1

Gene Burton, Business Manager of WCCS, originally was named

as a defendant but later was dropped by the plaintiff. 

United States Court of Appeals,

Eleventh Circuit.

No. 94-6058.

Marcia M. EDWARDS, Plaintiff-Appellant,

v.

WALLACE COMMUNITY COLLEGE, Robert McConnell, Connie Vardaman,

Joyce Howell, B. Gene Burton, Leighann Swindal, DefendantsAppellees.

April 19, 1995.

Appeal from the United States District Court for the Southern

District of Alabama. (No. CV 92-0265-BH-S), William Brevard Hand,

Judge.

Before KRAVITCH, Circuit Judge, GODBOLD and RONEY, Senior Circuit

Judges.

GODBOLD, Senior Circuit Judge:

Ms. Marcia Edwards appeals from the district court's summary

judgment for defendants. We affirm.

BACKGROUND

After obtaining a right to sue letter from the E.E.O.C.,

Edwards, an African-American, brought several claims pursuant to

Title VII, 42 U.S.C. § 2000e et seq., and 42 U.S.C. § 1983 against

the defendants, Wallace Community College Selma (WCCS), Dr. Robert

McConnell, Connie Vardaman, Joyce Howell, and Leighann Swindal,1

alleging racial discrimination. Dr. McConnell, Vardaman, Howell,

and Swindal are all employees of WCCS.

Edwards was employed at WCCS as a word processing specialist,

a newly created position, from September 1990 until her termination

during July 1991. At the time of plaintiff's employment with WCCS
 2

While Edwards concedes that Dr. Brown was ultimately

responsible for terminating her, he was not named as a defendant

in this action or any other action relevant to the events at

issue. 

Dr. McConnell was the Vice-President of WCCS, and he acted as

Edwards' supervisor during the last week of her employment;

Vardaman was the secretary for the President, Dr. Julius Brown;

Howell was a secretary and taught computer classes for WCCS

personnel; and Swindal was a secretary for the Business

Manager/Treasurer of WCCS. With the exception of her last week of

employment Edwards was supervised by Dr. Brown.

Edwards alleges that the defendants influenced Dr. Brown to

discriminatorily discharge her 2 and that defendants created a

hostile environment, violating her civil rights.

DISCUSSION

I. Standard of Review

For issues on which they would not have the burden of proof at

trial, the defendants, as the moving parties in this motion for

summary judgment, must demonstrate that there is an absence of

evidence supporting Edwards' claims. For issues on which they

would have the burden of proof at trial the defendants must make an

affirmative showing that on all essential elements on which they

have the burden of proof at trial, no reasonable jury could find

for the non-moving party, the plaintiff in the case at bar. See

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th

Cir.1993) (thorough discussion of the standard of review for a

motion for summary judgment). We review de novo the district

court's grant of a motion for summary judgment.
 3

"Individual capacity suits under Title VII are ...

inappropriate." Busby v. City of Orlando, 931 F.2d 764, 772

(11th Cir.1991). 

 4Pursuant to the 1991 amendments to Title VII the plaintiff

may demonstrate that the practices that combine to create the

employer's decisionmaking process cannot be separated. If the

plaintiff makes such a showing, then the decisionmaking process

can be analyzed for disparate impact. 42 U.S.C. § 2000e2(k)(1)(A), (B) (1991). Edwards did not allege such a situation. 

II. Title VII

Edwards sues WCCS and Dr. McConnell in his official capacity

for alleged violations of Title VII. 3

 R. 83 at ¶¶ 4-5. The

remaining individual defendants are not sued pursuant to Title VII.

Id. at ¶¶ 6-8.

A. Disparate Impact

 A disparate impact claim under Title VII charges that a

facially neutral practice or test of the employer led to a

discriminatory impact on a particular group and that the test or

practice cannot be justified as a business necessity. Griggs v.

Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 853, 28 L.Ed.2d

158 (1971); Stephen v. PGA Sheraton Resort, Ltd., 873 F.2d 276,

279 (11th Cir.1989). A plaintiff must identify a specific

employment practice that leads to the disparate impact. 4

Fitzpatrick, 2 F.3d at 1117. A plaintiff also must make a

comparison of the racial composition of persons in the labor pool

qualified for the position at issue with those persons actually

holding that position, and he/she must demonstrate that the

allegedly discriminatory practice or test is connected to the

disparate impact. Wards Cove Packing Co. v. Atonio, 490 U.S. 642,

657, 109 S.Ct. 2115, 2125, 104 L.Ed.2d 733 (1989). A plaintiff is
 5

Although Edwards does present a statistical analysis of the

racial composition of full-time secretarial/clerical personnel at

WCCS, she does not make the required comparison of the personnel

to the racial composition of the labor market for those

positions. 

not required to prove a discriminatory motive. Griggs, 401 U.S. at

432, 91 S.Ct. at 854.

 Edwards' disparate impact claim fails because: (1) she

failed to identify a practice or test of WCCS used to terminate

employees that led to a discriminatory impact on African-Americans

and, more specifically, that affected her; (2) she accordingly

failed to connect an allegedly discriminatory practice to the

asserted disparate impact; and (3) she failed to make the required

statistical comparison.5

B. Disparate Treatment

 A plaintiff asserting disparate treatment is required to

prove discriminatory animus on the part of the defendant. Texas

Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct.

1089, 1095, 67 L.Ed.2d 207 (1981); McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 804-05, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668

(1973). The employee has a cause of action against the employer by

naming either the employer or supervisory employees as agents of

the employer. Busby v. City of Orlando, 931 F.2d 764, 772 (11th

Cir.1991). Edwards contends that WCCS and Dr. McConnell

discriminated against her by discriminatorily discharging her and

by creating and/or permitting a racially hostile work environment.

1. Discharge

 To succeed with her discriminatory discharge claim Edwards

must show "(1) that [she] is a member of a protected minority, (2)
 6

Defendants state that the job duties of the position were

assumed by an African-American hired after Edwards' discharge. 

Appellees' Brief at 28 n. 12. Edwards points to no contradictory

evidence. 

that [she] was qualified for the job from which [she] was

discharged, (3) that [she] was discharged, and (4) that [her]

former position was filled by a non-minority." Jones v. Lumberjack

Meats, Inc., 680 F.2d 98, 101 (11th Cir.1982). See also McDonnell

Douglas Corp., 411 U.S. at 802, 93 S.Ct. at 1824. Edwards failed

to present evidence that her position was filled by a non-minority

following her discharge.6

 Edwards correctly says that a prima facie case is not wholly

dependant upon meeting the fourth requirement of the McDonnell

Douglas test. A plaintiff may have a prima facie case based on the

first three requirements despite the fact that the employer hired

a minority to fill the vacancy left by the plaintiff. Howard v.

Roadway Express, Inc., 726 F.2d 1529, 1534-35 (11th Cir.1984).

However, the court must consider whether the fact that a minority

was hired overcomes the inference of discrimination otherwise

created by the evidence presented by the plaintiff. Courts

considering such a situation have looked at several factors

including the length of time between the discharge and the

replacement, whether the replacement by the hired minority occurred

after the filing of an E.E.O.C. complaint, and, if the hired person

had a history with the employer, whether it was a positive history.

See Howard, 726 F.2d at 1525; Jones v. Western Geophysical Co. of

Am., 669 F.2d 280 (5th Cir.1982) (hiring of replacement occurred

almost a year later, after a complaint was filed with the E.E.O.C.,
and the person hired already had been hired and fired for poor

performance by the employer). Edwards has not presented any

evidence that the filling of the vacancy by a minority was

pretextual.

2. Hostile Environment

Edwards has the burden of proof at trial to demonstrate a

hostile environment. As the moving parties in the motion for

summary judgment, the defendants must either "put on evidence

affirmatively negating the material fact or instead demonstrate[ ]

an absence of evidence on the issue." Fitzpatrick, 2 F.3d at 1116.

To survive the motion for summary judgment, Edwards then must "show

that the record in fact contains supporting evidence, sufficient to

withstand a directed verdict motion," or Edwards must "come forward

with additional evidence sufficient to withstand a directed verdict

motion at trial based on the alleged evidentiary deficiency." Id.

at 1116-17.

 To succeed at trial with her hostile environment claim

Edwards must demonstrate that the actions of the defendants altered

the condition of the workplace, creating an objectively abusive and

hostile atmosphere. Harris v. Forklift Sys., Inc., --- U.S. ----,

----, 114 S.Ct. 367, 370-71, 126 L.Ed.2d 295 (1993) ("When the

workplace is permeated with "discriminatory intimidation, ridicule,

and insult' that is "sufficiently severe or pervasive to alter the

conditions of the victim's employment and create an abusive working

environment,' Title VII is violated.") (internal citations

omitted). For example, the racial slurs allegedly spoken by

co-workers had to be so "commonplace, overt and denigrating that
they created an atmosphere charged with racial hostility."

E.E.O.C. v. Beverage Canners, Inc., 897 F.2d 1067, 1068 (11th

Cir.1990). In deciding whether a hostile environment was created

factors to consider include the frequency of the discriminatory

conduct, the severity of the discriminatory conduct, whether the

conduct is threatening or humiliating, and whether the conduct

unreasonably interferes with the plaintiff's performance at work.

Harris, --- U.S. at ----, 114 S.Ct. at 372. The employer will be

held liable if it fails to discover a hostile atmosphere and to

take appropriate remedial steps. Busby, 931 F.2d at 785. See also

Henson v. City of Dundee, 682 F.2d 897, 901 (11th Cir.1982). A

plaintiff may have a viable hostile environment claim even if the

racial remarks were not directed at her. Busby, 931 F.2d at 785.

 The district court did not err in holding that the summary

judgment record did not substantiate a hostile work environment

claim. We have reviewed the summary judgment material. As the

court held, some of the incidents relied upon were not made known

to Edwards until after her termination and, therefore, could not

have contributed to her subjective view of a hostile environment.

See Harris, --- U.S. at ----, 114 S.Ct. at 370 (the plaintiff must

subjectively view the conduct as hostile). Other alleged

incidents, as the court correctly held, were purely speculation by

Edwards. Still others concerned statements said to have been made

to third parties by fourth parties. Apart from hearsay problems,

there was insufficient information as to when the statements were

made, how knowledge of them was acquired, and when Edwards was

informed of them (if she was). In her answers to interrogatories,
 7

Our consideration of this case, especially the hostile

environment issue, has been hampered by plaintiff's brief. A

brief must contain:

a statement of the facts. A proper statement of facts

reflects a high standard of professionalism. It must

state the facts accurately, those favorable and those

unfavorable to the party. Inferences drawn from facts

must be identified as such....

11th Cir.R. 28-2(h)(ii) (1994). Plaintiff's statement of

facts, consuming more than half of her brief, is a mixture

of facts and arguments and inferences. It is larded with

allegations, hearsay, hyperbole, and pejoratives. It makes

no effort to distinguish between inferences and facts or to

present facts unfavorable to the plaintiff. We have

reviewed the record, but without the help to which we are

entitled. 

Edwards refers generally to racial references concerning her made

by co-worker Vardaman. These too were not identified as to how

they were made, to whom they were made, and how and when they were

made know to Edwards. Edwards also says that she did not receive

information pertinent to her employment that Caucasian employees

did receive. However, in her deposition she conceded that she

cannot cite any examples of Caucasian employees receiving

information that was withheld from her. Once the evidentiary

materials inappropriately relied upon are laid aside, we cannot say

that the district court erred in holding that Edwards had not met

her burden to defeat summary judgment concerning a hostile

environment.7

III. Section 1983

 Edwards asserts claims pursuant to § 1983, alleging that the

defendants violated the equal protection clause of the Fourteenth

Amendment. She contends that the defendants discriminatorily fired
 8

For the reasons stated above, plaintiff's claim of

discriminatory discharge due to the alleged influence of the

individual defendants upon Dr. Brown is without merit. Moreover,

any influence Dr. McConnell had on Dr. Brown's decision to

discharge plaintiff was proper within his discretionary duties as

Vice-President and as a supervisor of Edwards, so long as his

intent was not discriminatory. Edwards has not presented factual

evidence suggesting that any influence Dr. McConnell had on the

decision to terminate her originated from discriminatory motives. 

Therefore, we will address only her § 1983 claim regarding a

hostile environment. 

her8 and created a hostile workplace, and she sues the individual

defendants for equitable relief in their official capacities and

for equitable and monetary relief in their individual capacities.

R. 83 at ¶¶ 5-8. To have a cause of action pursuant to § 1983, the

plaintiff must allege that a person deprived her of a federal or

constitutional right and that the person was acting under color of

law. Gomez v. Toledo, 446 U.S. 635, 640, 100 S.Ct. 1920, 1923-24,

64 L.Ed.2d 572 (1980).

 The Supreme Court has defined "acting under color of law" as

acting with power possessed by virtue of the defendant's employment

with the state. West v. Atkins, 487 U.S. 42, 49, 108 S.Ct. 2250,

2255, 101 L.Ed.2d 40 (1988). " "[S]tate employment is generally

sufficient to render the defendant a state actor.' " Id. (quoting

Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n. 18, 102 S.Ct.

2744, 2752 n. 18, 73 L.Ed.2d 482 (1982)). The dispositive issue is

whether the official was acting pursuant to the power he/she

possessed by state authority or acting only as a private

individual. Monroe v. Pape, 365 U.S. 167, 184, 81 S.Ct. 473, 482,

5 L.Ed.2d 492 (1961). Not all actions by state employees are acts

under color of law. "[C]ases have declined to find liability under

§ 1983 against a co-employee for harassment when the harassment did
not involve use of state authority or position." Woodward v. City

of Worland, 977 F.2d 1392, 1400 (10th Cir.1992) (defendant law

enforcement officers were not liable under § 1983 for sexually

harassing dispatchers employed by a separate employer); cert.

denied, --- U.S. ----, 113 S.Ct. 3038, 125 L.Ed.2d 724 (1993). See

Hughes v. Halifax County Sch. Bd., 855 F.2d 183 (4th Cir.1988)

(co-workers were not acting with state authority when they taunted

plaintiff and performed a mock hanging of plaintiff), cert. denied,

488 U.S. 1042, 109 S.Ct. 867, 102 L.Ed.2d 991 (1989); Murphy v.

Chicago Transit Authority, 638 F.Supp. 464 (N.D.Ill.1986) (staff

attorneys who sexually harassed fellow staff attorney were not

liable pursuant to § 1983). See also Dang Vang v. Vang Xiong X.

Toyed, 944 F.2d 476 (9th Cir.1991) (citing Murphy for guidance but

concluding that the defendant who was employed by the state to

assist refugees in finding employment and who sexually assaulted

women after enticing them to see him for job hunting purposes was

a state actor liable under § 1983).

 We hold that defendants Vardaman, Howell, and Swindal, all

coemployees of Edwards and without any supervisory authority over

Edwards, are not liable pursuant to § 1983. These defendants did

not use their state authority to create an environment hostile to

Edwards. "The mere fact that [the defendants] were state employees

or that the offending acts occurred during working hours is not

enough." Woodward, 977 F.2d at 1401.

Additionally, Edwards is lacking enough admissible factual

evidence to show that the alleged actions of Vardaman, Howell, and

Swindal rose to the level of creating an objectively hostile
workplace. Edwards did not know about the remarks she attributed

to Vardaman until after her (Edwards') termination. Edwards

asserts that Swindal and Howell gave her false information and

withheld information from her that was given to Caucasian

employees, but she does not cite who received such information.

She contends that she was given office space and equipment inferior

to that given to Caucasian employees but cites no examples of such

for comparison. Furthermore, Edwards complains that she did not

receive word processing training until shortly before her

termination, whereas other employees supposedly received such

training from the beginning of their employment. However, Edwards

was hired as a word processing specialist, a newly created

position, presumably with at least a basic understanding of word

processing. Overall, Edwards has made allegations without citing

any substantial concrete evidence for support.

A. Qualified Immunity

"[A]n official in a personal-capacity action may, depending on

his position, be able to assert personal immunity defenses,

[including a defense of qualified immunity]." Kentucky v. Graham,

473 U.S. 159, 166-67, 105 S.Ct. 3099, 3105, 87 L.Ed.2d 114 (1985).

"[G]overnment officials performing discretionary functions,

generally are shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have

known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727,

2738, 73 L.Ed.2d 396 (1982). Except under rare circumstances

government employees will have qualified immunity from suits
 9

"Qualified immunity does not pertain to claims for

injunctive or declaratory relief, because these claims are

considered to be official capacity claims against the relevant

governmental entity." Martin A. Schwartz & John E. Kirklin, 1

Section 1983 Litigation: Claims, Defenses, and Fees § 9.12 (2d

against them in their individual capacities. Lassiter v. Alabama

A & M Univ., 28 F.3d 1146, 1149 (11th Cir.1994) ( en banc ). A

court reviewing a defense of qualified immunity must consider how

the law had been applied in concrete, factual circumstances at the

time of the allegedly discriminatory action. Id.

 Discriminatory intent is an element that must be proved in a

disparate treatment claim. However, Edwards has not presented any

concrete evidence of discriminatory intent on the part of Dr.

McConnell. Accordingly, although intent is irrelevant for a

qualified immunity inquiry per se, Harlow, 457 U.S. at 819, 102

S.Ct. at 2738-39, it is relevant if intent is an element of the

underlying alleged constitutional violation. Fiorenzo v. Nolan,

965 F.2d 348, 352 (7th Cir.1992) ("Therefore, at the summary

judgment stage, the district court properly considered whether the

plaintiffs factually supported their allegations as to [the

defendant's] state of mind."); Hull v. Cuyahoga Valley Joint Voc.

Sch. Dist. Bd. of Educ., 926 F.2d 505, 512 (6th Cir.) ("plaintiff

must present direct evidence that the officials' actions were

improperly motivated" by racial discrimination when the officials

have asserted qualified immunity as a defense) (internal quotations

and citation omitted), cert. denied, 501 U.S. 1261, 111 S.Ct. 2917,

115 L.Ed.2d 1080 (1991); Auriemma v. Rice, 910 F.2d 1449, 1453

(7th Cir.1990) (en banc ), cert. denied, 501 U.S. 1204, 111 S.Ct.

2796, 115 L.Ed.2d 970 (1991).9
ed. 1991) (footnote omitted). See also Wood v. Strickland, 420

U.S. 308, 314 n. 6, 95 S.Ct. 992, 997 n. 6, 43 L.Ed.2d 214

(1975); Fortner v. Thomas, 983 F.2d 1024, 1029 (11th Cir.1993). 

However, since Edwards' underlying claim for discrimination by

Dr. McConnell fails due to a lack of factual evidence, her claims

against him for injunctive relief fail as well. 

B. Sovereign Immunity

Suing individuals in their official capacities is "another way

of pleading an action against an entity of which an officer is an

agent." Graham, 473 U.S. at 165, 105 S.Ct. at 3105. A state, a

state agency, and a state official sued in his official capacity

are not "persons" within the meaning of § 1983, thus damages are

unavailable; but a state official sued in his official capacity is

a person for purposes of § 1983 when prospective relief, including

injunctive relief, is sought. Will v. Michigan Dep't of State

Police, 491 U.S. 58, 71, n. 10, 109 S.Ct. 2304, 2312, n. 10, 105

L.Ed.2d 45 (1989). However, because Edwards fails to substantiate

the underlying alleged constitutional violation by Dr. McConnell

with factual evidence, her claim fails.

CONCLUSION

The judgment of the district court is AFFIRMED.