Opinion
4:01cv478-WCS
August 8, 2002
ORDER ON SIXTH MOTION FOR SUMMARY JUDGMENT
This case is before me upon consent of the parties and referral by the district judge. Defendant has filed a sixth motion for partial summary judgment as to Plaintiffs promotion claims. Doc. 140. Construing Plaintiffs complaint and her claims as articulated through discovery as generously as possible, Plaintiff contends that she was denied promotions due to her race, gender, and in retaliation for engaging in protected conduct. Plaintiff has not filed a response, and the time for filing a response has expired.
The only promotions still at issue are: (1) the promotion of Alan Hall to JPO (Juvenile Probation Officer) Supervisor on about August 10, 1999 (which is the basis of the October, 1999, E.E.O.C. charge), (2) the promotion of Lisa Sherry to JPO Supervisor on March 3, 2000, and the promotion of Thomas Dunne to Systems Management Analyst II on August 1, 2001. Doc. 145, partially granting the third motion for summary judgment as to the earlier two promotions.
As a consequence of the ruling on the fifth motion for summary judgment entered today (concerning the retaliatory discharge claim), the only protected activity in evidence which might form a basis for a claim of retaliatory denial of promotion is the filing of the E.E.O.C. charge on October 7, 1999. As discussed in that order, the complaint of racial discrimination arising in the Secretary's Forum did not arise in connection with an E.E.O.C. charge and was not conduct protected by Title VII. The promotion of Alan Hail occurred on August 6, 1999, several months before Plaintiff filed her E.E.O.C. charge. Thus, it was impossible for Defendant to have denied Plaintiff this promotion in retaliation for the October 7, 1999, E.E.O.C. charge. Thus, only the following promotional claims now remain:
1. Failure to promote due to race, gender, or both as to all three promotions.
2. Retaliatory refusal to promote to the Sherry and Dunne positions.
I. Legal standards governing a motion for summary judgment
On a motion for summary judgment Defendant initially has the burden to demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corporation v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2553-54, 91 L.Ed.2d 265 (1986). if Defendant does so, the burden shifts to the Plaintiff to come forward with evidentiary material demonstrating a genuine issue of fact for trial. id. Plaintiff must show more than the existence of a "metaphysical doubt" regarding the material facts, Matsushita Electric Industrial Co., LTD. v. Zenith Radio Corporation, 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a "scintilla" of evidence is insufficient. There must be such evidence that a jury could reasonably return a verdict for the party bearing the burden of proof. Anderson v. Liberty Lobby, 477 U.S. 242, 251, 106 S.Ct. 2505, 2512, 91 L.Ed.2d 202 (1986).
Local Rule 56.1(A) provides that a motion for summary judgment "shall be accompanied by a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried" and the party opposing the motion must serve a similar statement of undisputed material facts. The Rule provides that a movant's properly filed statement of undisputed facts will be deemed to be admitted unless controverted by the opposing party in the manner specified by the Rule. See Jones v. Gerwens, 874 F.2d 1534, 1537 n. 3 (11th Cir. 1989) (determining that plaintiffs failure to controvert defendants' statement of undisputed facts filed in compliance with a similar local rule of the Southern District of Florida constituted an admission that such facts were not disputed for summary judgment purposes.)
II. Undisputed Facts
Defendant's statement of facts is without dispute. Plaintiff began her employment with Defendant's predecessor in 1973. By 1995, she held the position of Senior Delinquency Case Management Counselor. On January 14, 2000, Plaintiff was appointed to serve as an acting Juvenile Probation Officer (JPO) Supervisor, and she was awarded that position permanently in April, 2000. Doc. 141, pp. 1-2.
A. The Hall position, August, 1999
In the summer of 1999, a JPO Supervisor position came open in Taylor County. Plaintiff sought promotion to that position, but Alan Hall was selected to fill that position on about August 10, 1999. The decision to promote Hall to this position was based upon the recommendation of District 2 Program Administrator Paul Hatcher and the final decision was made by District 2 District Manager Joel DeVolentine. Doc. 141, Tab I (Hatcher affidavit) and Tab J (DeVolentine affidavit).
Hatcher is an African American male.
DeVolentine is a Caucasian male.
Defendant intended that this position remain in Taylor County. Doc. 141, Tab N (Hatcher deposition), pp. 89-90. The Taylor County office was the home office for Taylor, Jefferson, Madison, and Wakulia Counties, all rural Florida counties. Id., Tab J, p. 1. in an urban county such as Leon County, the office is separated into units. Id. In the Taylor County office, all of the employees, including JPO Supervisors, must perform all functions, including intake, probation, community correction, and on-call. Id. The JPO Supervisors in Taylor County must also be familiar with the needs of the three other rural counties, whereas the Leon County office serves only that county. Id., pp. 1-2.
Hatcher said he recommended Hall for this position because:
. . . he was in an acting role, he was doing a very good job of action supervisor. He had established very good working relationships with the local judges, he had a good working relationship with the assistant states attorneys, assistant public defenders, and local law enforcement. And he also had a good working rapport with his employees, at least his subordinates. And he is from that area and he knew the area well.
Doc. 141, Tab N (Hatcher deposition), p. 116. Hatcher said he did not think Plaintiff was as qualified as Hall, and that it would take "quite a bit of learning curve to learn the community, to learn the local partners, to establish the rapport that was already there with Mr. Hall." Id.
DeVolentine decided to promote Hall to the Taylor County JPO Supervisor position because Hall had been a Senior JPO in the Taylor County office for five years, and therefore was familiar with the policies and needs of that office, which differed from Leon County. Id., p. 1. DeVolentine said that he chose Hall to fill this position because Hall:
. . . had built relationships with various agency partners, including local law enforcement, the State Attorney's Office and local judges. Mr. Hall's ability to maintain positive relationships with local law enforcement was bolstered by his previous employment with the Taylor County Sheriffs Office for almost 2 years.Id., p. 2. DeVolentine said: "In my view, maintaining positive relationships with these agency partners was an important part of the role of a JPO Supervisor." Id. DeVolentine further said that he had had "positive remarks" about Hall's performance from local law enforcement officers, Juvenile Justice Council members, the Taylor County Sheriffs Office, the Taylor Academy, a County Judge, and two Assistant State Attorneys. Id. DeVolentine was personally familiar with Hall's work, which he found to be outstanding. Id. Finally, Hall had had some supervisory experience. Id.
DeVolentine said he did not consider Plaintiff to be the "best suited candidate." Id. He explained that Plaintiff had not worked as a JPO or in any other position in Taylor County, and was not as familiar as Hall with the operation of that rural office. Id. He felt that Plaintiff did not have the same relationship with the "agency partners" as Hall. Id. He noted that while Plaintiff had had "some intake and on-call experience, the majority of her experience was in the single area of probation/supervision in a highly specialized Unit (the Probation Unit) in a single count (Leon)." Id., pp. 2-3.
Plaintiff believed that race played a part in the promotion of Hall because he was white and she was black. Id., Tab C (Plaintiff's deposition), p. 180. She also felt that she was more qualified than Hall because she had been a Senior JPO longer than he. Id. and p. 192. She felt that she had had more supervisory experience because she had been a lead worker as a Senior JPO. Id., p. 192. Plaintiff had been a Senior JPO for about four years at that time. Id., p. 191. Other than this, Plaintiff had no information that the reasons given to her for the promotion of Hall instead of her were not the true reasons. Id., p. 238.
B. The Sherry position, March 3, 2000
In October, 1999, Lisa Sherry was appointed to be the Acting JPO Supervisor of the District 2 Intake Unit. Doc. 141, Tab V. The District 2 office served Leon County, and as noted above, the work in that office was divided by specialty. The District 2 Intake Unit was responsible for juvenile "intake," which apparently included an assessment and "documentation" of the juvenile's status at the time of arrest and continued until the court had adjudicated the case. Id., Tab J, p. 3.
Hatcher recommended Sherry for the JPO Supervisor position for the District 2 Intake Unit. Id., Tab I, p. 1. At the time he did so, he was not aware that Plaintiff had filed her E.E.O.C. charge, the one filed on October 7, 1999. Id. Hatcher recommended Sherry because "she was doing a fine job, she had a strong background in intake, current intake practices." Id., Tab N, pp. 116-117. He noted that she had been a lead worker, and had working relationships within that unit. Id., p. 117.
DeVolentine promoted Sherry to the job. He said that he chose Sherry over the other applicants because she "had a strong background and experience in the District 2 Intake Unit" and had seven years experience in intake work. Id., Tab J, p. 3. He also considered the fact that Sherry had been trained by Vicki Cunniff, who was leaving the position into which Sherry was to be hired. Id. DeVolentine thought that Cunniff had been an outstanding JPO Supervisor, and he believed that Sherry must have gained valuable training from Cunniff. Id. Further, Cunniff had strongly recommended that Sherry be promoted. Id. DeVolentine reasoned that intake duties were different from probation and other supervision. Id. He also thought that Sherry had built relationships with "agency partners" in her work in the Intake Unit. Id.
DeVolentine said he did not consider Plaintiff to be as well suited as Sherry for the promotion because Plaintiff did not have as much experience in intake work as Sherry did. Id., pp. 3-4. Plaintiff at the time was performing probation and supervision work. Id., p. 4. He also believed that Plaintiff did not have the same working relationships with the "agency partners," people outside the agency with whom intake officers worked. Id. At the time he made his decision to promote Sherry instead of Plaintiff and the other applicants, DeVolentine did not know that Plaintiff had filed her E.E.O.C. charge, the one filed on October 7, 1999. Id., p. 5.
Plaintiff felt that she had more experience that Sherry because she had been employed with the department for a longer time. Id., Tab C, p. 235. She admitted, however, that Sherry had worked for longer in the Intake Unit. Id., p. 236.
C. The Dunne position, August 1, 2001
In April, 2001, Defendant's Circuit 2 office (formerly the District 2 office) advertised an opening for a Senior Management Analyst II. Doc. 141, p. 19. The job was offered to an applicant who declined, and the position was readvertised in May, 2001. Id., p. 20.
Martha Scruggs was employed at this time as Circuit 2 Manager. Id., Tab L, p. 1. She had initially recommended hiring the first applicant, but when that person declined the offer, she recommended Thomas Dunne. Id. Scruggs said that Dunne was the most impressive candidate after his interview. Id., pp. 1-2. Dunne had apparently prepared extensively for the interview, made reference to operating policies and recent quality assurance reports in his responses to questions, and was very familiar with the management problems then being experienced in the office. Id., p. 2. Dunne was also familiar with the problems the office was having with the State Attorney's office and with the computer tracking system. Id. Dunne proposed solutions for the problems. Id. Dunne had had experience in management at DISC Village, a private organization which provides drug counseling in Leon County, and he was able to propose the implementation of policies he had created at DISC Village. Scruggs was familiar with Dunne's work at DISC Village. Id., p. 3. Dunne had worked as a deputy sheriff, and had a good reputation with the State Attorney's Office, the Public Defender's Office, law enforcement agencies, and the courts. Id., pp. 4-5.
Scruggs said that Plaintiffs interview went less well. She found that Plaintiff was defensive, did not discuss problems in her own unit, discussed problems in other units but did not propose solutions, and did not discuss what she might do, were she to be promoted, to improve Circuit operations. Id., p. 3. She thought that Plaintiff was less qualified than Dunne because her experience was in the supervision of juveniles on probation, rather than in screening and assessment. Id., p. 4. Scruggs said that just a few months earlier, Plaintiff had been "resistent to performing screening and assessment functions at JAC, as she indicated that she did not think she should be responsible for performing such duties." Id. She said that at the time she recommended that Dunne be hired, she was not aware that Plaintiff had filed her October 7, 1999, charge of discrimination. Id., p. 7.
Friedenauer was responsible for hiring Dunne. After receiving the recommendation from Scruggs, Friedenauer asked Ron Goates, Defendant's North Regional Director for Probation and Community Corrections, to meet with Dunne and to assess the validity of the Scruggs recommendation. Id., Tab M, p. 1. Goates met with Dunne and told Friedenauer he concurred in the recommendation. Id. Friedenauer then decided to hire Dunne, finding that Dunne had a strong educational background in criminal justice, had previous supervisory and law enforcement experience, had valuable experience at DISC Village, which included screening and assessment, and might bring a fresh perspective to Circuit 2 operations. Id., pp. 1-2. The overriding factor for Friedenauer was to bring in someone with experience who was new, who could address the problems which Circuit 2 was having. Friedenauer listed these problems, the same ones which were discussed in the order ruling upon the Fifth Motion for Summary Judgment. Id.
Plaintiff was not selected because she, like the other two applicants, were employees of Circuit 2. Id., p. 3. Friedenauer believed that "a change in the operations and in the culture of Circuit 2 was necessary." Id. At the time he hired Dunne and declined to promote Plaintiff, Friedenauer was not aware that Plaintiff had filed her October, 1999, charge of discrimination.
III. Legal Analysis
A. Race or gender discrimination as to promotions
To establish a prima facie case of Title VII discrimination in a promotional decision, a plaintiff must prove:
(1) that she is a member of a protected minority; (2) that she was qualified and applied for the promotion; (3) that she was rejected despite these qualifications; and (4) other equally or less qualified employees who are not members of the protected minority were promoted.Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (citations omitted), cert. denied, 532 U.S. 958 (2001).
Once the plaintiff has established a prima facie case of discrimination, the burden shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. If the employer meets this burden of production, the plaintiff must then establish that the defendant's proffered reasons for the employee's rejection were pretextual.Id.
There is some confusion as to whether the fourth element of the prima facie case is correct as stated in Lee. See Bernstein v. Sephora. Div. of DFS Group L.P., 182 F. Supp.2d 1214 (S.D. Fla. 2002) (discussing the conflicting cases in the Eleventh Circuit and citing Walker v. Mortham, 158 F.3d 1177, 1186 (11th Cir. 1998)). The question need not be further explored here as Plaintiffs claims fail because Plaintiff has produced no evidence to show that Defendant's decisions were pretextual.
"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," although such evidence may be probative of pretext. Id. "To show pretext, however, [a plaintiff] must show more than superior qualifications; rather, [a plaintiff] must show that [he or she] were so much more qualified that the disparity virtually jumps off the page and slaps one in the face." Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270, 1277 (11th Cir. 2002), quotingLee, 226 F.3d at 1254.
Plaintiff has not come forward with evidence to show a prima facie claim of gender discrimination in the denial of promotion to the position awarded to Lisa Sherry because Sherry was also female. In all other respects, Defendant concedes for purposes of its motion that Plaintiff has established a prima facie case of denial of promotion due to race or gender. Doc. 142, p. 2.
Defendant has articulated legitimate, nondiscriminatory reasons for selecting Hall, Sherry, and Dunne for promotion instead of Plaintiff. Hall and Sherry were more suited for the jobs due to experience in similar work in the office or unit. Dunne was brought in from the outside to try to solve serious management problems in the office, problems which ultimately resulted in the termination of all management as discussed in the order granting the Fifth Motion for Summary judgment. None of Defendant's evidence gives rise to an inference of pretext, and Plaintiff has come forward with no evidence. Defendant is entitled to summary judgment on these claims.
B. Retaliation in Failure to Promote to the Sherry and Dunne Positions
To establish a prima facie claim of retaliation, "a plaintiff must show that (1) she engaged in statutorily protected expression; (2) she suffered an adverse employment action; and (3) the adverse action was causally related to the protected expression." Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311 (11th Cir. 2002), citing Pipkins v. City of Temple Terrace, Florida, 267 F.3d 1197, 1201 (11th Cir. 2001) and other cases. Filing the E.E.O.C. charge on October 7, 1999, is the only statutorily protected expression remaining to be considered.
To establish the third element, a causal connection, a claimant must show "the protected activity and the adverse action were not wholly unrelated," and, "[a]t a minimum, a plaintiff must generally establish that the employer was actually aware of the protected expression at the time it took adverse employment action." Clover, 176 F.3d at 1354. Awareness may be established by circumstantial evidence. Id. "Since corporate defendants act only through authorized agents, in a case involving a corporate defendant the plaintiff must show that the corporate agent who took the adverse action was aware of the plaintiffs protected expression and acted within the scope of his or her agency when taking the action." Raney v. Vinson Guard Services, Inc., 120 F.3d 1192, 1197 (11th Cir. 1997).
Plaintiffs claim of retaliation as to the Sherry and Dunne promotions fails because the agency decision-makers were not aware that Plaintiff had filed an E.E.O.C. charge on October 7, 1999. Plaintiff has presented no evidence to dispute Defendant's evidence as to this. Defendant is entitled to summary judgment as to this claim.
As a consequence of this order and prior orders on motions for partial summary judgment, Defendant is now entitled to summary judgment in its favor on all of Plaintiffs claims.
Accordingly, it is ORDERED that Defendant's sixth motion for partial summary judgment, doc. 140, is GRANTED and the Clerk is DIRECTED to enter final judgment in favor of Defendant. It is further ORDERED that the pretrial conference, scheduled for August 21, 2002, and the trial, scheduled for September 23, 2002, are CANCELLED.