identified for remedial assistance, but a

failure did not automatically render a student ineligible for a high school diploma. 

Rather, decisions on each individual student’s eligibility for a diploma were “made

by individual teachers on the basis of [the student’s] individual achievements. 

Each student’s situation differs, and the diploma is denied each student for reasons

which are unique to his situation, and which do not necessarily correspond to his

performance on the SSAT-I.” Id. Similarly, in the instant case the compensation
33

and promotion decisions affecting each of the named plaintiffs were based on

factors that, by and large, appear unique to each of the plaintiffs in question. 

In addition, the plaintiffs sought to represent a very broad class that

purported to represent all African-American employees of the defendants, at all

levels of the corporate hierarchy of all the defendant companies. Because the

plaintiffs asserted broad claims on behalf of a broad class, they were required to

identify representative plaintiffs who shared those broad claims. However, while

the different named plaintiffs may have had claims that were typical of some

conceivable subgroups of the overall class, the seven named plaintiffs,

collectively, did not have claims that would have been typical of the entire class. 

See Falcon, 457 U.S. at 156, 102 S. Ct. at 2370; Hines, 334 F.3d at 1257-58. As a

result, we are constrained to conclude that the district court’s conclusions

regarding typicality did not constitute a clear error of judgment, nor were they

otherwise outside the range of choices the district court was allowed to make. 

As for the commonality requirement, the district court concluded that it was

impossible to say that the employment histories of the named plaintiffs and the

ways in which they claimed to have experienced discrimination could be “fairly

compared with the history or individual experiences of absent class members,” or

that the claims of class members shared such common features that rulings could
34

be fashioned to fairly adjudicate the claims as a group. Cooper, 205 F.R.D. at

610-611. Where, as here, class certification was sought by employees working in

widely diverse job types, spread throughout different facilities and geographic

locations, courts have frequently declined to certify classes. See, e.g., Zachery v.

Texaco Exploration & Prod., Inc., 185 F.R.D. 230, 239 (W.D. Tex. 1999) (denying

certification where proposed class spread across fifteen states and involved

seventeen business units); Troupe v. Randall’s Food & Drug, Inc., No. CIV.A.

3:98-CV-2462, 1999 WL 552727, at *5 (N.D. Tex. July 28, 1999) (declining to

certify proposed class that covered at least “fifty separate stores spread over two

large cities and their outlying suburbs” with “management practices vary[ing]

widely according to stores across the division”).

Since the hiring, compensation, and promotion decisions at issue were made

by different managers in different companies implementing different policies,

even if the named plaintiffs established that they were, individually, subjected to

intentional discrimination, they would not necessarily have established that other

class members suffered from the same discrimination. Commonality in the claims

of the broad class the plaintiffs sought to certify would have to be established by

showing that the discrimination sustained was either part of an overarching pattern

and practice of intentional discrimination on the part of the defendants or the
To prove disparate treatment, a plaintiff (as do plaintiffs here) usually seeks to establish 9

that he or she is a member of a protected group; that he or she was subjected to an adverse

employment decision; that the employer treated similarly situated employees outside the

protected group more favorably; and that he or she was qualified for the job. Joe’s Stone Crab,

220 F.3d at 1274-75. 

35

result of the discriminatory disparate impact of a facially neutral employment

policy.

We explain the elements required to sustain a successful pattern and

practice or disparate impact claim more fully in Section III.B., infra, but a brief

overview suffices for our purposes here. To establish a “pattern or practice” of

disparate treatment, the plaintiff must show that intentional discrimination was

9

the employer’s “standard operating procedure.” Joe’s Stone Crab, 220 F.3d at

1274 (explaining different types of discrimination claims in context of gender

discrimination). The plaintiff can prove that discrimination was the standard

operating procedure “through a combination of statistics and anecdotes.” Id. To

prove disparate impact, a plaintiff must establish the existence of a statistically

significant disparity among members of different groups affected by a type of

employment decision; a specific, facially neutral employment practice involved in

the decision; and a causal nexus between the facially neutral employment practice

and the statistically significant disparity. Id.
The plaintiffs also submitted an expert report prepared by Dr. Kevin R. Murphy, a

10

psychologist, who examined various affidavits and deposition testimony provided by the

plaintiffs and concluded that while the defendants actually had policies in practice to prevent

discrimination, they undermined these policies “by affording managers discretion to ignore those

policies and use criteria that are not job related” in making compensation and promotion

decisions. R119-56 at 2. In essence, Murphy’s report recapitulated the basic allegations of the

plaintiffs in the guise of an expert report. The defendants submitted an expert report prepared by

Dr. Ronald R. Sims, which concluded that Murphy’s report was “neither accurate nor reliable,”

R136-2 at 4, and that in fact the defendants had in place policies that prevented managers from

exercising unfettered discretion to make decisions on non-job-related bases. We agree with the

36

Thus, it was plainly necessary for the district court to evaluate the statistical

evidence the plaintiffs submitted in order to determine whether it established the

discrimination of which plaintiffs complained. The district court concluded the

statistical “analysis ha[d] some limitations which undermine[d] its usefulness in

measuring whether Defendants’ employment practices [we]re racially neutral.”

Cooper, 205 F.R.D. at 613. Because of substantial analytical flaws in the

statistical evidence, the plaintiffs had made an “inadequate showing . . . to raise a

presumption of discrimination arising from application of the collective whole of

Defendants’ compensation and promotion policies. Thus, disparate impact

analysis produce[d] no evidence common to the claims of all class members. 

Also, the [statistical evidence] fail[ed] to establish evidence of a pattern and

practice of discrimination.” Id. at 615 (emphasis added).

The plaintiffs’ primary statistical evidence was found in reports by Dr.

Janice Madden, who analyzed employment data provided by the defendants. Dr. 10
district court that the reports of Murphy and Sims, which reach sweeping conclusions about what

may or may not occur within the defendant companies, are of extremely limited use, lacking

statistical evidence to substantiate broad claims that, in essence, simply recharge the allegations

of the parties to this litigation. See Cooper, 205 F.R.D. at 611 & n.24.

37

Madden’s reports concluded that African Americans received fewer promotions

than would be expected given their numbers in the workforce. However, after

analyzing Madden’s methodology and conclusions, the district court identified

several basic infirmities that undermined the reports’ substantive value. The

district court did not exclude Dr. Madden’s reports because she was unqualified or

because the reports were based on a wholly unreliable methodology; rather, the

court accepted the reports’ conclusions but determined that they still failed to

establish that the named plaintiffs had claims in common with other class members

under either a pattern and practice or disparate impact theory. 

In the first place, the district court noted that Madden’s reports did not

incorporate variables that would allow for the comparison of individuals who were

similarly situated with respect to managerial decision makers, job types, locations,

departments, and the specific criteria relevant for the jobs in question. Madden

did not tailor her analysis to the specific positions, job locations, or departmental

and organizational structures in question; however, the wide-ranging and highly

diversified nature of the defendants’ operations requires that employee
38

comparisons take these distinctions into account in order to ensure that the black

and white employees being compared are similarly situated. See Wards Cove

Packing Co. v. Atonio, 490 U.S. 642, 656-57, 109 S. Ct. 2115, 2124-25, 104 L.

Ed. 2d 733 (1989) (“[A] Title VII plaintiff does not make a case of disparate

impact simply by showing that, ‘at the bottom line,’ there is racial imbalance in the

work force.”); see also Brown v. Am. Honda Motor Co., 939 F.2d 946, 952 (11th

Cir. 1991) (“Statistics . . . without a[ proper] analytic foundation[] are virtually

meaningless.”); Balderston v. Fairbanks Morse Engine Div. of Coltec Indus., 328

F.3d 309, 319 (7th Cir. 2003) (“The Supreme Court has emphasized the

importance of looking to the proper base ‘group’ when making statistical

comparisons and examining all of the surrounding facts and circumstances which

create the statistics themselves.”).

As the district court observed, Madden’s reports did not take into account

the type or level of acquired skills of job applicants. Madden’s “education”

component failed to take into account the field of study, the relevance of that field

to any position in question, or the quality of the educational institutions involved,

factors which may be important in some managers’ employment decisions. 

Moreover, Madden calculated “experience” only by tabulating the amount

of time that had passed since an individual finished his or her formal education
39

and the amount of time that individual had spent on the defendants’ payroll. That

two employees completed their education in the same year does not ensure that

they have similar levels of job-related experience, since what those employees

have done in the intervening years may be extraordinarily different. While

Madden’s “experience” variable may have measured the passage of time, it did not

in any way factor in the quality, type, or relevance of an employee’s experience. 

And the reports did not factor in any employee’s actual job performance, a

consideration that is undeniably important in decisions relating to compensation

and promotion. Indeed, without taking into account job performance at all, the

fact that two employees began their employment with the defendants at the same

time and have not been promoted at the same rate does not establish that

discrimination is at work. 

In essence, the district court concluded that these methodological

deficiencies rendered it “impossible to determine what the [salary and promotions]

gaps [we]re, whether they [we]re statistically significant, or whether factors other

than race [we]re involved.” Cooper, 205 F.R.D. at 615. Thus, the district court

observed that “there ha[d] been an inadequate showing by Plaintiffs to raise a

presumption of discrimination arising from application of the collective whole of

Defendants’ compensation and promotion policies.” Id.; see also Maddox v.
40

Claytor, 764 F.2d 1539, 1552 (11th Cir. 1985) (“[Multiple regression analysis]

measures the probability that the calculated disparity could occur randomly -- but

the analysis in no way validates the calculation of the disparity itself. If the tested

disparity is based on erroneous assumptions or suffers from flaws in the

underlying data, then standard deviation analysis is foredoomed to yield an equally

faulty result.”); Eastland v. Tenn. Valley Auth., 704 F.2d 613, 621-24 (11th Cir.

1983).

The district court also observed that Madden’s analysis of promotion rates

was, similarly, grounded in insufficiently tailored data. Significantly, Madden

failed to distinguish between competitive promotions -- those open to any

qualified candidate -- and progressive promotions -- those available only to

individual employees progressing in a “job family” -- a distinction that is crucial

when analyzing promotions. See Forehand v. Fla. State Hosp., 89 F.3d 1562,

1572-73 (11th Cir. 1996). As for progressive promotions, because Madden

recognized promotions only when an employee received an increase in salary

grade, moved from a non-exempt to an exempt position, or moved from a union

job into a higher-paying non-union job, Madden’s calculations did not capture

those that occurred within the same salary grade. As for competitive promotions,

Madden did not take into account how many and which employees actually
41

applied for them, also a significant factor in making any meaningful

generalizations about allegedly discriminatory promotion practices.

As part of her analysis, Madden divided the employees into different

“pools,” or subsets, of employees, and her analysis revealed statistical deficiencies

in only some of the pools. Of the 148 pools of employees analyzed in 1998-1999,

Madden’s analysis revealed a representational deficiency of African-American

employees in only three pools: two union salary-grade pools and one pool for nonexempt salary-grade-5 employees. The district court concluded that this actually

could be evidence that the promotional deficiencies for African Americans may

have existed only in some segments of the workforce, and therefore not

throughout the entire class.

Finally, the district court observed that Madden’s reports did not establish

the existence of any specific promotion or compensation policy or practice, let

alone trace the alleged racial disparities to such a policy or practice. In addition,

the Madden reports did not make any reference to any of the specific named

plaintiffs or their specific similarly-situated comparators, making it altogether
Several of the flaws in plaintiffs’ statistical evidence that the district court highlighted 11

were initially pointed out in the report of defense expert Dr. Joan G. Haworth, an economist, who

included statistical analyses that contradict Madden’s reports and support the defendants’ claim

of no discrimination. In response to these criticisms of Dr. Madden’s statistical reports, the

plaintiffs cite Bazemore v. Friday, 478 U.S. 385, 106 S. Ct. 3000, 92 L. Ed. 2d 315 (1986), which

held that the failure of the plaintiffs’ multiple regression analyses to incorporate all conceivable

variables affected the weight of the analyses but not their admissibility. Plaintiffs argue that the

district court here ignored Bazemore by inappropriately evaluating the probative value of the

statistical evidence, rather than leaving that task to the jury. 

Plaintiffs’ reliance on Bazemore is unavailing in this case. First, Bazemore held that a

statistical analysis should not be rejected merely because it fails to incorporate every possible

variable; it did not hold that any statistical report, no matter how many critical variables were

missing, should automatically present a jury question, indicating that there are “some regressions

so incomplete as to be inadmissible as irrelevant.” Id. at 400 n.10, 106 S. Ct. at 3009 n.10. 

Moreover, in Bazemore, the plaintiffs submitted independently conducted statistical analyses that

confirmed the validity of their regressions, and most importantly, the defendants’ statistical

analysis reached substantially the same results as did those of the plaintiffs. Id. at 401, 106 S. Ct.

at 3009. That was not the case here, where the defendants’ analyses expressly contradicted those

of the plaintiffs. 

42

unclear how the reports could establish commonality among these named

plaintiffs’ claims and the overall claims of the affected class. 

11

The district court concluded that because of these flaws in Madden’s

models, it was impossible to determine how wide a real gap, if any, existed in

salaries and promotion rates among white and black employees, or whether any

such gap was attributable to factors other than race. We are persuaded that the

district court’s basic conclusion -- that plaintiffs’ statistical evidence was

insufficient to establish a presumption of discrimination common to the claims of

all members of the putative class -- did not constitute a clear error of judgment,

nor was the conclusion otherwise outside the acceptable range of choices. 
43

The plaintiffs also proffered, in addition to the statistical evidence, a range

of anecdotal evidence that, they claimed, shed additional light on the defendants’

allegedly discriminatory policies and practices. Among the evidence presented

were reports of several ugly incidents involving nooses displayed at some

locations within some of the defendants’ facilities, reports of racial jokes and

slurs, and the belief expressed by various employees that there was a “glass

ceiling” for African-American employees. Finally, plaintiffs filed a series of

affidavits of prospective class members who offered anecdotal evidence that

repeated many of the claims plaintiffs had made in their pleadings. The district

court determined that the anecdotal evidence was “inadequate to establish . . . a

pattern and practice of discrimination.” Cooper, 205 F.R.D. at 619. Again, we

conclude that the district court acted within its discretion in determining that,

given the sheer size and geographically dispersed nature of the defendants’

workforce, the anecdotal evidence -- disturbing as some of it may have been -- was

inadequate to establish discrimination class-wide. 

After thorough review of the entire record, we conclude that the district

court did not abuse its discretion in determining that the statistical and anecdotal

evidence submitted by the plaintiffs did not establish pattern and practice

discrimination common to the class or a common disparate impact affecting the
44

defendants’ African-American employees class-wide. The powerful differences

between the named plaintiffs’ claims and the claims of the overall class members

meant that procedural fairness for all members of the putative class would not be

ensured if the claims of the entire class were allowed to rise or fall on the fortunes

of the named plaintiffs’ claims.

C.

Even if we concluded, however, that the district court abused its discretion

in determining that the plaintiffs did not meet two of the requirements of Rule

23(a), certification would still be inappropriate unless the plaintiffs also could

satisfy at least one of the requirements of Rule 23(b). See Jackson v. Motel 6

Multipurpose, Inc., 130 F.3d 999, 1005 (11th Cir. 1997). As another ground for

its decision, the district court concluded that certification was inappropriate under

either Rule 23(b)(2) or Rule 23(b)(3). On appeal the plaintiffs say that the district

court erred in refusing to certify a class under Rule 23(b)(2) for injunctive relief

and back pay or to certify a hybrid class under Rule 23(b)(2) for injunctive relief,

while severing the damages phase of the proceedings by allowing opt-outs for

damages. They also argue that the court should have certified a class under Rule

23(b)(3) for injunctive relief, back pay, and damages. We remain unconvinced
45

and, accordingly, hold that the district court did not abuse its discretion in

concluding that the requirements of Rule 23(b) were not satisfied either.

Under Rule 23(b)(2), class certification is appropriate when the

requirements of Rule 23(a) are met and the defendant “has acted or refused to act

on grounds generally applicable to the class, thereby making appropriate final

injunctive relief or corresponding declaratory relief with respect to the class as a

whole.” Fed. R. Civ. P. 23(b)(2). Back pay is considered equitable relief and can

therefore be awarded in a case certified under Rule 23(b)(2). Pettway v. Am. Cast

Iron Pipe Co., 494 F.2d 211, 257 (5th Cir. 1974). 

Here, however, the plaintiffs also sought compensatory and punitive

damages, legal relief that can only be awarded in a Rule 23(b)(2) class action

when the damages sought are “incidental” to the claims for equitable and

declaratory relief. Murray, 244 F.3d at 812. Damage claims in a Rule 23(b)(2)

class action must be incidental to the equitable and declaratory relief because the

basic premise of such a class action -- that class members suffer a common injury

properly addressed by class-wide equitable relief -- “begins to break down when

the class seeks to recover . . . monetary relief to be allocated based on individual

injuries.” Allison v. Citgo Petroleum Corp., 151 F.3d 402, 413 (5th Cir. 1998)
The plaintiffs say that “the question of whether claims for damages are ‘incidental’ to 12

claims for injunctive relief is improper,” Appellants’ Brief at 22, and urge this Court to adopt the

position taken by the Second Circuit, which has rejected the incidental damages standard. See 

Robinson v. Metro-North Commuter R.R., 267 F.3d 147, 167 (2d Cir. 2001). However, Murray

unambiguously explained that the Allison incidental damages standard is the proper legal

standard to analyze certification under Rule 23(b)(2) in the Eleventh Circuit. We are bound to

apply the standard outlined in Murray, since one panel of this Court cannot overrule another. 

That power is reserved only to the full Eleventh Circuit sitting en banc or to the United States

Supreme Court. Julius v. Johnson, 755 F.2d 1403, 1404 (11th Cir. 1985).

46

(quoting Eubanks v. Billington, 110 F.3d 87, 95 (D.C. Cir. 1997)) (internal

quotation marks omitted).

We explained in Murray those criteria used to evaluate whether money

damages should be considered “incidental” to equitable claims in a 23(b)(2) case. 

In Murray, we adopted the position of the Fifth Circuit in Allison v. Citgo

Petroleum Corp.:

By incidental, we mean damages that flow directly from liability to

the class as a whole on the claims forming the basis of the injunctive

or declaratory relief. . . . Liability for incidental damages should not .

. . entail complex individualized determinations. Thus, incidental

damages will, by definition, be more in the nature of a group remedy,

consistent with the forms of relief intended for (b)(2) class actions.

Murray, 244 F.3d at 812 (quoting Allison, 151 F.3d at 415). In keeping with the 12

requirement that monetary damages be incidental to equitable relief in Rule

23(b)(2) class actions, the advisory committee’s note to Rule 23 explains that

certification under section (b)(2) is not proper in “cases in which the appropriate
The injunctive relief specified in the plaintiffs’ Complaint consists of a request for 13

“preliminary and permanent injunctive relief to end Defendants’ discriminatory practices and to

prevent current and future harm to the Named Plaintiffs and the Class.” Complaint at 59. 

Similarly, the Complaint seeks declaratory relief in the form of a “judgment that Defendants’ acts

and practices as set forth herein are in violation of the laws of the United States.” Id. Thus, the

declaratory and injunctive relief plaintiffs seek amounts, in essence, to an order stating that the

defendants discriminated against African-American employees, and enjoining them from

discriminating in the future. 

47

final relief relates exclusively or predominantly to money damages.” Fed. R. Civ.

P. 23, advisory committee’s note (emphasis added). 

The plaintiffs argue, nevertheless, that the district court could have certified

a class under Rule 23(b)(2) only as to the injunctive and declaratory prayer for

relief, thereby excluding altogether the damages issues from class certification. 

However, to the extent the named plaintiffs were willing to forego class

certification on damages in order to pursue injunctive relief that consisted of an

admonition to follow general principles of settled law, it is far from clear that the 13

named plaintiffs would adequately represent the interests of the other putative

class members. Indeed, to many of the class members (and especially to those

who no longer work for the defendants), the monetary damages requested might be

of far greater significance than injunctive relief, stated at a high order of

abstraction, that simply directs the defendants not to discriminate. Moreover,

determining the level of damages to which each class member was entitled plainly

would require detailed, case-by-case fact finding, carefully calibrated for each
Moreover, the cases plaintiffs cite in support of their claim that the district court abused 14

its discretion by refusing to certify an injunctive class under Rule 23(b)(2) while allowing for

opt-outs on compensatory damages are inapposite. Neither Pettway, 494 F.2d at 256-60, nor

Penson v. Terminal Transportation Co., 634 F.2d 989 (5th Cir. Unit B Jan. 1981), nor, finally,

Holmes v. Continental Can Co., 706 F.2d 1144 (11th Cir. 1983), involved a hybrid trial in which

members of an injunctive class could opt out for compensatory and punitive damages, since these

remedies were not at stake in those cases. Indeed, all of these cases predate the Civil Rights Act

of 1991, which changed the landscape of employment discrimination law by making available

compensatory and punitive damages (as well as the right to trial by jury) in Title VII cases. We

explained in Cox v. American Cast Iron Pipe Co., 784 F.2d 1546, 1554 (11th Cir. 1986) that “[a]

hybrid Rule 23(b)(2) class action is one in which class members seek individual monetary relief,

typically back pay, in addition to class-wide injunctive or declaratory relief.” (citing Penson, 634

F.2d at 994) (emphasis added). The cases relied on by the plaintiffs stand for the proposition that

it may be appropriate to use a bifurcated or hybrid trial process in Rule 23(b)(2) cases when

class-wide injunctive relief is appropriate, followed by individualized awards of back pay. 

Significantly, these cases do not hold that such a process is appropriate (much less required, as

plaintiffs would have it) when highly individualized awards of compensatory and punitive

damages are at stake. 

48

individual employee. The “complex, individualized determinations” necessary to

fix the appropriate level of individual damage awards in this case are exactly the

type that Murray and Allison make clear should not be considered “incidental” to

the claims for injunctive and declaratory relief.

14

Finally, as the district court noted, since the plaintiffs demanded a jury trial

in this case, the parties were entitled under the Seventh Amendment to have all

matters at law determined by a single jury before having decisions concerning

equitable relief made by the trial court. See Cooper, 205 F.R.D. at 629 (citing

Ross v. Bernhard, 396 U.S. 531, 538-39, 90 S. Ct. 733, 738, 24 L. Ed. 2d 729

(1970)). Under the circumstances of this case, even assuming that the district
49

court could conduct an initial bench trial on the merits of the equitable claims, and

that the court actually found in favor of the plaintiffs, it would still be necessary

for a single jury to hear and rule on more than 2,000 individual claims for

compensatory damages. Again, on this record we can discern no abuse of

discretion in the district court’s refusal to proceed under the class action umbrella.

The plaintiffs also say that even if certification under Rule 23(b)(2) was not

appropriate, the district court still should have certified the class for equitable

relief, back pay, and damages under Rule 23(b)(3). But, for class certification

under Rule 23(b)(3) to be appropriate, common questions still must “predominate

over any questions affecting only individual members” and the class action

mechanism must be “superior . . . for the fair and efficient adjudication of the

controversy.” Fed. R. Civ. P. 23(b)(3). 

We have explained that in addition to the requirements embodied in Rule

23(a), Rule 23(b)(3) “imposes two additional requirements, and increased

efficiency is only one of them. Predominance is the other . . . .” Jackson, 130

F.3d at 1006. Therefore, “the issues in the class action that are subject to

generalized proof and thus applicable to the class as a whole, must predominate

over those issues that are subject only to individualized proof.” Kerr v. City of W.

Palm Beach, 875 F.2d 1546, 1558 (11th Cir. 1989) (citation and internal quotation
50

marks omitted). Common issues will not predominate over individual questions if,

“as a practical matter, the resolution of . . . [an] overarching common issue breaks

down into an unmanageable variety of individual legal and factual issues.” 

Andrews v. Am. Tel. & Tel. Co., 95 F.3d 1014, 1023 (11th Cir. 1996). Our case

law plainly establishes that a class action should not proceed under Rule 23(b)(3)

when it appears that “most, if not all, of the plaintiffs’ claims will stand or fall, not

on the question whether [the defendant] has a practice or policy of [race]

discrimination, but on the resolution of . . . highly case-specific factual issues.” 

Rutstein, 211 F.3d at 1235 (quoting Jackson, 130 F.3d at 1006) (internal quotation

marks omitted). Indeed, the predominance requirement under Rule 23(b)(3) is “far

more demanding” than Rule 23(a)’s commonality requirement. Jackson, 130 F.3d

at 1005 (citation and internal quotation marks omitted).

Here, the plaintiffs attempted to use statistical proof to establish the

existence of a generalized policy of discrimination that provided the common

thread linking together plaintiffs’ otherwise disparate and individualized claims. 

However, we agree with the district court that substantial limitations in the

plaintiffs’ statistical evidence rendered the form of proof wholly insufficient to

show that any pattern or practice of discrimination disparately affected the

plaintiffs’ class, or, for that matter, that the defendants had a general policy of
51

discrimination. See Cooper, 205 F.R.D. at 630. Moreover, the individual

determinations on liability and damages necessary for the individual plaintiffs to

succeed would require highly fact-specific inquiries concerning each plaintiff. 

Thus, we can discern no abuse of discretion in the district court’s determination

that the issues subject to individualized proof predominated over those that could

be established with class-wide proof, and therefore that the Rule 23(b)(3) class

action procedure would not be superior for the fair and efficient adjudication of

the controversy. 

III.

A.

Finally, we turn to the district court’s orders granting summary judgment in

favor of the defendants on the claims of each of the seven individual plaintiffs. 

We review the district court’s orders granting summary judgment de novo,

applying the same legal standards as the district court did and viewing all of the

facts in the light most favorable to the non-moving party. See, e.g., Johnson v.

Booker. T. Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000). 

Summary judgment is appropriate when “the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and that the moving party is
52

entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56 (c). “Where the

record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538

(1986) (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289,

88 S. Ct. 1575, 1592, 20 L. Ed. 2d 569 (1968)). “[A]ll reasonable doubts about

the facts should be resolved in favor of the non-movant.” Burton v. City of Belle

Glade, 178 F.3d 1175, 1187 (11th Cir. 1999) (quoting Clemons v. Dougherty

County, 684 F.2d 1365, 1368-69 (11th Cir. 1982)).

B.

As we have observed, the plaintiffs claimed racial discrimination under

three distinct Title VII theories: pattern and practice discrimination, disparate

treatment discrimination, and disparate impact discrimination. See Joe’s Stone

Crab, 220 F.3d at 1273. The first two theories require the plaintiffs to prove

discriminatory intent; the third does not. Id. The plaintiffs also assert claims

under Section 1981, which, unlike Title VII, only provides a cause of action for

claims involving intentional discrimination. Gen. Bldg. Contractors Ass’n v.

Pennsylvania, 458 U.S. 375, 391, 102 S. Ct. 3141, 3150, 73 L. Ed. 2d 835 (1982);

Brown, 939 F.2d at 949. 
Direct evidence is evidence which itself proves the existence of discrimination and does

15

not require inference or interpretation, as for example a frank admission from a manager that he

refused to hire an applicant because he was black or because she was female. As would be

expected, such direct evidence is encountered only infrequently, since direct evidence “is

composed of only the most blatant remarks, whose intent could be nothing other than to

discriminate on the basis of some impermissible factor.” Schoenfeld v. Babbitt, 168 F.3d 1257,

1266 (11th Cir. 1999) (citation and internal quotation marks omitted).

The McDonnell Douglas framework for establishing a prima facie case is used in 16

intentional discrimination cases brought under either Title VII or Section 1981. Sledge v.

Goodyear Dunlop Tires N.A., Ltd., 275 F.3d 1014, 1015 n.1 (11th Cir. 2001). Under McDonnell

Douglas, a plaintiff may establish a prima facie case of discrimination in promotion by

establishing that (1) he belongs to a racial minority; (2) he was qualified for and applied for a

position the employer was trying to fill; (3) he was denied the position; and (4) others who were

not members of the protected class were hired, or the employer continued to seek applicants with

the plaintiff's qualifications. 411 U.S. at 802, 93 S. Ct. at 1824. 

53

The basic legal framework governing these theories is by now wellestablished. In a disparate treatment case, the plaintiff bears the burden of proving

that the employer intentionally discriminated against him because of his race. See

Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997). The plaintiff can

establish discriminatory intent through either direct or indirect evidence; to

15

establish a prima facie case of intentional discrimination using circumstantial

evidence, plaintiffs may use the framework established in McDonnell Douglas

Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). 

16

Again, in a “pattern and practice” disparate treatment case, “the plaintiff

must prove, normally through a combination of statistics and anecdotes, that

discrimination is the company’s ‘standard operating procedure.’” Joe’s Stone
54

Crab, 220 F.3d at 1274 (citation omitted). “To meet this burden of proof, a

plaintiff must ‘prove more than the mere occurrence of isolated or accidental or

sporadic discriminatory acts. It ha[s] to establish by a preponderance of the

evidence that . . . discrimination [is] . . . the regular rather than unusual practice.’” 

Id. at 1286-87 (quoting Teamsters, 431 U.S. at 336, 97 S.Ct. at 1843).

To state a claim under a disparate impact theory, in contrast, a plaintiff need

not establish that he suffered intentional discrimination. Rather, “disparate impact

theory prohibits neutral employment practices which, while non-discriminatory on

their face, visit an adverse, disproportionate impact on a statutorily-protected

group.” Id. at 1274. We have noted that the disparate impact theory is “a

doctrinal surrogate for eliminating unprovable acts of intentional discrimination

hidden innocuously behind facially-neutral policies or practices.” Id. 

Thus, to state a prima facie case of disparate impact discrimination, a

plaintiff must establish that (1) there is a significant statistical disparity among

members of different racial groups; (2) there is a specific, facially-neutral

employment policy or practice; and (3) there is a causal nexus between the specific

policy or practice and the statistical disparity. Id. Moreover, in order to satisfy

the third, critical requirement, a plaintiff “must offer statistical evidence of a kind

and degree sufficient to show that the practice in question has caused the
55

exclusion of applicants for jobs or promotions because of their membership in a

protected group.” Id. at 1274-75 (citation and internal quotation marks omitted).

In general terms, disparate impact cases are more amenable than other types

of discrimination claims to class treatment, since they arise out of specific policies

or practices that have a disproportionate impact on an entire class of employees. 

In contrast, when disparate treatment is the basis of a class action, it is generally

more likely that individual issues will predominate and make proceeding in a class

action format inappropriate. See, e.g., Reyes v. Walt Disney World Co., 176

F.R.D. 654, 658 (M.D. Fla. 1998) (explaining that disparate treatment claims are

inherently “highly individualized” and where employees worked in different

divisions with different structures and decision makers, each plaintiff was subject

to his “own set of unique circumstances surrounding the adverse employment

action about which they now attempt to collectively complain”).

In a discrimination action brought under either Title VII or Section 1981, a

plaintiff must first establish a prima facie case of discrimination, which the

defendant can rebut by offering a legitimate, non-discriminatory reason for the

allegedly discriminatory act. See Reeves v. Sanderson Plumbing Prods., Inc., 530

U.S. 133, 142, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000). “In other words,

the defendant must produc[e] evidence that the plaintiff was rejected, or someone
The plaintiffs argue, however, that the McDonnell Douglas burden-shifting analysis 17

applied to claims of employment discrimination was radically revised by the Supreme Court in

Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003). According

to the plaintiffs, Desert Palace overruled McDonnell Douglas and its progeny, so that “once a

plaintiff establishes a prima facie case of discrimination, a defendant may no longer simply

articulate a legitimate, non-discriminatory reason for the adverse employment action, but rather

must prove that it would have taken the same action absent the alleged discrimination.” 

Appellants’ January 9, 2004 Notice of Supplemental Authority at 1. 

The plaintiffs read Desert Palace too broadly. While it is true that some courts have

suggested that Desert Palace may spell the end of the McDonnell Douglas burden-shifting

analysis, see, e.g., Dare v. Wal-Mart Stores, Inc., 267 F. Supp. 2d 987, 990-91 (D. Minn. 2003),

the Desert Palace holding was expressly limited to the context of mixed-motive discrimination

cases under 42 U.S.C. § 2000e-2(m). Indeed, the Court explained that it did not decide whether

its analysis applied in other contexts. Desert Palace, 539 U.S. at 94 n.1, 123 S. Ct. at 2151 n.1. 

Moreover, the fact that the Court did not even mention McDonnell Douglas in Desert Palace

makes us even more reluctant to believe that Desert Palace should be understood to overrule that

seminal precedent. Finally, after Desert Palace was decided, this Court has continued to apply

the McDonnell Douglas analysis in non-mixed-motive cases. See, e.g., Maynard v. Bd. of

Regents, 342 F.3d 1281, 1289-90 (11th Cir. 2003).

56

else was preferred, for a legitimate, nondiscriminatory reason.” U.S. Postal Serv.

Bd. of Governors v. Aikens, 460 U.S. 711, 714, 103 S. Ct. 1478, 1481, 75 L. Ed.

2d 403 (1983) (citation and internal quotation marks omitted). “It is important to

bear in mind . . . that the defendant's burden of rebuttal is exceedingly light . . . . 

At this stage of the inquiry, the defendant need not persuade the court that its

proffered reasons are legitimate; the defendant's burden is merely one of

production, not proof.” Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142

(11th Cir. 1983) (citation and internal quotation marks omitted). 

17

If the defendant successfully rebuts the plaintiff’s prima facie case, “the

presumption of discrimination is eliminated.” Chapman v. AI Transp., 229 F.3d
57

1012, 1024 (11th Cir. 2000) (en banc). To survive summary judgment, the

plaintiff must then “come forward with evidence, including the previously

produced evidence establishing the prima facie case, sufficient to permit a

reasonable factfinder to conclude that the reasons given by the employer were not

the real reasons for the adverse employment decision.” Id. (quoting Combs v.

Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) ); see also Reeves, 530

U.S. at 143, 120 S. Ct. at 2106; Perryman, 698 F.2d at 1142. To show that the

employer’s reasons were pretextual, the plaintiff must demonstrate “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1538. “If

the plaintiff does not proffer sufficient evidence to create a genuine issue of

material fact regarding whether each of the defendant employer’s articulated

reasons is pretextual, the employer is entitled to summary judgment on the

plaintiff’s claim.” Chapman, 229 F.3d at 1024-25; see also Combs, 106 F.3d at

1529 (explaining that the plaintiff must present “sufficient evidence to

demonstrate the existence of a genuine issue of fact as to the truth of each of the

employer’s proffered reasons for its challenged action”).
58

The plaintiffs argue that they have presented sufficient statistical evidence

in support of their pattern and practice and disparate impact claims to raise

genuine issues of material fact, and thus to defeat summary judgment. In contrast

to the individual claims of disparate treatment, which we address infra, the pattern

and practice and disparate impact claims depend on the same body of statistical

evidence. Accordingly, these claims stand or fall in concert. 

As we have observed at some length, the statistical evidence consists

primarily of two expert reports authored by Dr. Janice Madden. However, Dr.

Madden’s reports were not sufficiently tailored to compare similarly situated

employees. They failed to effectively measure job-related skills, education,

experience, and job performance, using only broad, imprecise measurements as

proxies for work experience. Nor did the reports sufficiently narrow the classes of

employees who were compared, instead using company-wide data that did not

reliably identify discrimination within designated segments of the workforce. 

And, as we have observed, the reports did not distinguish between competitive and

non-competitive promotions, did not capture in-grade progressive promotions and

did not measure outcomes for employees who actually applied for promotions as

opposed to those who did not.
59

After reviewing this body of statistical evidence, we agree with the district

court that basic analytical deficiencies in the reports render them insufficient to

support a conclusion that intentional discrimination was the defendants’ standard

operating procedure. Even if we accept all the calculations underlying Madden’s

reports as correct, the reports’ conclusions are of very limited value because the

data on which those calculations were based was not meaningfully tailored. That

is, even crediting as true the conclusions, we do not believe that a jury reasonably

could infer, based on the evidence, that the plaintiffs established a pattern and

practice claim. Summary judgment was therefore properly entered for the

defendants as to the plaintiffs’ discriminatory pattern and practice claims. 

Moreover, the district court properly entered summary judgment for the

defendants on the disparate impact claims. The plaintiffs say they identified a

statistical disparity between white and black employees, along with a facially

neutral employment practice -- the use of subjective hiring criteria by the

defendants -- that has caused this disparity. First, however, a substantial question

exists as to whether the plaintiffs’ statistical evidence is sufficiently tailored to

establish statistical disparities within the specific segments of the defendants’

workforce in which the individual plaintiffs worked. See, e.g., Maddox, 764 F.2d

at 1549-50. But even assuming that the plaintiffs had met this requirement, they
The district court granted summary judgment in favor of defendant SCES on the ground 18

that Cooper had abandoned any claims against SCES, and in favor of TSC and SCS because

Cooper was never an employee of these defendants. R301 at 1-2; see Llampallas v. MiniCircuits, Lab, Inc., 163 F.3d 1236, 1242 (11th Cir. 1998) (explaining that a plaintiff must be an

employee to bring an employment discrimination lawsuit). As for GPC, the district court found

that although Cooper had been an employee of that defendant, his claims failed for other reasons. 

While Cooper’s arguments on appeal are phrased in terms of “the defendants” and “Southern”

generally, in substance they are directed to the district court’s analysis of his claims against GPC. 

To the extent that Cooper argues that TSC and/or SCS were “joint employers,” we are

unpersuaded and conclude that Cooper was an employee of GPC only. Accordingly, we affirm

the district court’s entry of summary judgment against Cooper and in favor of TSC, SCES, and

SCS.

60

have failed to demonstrate a causal nexus between any statistical disparities in the

defendants’ workforce and the practice of using partially subjective hiring criteria

by some managers in some of the defendants’ facilities. See, e.g., Wards Cove

Packing, 490 U.S. at 651-55, 109 S. Ct. at 2121-24. Accordingly, the district court

did not err in entering summary judgment for the defendants on the plaintiffs’

disparate impact claims.

We turn, then, to the arguments mounted by each plaintiff concerning his or

her disparate treatment claims.

C. Cornelius Cooper

Cooper asserts that the district court erred by entering final summary

judgment in favor of the defendants on his individual disparate treatment claims.18

Specifically, Cooper argues that the district court erred in entering summary

judgment against him as to the denial of two promotions in 1998, one to a Lighting
In a notice of supplemental authority, the plaintiffs claim that under Jones v. R.R. 19

Donnelley & Sons Co., ___ U.S. ____, 124 S. Ct. 1836 (2004), the district court erroneously

applied a two-year statute of limitations to the plaintiffs’ Section 1981 claims, thus barring

claims based on events that occurred more than two years before this lawsuit was filed (for

example, claims based on Cooper’s being denied promotions more than two years before suit was

filed). While it is true that the Supreme Court held in Jones that claims made possible by the

amendment to Section 1981 in the Civil Rights Act of 1991 were governed by the four-year

federal “catch-all” statute of limitations, the plaintiffs are barred from arguing that their claims

are governed by a four-year limitations period because they have waived the issue. The plaintiffs

did not argue in the district court, or, indeed, in their briefs submitted to this court that a fouryear limitations period applied to their claims, and “parties cannot properly raise new issues at

supplemental briefing, even if the issues arise based on the intervening decisions or new

developments cited in the supplemental authority.” United States v. Nealy, 232 F.3d 825, 830

(11th Cir. 2000). As our case law makes clear, parties “must submit all issues on appeal in their

initial briefs. When new authority arises after a brief is filed, this circuit permits parties to

submit supplemental authority on intervening decisions or new developments regarding issues

already properly raised in the inital briefs.” Id. (citations and internal quotation marks omitted)

(final emphasis added); see also United States v. Padilla-Reyes, 247 F.3d 1158, 1164 (11th Cir.

2001) (“Because this issue is raised for the first time in supplemental briefing, we deem it

waived.”). 

61

Coordinator position and the other to a Trainer position. Cooper also argues that 19

the district court erred in excluding an expert report which, he claims, would have

established that it was highly unlikely that the selection process used to deny him

his position was “race blind.”

Cooper first says that he established pretext as to the denial of a Lighting

Coordinator job within GPC’s Lighting Services Business Unit (“LSBU”). 

Lighting Coordinators at GPC are involved in selling outdoor lighting systems and

overseeing the installation and maintenance of these systems by outside

contractors. Cooper was one of more than fifty applicants for two Lighting

Coordinator positions posted on the defendants’ JobNet system in 1998, but was
62

denied an interview for the position. He established a prima facie case that the

denial of the promotion was discriminatory, but the district court concluded he had

failed to show that the legitimate, non-discriminatory reasons for GPC’s denying

him the promotion were pretextual.

We dispense first with Cooper’s suggestion that statistical evidence found in

the declaration of expert John Del Roccili raised a genuine issue of material fact

concerning whether the interview selection process used by GPC was race blind. 

The district court excluded Del Roccili’s declaration after finding that the

plaintiffs had not properly identified Del Roccili as an expert or provided a

statement of his intended testimony, as required by Rule 26 of the Federal Rules of

Civil Procedure. The district court also held that, to the extent the plaintiffs

sought to use Del Roccili as a fact witness, his declaration was inadmissible

because he lacked personal knowledge of the data about which he opined.

We review the district court’s decision to exclude Del Roccili’s declaration

for abuse of discretion, see Benson v. Tocco, Inc., 113 F.3d 1203, 1208 (11th Cir.

1997), and conclude that the district court clearly acted within its discretion here. 

Under Federal Rule of Civil Procedure 26, all parties must disclose expert opinion

reports when directed by the court, or at least 90 days before trial. These reports

must contain “a complete statement of all opinions to be expressed and the basis
63

and reasons therefor.” Fed. R. Civ. P. 26(a)(2)(B). Under Rule 37(c)(1) of the

Federal Rules of Civil Procedure, a party “that without substantial justification

fails to disclose information required by Rule 26(a) or 26(e)(1) . . . is not, unless

such failure is harmless, permitted to use as evidence at a trial . . . any witness or

information not so disclosed.” Fed. R. Civ. P. 37(c)(1).

 In this case, plaintiffs originally represented that Del Roccili was a fact

witness, but later identified him as an expert witness in response to defendants’

discovery requests. However, the plaintiffs never provided defendants with an

expert report containing Del Roccili’s opinions or, for that matter, the bases for his

opinions, as required under Rule 26. Because the expert witness discovery rules

are designed to allow both sides in a case to prepare their cases adequately and to

prevent surprise, see Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000),

compliance with the requirements of Rule 26 is not merely aspirational. 

Plaintiffs have identified Del Roccili as “an expert in extracting and

analyzing data from human resources databases,” R282 at 2, and in his declaration,

Del Roccili extracted substantial data from the defendants’ databases, performed

statistical probability calculations, and expressed opinions about the significance

of these calculations. While we do not evaluate the reliability of DelRoccili’s

opinions, the techniques utilized and opinions presented plainly require the kind of
64

technical or specialized knowledge that is the hallmark of expert evidence. See

Fed. R. Evid. 702. We therefore conclude that Del Roccili’s declaration was

properly construed as an expert report and, thus, because the plaintiffs failed to

comply with the explicit requirements of Rule 26, it was within the sound

discretion of the trial judge to sanction plaintiffs for their failure to disclose by

enforcing the unambiguous terms of Rule 37(c). See Firefighters’ Inst. for Racial

Equality ex rel. Anderson v. City of St. Louis, 220 F.3d 898, 902 (8th Cir. 2000). 

 Cooper claims, however, that he has demonstrated pretext even in the

absence of Del Roccili’s declaration. We remain unpersuaded. It is undisputed

that LSBU Sales Manager Mike Clay was responsible for choosing for interviews

applicants who had applied for the Lighting Coordinator positions. After

receiving more than 50 applications for the openings, Clay reviewed a computergenerated list of applicants, including a candidate profile listing each applicant’s

work history. Clay reviewed the applicant profiles and selected candidates to

interview based on the following specific job-related criteria: applicants needed at

least two years of experience in power delivery; demonstrated communication,

leadership and teamwork skills; experience in contract administration and

contractor supervision; and experience as a foreman. Clay also considered

applicants whom he knew personally, for whom he had received
65

recommendations, and who had taken initiative by expressing specific interest in

learning more about the Lighting Coordinator positions. Clay stated that he did

not select Cooper for an interview because (1) Cooper lacked any experience as a

foreman; (2) Cooper was not known personally to Clay; (3) Cooper had not been

recommended; and (4) Cooper had not contacted Clay or other members of the

LSBU regarding the positions.

Cooper contends that Clay’s stated reliance on recommendations was

pretextual. Because the JobNet posting did not require applicants to submit a

recommendation, Cooper says that Clay’s use of this non-posted requirement

created an “informal, secretive and subjective . . . promotion decision process[

which] tend[ed] to facilitate the consideration of impermissible criteria.” Roberts

v. Gadsden Mem’l Hosp., 835 F.2d 793, 798 (11th Cir. 1988). We are

unpersuaded that Clay’s use of applicant recommendations as one factor -- among

other, clearly job-related factors -- in determining who would be interviewed was a

pretext for a secretive, subjective, and discriminatory process. Moreover, GPC has

offered evidence that one preferred qualification was that an applicant had

previously served as foreman -- a legitimate, job-related requirement -- and

Cooper had not served as a foreman. In short, Cooper has not shown that GPC’s

proffered, legitimate reasons for denying him an interview were “unworthy of
66

credence.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S. Ct.

1089, 1095, 67 L. Ed. 2d 207 (1981). 

Cooper also claims that he was discriminated against on account of race

when he was denied a non-union job as a Trainer, and that he has raised a genuine

question that the legitimate reasons provided for the denial of this job were also

pretextual. Trainers work with line crew employees, instructing them on safety

techniques and job-related skills through hands-on training. The defendants

maintain that, in addition to requiring technical knowledge, the Trainer position

requires significant communication skills, since Trainers must be able to teach

their charges efficiently. The hiring manager in charge of filling the Trainer

vacancies, Francis Howard, stated that he did not select Cooper because he

believed Cooper did not possess superior communication skills, job knowledge,

experience, teamwork skills, and peer credibility. Howard also said that he

learned from other members of the Screening Committee that Cooper had

experienced difficulty articulating training instructions to student employees when

he served as a guest instructor at the Training Center. See R-204-2 at 10.

Cooper responds that he did have the necessary communication and other

skills. However, the crucial question here is not whether Cooper fulfilled the

requirements, but whether Howard honestly believed that Cooper did not meet the
67

criteria. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.

1991). Cooper does not dispute that some selection committee members told

Howard that Cooper had trouble articulating instructions to trainees when he

served as guest trainer. Nor has Cooper presented any evidence suggesting that

Howard did not genuinely believe that Cooper did not posses the requisite job

skills. 

Moreover, Howard testified that he honestly believed Cooper did not have

up-to-date job knowledge of overhead lines at the time trainers were hired. 

Howard drew this conclusion because Cooper only had experience in underground

cable repair during the two years preceding his Trainer application. Cooper says

that because GPC was filling both overhead and underground Trainer positions,

this reason is also pretextual. Again, however, Cooper has presented no evidence

suggesting that Howard did not honestly believe a trainer required up-to-date

knowledge of all line crew work, including overhead and underground cable

repair.

Finally, Cooper challenges Howard’s explanation that Cooper lacked peer

credibility and teamwork skills. But here, again, Cooper’s argument that he

indeed possessed these attributes is wide of the mark: Cooper has offered no

evidence that Howard did not honestly believe this. Short of some evidence that
68

Howard did not genuinely believe the legitimate reasons, on this bare record we

will not second-guess Howard’s honest assessment of Cooper’s qualifications. 

See id. (“Federal courts do not sit as a super-personnel department that reexamines

an entity’s business decisions. . . . Rather, our inquiry is limited to whether the

employer gave an honest explanation of its behavior.” (citation and internal

quotation marks omitted)). “We do not ask whether the employer selected the

‘most’ qualified candidate, but only whether it selected the candidate based on an

unlawful motive.” Denney v. City of Albany, 247 F.3d 1172, 1188 (11th Cir.

2001) (citation omitted). And even if Cooper could discredit one of the reasons

Howard offered for not hiring him, it would still not establish pretext, because to

do so, Cooper would have to establish that each of Howard’s reasons was

pretextual. See Chapman, 229 F.3d at 1024-25 (“If the plaintiff does not proffer

sufficient evidence to create a genuine issue of material fact regarding whether

each of the defendant employer’s articulated reasons is pretextual, the employer is

entitled to summary judgment on the plaintiff’s claim.” (emphasis added)). This

he has failed to do.

In short, because Cooper has not raised a genuine issue of material fact as to

each of the legitimate reasons proffered for why he was not offered the Lighting
Edwards argues repeatedly that “Southern” denied him various promotions; in actuality,

20

managers at GPC declined to promote him. Because Edwards was never an employee of TSC,

SCES, or SCS, we affirm the district court’s grant of summary judgment in favor of these

defendants. See Llampallas, 163 F.3d at 1242; supra note 18. The remainder of our analysis

evaluates whether summary judgment was properly granted as to defendant GPC.

Because Edwards only offers arguments related to the denial of these four specific 21

promotions, he is deemed to have abandoned any claims concerning any other allegedly

discriminatory denials of promotion. See, e.g., Access Now v. Southwest Airlines, Inc., __ F.3d

____, 2004 WL 2113022, at *6 (11th Cir. Sept. 24, 2004); United States v. Jernigan, 341 F.3d

1273, 1283 n.8 (11th Cir. 2003).

69

Coordinator or Trainer position in 1998, the district court did not err in awarding

GPC final summary judgment.

D. Michael Edwards

The plaintiff Edwards complained that he suffered discrimination when his

managers at GPC denied him numerous promotions. On appeal, he alleges the

district court erred in its review of the denial of four specific promotions for which

he applied. Edwards maintains that it was on account of race that GPC declined 20

to offer him a promotion to a Cable Locator position in April 2000; to an Operator

I job in March 2000; to an Operating Service Representative position in June

1999; and to a Power Delivery Supervisor position, also in 1999. The district 21

court concluded that Edwards failed to show that the legitimate, nondiscriminatory explanations offered for hiring other candidates were pretextual. 

We agree.
70

During his 13 years at GPC, Edwards worked in a range of different union

positions, at a range of locations. Between 1987 and December 1990, Edwards

served as Laborer in the Nuclear Operations area of a plant in Waynesboro,

Georgia. After leaving that position, he served until July 1993 as a Line Crew

Helper in Augusta, Georgia, before working as an Apprentice Lineman in

Hinesville, Georgia until April 1996. Beginning at that time, Edwards worked as a

Lineman based in Tucker, Georgia. While Edwards progressed through these

various positions during his tenure at GPC, he complains that several promotions

he sought in 1999 and 2000 were denied him on account of race.

We begin with GPC’s decision not to offer him a Cable Locator position in

April 2000. After suffering various injuries that interfered with his working as a

Lineman -- including a severe thumb injury and damage to his back -- and after

taking various medical leaves and light-duty assignments, Edwards received an

assignment as a temporary cable locator in November 1999. In that capacity,

Edwards reported to James Weldon, GPC’s Cable Locating Manager, and was

responsible for locating underground electrical cable while facilitating

engineering, construction, and other projects. After working as a temporary Cable

Locator for four or five months, Edwards applied for a full-time Cable Locator

position in early April 2000. 
71

Weldon was the hiring manager for the permanent Cable Locator position,

and he chose seven individuals, including Edwards, for interviews. Along with a

Human Resources Representative who worked as a facilitator, Weldon assembled

an interviewing panel that included, in addition to Weldon, a white woman, a

white man, and a black man. The interview panel spoke with each of the seven

applicants individually, rating their responses to six structured, job-related

questions on a scale of 0 to 3. After all of the interviews were completed, the four

interviewers ranked the applicants based on their “gut feel,” and Edwards scored

very highly. Subsequently, the scores assigned to each candidate, based on their

answers to the six questions, were tallied. The top three candidates, based on

these aggregate scores, were Jim Brown (69 points), Carey Rutledge (62.5 points),

and the plaintiff Edwards (61 points). The committee then discussed the three

“finalists.” One of the interviewers explained that she had reservations about

Edwards’s job performance in his capacity as a temporary Cable Locator. She said

she had frequently seen Edwards in the office socializing and speaking on the

phone, while other employees were in the field. Moreover, she felt that Edwards

had not performed well in his interview. 

The committee recommended not offering the job to the most highly ranked

applicant (Brown) because he had expressed doubt that he would accept the job
72

even if it were offered to him. The members of the committee then agreed to

recommend that the position be offered to Rutledge, whose aggregate interview

score was slightly higher than that of Edwards. Rutledge had previous work

experience related to the Cable Locator position, interviewed effectively, and was

familiar with the equipment used in the position. Rutledge accepted the offer.

Edwards claims that the reasons GPC advances for offering the job to

Rutledge must be pretextual because the hiring manager, Weldon, testified that

Edwards was well qualified, because GPC only revealed the job-performance

concerns of the committee member in its summary judgment motion, rather than at

the earliest stages of discovery, and because Edwards was better qualified for the

position than Rutledge. 

The relevant issue here, however, is not whom we would determine to be

better qualified for the job. See Elrod, 939 F.2d at 1470. Again, we do not sit in

judgment of the wisdom of an employer’s selection. Edwards “cannot . . .

establish pretext simply by showing that [he] is more qualified than [Rutledge]. 

Rather, [Edwards] must adduce evidence that the disparity in qualifications is ‘so

apparent as virtually to jump off the page and slap you in the face.’” Cofield v.

Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001) (quoting Denney, 247 F.3d

at 1187); see also Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253-54 (11th Cir.
73

2000). This principle “should be understood to mean that disparities in

qualifications must be of such weight and significance that no reasonable person,

in the exercise of impartial judgment, could have chosen the candidate selected

over the plaintiff for the job in question.” Lee, 226 F.3d at 1254 (quoting Deines

v. Texas Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir.

1999)) (internal quotation marks omitted).

On this record, the evidence is insufficient to raise a genuine issue of fact as

to whether GPC’s stated reasons for promoting Rutledge instead of Edwards are

pretextual. Edwards has not offered evidence showing that he was “so clearly

more qualified for the position than [Rutledge] that a reasonable juror could infer

discriminatory intent from the comparison.” Id. at 1255. Indisputably, Rutledge

received a higher aggregate score than Edwards on his interview, Rutledge had

relevant job experience and familiarity with the work required of a Cable Locator,

and at least one committee member believed that Edwards had adopted an

inappropriate demeanor during his interview and had questionable work habits. 

The evidence was not sufficient to show a disparity between Edwards’s

qualifications and Rutledge’s so great that a jury could infer the committee did not

honestly believe Rutledge was more qualified. See id.
Furthermore, several of the claims not included in the Complaint, but asserted in 22

discovery, occurred more than 180 days before Edwards filed a complaint with the EEOC. Those

claims were, therefore, barred by Title VII’s statute of limitations. See 42 U.S.C. §

2000e-5(e)(1); Stewart v. Booker T. Washington Ins., 232 F.3d 844, 848 (11th Cir. 2000).

74

Moreover, because the plaintiffs’ Complaint listed only the Cable Locator

position, the district court observed that Edwards was limited to pursuing only that

claim. Out of “an abundance of caution,” however, the district court addressed

several other claims raised by Edwards. It need not have done so. Any claims not

asserted in the plaintiff’s Complaint are properly dismissed. See Coon v. Ga. Pac.

Corp., 829 F.2d 1563, 1568-71 (11th Cir. 1987). Yet even if Edwards had 22

included the remaining three promotion denials in the Complaint, summary

judgment still would have been properly granted in favor of GPC, because

Edwards did not establish pretext as to any of those employment decisions.

First, Edwards says that he was more qualified than the two white

candidates who were offered Operator I positions in March 2000, but he has failed

to demonstrate a disparity between him and them so great that a factfinder could

infer discrimination from the decision not to promote. Moreover, some of the

evidence Edwards relied upon is taken from performance evaluations completed

after the successful applicants had already begun working in the Operator I

positions. Isolated negative comments in these evaluations cannot support an
75

inference that those charged with filling the openings declined Edwards’s

application because of race.

As for the Operating Service Representative promotion Edwards was denied

in June 1999, Edwards claims that the district court erred by basing its decision on

“inadmissible hearsay.” Appellants’ Brief at 69. The alleged hearsay was a

statement by a member of the selection committee, David Keenum, that, to his

knowledge, the hiring manager, Bob Davidson, chose the white candidate because

he believed the white candidate was the best-qualified candidate for the position. 

Regardless of whether this statement is fairly characterized as hearsay, Edwards

failed to present any evidence to challenge GPC’s evidence that the successful

candidate was hired based on his interview performance and extensive experience

related to the position. The successful candidate, Gary E. Miller, was a long-term

employee of GPC who had extensive experience in metering and power delivery. 

He was recommended by the interview committee as one of the most qualified

candidates for the Operator Service Representative position Edwards had sought. 

Moreover, Edwards has not undermined GPC’s evidence that his race was

unknown during the selection process, rendering untenable the suggestion that he

was denied the position because of his race. 
76

Finally, Edwards has not established pretext concerning his failed

application for the Power Delivery Supervisor position in February 1999. GPC

maintains that Edwards was not selected for an interview because his application

did not reflect familiarity with the repair shop operations or any mechanical

background. In contrast, the successful candidate, Al R. Kuzava, was the

consensus recommendation of the interview committee, having been deemed the

most qualified for the position based on his extensive repair shop and mechanical

experience, his substantial experience as a journeyman, and his demonstrated

leadership skills, all job-related skills identified by the hiring manager, Mark

Edward Cawthon, as prerequisites for the job. Our review of the record confirms

that the successful candidate had extensive mechanical and repair shop experience,

and that Edwards’s application lacked any indication that he had familiarity with

repair shop operations. Accordingly, Edwards has failed to cast doubt on the

legitimate reasons proffered by GPC for denying him the Power Delivery

Supervisor position.

In short, we find no reversible error in the decision to grant summary

judgment in favor of GPC.

E. Charcella Green
Green’s arguments on appeal are directed to “Southern” and “the defendants,” but 23

Green was specifically employed by GPC. Because Green was never an employee of TSC,

SCES, or SCS, we again affirm the district court’s grant of summary judgment in favor of these

defendants. See Llampallas, 163 F.3d at 1242; supra note 18. The remainder of our analysis is

directed to whether summary judgment was properly granted to defendant GPC.

Green offers no arguments as to the entry of summary judgment against her on her

24

claims relating to bonuses or promotions other than the Manager of Education Services position.

Accordingly, she is deemed to have abandoned any claims other than those based on

compensation and the denial of the education manager position. See, e.g., Access Now, ___ F.3d

at ____, 2004 WL 2113022, at *6; Jernigan, 341 F.3d at 1283 n.8.

77

Plaintiff Green contends that she was discriminated against as to both

promotion and compensation, and she challenges the district court’s entry of

summary judgment against her on both claims. We turn, first, to Green’s 23

arguments concerning her promotion discrimination claim, stemming from the

denial of a Manager of Education Services position in 1998.24

The district court determined that summary judgment was appropriate on

Green’s promotion claim because, having accrued more than two years before this

lawsuit was filed, the claim was time-barred. Green maintains, however, that the

district court erred in calculating when her promotion claim accrued. The district

court also found that the claim failed on the merits. Because we agree that

Green’s promotion claim was time-barred, we need not reach the merits of her

claim.

The district court applied a two-year statute of limitations to Green’s

Section 1981 promotion claim, determining that, to be timely, Green’s claim had
78

to accrue after July 28, 1998. See R-303 at 8 (citing Hill v. Metro. Atlanta Rapid

Transit Auth., 841 F.2d 1533, 1546 (11th Cir. 1988)). Green did not contest the

applicability of this two-year statute of limitations before the district court or in

the briefs submitted to this Court, and therefore has waived any challenge to the

district court’s use of a two-year limitations period. See supra note 19. The

limitations period begins to run when the facts that will support a claim are

apparent, or should be apparent to a person with a reasonably prudent regard for

her rights. See Everett v. Cobb County Sch. Dist., 138 F.3d 1407, 1410 (11th Cir.

1998). Therefore, if Green knew or should have known before July 28, 1998 that

she had been denied the Manager of Education Services position because of race,

her promotion claim was time-barred.

As the district court noted, Green’s deposition testimony reveals that she

learned in early July 1998 that the educational manager position she had applied

for had been given to Pamela Thomas, a white employee. When deposed, Green

stated that the position had been filled “either toward the end of June or the first

part of July [1998].” R137-R at 254. Green testified that she received a voice mail

stating that Ms. Thomas had been hired “about two days” before a performance

review that was held on July 15, 1998. Id. at 180-82. Green also testified that

shortly after finding out Ms. Thomas had been hired, she expressed her concern
79

about not being given the position to administrators at GPC, including the

administrators conducting her performance review on July 15, 1998. Id. 

Moreover, Green stated that when she applied for the opening she knew she was

the most qualified person for the job, indicating her belief that the successful

candidate was, in fact, less qualified. In her deposition, Green also stated that she

began to suspect she was a victim of racial discrimination as early as 1996. The

two-year limitations period ended at the latest in mid-July 2000, some two weeks

before this suit was commenced. Thus, the trial court properly determined that the

promotion claim was time-barred.

Green also argues that the district court erred by entering a final order of

summary judgment against her on the compensation claims. Green says she was

discriminated against on account of race in that she was paid less than white coworkers who performed similar jobs. To state a prima facie case of intentional

discrimination in compensation, a plaintiff must establish that (1) she belongs to a

racial minority; (2) she received low wages; (3) similarly situated comparators

outside the protected class received higher compensation; and (4) she was

qualified to receive the higher wage. See Miranda v. B&B Cash Grocery Store,

Inc., 975 F.2d 1518, 1528 (11th Cir. 1992) (compensation discrimination by

gender); MacPherson v. Univ. of Montevallo, 922 F.2d 766, 774 (11th Cir. 1991)
80

(compensation discrimination by age). The comparators must perform jobs similar

to the plaintiff’s; thus, the plaintiff must show that, in her job, she “shared the

same type of tasks” as the comparators. B&B Cash Grocery, 975 F.2d at 1529.

It is undisputed that Green began working for GPC as an intern in 1983,

later becoming a full-time, regular employee and continuing at GPC for several

years. In October 1996, while Green was working at GPC’s Shenandoah Center,

an environmental education center, GPC underwent a corporate restructuring that

closed the Shenandoah Center. Green was then transferred to GPC’s Community

and Economic Development Department (“CEDD”), where she claims she began

suffering discrimination in compensation.

After the 1996 corporate restructuring, Green accepted a position as an

Education Advisor within the CEDD. She claims she was compensated on less

favorable terms than white colleagues who served as Urban Advisors or

Community Advisors, positions that Green claims are equivalent to Education

Advisor. Indeed, Urban, Community, and Education Advisors are all classified

within the defendants’ employment database as “ADO Advisors,” but GPC asserts

that Urban and Community Advisors are not appropriate comparators because the

jobs they perform are notably different from those of Education Advisors. GPC
Green introduced evidence of a 1996 market survey, the “Hay survey,” which she 25

alleges is the survey GPC relied upon in assigning salary grades to the various positions within

the CEDD. Because this survey does not mention any ADO Advisor positions, Green maintains

that GPC’s alleged reliance on a market survey is not credible, and thus that the proffered

justification is pretextual. However, the Hay survey was conducted after Green’s salary was

fixed, and could not have been the survey upon which GPC relied. Indeed, Blalock testified that

this was not the survey used in setting the salary grades for Green and her colleagues in the

CEDD. 

81

relies on this distinction because it is undisputed that white Community and Urban

Advisors are compensated more generously than is Green.

GPC Vice President Rebecca Blalock and CEDD administrator Lamar

Norton testified that, during GPC’s corporate restructuring, pay grade ranges were

set by performing a market review to compare new positions to similar positions in

the region. According to Blalock, this survey revealed that the market value of

Education Advisors was less than that of Community and Urban Advisors within

the CEDD, leading GPC to classify Education Advisors at pay grades E3 to E5,

but Community and Urban Advisors at grades E5 to E7. GPC maintains that this

distinction justifies the lesser salaries for Green and other Education Services

employees, as compared to the Community and Urban Advisors.25

 There is a substantial question whether Green has established a prima facie

case of compensation discrimination, because it is not clear that the Community

and Urban Advisors Green uses as comparators are similarly situated in all

relevant respects. See MacPherson, 922 F.2d at 774 n.16 (“In a comparator
In fact, Green was classified at grade E5, the highest possible grade for the Education 26

Advisor position. When Green transferred to the CEDD as an Education Advisor, she retained

the E5 grade from her previous position. In contrast, her former supervisor, John Thrasher (a

white employee), who also became an Education Advisor after the restructuring, accepted a

demotion and salary grade reduction by two levels to retain his employment at GPC. In 1997,

Thrasher was transferred from the Education Advisor position to a Community Advisor position.

82

analysis, the plaintiff is matched with a person or persons who have very similar

job-related characteristics and who are in a similar situation to determine if the

plaintiff has been treated differently than others who are similar to him.”

(emphasis added)). Even assuming, however, that the different Advisors are

proper comparators, see B&B Cash Grocery, 975 F.2d at 1529, Green has not

established that the legitimate reason advanced by GPC for the pay disparity is

really a pretext for race discrimination. Green has not demonstrated that GPC’s

stated reliance on a market survey to classify Education Advisors’ salary levels

was false or otherwise shown that race discrimination motivated the salary

structure. Indeed, when GPC classified Education Advisors in the E3 to E5 pay

grade range, all Education Advisors were so classified -- including Green and at

least two white colleagues. The fact that Green’s two white colleagues were paid 26

according to the same scale undermines Green’s pretext argument. 

In short, as to her compensation claim, Green has failed to introduce

sufficient evidence to raise a material question on the issue of pretext. 

F. Patricia Harris
P. Harris offers no arguments relating to the district court’s entry of summary judgment 27

against her on her promotion and training and support claims. As a result, she is deemed to have

abandoned all claims other than her Section 1981 compensation claim. See, e.g., Access Now,

___ F.3d at ____, 2004 WL 2113022, at *6; Jernigan, 341 F.3d at 1283 n.8.

83

P. Harris argues that the district court erroneously entered summary

judgment against her on her Section 1981 claim of discrimination in

compensation. The district court concluded that, while P. Harris had established 27

a prima facie case of compensation discrimination, she failed to raise an issue of

fact concerning the legitimate reasons the defendants offered to explain the

differences in her salary and those of her white colleagues. We agree.

P. Harris began working for GPC in June 1990, when she was offered a

Secretary III position on a contract basis. She became a full-time, regular GPC

employee on July 1, 1991, when she accepted a Senior Secretary position. 

Between 1993 and 1997, P. Harris worked for GPC as a Research Analyst in the

Competitve Intelligence Department, before taking a job as an Economic

Development Analyst in the Economic Research Department. 

In the summer of 1997, P. Harris applied for a position as Market Research

and Support Analyst in the Atlanta, Georgia offices of SCS. She contends that she

was discriminated against when, on account of race, her manager at SCS set her
Because P. Harris was never an employee of TSC or SCES, and was no longer an

28

employee of GPC during the timeframe relevant to this appeal, we affirm the district court’s

grant of summary judgment in favor of these defendants. See Llampallas, 163 F.3d at 1242; supra

note 18. The remainder of our analysis evaluates whether summary judgment was properly

granted with respect to defendant SCS.

84

salary at an artificially low level as compared with salaries of white colleagues

performing similar work. 

28

When P. Harris interviewed for the Analyst position at SCS, she met with an

interview committee and also had an individual meeting with the Marketing

Research Department’s manager, Charles Plunkett. Because P. Harris lacked

education or experience in marketing, the interview committee recommended

against hiring her; Plunkett, however, overrode the committee’s recommendation

and chose to offer P. Harris the Analyst position. Plunkett testified that, owing to

P Harris’s lack of experience and marketing education, he would ordinarily have

offered her an entry level position as a Market Research and Support Analyst II. 

However, based on P. Harris’ salary grade at GPC, hiring her as an Analyst II

would have precluded giving her a raise, presumably one reason she had desired to

transfer to SCS. As a result, Plunkett chose to select P. Harris as an Analyst I,

placing her in a higher salary grade than her position at GPC. In doing so,

Plunkett awarded P. Harris an 8% raise in this new position, which was his

understanding of the maximum pay increase that an employee transferring from
The 8% raise P. Harris received brought her salary from $39,432 annually to $42,587 29

annually. Notably, P. Harris never questioned this figure, asked for a higher salary, or gave

Plunkett any reasons why her compensation should be more favorable.

For example, less than a year after her promotion to the Analyst I position at SCS, P. 30

Harris received a 4.2% merit raise. A year later, in March 1999, she received a 4.9% raise. In

addition, P. Harris received the highest percentage incentive bonus in her department, 15%. 

85

GPC could receive. P. Harris continued to receive substantial salary raises 29

during her tenure at SCS.

30

In spite of the raises she received, P. Harris maintains that she suffered

discrimination in compensation in that her salary still was lower than those paid to

white co-workers performing the same tasks. The district court concluded that

three white employees were valid comparators: John Page, Darin Klein, and

Rebekah Golden. All three employees were paid higher salaries than P. Harris,

and we agree with the district court that P. Harris successfully established a prima

facie case of compensation discrimination. However, SCS offered legitimate, nondiscriminatory explanations for the pay disparities -- that P. Harris did not have

either the professional experience or formal education of Page, Klein, and Golden,

could not therefore perform her job as efficiently or independently, and was thus

less valuable to the department. The district court concluded that P. Harris had

failed to rebut these reasons and had not established that the proffered reasons

were pretext.
Apparently conceding that the superior qualifications of Klein provided a legitimate, 31

non-discriminatory reason for Klein’s higher salary, P. Harris offers no argument on appeal using

Klein as a comparator. Indeed, Klein possesses master’s and doctorate degrees from the

University of Pennsylvania, specializes in communications and research, and had professional

experience in market research. 

86

On appeal, P. Harris contends that the district court erred because she had,

in fact, established pretext as to Page and Golden. However, on this record we 31

cannot find “such weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in [SCS’s] proferred legitimate reasons . . . that a reasonable

factfinder could find them unworthy of credence.” Combs, 106 F.3d at 1538

(citation and internal quotation marks omitted). P. Harris’s own contention that

she was equally qualified and experienced does not create an issue of fact.

P. Harris holds a master of business administration degree from the DeVry

Institute and had worked for GPC for six years prior to taking the Analyst I

position at SCS; she maintains that she gained relevant marketing experience at

GPC. Golden possessed a bachelor’s degree and had six years of market research

experience before joining SCS, in which she held marketing positions including

Project Director of Marketing, Supervisor of Marketing Research, and Marketing

Research Coordinator for Cox Communications. Page had limited work

experience, having worked as a Market Research Management intern with

BellSouth Communications for six months, but held a bachelor’s degree in
87

business and marketing as well as a master’s degree in marketing research from

the University of Georgia, one of only a few universities to offer an advanced

degree in market research.

Both Golden and Page were external hires, unlike P. Harris, who was an

internal transfer from GPC. Plunkett testified that he considered different criteria

in hiring Golden and Page, who were hired in tight labor markets in which new

employees could command more competitive compensation packages. According

to Plunkett, when Golden was hired, her extensive marketing experience allowed

her to perform more efficiently than P. Harris; Golden was able to work with

minimal supervision and was given more responsibility than P. Harris. 

Similarly, while Page lacked Golden’s extensive experience, Plunkett

testified that Page’s training at the University of Georgia made him well-prepared

to take on extensive market research tasks. Plunkett also stated that he believed a

candidate with Page’s education could develop more rapidly than an employee like

P. Harris, who lacked the training, and could also help SCS attract additional

graduates from the University of Georgia’s graduate program in Market Research. 

According to Plunkett, Page’s valuable educational experience allowed him to

work independently and take on significant responsibilities.
S.J. Harris offers no argument on appeal relating to her promotion discrimination claim, 32

and is therefore deemed to have abandoned any promotion claims. See, e.g., Access Now, ___

F.3d at ____, 2004 WL 2113022, at *6; Jernigan, 341 F.3d at 1283 n.8.

88

The plaintiff contends that her master’s degree from the DeVry Institute and

six years of marketing experience at SCS, much of which was spent effectively in

on-the-job training, were equivalent to the qualifications of Page and Golden. 

However, Plunkett offered legitimate explanations for why the educational and

work experiences of Page and Golden were more valuable to him as their manager. 

P. Harris’s assertion that she deserved to earn the same salary as these

employees does not render Plunkett’s stated explanations unworthy of credence or

otherwise raise any genuine issue of fact. As we have observed, we do not “sit as

a super-personnel department that reexamines an entity’s business decisions.” 

Elrod, 939 F.2d at 1470 (citation and internal quotation marks omitted). In the

absence of any other evidence that Plunkett’s compensation decisions were

motivated by race, we conclude that the district court did not err in granting

summary judgment in favor of SCS.

G. Sarah Jean Harris

S.J. Harris also claims that the district court erred by granting summary

judgment for the defendants on her claims of discrimination in compensation and

unlawful retaliation. The district court concluded that because of S.J. Harris’s 32
S.J. Harris was never employed by, nor did she ever apply for a position with 33

defendants TSC, SCES, or SCS. Accordingly, we affirm the district court’s grant of summary

judgment in favor of these defendants. See Llampallas, 163 F.3d at 1242; supra note 18. The

remainder of our analysis is directed to whether summary judgment was properly granted to

defendant GPC.

89

unique disciplinary history, the comparators she used to establish a prima facie

case of compensation discrimination were not similarly situated, and that even if

S.J. Harris had been able to establish a prima facie case, she failed to show that the

proffered legitimate reasons for her compensation were pretextual. The district

court also determined that S.J. Harris failed to show pretext as to the legitimate

reason offered to explain her termination: that she was fired because, while on

disciplinary probation, her job performance deteriorated and she falsified a

company document. But Harris contends that a material issue of fact still remains

as to whether the proffered reasons were a pretext for racial discrimination.

GPC hired S.J. Harris as a General Clerk in 1979, and her employment was

terminated on August 24, 2000, approximately a month after this case was filed.33

From 1997 until her firing, S.J. Harris worked in Duluth, Georgia as a Region

Support Representative, a customer service position in GPC’s Gwinnett Region. It

is undisputed that, while she held this position, S.J. Harris received poor

performance evaluations and was eventually subjected to formal discipline. In

evaluating S.J. Harris’s job performance in 1997, her supervisor, Hugh Walters
90

(“Walters”), noted concerns relating to S.J. Harris’s personal use of the telephone,

as well as her punctuality, cooperation, teamwork, and communications with coworkers. Similar concerns were also expressed in S.J. Harris’s evaluation for

1998, and S.J. Harris received ratings of “Unsatisfactory” or “Needs

Improvement” in all categories on her mid-year 1999 evaluation. 

Because of concerns about her job performance, S.J. Harris was placed in

GPC’s Positive Discipline program in mid-1999. GPC’s disciplinary program

prescribed formal processes designed to improve employee performance: at level

one, S.J. Harris received the “Oral Reminder” about her work goals, and at level

two she received the “Written Reminder” laying out the improvements she needed

to make. When her job performance did not show sufficient improvement, S.J.

Harris was placed in the final level of discipline, the “Decision-Making Leave”

(“DML”). S.J. Harris’s placement on DML occurred on October 7, 1999, at which

time she was given a day off to decide whether she wished to leave GPC, or to

return and redouble her efforts to improve her job performance. GPC employees

placed on DML status are informed that if any disciplinary action occurs within 18

months after placement on DML, then the employee will likely be fired.

After returning to work, S.J. Harris showed some improvement in her

performance during the later part of 1999 and the first months of 2000. However,
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GPC has offered uncontroverted evidence that in July and August 2000, Walters

received complaints about S.J. Harris both from customers and co-workers,

including complaints that her personal telephone usage had again increased, and

that she was not completing assignments in a timely fashion. In addition, Walters

received several complaints about delays for service orders that S.J. Harris

oversaw. The plaintiff has not offered any evidence challenging GPC’s assertion

that much of her work in this time period suffered from various errors. 

S.J. Harris argues, however, that this evidence must be pretextual, because

an evaluation she received just before her termination in August 2000 failed to

refer to these performance issues. Indeed, GPC acknowledges that S.J. Harris’s

performance improved somewhat in late 1999 and during the first part of 2000. 

But the problems that GPC maintains led to Harris’s firing occurred in July and

August 2000, while the performance evaluation covered only the period from

January to June 2000, thus explaining why the disciplinary issues of July and

August were absent from the evaluation.

According to GPC, the event that actually precipitated the firing occured in

late August 2000. On August 22, 2000, Walters learned that an engineer, Keith

Thomas (“Thomas”), received a work order from S.J. Harris that day, which

Thomas believed had originally been filed with S.J. Harris on August 16, 2000. 
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After speaking with Thomas and his supervisor, Walters concluded that S.J. Harris

had falsified a computer entry to make it appear as if she had given Thomas a

work order on August 16th, when in fact she had failed to do so until August

22nd. Walters conferred with other administrators and concluded that because of

S.J. Harris’s DML status, the decline in her performance in the summer of 2000,

and her falsification of the computer entry, her employment should be terminated. 

S.J. Harris was fired on August 24, 2000.

We turn, first, to S.J. Harris’s argument that the district court erred by

entering summary judgment for GPC on her retaliation claim. To establish a

prima facie showing of retaliation under Title VII, “the plaintiff must show (1) that

she engaged in statutorily protected expression; (2) that she suffered an adverse

employment action; and (3) that there is some causal relation between the two

events.” Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir. 1994). 

Here, the first two elements are not in dispute, and S.J. Harris established a

prima facie case of retaliation because the delay between the filing of the lawsuit

and her firing was so brief. See Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590

(11th Cir. 2000) (explaining that “close temporal proximity” may be sufficient to

establish causal relation in retaliation cases). However, GPC may rebut the prima

facie case by offering a legitimate, non-discriminatory reason for S.J. Harris’s
93

termination. GPC has done so by maintaining that S.J. Harris was fired because of

the speedy and substantial decline in her job performance during the late summer

of 2000, and because of her manager’s good-faith belief that she had falsified a

computer entry.

After review of the record, we are satisfied that the district court properly

concluded that Walters honestly believed Harris had falsified the record. The

relevant issue here is not whether Harris actually falsified the entry, but rather

whether Walters honestly believed Harris falsified the entry. See Elrod, 939 F.2d

at 1470; E.E.O.C. v. Total Sys. Servs., Inc., 221 F.3d 1171, 1176 (11th Cir. 2000). 

The record reflects that on August 22, 2000, S.J. Harris printed a service order and

provided it to Thomas. On the same day, she made a computer entry stating that

she had given the order to Thomas on August 16, 2000. GPC introduced evidence

that Walters conferred with Thomas and his supervisor about the incident,

examined the document in question, and honestly believed S.J. Harris had falsified

the document. Because she was in the final stage of disciplinary probation and

had been the subject of numerous complaints, S.J. Harris was terminated for this

incident. She has introduced nothing to rebut this evidence, and therefore, she has

not raised a genuine issue as to pretext. Accordingly, we discern no error in the

district court’s grant of summary judgment on the retaliation claim.
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Next, S.J. Harris claims that she was discriminated against in compensation

in that she was paid less than white employees in similar positions. Notably, S.J.

Harris does not dispute that her disciplinary record was distinguishable from those

of the alleged comparators she identifies. Indeed, from 1997 to 1999, and again in

July and August 2000, S.J. Harris had a demonstrably poor job performance. S.J.

Harris does not dispute that her performance evaluations were negative, or that she

was disciplined in 1997 and 1998 for making excessive personal phone calls and

habitual tardiness. Moreover, in 1998, two of S.J. Harris’s job responsibilities

were withdrawn because of performance issues, and in her 1999 evaluation, S.J.

Harris’s supervisor noted that she remained unable to return from lunch on time

and continued making too many personal calls. 

In spite of her disciplinary history, S.J. Harris alleges discrimination in that

she was paid less than co-workers Barron and Collett. But these comparators had

no record of disciplinary problems. Neither was placed in GPC’s Positive

Discipline program, let alone on DML status. In fact, S.J. Harris was the only

Customer Service employee in the Gwinnett Region to be placed on DML status. 

GPC’s annual merit pay increases and bonuses are related to performance, and the

difference in performance evaluations between Harris and Barron and Collett

renders the latter two inappropriate comparators. See MacPherson, 922 F.2d at
95

774 n.16. Finally, Collett worked as an Operating Assistant, a job one level higher

than S.J. Harris’s, further diminishing her value as a comparator. Again, the

district court did not err in entering summary judgment against S.J. Harris on her

compensation claim. See Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306,

1313 (individuals lacking disciplinary and performance issues of plaintiff were

inappropriate comparators), superseded in other part by 151 F.3d 1321 (11th Cir.

1998).

H. Irene McCullers

McCullers contends on appeal that the entry of summary judgment in favor

of the defendants on her promotion and compensation claims was error. 

McCullers maintains that she established a prima facie case of discrimination in

promotions and compensation and raised a genuine issue of material fact as to

whether the defendants’ stated justifications were pretextual. Specifically,

McCullers claims that she was discriminated against by being denied a progressive

promotion from Processing Operator I to Processing Operator Senior, and that she

was paid less than similarly situated white co-workers.
McCullers was never employed by, nor did she ever apply for a position with 34

defendants TSC or SCES. Accordingly, we affirm the district court’s grant of summary

judgment in favor of these defendants. See Llampallas, 163 F.3d at 1242; supra note 18.

In addition, while McCullers did work for GPC between 1978 and January 1997, her

employment at GPC occurred more than two years prior to the filing of this lawsuit. As we have

explained, see supra note 19, the district court applied a two-year statute of limitations to the

plaintiffs’ claims, and because McCullers did not raise any objection to the two-year limitations

period applied by the district court below or in her initial briefs, she is deemed to have waived

any argument that a longer limitations period applies. See Padilla-Reyes, 247 F.3d at 1164

(“Because this issue is raised for the first time in supplemental briefing, we deem it waived.”). 

Accordingly, we affirm the district court’s grant of summary judgment in favor of defendant

GPC. The remainder of our analysis relating to McCullers’s claims, therefore, is devoted to the

final summary judgment entered in favor of defendant SCS.

96

McCullers began working as a file clerk for GPC in 1978, and transferred to

SCS in January 1997. When McCullers first transferred to SCS, she received the

34

job title of Computer Operator I. At SCS, McCullers worked with, among others,

three white colleagues, Mildred Brune (“Brune”), Shirley Keen (“Keen”), and

Faye Starbird (“Starbird”). Brune, Keen and Starbird all had at least six more

years of experience inside the defendant companies than did McCullers. 

When the department in which McCullers and her white colleagues worked

was reorganized in 1999, McCullers’s job title was changed to Processing

Operator I. Brune and Keen were also reclassified as Processing Operators I,

while Starbird’s job title was changed to Processing Operator II. In May 1999,

Starbird was promoted to Processing Operator I, and in March 2000, Brune was
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promoted to Processing Operator Senior. McCullers was never promoted from

Processing Operator I to Processing Operator Senior.

McCullers alleges that she was discriminated against in promotions when

SCS refused to promote her to Processing Operator Senior, as it did with Brune. 

SCS responds that McCullers was less qualified for the promotion than was Brune. 

SCS maintains that Brune’s work performance consistently exceeded expectations,

while McCullers’s did not, in large part because of problems with work attendance

and tardiness. McCullers also contends that she was discriminated against in

compensation in that she was paid less than Brune, Keen, and Starbird. SCS

argues, in turn, that McCullers was paid less than these co-workers because

McCullers lacked the seniority of her colleagues.

We turn first to McCullers’s claim of promotion discrimination. The district

court concluded that McCullers had failed to establish a prima facie case of

promotion discrimination because she had not established elements two or four of

the appropriate test, which required McCullers to prove that (1) she was a member

of a protected class; (2) she applied for and was qualified for a promotion; (3) she

was denied the promotion; and (4) a similarly situated white employee instead

received the promotion. See, e.g., Denney, 247 F.3d at 1183; Lee, 226 F.3d at

1253; Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir. 1999). 
98

McCullers argues that the district court erred by misconstruing the fourth

element of the Denney test for discrimination in promotion. McCullers contends

that the district court erroneously required McCullers to show that a similarly

situated white employee was promoted over McCullers specifically, and that this

ruling was wrong “because no ‘promotion over the plaintiff’ requirement exists”

under Denney. Appellants’ Brief at 51. First, Denney did not involve a noncompetitive (progressive) promotion like the one that McCullers was denied, and

the district court also cited Harris v. Secretary, U.S. Department of the Army, 119

F.3d 1313, 1321 (8th Cir. 1997), a case that did involve a progressive promotion

like the one at issue for McCullers. But we need not determine whether the

district court’s gloss on the fourth element under Denney was inaccurate, since we

agree with the district court that McCullers failed to establish the second element -

- that she was qualified for the promotion in question. 

The record demonstrates that promotion from Processing Operator I to

Processing Operator Senior required an employee’s performance to consistently

meet and exceed expectations. McCullers contends that during the relevant

period, SCS consistently ranked her job performance as a four, on a five-point

scale, and that this ranking indicates that she met and exceeded expectations. 

However, McCullers’s personal opinion that being ranked as a four meant she
Moreover, even the document that McCullers relies on to establish that a four ranking 35

demonstrates her qualification undercuts her case: this document states that employees in the

fourth category “consistently meet and frequently exceed[] . . . expectations,” while it is only

employees in the fifth category who “consistently exceed[] performance objectives.” R262-18. 

As the district court observed, McCullers “has never met Defendants’ job assessment criterion of

‘meets and exceeds expectations’ although she has always been found to ‘meet expectations.’ 

Under Defendant’s policy, this is not enough for a progressive promotion.” R300 at 14. 

Indeed, the defendants have submitted multiple exhibits -- including performance

36

assessments, employee development materials, and skills assessments -- which identify various

areas in which McCullers’s managers felt she needed improvement. Her managers expressed

concerns regarding McCullers’s work habits, including long lunches, arriving to work late, and

taking excessive sick time, and generally rated her skills in the middle, rather than the upper,

range of the assessment scale. See, e.g., R137-96; R137-100; R137-105; R137-112; R137-118.

99

exceeded expectations is insufficient to establish her qualification. See Holifield,

115 F.3d at 1564 (explaining that a plaintiff’s “opinion, without more, is not

enough to establish a prima facie case”). 

35

Indeed, in contrast to McCullers’s own self-assessment, her managers have

maintained that her performance “was viewed as average -- she was not a

consistently strong performer -- she did not consistently perform at a level that met

and exceeded the expectations of her job.” R200 at 11; see also id. at 21. The 36

only evidence McCullers has proffered to support her qualification is her own

opinion, while all the other record evidence supports SCS’s position that

McCullers was not qualified for the promotion to Processing Operator Senior. 

The district court did not err in concluding that McCullers had failed to establish a

prima facie case of promotion discrimination. 
100

As for McCullers’s compensation claim, the district court determined that

McCullers failed to establish a prima facie case of discrimination because she did

not identify a proper comparator. The three employees McCullers argues are valid

comparators -- Starbird, Brune and Keen -- all had more than six years of seniority

over McCullers. Seniority may constitute a legitimate, non-discriminatory

justification for differences in compensation. See, e.g., Irby v. Bittick, 44 F.3d

949, 956 & n.10 (11th Cir. 1995); Mulhall v. Advance Sec., Inc., 19 F.3d 586, 599

(11th Cir. 1994). Because McCullers failed to identify any comparators with

similar levels of seniority, she has failed to establish a prima facie case of

discrimination in compensation. The district court did not err in entering summary

judgment against McCullers.

I. Carolyn Wilson

Finally, the plaintiff Wilson argues that the district court erred in granting

summary judgment for the defendants on her promotion and discrimination claims. 

Wilson maintains that the court erred by determining that she had failed to show

that the proffered legitimate, non-discriminatory reasons for denying Wilson a

promotion were pretextual. Wilson also finds error in the district court’s

conclusion that she failed to make a prima facie case of compensation

discrimination because she did not identify any proper comparators.
Wilson was never employed by, nor did she ever apply for a position with defendants 37

TSC or SCS. Accordingly, we affirm the district court’s grant of summary judgment in favor of

these defendants. See Llampallas, 163 F.3d at 1242; supra note 18. Moreover, while Wilson did

work for GPC for a dozen years, her employment at GPC ended before the statutory period

relevant to this lawsuit. Accordingly, we affirm the district court’s grant of summary judgment

in favor of defendant GPC. The remainder of our analysis is devoted to the summary judgment

entered in favor of defendant SCES.

101

Wilson began working for GPC in 1985, but in late 1997, she applied for

and received a position within the Finance Center of SCES in Atlanta. Wilson 37

began working in this position in February 1998. The hiring manager for the

opening at SCES, Karla Fuller (“Fuller”), listed a descriptive job title of the

position as “Finance Center Supervisor,” although the offer letter Wilson received

referred to the job as “Project Analyst Senior,” an exempt level two position. 

Wilson’s job performance in the Finance Center Supervisor merited several raises:

she received percentage increases in salary in November 1998, March 1999, and

March 2000, and also repeatedly received incentive awards and bonuses of as

much as 20% of her salary.

In November 1999, Wilson applied for a position as Business Analyst II

with SCES. Fuller was the hiring manager for this position, too, and the

successful candidate would be supervised by Fuller as well. The preferred

qualifications for the Business Analyst II position included the ability to start the

job with minimal training and supervision; a bachelor’s degree in finance,
102

management, or accounting; experience in the construction industry; good oral and

written communications ability; and familiarity with the Excel software program. 

Although Wilson did not have experience in construction or the preferred type of

bachelor’s degree, Fuller nevertheless selected Wilson for an interview. 

Although Fuller interviewed Wilson for the Business Analyst II position,

the job was ultimately offered to a white woman, Sarah McFall. Fuller suggested

that both Wilson and McFall were qualified for the Business Analyst II job, but

McFall had a bachelor’s degree in accounting, unlike Wilson, and had limited

work experience in the construction industry, again unlike Wilson. SCES

maintains that Fuller -- as the hiring manager and supervisor for the position --

honestly believed that McFall was better qualified for the job than Wilson and

would be able to perform with little training or supervision.

As the district court concluded, Wilson successfully established a prima

facie case of promotion discrimination by proving that she was qualified for the

promotion and that the position was offered to McFall, a white woman. See, e.g.,

Denney, 247 F.3d at 1183; Lee, 226 F.3d at 1253. However, the district court also

concluded that Wilson had not established pretext as to the legitimate reason

proffered to explain denying Wilson the promotion -- that Fuller, the hiring

manager, sincerely believed that McFall was better qualified. 
103

Wilson’s essential argument as to Fuller’s conclusion that McFall had

superior qualifications is that the asserted belief must be pretextual, because

Wilson herself believes she was better qualified. But whether we could conclude 

Wilson was better qualified than McFall is not the issue here. See Elrod, 939 F.2d

at 1470. As we have already explained, a plaintiff cannot establish pretext simply

by showing that she is more qualified than the successful applicant. Rather, for

Wilson to establish pretext, she would have to “adduce evidence that the disparity

in qualifications is ‘so apparent as virtually to jump off the page and slap you in

the face.’” Cofield, 267 F.3d at 1268 (quoting Denney, 247 F.3d at 1187). It is

undisputed that Wilson lacked the educational credentials that McFall possessed,

and that, unlike Wilson, McFall had at least minimal construction industry

experience. 

As the supervisor and hiring manager for the vacant Business Analyst II

position, Karla Fuller was in a unique position to determine that McFall was better

qualified, since Fuller knew the specific job requirements of the position, had

supervised Wilson, and was intimately familiar with Wilson’s skills and

qualifications. On this record, we cannot say that any disparity in qualifications

rises to the necessary level of obviousness. 
104

As for Wilson’s compensation claim, the district court concluded that

summary judgment was appropriate because Wilson failed to establish a prima

facie case. Specifically, Wilson failed to identify a similarly situated comparator. 

On appeal, Wilson asserts not only that she was paid less than similarly situated

white employees, but also that white employees occupying “lower” positions were

paid more generously. However, Wilson has not established that the proposed

comparators had similar levels of experience or education, nor has she established

the comparators’ job responsiblities with any particularity. Wilson’s assertion that

these individuals were “lower” employees is offered in a wholly conclusory

manner, based on her own subjective belief. As a result, Wilson’s argument fails. 

See Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989); see also Earley v.

Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir.1990) (collecting cases). 

The district court’s entry of summary judgment was appropriate here, too.

IV.

In sum, we are persuaded that the district court did not err in any of its

determinations, and, accordingly, affirm its judgments in all respects.

AFFIRMED.