Opinion
CIVIL ACTION NO. 99-T-581-N
March 25, 2002
Attorney(s) for Plaintiff, Samuel Fisher, Eden J. Brown Gaines, Gordon, Silberman, Wiggins Childs, Birmingham AL. Heather Fisher Lindsay, Johnson, Barton, Proctor Powell, LLP, Birmingham, AL. Joel S. Isenberg, Smith Ely, Birmingham, AL.
Attorney(s) for Defendant, William G. McKnight, Thomas D. Simon, Robert E. Morrow, Alabama Department of Public Safety, Montgomery, AL. Andrew W. Christman, Gidiere, Hinton Herndon, Montgomery, AL. Alice Ann Byrne, State Personnel Department, Montgomery, AL. Dana H. Billingsley, Attorney General's Office State of Alabama, Montgomery, AL. E. Hamilton Wilson, Jr., Ball, Ball, Matthews Novak, P.A., Montgomery, AL.
OPINION
Plaintiff Ronald D. Hall, a black state trooper, filed this lawsuit naming the Alabama Department of Public Safety (DPS) and its director as defendants. Hall brings charges of racial discrimination and retaliation under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17. Jurisdiction is proper under 28 U.S.C.A. §§ 1331 and 1343 and 42 U.S.C.A. § 2000e-5. This case is now before the court on the defendants' motion for summary judgment. For the reasons stated below, the motion will be granted.
I. BACKGROUND
Hall has been a DPS employee since 1979. He has sought on 20 or so occasions to be promoted to corporal, but has never been promoted. Hall claims that he has been denied promotions because of his race and because of he objected to the consent decree in the Paradise litigation." See Paradise v. Wells, 686 F. Supp. 1442 (M.D. Ala. 1988); see also Paradise v. Prescott, 585 F. Supp. 72 (M.D. Ala. 1983),aff'd, 767 F.2d 1514 (11th Cir. 1985), aff'd, 480 U.S. 149, 107 S. Ct. 1053 (1987).
Plaintiff's opposition to defendants' motions for summary judgment, filed June 5, 2001 (Doc. no. 66), at 1.
Complaint, filed June 8, 1999 (Doc. no. 1), at 4.
The defendants have moved for summary judgment.
Defendants' motion for summary judgment, filed November 14, 2000 (Doc. no. 17).
II. SUMMARY-JUDGMENT AND TITLE VII STANDARDS
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Once the party seeking summary judgment has informed the court of the basis for the motion, the burden shifts to the nonmoving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993). In making a determination, the court must view all the evidence and any factual inferences in a light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).Title VII prohibits an employer from discriminating against its employees on the basis of race. 42 U.S.C.A. § 2000e-2(a)(1). InMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), the Supreme Court established the allocation of the burden of production and an order for the presentation of proof in discrimination and retaliation cases. See also St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746 (1993). Under the McDonnell Douglas approach, a plaintiff has the initial burden of establishing a prima-facie case of unlawful race discrimination or retaliation by a preponderance of the evidence. 411 U.S. at 802, 93 S.Ct. at 1824. A prima-facie case requires "evidence adequate to create an inference that an employment decision was based on a[n] [illegal] discriminatory [or retaliatory] criterion."Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866 (1977).
The Eleventh Circuit Court of Appeals has explained that, for the usual disparate-treatment case where direct evidence is not present, a plaintiff establishes a prima-facie case of race discrimination under Title VII by showing: (1) he belongs to a racial minority; (2) he was subjected to adverse job action; (3) his employer treated similarly situated employees outside his classification more favorably; and (4) he was qualified to do the job. Demonstrating a prima-facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination. Holifield v. Reno, 115 F.3d 1555, 1561-1562 (11th Cir. 1997) (citations omitted).
The Eleventh Circuit has established similarly broad standards for a prima-facie case of retaliation. To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is some causal relation between the two events.Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). "The causal link element is construed broadly so that `a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.'" Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir. 2001) (citations omitted).
The Supreme Court, however, recently held that there is a limit on how broadly the causation element may be construed. In Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001), the Court warned that "[t]he cases that accept mere temporal proximity between an employer's knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'" Citing cases in which a three-month and four-month period was insufficient, the Court went on to hold that "[a]ction taken (as here) 20 months later suggests, by itself, no causality at all." Id. at 273-74, 121 S.Ct. at 1511.
If the plaintiff establishes a prima-facie case of race discrimination or retaliation, the burden then shifts to the defendant to rebut the presumption by articulating legitimate, non-discriminatory and non-retaliatory reasons for its employment action. Holifield, 115 F.3d at 1564; Olmsted, 141 F.3d at 1460. "This intermediate burden is `exceedingly light.'" Holifield, 115 F.3d at 1564. The defendant has the burden of production, not of persuasion, and thus does not have to persuade a court that it was actually motivated by the reason advanced.McDonnell Douglas, 411 U.S. at 802, 93 S. Ct. 1824; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-55, 258, 101 S.Ct. 1089, 1093-94, 1096 (1981).
Once the defendant satisfies this burden of production, the presumption of discrimination or retaliation is eliminated and the plaintiff has the opportunity to 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 defendant were not the real reasons for the' adverse employment decision. Chapman v. AI, 229 F.3d 1012 (11th Cir. 2000). The establishment of a prima-facie case does not in itself entitle a plaintiff to survive a motion for summary judgment. Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987); Pace v. Southern Ry. System, 701 F.2d 1383, 1389 (11th Cir. 1983). After an defendant proffers nondiscriminatory and non-retaliatory reasons for its actions, in order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer's proffered non-discriminatory and non-retaliatory reasons is pretextual.Chapman, 229 F.3d at 1037.
In evaluating whether the reasons provided by the defendants are pretextual, the court is guided by the Eleventh Circuit's recent decision in Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001). In that case, a group of white firefighters challenged their employer's decisions not to promote them, claiming that they were more qualified than two black firefighters who were promoted instead. The court held in part that the plaintiffs had not established that the reasons asserted by their supervisor for promoting the black firefighters were pretext for intentional discrimination against whites. Id. at 1190.
The Denney court stated that "[o]ur precedent . . . requires a strong showing of a disparity in qualifications in order for an inference of discrimination to arise." Id. at 1187. The court then cited Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253-54 (11th Cir. 2000), which held that "In a failure to promote case, a plaintiff cannot prove pretext by simply showing that she was better qualified than the individual who received the position that she wanted. . . . `[D]isparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are so apparent as virtually to jump off the page and slap you in the face.'" Id. at 1253-54 (citations omitted).
Like the white firefighters in Denney, Hall alleges that the defendants' failure to promote him resulted from intentional discrimination and retaliation, and that he was at least as qualified, if not more qualified, than each of the troopers who were actually hired or promoted. The court is thus guided by the Denney standard when examining Hall's claims.
III. RETALIATION
Hall claims that he was denied the following positions due to retaliation for his objection to the consent decree in the Paradise litigation:
Pretrial conference transcript, September 18, 2001, at 53-55.
(1) HP97022 (July 1997). This was a highwty patrol position in Decatur, Alabama. Trooper Otis Higgins, who is black, was selected.
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 11.
(2) ADM97004 (February 1997). This was a public information officer position in the Quad Cities area of Alabama. Terry Windham, who is black, was selected.
(3) HP97004 (April 1997). This was a highway patrol position in Birmingham, Alabama. Darryl Hall, who is black, was selected.
(4) DL97011 (December 1997). This was a position in the driver license division in Huntsville, Alabama. Vincent K. Jackson, who is black, was selected.
In addition, Hall claims he was not promoted to corporal in the drivers license bureau, despite performing the duties of corporal, due to both retaliation and discrimination. This claim is treated in a separate section, "V. Drivers License Position," below.
Pretrial conference transcript, September 18, 2001; at 54.
Hall has not satisfied the causation requirement of his retaliation claim for positions (1) through (4). Hall engaged in the statutorily protected activity of objecting to the Paradise consent decree in 1988. The first instance of retaliation claimed by Hall, however, occurred, at the very earliest; in 1995 (when Hall was first transferred to driver license bureau). Thus, at least seven years passed between Hall's statutorily protected activity in 1988 and DPS's alleged failures to promote due to retaliation. This lapse in time, standing alone, is enough to extinguish Hall's claims in light of the Supreme Court's decision inClark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 1511 (2001).
The lack of a connection in time is important because Hall cannot establish a direct link between his objections to the consent decree inParadise and any adverse employment action. The evidence does not show that DPS, its director, or any relevant decision-makers knew of Hall's objector status. Hall claims that Captain James Jackson told him that he was having trouble in the department because he "went against" the Paradise decree. Jackson, who is now retired, squarely denies ever saying this to Hall: "I am not aware of any action taken by the Department of Public Safety against Ron Hall because of his race or because of any involvement in a lawsuit or for any other reason." Hall further claims a Captain Jefferies made a statement similar to Captain Jackson's. Captain Jefferies retired in 1986, two years before Paradise settled, so he lacked both first-hand knowledge of the department's decision-making process and decision-making power in the department. Nor has Hall shown that Jackson, Jefferies, or anyone else making statements about the department's alleged retaliation had any role in any of the promotion decisions regarding him.
See, e.g. deposition of Charles Andrews, exhibit 15 to plaintiff's evidentiary submission in opposition, filed June 5, 2001 (Doc. no. 67), at 218 ("I have no knowledge of him ever being a participant inParadise."). Andrews is Hall's supervisor; see also affidavit of James Jackson, exhibit 23 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18).
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 22.
Affidavit of James Jackson, exhibit 23 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18).
Defendants summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 22.
Affidavit of Cheri Cook, exhibit 32 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18).
The Eleventh Circuit has held that "remarks by non-decision-makers or remarks unrelated to the decision-making process itself are not direct evidence of discrimination." Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
See, e.g., pretrial conference transcript, September 18, 2001, at 45.
Hall claims he has been issued old vehicles, but defendants have submitted evidence that Hall received an older vehicle because his duties as a trooper in the drivers license division made his vehicle needs less crucial than those for troopers in the highway patrol division.
Exhibit 45 to plaintiff's evidentiary submission in opposition, filed June 5, 2001 (Doc. no. 67).
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 33-34; affidavit of John Hartley, exhibit 39 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18).
Hall is unable to offer proof that other Paradise objectors were discriminated or retaliated against. Hall has divided objectors into two groups: the "real" objectors are those who were not promoted, while other objectors (who, unlike Hall, were known to DPS) were not real objectors but "favorites" who got promoted. The court finds no significance in this distinction except that it demonstrates that someParadise objectors were promoted. For all these reasons, Hall's claims that defendants retaliated against him by denying his promotion to positions (1) through (4) are meritless.
Pretrial conference trans., September 18, 2001 at 45-48 (plaintiff offering only general statement that other dissenters were discriminated against without being able to point to specific instances of discrimination).
See e.g., plaintiff's opposition to defendants' motion for summary judgment, filed June 5, 2001 (Doc. no. 66) at 7-8; see also exhibit 8 to plaintiff's evidentiary submission in opposition, filed June 5, 2001 (Doc. no. 67).
IV. DISCRIMINATION
The court assumes that Hall can make a prima-facie case of discrimination for all the claims discussed in this section. But even making this assumption, it is clear that under that law of the Eleventh Circuit, the defendants make a sufficient showing that for each and every position they hired a candidate with equal or greater qualifications to Hall's, and therefore DPS did not violate the law. Certainly, Hall's superior qualifications are not so apparent as virtually to "jump off the page." Denney, 247 F.3d at 1187. While the qualifications used were to certain extent subjective, "[a]bsent evidence that subjective hiring criteria were used as a mask for discrimination, the fact that an employer based a hiring or promotion decision on purely subjective criteria will rarely, if ever, prove pretext under Title VII or other federal employment discrimination statutes." Id. at 1185.
As background, Hall received an undergraduate degree in sociology from Daniel Payne College in 1978. From 1979-1995, he was a trooper in the highway patrol division, and, from 1995 to the present, he has been a trooper in the drivers license division. He was transferred from highway patrol to the license division because of an injury. On his resume, Hall claims the following special and technical training (as of 1998): "driver license in-service; hearing officers school; commercial motor vehicle examiner; K-9 handlers course (drug detection); special operations training; DUI enforcement training; motor carrier safety; tactical operations training; PEI training." Although he applied for positions in different divisions of the department (drivers license, Alabama Bureau of Investigation, and highway patrol), he did not tailor his resume to each specific position. No matter what division he applied for, Hall's resume stated generically, under the title "summary": "To provide effective and consistent leadership in all aspects of law enforcement. To ensure that subordinates remain committed to the mission of the Department to provide COURTESY — SERVICE — AND PROTECTION."
Hall's resume, attached to exhibit 28, defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18).
In-service training is "given to all employees" "to enable them to properly perform their jobs." DPS policy order 100, attached as exhibit 9 to plaintiff's evidentiary submission in opposition to defendants' motion for summary judgment, filed June 5, 2001 (Doc. no. 67), at 5. It is specifically contrasted to "developmental training" which is "driven by a career development program." Id.
Compare id., (resume for HP90015 — highway patrol) with id. at 475a (resume for ABI98-05-Alabama Bureau of Investigation), and id. at 293 (resume for DL97011 — river license division).
Keeping in mind the requirement of a strong showing of disparities in qualifications, the court considers in turn each position for which Hall was not hired.
(5) DL94019 (December 1994). This was a position in the drivers license division. A white man, Joseph Yates, was selected. Yates was already a corporal and an assistant post commander, so no promotion was involved. DPS gives "first consideration" to transfer requests for posted vacancies over new applicants. Based on Yates's extensive experience alone, Hall was not clearly more qualified than Yates. Indeed, defendants claim Yates was more qualified than Hall because he was in a higher scoring band.
Exhibit 28 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 4.
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 9.
Defendants' reply brief, filed August 14, 2001 (Doc. no. 81), at 15; id., exhibit 28 at 3 (listing Yates's priority over all non-corporal candidates for the vacancy)
Id. at 13.
Hall claims that Yates's disciplinary record should have made him unqualified for the position. DPS's policy order 100, however, specifically notes that, when making an employment decision, a division chief should consider only the "presence or absence of disciplinary action resulting in suspension from duty of three or more days during the preceding 12 months from the posting date." Since Yates was not suspended, it was not necessary, and may not have even been appropriate, for his discipline record to be considered.
Exhibit 9 to plaintiff's evidentiary submission in opposition to defendants' motion for summary judgment, filed June 5, 2001 (Doc. no. 67), at 2-3.
(6) HP95021 (November 1995). This was an assistant post commander position in Birmingham. Trooper James Roberts, who is white, was selected. Roberts was placed in a higher band than Hall was based on test scores. Both Roberts and Hall had college degrees, both had some professional training, and both claimed acting corporal experience Roberts claimed many more specialized training courses.
Id.; exhibit 28 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 14 (showing Roberts in a higher scoring band than Hall).
Exhibit 28 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 17-18, 32-33.
Id.
(7) HP96015 (October 1996). This was a position as assistant field commander in the motor carrier safety section of the highway patrol division in Birmingham. Mark Williamson, who is white, was selected. Williamson transferred to the motor carrier division in May, 1996, as a trooper, a position for which Hall did not apply. Williamson had taken the two-week commercial vehicle enforcement course in May 1994. At the time Williamson applied for the position, his commercial-vehicle-enforcement certification was up-to-date. While Hall was qualified for this position because of his test score, he was not certified, while Williamson was certified. In addition, Williamson's resume listed many safety-related duties while Hall's listed none.
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 10.
Id.
Id.
Id., Exhibit 28 at 52-53 and 68-69.
(8) ABI96018 (October 1996). This was a narcotics investigator position in Tuscaloosa, Alabama. Norman Willingham, who is white, was selected. Both candidates had college degrees. While Willingham had years of narcotics investigation experience, Hall's resume did not demonstrate any investigative experience.
Id. at 81-117.
Id.
(9) ADM97003 (February 1997). This was a position at a training facility in Selma, Alabama. Trooper James H. Fells, who is white, was selected. Fells was a post certified instructor and had already been teaching at the academy for a year and a half. Fells obtained this job through a prior posting for a trooper position for which Hall did not apply. Fells's qualifications appear clearly superior to those of Hall for this position — Fells lists, for instance, many specific instances where he has worked as an instructor, whereas Hall lists no instructor experience.
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18) at 10.
Exhibit 28 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 118-157, especially 123 and 139-40.
(10) HP97021 (August 1997). This was a position in the motor carrier safety section of the highway patrol division in Birmingham. Lewis W. Capps, who is white, was selected. Capps had been doing inspections since 1994, had taken the commercial-vehicle-enforcement course, and had maintained his certification. Hall, by contrast, had not taken the commercial-vehicle-enforcement course and did not have certification. While Capps does not appear to have a college degree, he was awarded the "Law Enforcement Officer of the Year" award in Huntsville and a commendation from the Madison County District Attorney. Capps also had extensive military experience.
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 11.
Id.
Exhibit 28 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 245-A.
Id.
(11) HP7033 (December 1997). This was a highway patrol position in Huntsville. Brant Barnett, who is white, was selected. Barnett had been working in Huntsville since 1995. He was Officer of the Year in 1992 for both the Alabama State Troopers Association and Gadsden Exchange Club. He also earned a troop commanders's commendation for DUI enforcement for five straight years, 1990-1994. Barnett had only an associate college degree. The two candidates received similar scores on their supervisor's evaluations.
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 11.
Id.
Defendants' exhibit 28 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 309.
Id. at 312-20, 324-31.
(12) HP97034 (December 1997). This was a highway patrol position in Jacksonville, Alabama. Trooper Jeffrey Shaver, who is white, was selected. Shaver had been working in Jacksonville since 1983. Both Hall and Shaver have four-year college degrees. In 1992, Shaver was the Etowah County Exchange Club officer of the year, and, in 1996, he was the runner-up Alabama State Trooper Association Troop of the year. Shaver received two awards for recovering the most stolen vehicles in a year. Shaver received significantly higher evaluation scores than Hall.
Defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 12.
Id.
Id.
Exhibit 28 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18), at 373-81, 386-94.
(13) ABI98003 (March 1998). This was an Alabama Bureau of Investigation position in Birmingham. Joseph Brzezinski, who is white, was selected. Brzezinski was already working for the Alabama Bureau of Investigation and had five years investigation experience. Hall's resume showed no investigation experience. Brzezinski had higher evaluation scores than Hall.
Id.
Id. at 400.
Id. at 405-14, 421-29.
(14) ABI98004 (March 1998). This was an Alabama Bureau of Investigation position in Decatur. Michael Ball, who is white, was selected. Ball was already working for the Alabama Bureau of Investigation and had 12 years investigation experience. Hall's resume shows no investigation experience. Ball had an associate degree in police science. Ball had significantly higher evaluation scores than Hall.
Id.
Id. at 446-A.
Id. at 433.
Id. at 437-46, 448-56.
(15) ABI9005 (March 1998). This was an Alabama Bureau of Investigation position in Jacksonville. Timothy Sartain, who is white, was selected. Sartain was already working for the Alabama Bureau of Investigation and had over three years investigation experience. Hall's resume shows no investigation experience. Both candidates held bachelor's degrees. The candidates had similar evaluation scores.
Id. at 433.
Id. at 465-73, 479-87.
(16) HP98006 (March 1998). This was an assistant post commander position in Birmingham. James Morrison, who is white, was selected. Morrison had been in the highway patrol division in Birmingham since 1987. Morrison does not have a college degree. Both candidates listed acting corporal experience on their resumes. Morrison listed several awards on his resume, including top DUI arresting officer in 1986 and 1987 and was named law enforcement officer of the year by the Shades Mountain Optimist Club. Morrison had higher evaluation scores than Hall.
Id. at 491, 506.
Id. at 496-504, 511-19.
(17) HP98007 (March 1998). This was an assistant post commander position in the highway patrol division in Decatur, Alabama. Clyde D. Owens, who is white, was selected. Owens had ten years experience in the division and training and certification in several relevant areas. Both candidates claimed acting corporal experience on their resumes. Owens did not have a college degree. Owens had higher evaluation scores than Hall.
Defendants' summary judgment brief, filed November 14, 2002 (Doc. no. 18), at 13.
Exhibit 28 to defendants' summary judgment brief, filed November 14, 2002 (Doc. no. 18), at 528-36, 542-50.
(18) HP09008 (March 1998). This was an assistant post commander position in the highway patrol division in Tuscaloosa. David Jones, who is white, was selected. Both candidates have college degrees, but Jones did not list any acting corporal experience. Jones listed many relevant training courses. The candidates had similar evaluation scores.
Id. at 554.
Id.
Id. at 559-67, 574-82.
(19) HP98015 (August 1998). This was a highway patrol position in Jacksonville. Otis Higgins, who is black, was selected. Higgins had first consideration because he was an existing corporal. Both candidates have college degrees and had similar evaluation scores.
Id. at 583-608.
(20) SER91001 (February 1991). This was not a promotion to corporal but a reassignment to be a pilot trainee. Hall did not meet the basic qualifications, but was treated as if he was qualified. The person chosen, James Goodreau, had hundreds of hours of flight training and commercial helicopter experience.
Id. at 611.
The court finds that in none of these 16 instances, listed as positions (5)-(20), did Hall show he was more qualified than the person chosen for promotion. Hall cannot therefore show pretext in any of these promotions, and his lawsuit fails as to each and every one of these 16 claims.
V. THE DRIVERS LICENSE POSITION
Hall's final claim is that he was discriminated or retaliated against by the failure to promote him to corporal in the Birmingham drivers license division. Hall presents two different theories of how he was wronged. First, he claims he was not promoted as retaliation for his opposition to the Paradise consent decree. Second, he claims the department should have created a corporal position for him in the Birmingham driver license department, and that the department had discriminatory intent when it instead created a new position at the sergeant rank, for which Hall was not qualified. The court considers these claims in turn.
Pretrial conference transcript, September 18, 2001, at 4.
A. Retaliation
Hall's retaliation claim for the Birmingham drivers license position fails for the same reason Hall's retaliation claims failed for positions (1) through (4): a lack of evidence linking the protected activity and the alleged retaliation, and the time lapse of over seven years between the protected activity and the allegedly discriminatory act. Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001). In addition, there is no evidence that relevant decision-makers within DPS were even aware that Hall was an objector to the Paradise settlement. As discussed above, Hall is unable to offer proof that other objectors were discriminated or retaliated against. Finally, Hall's distinction between "real" objectors and "favorites" only serves to show that some Paradise objectors were promoted. For all these reasons, Hall's claim of retaliation regarding the Birmingham drivers license position fails.
See, e.g., deposition of Charles Andrews, exhibit 15 to plaintiff's evidentiary submission in opposition, filed June 5, 2001 (Doc. no. 67), at 218 ("I have no knowledge of him ever being a participant in Paradise.") Andrews is Hall's supervisor.
Pretrial conference transcript, September 18, 2001 at 45-48 (plaintiff offering only general statement that other objectors were discriminated against without being able to point to specific instances of discrimination).
See, e.g., plaintiff's opposition to defendants' motion for summary judgment, filed June 5, 2001 (Doc. no. 66) at 7-8; see also exhibit 8 to plaintiff's evidentiary submission in opposition, filed June 5, 2001 (Doc. no. 67).
B. Discrimination
There was a corporal position in Birmingham, DL94018, but the position was cancelled, due to lack of funds, on February 14, 1995. The court finds that this adequately explains why the corporal position was not filled in 1995 or immediately thereafter. Hall has failed to show that DPS's budget problems were pretextual, and therefore he cannot show discrimination in the cancelling of the corporal position.
Exhibit 1 to defendants' summary judgment brief, filed November 14, 2000 (Doc. no. 18).
Deposition of Charles E. Andrews, exhibit 40 to defendants' summary judgment brief, filed November 14, 2002 (Doc. no. 18), at 262-65 (stating that in from 1998-2000 there were continuing budget problems preventing the department from creating a position, and that the position was not a priority for the department).
Hall's claim that a corporal position was promised to him does not in any way strengthen his claim. Hall claims that he was given "assurances" that a transfer to the drivers license bureau would improve his chances for promotion. Hall has not shown, however, that he was promised the promotion by a person in a DPS position who could assure this promotion would occur. Indeed, Hall's own affidavit states merely that he was assured he would "not forgo" his "chances of promotion" by transferring into the drivers license division. This clearly falls short of a promise to promote Hall or create a corporal position for him. Hall has not shown, moreover, that the reason he did not receive the corporal position is that he is objected to Paradise consent decree; no person, objector or otherwise, was given the corporal position. There is no legal basis under Title VII for this court to right this alleged wrong. The only remaining question is whether DPS created the sergeant position for discriminatory reasons.
Plaintiff's opposition to defendants' motions for summary judgment, June 5, 2001 (Doc. no. 66), at 12.
Id.
Indeed, as Hall admits, under the Paradise settlement, all promotions must take place through an elaborate, competitive process as defined by DPS policy directive 100. Plaintiff's opposition to defendants' motion for summary judgment, filed June 5, 2001 (Doc. no. 66), at 11. See also Standard, 161 F.3d at 1330 (statements by persons without decision-making power not direct evidence of discrimination).
Exhibit 1 to plaintiff's evidentiary submission in opposition, filed June 5, 2001 (Doc. no. 67,) at ¶ 14.
The defendants proffered the reason that the position was created at the sergeant level because the number of persons that the person in the position would have to supervise was large enough now to require a supervisor of a sergeant's rank. Hall has not shown that this reason is pretextual. Hall contends that, since 1995 he has, in addition to his trooper duties, "performed the duties of a corporal or a sergeant, including assuming the duties of a post commander . . .[;] monitoring outlying driver license offices; checking equipment and issuing supplies . . . ." According to Anthony Riley, a coworker, Hall performed "all the duties of a corporal or sergeant." Another co-worker, Wilma Nabors, stated that DPS had relied on Hall to perform "any and all duties of a corporal or sergeant." There is therefore enough evidence to conclude that Hall is capable of performing the duties of a corporal. This merely shows that if the position required only a corporal, Hall would have been well qualified. Hall, however, has presented nothing to challenge the fact that DPS had a race neutral policy of creating such positions at the sergeant level. For, example, he might have shown that other DPS corporals supervise groups as large as the one under the position at issue, but he has not made such a showing. Or, he might have shown that, in other instances, when a person served in an acting capacity, he later received the position even though technically he did not meet the paper requirements, but he has not made such a showing.
Plaintiff's opposition to defendants' motions for summary judgment, filed June 5, 2001 (Doc. no. 66), at 13-14.
Declaration of Anthony Riley, exhibit 43 to plaintiff's evidentiary submission, filed June 5, 2001 (Doc. no. 67).
Declaration of Wilma Nabors, exhibit 44 to plaintiff's evidentiary submission, filed June 5, 2001 (Doc. no. 67).
In Batey v. Stone, 24 F.3d 1330 (11th Cir. 1994), the Eleventh Circuit reversed the district court's grant of summary judgment for the defendant on Batey's discrimination claims. Batey was a white female who had worked for over 30 years for her employer. As part of a reorganization, Batey's employer eliminated her deputy director position and gave these duties, as well as additional duties, to a male employee. Batey, 24 F.3d at 1333. As is the case here, Batey made out a prima-facie case and Batey's employer articulated a legitimate non-discriminatory reason for not promoting her. The Eleventh Circuit, however, found that Batey had raised an issue of material fact not suitable for summary judgment.
The appeals court found three factors particularly significant. First, Batey presented evidence drawing into question the legitimacy of the creation of the new "dual-hatted" position, and, indeed, her evidence suggested that the merger should have consisted of other positions. Second, the new "dual-hatted" position the employer created and gave to a man consisted of elements of two jobs, but the criteria used to select the person to hold the post consisted mostly of elements of a job not in Batey's line of progression, so that Batey was at a disadvantage in applying for a post she was equally qualified to assume. Batey, 24 F.3d at 1334. In addition, the new position broke the "custom" of promoting the chief of production, Batey's position, to one of the positions that was eliminated in the reorganization. Id. at 1335. This evidence "raises the question whether the [job-selection criteria] were designed to pre-select" the men and allowed "the inference that sex was the controlling reason for the merger." Id. Thus, the record in Batey contained "evidence from which the jury could infer the "dual-hatting" decision was undertaken with discriminatory intent." Id.
In Durley v. APAC, 236 F.3d 651 (11th Cir. 2000), the appeals court affirmed in part and reversed in part the district court's grant of summary judgment for APAC. When Durley's supervisor retired, Durley applied for the supervisor's position. By this time, Durley had performed many, of the job functions of her supervisor's position, purchasing agent, and had been acting purchasing agent in her supervisor's absence. APAC, however, chose to merge the position of purchasing agent and warehouse foreman. Durley, 236 F.3d at 656. The district judge granted summary judgment for the defendant on Durley's sex-discrimination claim.
The appeals court reversed on the sex discrimination claim. The appeals court first noted that Durley was qualified for the position of purchasing agent. Durley, 236 F.3d at 656. The court went on to discussBatey, and then held that "discriminatory intent could be inferred from APAC's decision to emphasize Warnock's warehouse skills over the purchasing and administrative skills possessed by Durley." Id. at 657. The court explained that, while the consolidated position's job description emphasized the duties for which the male who received the position had experience, the job actually involved "only 1 percent of th[ose] duties," and Blair was "familiar the 85% of the duties." Id. See also Arrington v. Cobb County, 139 F.3d 865 (11th Cir. 1998) (summary judgment inappropriate where plaintiff can show newly-created position was composed largely of tasks plaintiff previously performed).
The situation at the drivers license bureau in Birmingham is distinguishable from the situations in Batey and Durley. In 1995, DPS had tried to create a corporal position. Years later, the department decided it had the need of a more senior officer and hired a sergeant. This is different from the situation in Batey, where the employer used criteria that deviated from past practice and that seemed designed to select a certain male candidate. Hall has given no evidence here that shows that the requirements of the sergeant position discriminated against black candidates, but only that he was not qualified to apply for a sergeant position; he has not shown there is a "custom" of promoting a trooper to a corporal position when a sergeant is required. The situation is also different from Durley. When creating a new position, the employer in Durley, as in Batey, emphasized one candidate's skills at the expense of the candidate from the protected class, when the position actually required the latter's experience. Unlike in Durley and Batey, Hall cannot point to anything that shows favoritism toward the (white) candidate chosen. A sergeant position, unlike the positions created in Batey andDurley, is a standard position — the job descriptions was not customized in a possibly discriminatory manner. The decision to create a sergeant position is the kind of standard business decision that courts do not second-guess without evidence indicating that the decision is pretextual. Since Hall was not qualified to be a sergeant, and because there was a legitimate reason to create sergeant position that Hall has not contradicted, Hall's claim regarding the corporal position in the Birmingham drivers license bureau fails.
Defendants' revised reply brief on summary judgment, filed August 14, 2001 (Doc. no. 81), at 29.
VI. CONCLUSION
For the reasons stated above, the defendants' motion for summary will be granted. An appropriate judgment will be entered.
JUDGMENT
In accordance with the memorandum opinion entered this it is the ORDER, JUDGMENT and DECREE of the court as follows:
(1) The motion for summary judgment filed by defendants Alabama Department of Public Safety and Director of the Alabama Department of Public Safety on October 14, 2000 (doc. no. 17), is granted.
(2) Judgment is entered in favor of defendants Alabama Department of Public Safety and Director of the Alabama Department of Public Safety and against plaintiff Ronald D. Hall, with plaintiff Hall taking nothing by his complaint.
It is further ORDERED that costs are taxed against plaintiff Hall, for which execution may issue.