               Case: 13-13415     Date Filed: 03/31/2014   Page: 1 of 6


                                                              [DO NOT PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                          FOR THE ELEVENTH CIRCUIT
                            ________________________

                                  No. 13-13415
                              Non-Argument Calendar
                            ________________________

                         D.C. Docket No. 5:12-cv-02006-IPJ



JOY LYNETTE OWENS,

                                                                   Plaintiff-Appellee,

                                         versus

JACKSON COUNTY BOARD OF EDUCATION,

                                                                          Defendant,

KENNETH HARDING,
in his official and individual capacities,

                                                               Defendant-Appellant.

                            ________________________

                    Appeal from the United States District Court
                       for the Northern District of Alabama
                           ________________________

                                   (March 31, 2014)
                Case: 13-13415       Date Filed: 03/31/2014       Page: 2 of 6


Before CARNES, Chief Judge, TJOFLAT and JORDAN, Circuit Judges.

PER CURIAM:

       Kenneth Harding, the Superintendent for the Jackson County School

District, appeals the district court’s decision denying his motion for summary

judgment based on qualified immunity. He contends that he should have been

granted summary judgment on both the retaliation and discrimination claims

brought against him under the Fourteenth Amendment’s Equal Protection Clause.

                                               I.

       Viewing the evidence in the light most favorable to Joy Owens, the facts for

present purposes are these. She has worked as a teacher in Alabama’s Jackson

County School District since 1988. From May 2010 to May 2012, she

unsuccessfully applied for sixteen different administrative positions in the School

District: seven as a school principal, six as an assistant principal, and three in

supervisory roles at the central office. Fourteen of those sixteen positions were

filled by men. 1 During that time, Harding voiced his belief that women should not

be in administrative positions.



       1
          As for the two women who were hired, Owens’ brief points to evidence in the record
suggesting that in both instances unusual circumstances overbore Harding’s discriminatory
attitude. According to an affidavit from a teacher familiar with the hiring of the first woman,
Harding was going to hire a man, but a state senator personally lobbied Haring and persuaded
him to hire the woman. The record indicates that the other woman was hired after Owens filed
an EEOC charge. Owens argues in her brief that, based on the timing, it can be inferred that the
woman was hired to minimize the appearance of discrimination if Owens filed a lawsuit.


                                                2
              Case: 13-13415     Date Filed: 03/31/2014    Page: 3 of 6


      Under Alabama law, the sixteen positions could not be filled until a

candidate was nominated by Harding and appointed by the Jackson County Board

of Education. See Ala. Code § 16-12-16. Harding used different methods for

choosing his nominees. For the seven principal positions, Harding had a

committee system to help him make nominations. Harding interviewed the

candidates first, then the committee (whose members had been picked by Harding)

interviewed the candidates. Then Harding and the committee would discuss the

candidates, and Harding would nominate one to the Board. For the six assistant

principal positions, Harding nominated whomever that school’s principal

recommended, though he and the principal conferred about which candidates the

principal would interview before making a recommendation. For the three central

office positions, Harding selected the nominees himself.

      Owens’ lawsuit pleaded two claims. Her first claim was against the Board

under Title VII for gender discrimination and retaliation. Her second claim was

against the Board and Harding under 42 U.S.C. § 1983 for gender discrimination

and retaliation in violation of her rights under the Equal Protection Clause of the

Fourteenth Amendment. The defendants filed a joint motion for summary

judgment, arguing that there was insufficient evidence in the record to support any

of Owens’ claims of discrimination and retaliation. In addition, Harding asserted

an affirmative defense of qualified immunity. The district court denied the motion



                                          3
              Case: 13-13415     Date Filed: 03/31/2014   Page: 4 of 6


in its entirety. This is Harding’s interlocutory appeal from the denial of his motion

for summary judgment based on qualified immunity. See 28 U.S.C. § 1291.



                                         II.

      “We review de novo a district court’s denial of summary judgment based on

qualified immunity, applying the same legal standards that governed the district

court.” Feliciano v. City of Miami Beach, 707 F.3d 1244, 1247 (11th Cir. 2013).

Defendants are entitled to summary judgment based on their qualified immunity

only if “the law preexisting the defendant official’s supposedly wrongful act was

already established to such a high degree that every objectively reasonable official

standing in the defendant’s place would be on notice that what the defendant

official was doing would be clearly unlawful given the circumstances.” Morton v.

Kirkwood, 707 F.3d 1276, 1280 (11th Cir. 2013) (quotation marks omitted).

                                         A.

      Harding contends that the district court erred by denying summary judgment

on Owens’ Fourteenth Amendment retaliation claim. This Court has held that a

claim of gender-based retaliation “simply does not implicate the Equal Protection

Clause.” Watkins v. Bowden, 105 F.3d 1344, 1354 (11th Cir. 1997); see also

Ratliff v. DeKalb Cnty., Ga., 62 F.3d 338, 340 (11th Cir. 1995) (“[N]o clearly

established right exists under the equal protection clause to be free from



                                          4
               Case: 13-13415    Date Filed: 03/31/2014   Page: 5 of 6


retaliation.”). As a result, Harding is entitled to summary judgment on Owens’

retaliation claim.



                                         B.

      Harding also contends that he should have been granted summary judgment

on Owens’ discrimination claim. He makes two arguments in support of that

contention.

      First, Harding asserts that he chose his nominees for principal based on his

committees’ recommendations and his nominees for assistant principal based on

his principals’ recommendations, and therefore a reasonable official in his position

would not have thought his actions were unlawful. Assuming that relying on those

recommendations would have been objectively reasonable, evidence in the record

creates a genuine issue of material fact as to whether Harding did rely on the

recommendations. Owens points to evidence showing that: (1) Harding would, in

his own words, “pray about” each decision and ultimately make it himself; (2)

Harding picked the committee members himself; and (3) Harding engaged in

activity that implied he had preselected the candidate he wanted for a job,

including lessening the job requirements so that the preselected candidate would be

qualified for the position and discouraging others from applying. Because we must

view the evidence in the light most favorable to Owens and draw all inferences in



                                         5
                Case: 13-13415        Date Filed: 03/31/2014       Page: 6 of 6


her favor, there is a genuine issue about whether Harding chose his nominees in the

manner he claims. He is not entitled to summary judgment on that ground.

       Harding also argues that Owens failed to present evidence raising a genuine

issue of material fact as to his discriminatory intent.2 She did. The affidavit of

Sheila Cornelison attested that Harding had told her on multiple occasions that:

“he did not want females in administration positions,” he thought “females do not

make good administrators because they are too emotional and hardnosed,” he

believed “females don’t have the personality and fortitude to be principals,” and he

“had a lot less problems out of the male principals.” That is sufficient evidence to

permit Owens to survive summary judgment.

                                               III.

       We REVERSE the district court’s decision to deny summary judgment on

Owens’ retaliation claim against Harding, AFFIRM the district court’s decision to

deny summary judgment on Owens’ discrimination claim against Harding, and

REMAND for further proceedings consistent with this opinion.

       AFFIRMED in part; REVERSED in part; and REMANDED.

       2
          Owens argues that we lack jurisdiction to review this portion of Harding’s appeal
because he is simply second-guessing the district court’s determination that there is sufficient
evidence to survive summary judgment. See generally Johnson v. Jones, 515 U.S. 304, 115 S.Ct.
2151 (1995). We do, however, have jurisdiction to decide this issue because it “is part and
parcel of the qualified immunity inquiry, not a separate question.” Hartley v. Parnell, 193 F.3d
1263, 1271 (11th Cir. 1999). More specifically, Harding’s argument that Owens failed to present
sufficient evidence that he had the discriminatory intent necessary to violate her equal protection
rights is part and parcel of his qualified immunity defense. See Mencer v. Hammonds, 134 F.3d
1066, 1070 (1998).


                                                6
