Hannah et al v. Fresenius USA Manufacturing, Inc.

MEMORANDUM in Support of 96 MOTION for Summary Judgment as to Plaintiff Dennis Jefferson

M.D. Tenn.January 22, 2019

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF TENNESSEE NASHVILLE DIVISION DENNIS JEFFERSON, ROSEMARY WEBSTER AND TIMOTHY WAIRE, Plaintiffs, v. FRESENIUS MEDICAL CARE HOLDINGS, INC., A/K/A FRESENIUS MEDICAL CARE NORTH AMERICA, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. 3:17-cv-00697 Judge Campbell/Brown DEFENDANT’S MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AS TO PLAINTIFF DENNIS JEFFERSON Defendant, Fresenius Medical Care Holdings, Inc. (“Fresenius” or the “Company”), hereby submits its Memorandum in Support of its Motion for Summary Judgment as to Plaintiff Dennis Jefferson (“Jefferson”). Jefferson is currently employed as a User Security Administrator (“USA”) on the User Security team (which is part of the IT department), at Fresenius’ office in Nashville, Tennessee.1 Jefferson claims that he was denied a promotion because of his race (African American) and was subjected to racial harassment in violation of 42 U.S.C. § 2000 et seq. (Title VII) and 42 U.S.C. § 1981. In particular, Jefferson alleges that he was denied a promotion based on his race when a fellow USA, Dwight Lay (“Lay”), was moved into a “team lead” role on the User Security team in September 2015. However, contrary to Jefferson’s unsupported allegations, 1 Jefferson alleges his employer is Defendant, Fresenius Medical Care Holdings, Inc. In reality, Jefferson is employed by Renal Care Group, Inc. Nevertheless, solely for purposes of this Motion for Summary Judgment, Defendant is presenting Plaintiff’s version of events because, as set forth herein, Plaintiff’s claims fail as a matter of law irrespective of whether Fresenius Medical Care Holdings, Inc., or Renal Care Group, Inc., is his employer. Defendant is not, however, waiving its argument that it is not Jefferson’s employer and expressly reserves its right to defend against Plaintiff’s claims on that basis at a later time. Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 1 of 19 PageID #: 722 the undisputed facts of this case show that race played no part in Lay’s move to the team lead role on the User Security team. As set forth below, Jefferson cannot establish a prima facie failure to promote claim because he cannot establish that he and Lay had similar qualifications at the time Lay was reclassified. Even if he could, the decision to move Lay to team lead was based on legitimate non- discriminatory reasons. Namely, Lay stood out amongst his team members because of his tenure on the User Security team, his demonstrated positive performance and unsolicited positive feedback from clients, and the fact others on the team recognized him as a leader. Jefferson simply cannot establish that the company’s articulated and well-founded reasons were mere pretext for race discrimination. As such, his failure to promote claim fails as a matter of law and should be dismissed. While the Complaint also contains conclusory language asserting a claim of harassment as to each Plaintiff, Jefferson, himself, has not articulated any factual or legal basis for a harassment claim under either Title VII or 42 USC § 1981. For the reasons detailed below, Defendant is entitled to judgment as a matter of law as to all of Jefferson’s claims and Plaintiffs’ Third Amended Complaint (“Complaint”) should be dismissed in its entirety as to Jefferson. SUMMARY OF FACTS2 A. Background Fresenius is a provider of products and services for individuals undergoing dialysis treatment because of chronic kidney failure. (Third Amended Complaint, Doc 53 at ¶ 7-8). Jefferson is currently employed as a User Security Administrator (“USA”) on the User Security 2 Solely for purposes of this Motion for Summary Judgment, Defendant presents only undisputed facts, or where the facts are disputed, Plaintiff’s version of the events. Defendant does not waive the right to present additional evidence or evidence that presents facts in a light most favorable to Defendant, as opposed to Plaintiff, if appropriate, at a later time. Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 2 of 19 PageID #: 723 team (which is part of the IT department), at Fresenius’ office in Nashville, Tennessee, and has held that position since April 29, 2013. (SOF ¶ 46). Generally, user security relates to the procedures by which authorized users access those parts of a company’s computer systems that they are explicitly permitted to use and unauthorized users are kept from doing so. B. Jefferson’s Education And Work History Prior To Fresenius Jefferson is a high school graduate. (SOF ¶ 25). After high school, he served in the United States Navy. (SOF ¶ 26). He did not, however, complete his service. (SOF ¶ 27). Following court martial proceedings, he was sentenced to 50 days incarceration and received a bad conduct discharge. (SOF ¶ 28) Jefferson does not include his military service on his resume. (SOF ¶ 29). He attended Lincoln University “somewhere around” 1991 or 1992 and studied “criminal justice,” but did not obtain a degree. (SOF ¶ 30). Jefferson then worked for the State of Missouri as a corrections officer and as a Youth Specialist Trainee at a secure residential facility for youths in need of long term rehabilitation, but was involuntarily terminated from his employment. (SOF ¶ 31). Jefferson testified at his deposition that he did not remember the reason his employment was terminated, but according to an opinion from the United States District Court for the Eastern District of Missouri, Jefferson was “fired for several incidents of aggressive behavior and threats of aggressive behavior” towards “youths under [his] supervision.” Jefferson v. Missouri Dept. of Social Services, Case No. 4:98- cv-02065, Doc. No. 49, PageID # 54-55 (opinion attached). (SOF ¶¶ 32, 33). To the best of Jefferson’s recollection, he then worked a temporary assignment at Chrysler doing assembly line work, followed by a period of unemployment. (SOF ¶ 34). During that period of unemployment, Jefferson was convicted of a felony after being found guilty following a jury trial. (SOF ¶ 35). He was sentenced to six months in jail, but was released after serving four months. (SOF ¶ 36). Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 3 of 19 PageID #: 724 When Jefferson got out of jail, he got involved in an online/evening technical training program called “Tech Skills” where, between June and December 2005, he obtained a number of IT certifications, including CompTIA’s entry-level A+ certification, CompTIA’s Network+ certification and certifications relating to the 2003 Microsoft Office suite. (SOF ¶37). Although Jefferson acknowledges that “technology changes often,” he has not obtained any certifications in any more recent Microsoft Office suites and has not participated in CompTIA’s continuing education program. (SOF ¶ 38). Jefferson began his first IT-related job in approximately 2006 as a “help desk technician” at a small collections agency called Client Services. (SOF ¶ 39). He next worked at a “laser eye company” called TLC performing similar work until he was laid off. (SOF ¶ 40). His next job was at Pyramid Consulting, where he was assigned to work at the help desk of a financial services company. (SOF ¶ 41). He next worked at Simplex Healthcare from March 2010 until approximately January 2011. (SOF ¶ 42). At each of these companies, Jefferson did “the same thing,” which included assisting with “break/fix, software installation, upgrade.” (SOF ¶ 43). C. Jefferson’s Work History With Fresenius On or about January 17, 2011, Dennis Jefferson began working at Fresenius’ Nashville, Tennessee office on a temporary assignment. (SOF ¶ 44). At the time, he was an employee of Beacon Hill Technologies, a temporary staffing agency. (SOF ¶ 45). On April 29, 2013, Jefferson was hired as an employee of a Fresenius entity3 in the position of a User Security Administrator on the User Security team. (SOF ¶ 46). On his first annual performance review as an employee, 3 Jefferson alleges his employer is Defendant, Fresenius Medical Care Holdings, Inc. In reality, Jefferson is employed by Renal Care Group, Inc. The identity of the entity that employed Jefferson is not material for purposes of Defendant’s Motion for Summary Judgment because Plaintiff’s claims fail as a matter of law irrespective of whether Fresenius Medical Care Holdings, Inc., or Renal Care Group, Inc., is his employer. Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 4 of 19 PageID #: 725 Jefferson received a “3” rating and overall “developing” status4 from Stephen Hurley, his manager at the time. (SOF ¶ 48). On his 2014 review, Jefferson received a “2+” rating and maintained an overall “developing” status. (SOF ¶ 49). D. Need For User Security Team Lead Role In the fall of 2015, Fresenius determined it needed an additional team lead role on its User Security team to help account for anticipated changes in the User Security team manager’s responsibilities. (SOF ¶ 1). At the time, Sander Schambeck served as the User Security team manager and Anthony Whitehead served as the existing team lead. (SOF ¶ 2). Because the team lead position would be responsible for providing Tier II technical support to customers and assisting Tier I agents on the team with technical issues relating to user security, it was important that the team lead had demonstrated an advanced user security skill set, and a comprehensive understanding and enhanced knowledge of Fresenius’ user security landscape. (SOF ¶ 3). Initially, a job advertisement for the team lead role was posted on the Company’s intranet (a/k/a “FMC4ME”) and the Internet for about 24 hours. (SOF ¶ 4). The job posting for the team lead position stated that a “Bachelor’s Degree in Computer Science or equivalent experience” was required. (SOF ¶ 5). While the job was posted, several external applicants applied. (SOF ¶ 6). The job posting was closed because a current User Security team member, Lay, had been identified to take on the team lead responsibilities. (SOF ¶ 7). The Company’s Employee Transfer and Internal Job Posting policy does not require “job transactions or vacancies” to be posted where a “retitle, reclassification, or re-grade of positions occupied by incumbents, and transfer or reorganization of responsibilities within or between departments” is involved. (SOF ¶ 8). 4 “Developing” is defined as: “On a leadership, technical and project completion basis, employee performs job tasks so as to generally meet expectations with some input from management and demonstrates capacity for further development in current job.” Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 5 of 19 PageID #: 726 E. Decision To Reclassify Dwight Lay As Team Lead Director of Production Support Services at the time, Joseph Dixon (African American),5 in consult with the User Security team manager, Sander Schambeck, looked to the individuals working on the User Security team to determine which of them would be the best fit to take on the responsibilities associated with the team lead role. (SOF ¶ 9). Dwight Lay was determined to be the best choice based on his years of service, job performance, skill set, and demonstrated leadership. (SOF ¶ 10). In particular, Lay had acquired nearly four years of User Security experience (from October 2011 when he was hired to be on the User Security team, until September 2015), in addition to approximately three years as a contractor at Fresenius (from 2008 until October 2011). (SOF ¶ 11). He had received high ratings on his most recent performance review – an overall “1+” rating6 and “proficient” status. (SOF ¶ 12). He stood out because of unsolicited positive feedback Fresenius received about Lay from customers. (SOF ¶ 13). Also, without being asked, Lay had recently stepped up and taken on some of the aspects of a team lead role while a manager was out on a leave of absence. (SOF ¶ 14). Other members of the team were already treating Lay as a team lead because of his technical and leadership skills and reaching out to him for Tier II technical guidance. (SOF ¶ 15). Indeed, according to one of Lay’s peers at the time, User Security Administrator Frederick Cornelius (“Cornelius”), Lay “knew everything about user security” and “knows the ins and outs of user security.” (SOF ¶ 16). On the other hand, Cornelius described Jefferson as “having a specialized role” and being “more the SAP person” on the team with just “basic responsibility like the rest of” the team. (SOF ¶ 17). Accordingly, 5 Mr. Dixon is deceased. (SOF ¶ 22). 6 The performance ratings are based on a 1-5 scale, with “1” (the highest possible score) being outstanding, “2” proficient, “3” developing, “4” needs improvement, and “5” unsatisfactory. Proficient is described as: “on a leadership, technical and project completion basis, employee has demonstrated performance that consistently exceeds expectations for the given year.” (SOF ¶ 23). Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 6 of 19 PageID #: 727 Fresenius determined that, as part of Lay’s career progression, Lay should be the User Security team member to take on the additional team lead role. (SOF ¶ 18). Lay was reclassified to the team lead role, and Dixon announced the move (along with other organizational changes) via email on October 2, 2015. (SOF ¶ 19). Lay’s reclassification did not result in additional personnel to the User Security team. (SOF ¶ 20). Rather, as part of his individual career progression, Lay’s title changed and he continued performing the team lead duties he had previously been performing without being asked. (SOF ¶¶ 14, 15, 21). ARGUMENT I. Legal Standards Under Federal Rule of Civil Procedure 56(c), summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Courts grant a summary judgment motion if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show there is no genuine issue to any material fact. Fed. R. Civ. P. 56(c). To prevail, the moving party must show the absence of a genuine issue of material fact as to an essential element of the opposing party’s claim. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the non-moving party fails to make an adequate showing of an essential element, the moving party is entitled to summary judgment as a matter of law. Williams v. Ford Motor Co., 187 F.3d 533, 537–38 (6th Cir. 1999) (citing Celotex, 477 U.S. at 322–23). To avoid summary judgment, the non-moving party must “go beyond the pleadings and come forward with specific facts to demonstrate that there is a genuine issue for trial.” Chao v. Hall Holding Co., 285 F.3d 415, 424 (6th Cir. 2002) (citations omitted). In that regard, the “mere existence of a scintilla of evidence in support of the [non-moving party’s] position will be Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 7 of 19 PageID #: 728 insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Shah v. Racetrac Petroleum Co., 338 F.3d 557, 566 (6th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254 (1986)). Evidence that is “merely colorable” or “not significantly probative” will not prevent summary judgment. Anderson, 477 U.S. at 249. Plaintiffs’ pro se status does not afford them any special assistance in responding to Defendant’s summary judgment motion. Rather, those who proceed without counsel must still comply with the procedural rules that govern civil cases. McNeil v. United States, 508 U.S. 106, 113 (1993). “[P]ro se plaintiffs are not automatically entitled to take every case to trial ....[and] ‘the lenient treatment generally accorded to pro se litigants has limits.’” Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.1996) (quoting Jourdan v. Jabe, 951 F.2d 108, 110, (6th Cir.1991)); see also, Combs v. Taylor Cnty. Det. Ctr., 2013 U.S. Dist. LEXIS 63564, at *2 (W.D. Ky. May 3, 2013) (same). The Sixth Circuit has held that there is no requirement to provide non-prisoner pro se litigants the benefit of special assistance with respect to summary judgment motions. Brock v. Hendershott, 840 F.2d 339, 342-43 (6th Cir.1988). The court in Brock decided to afford pro se non-prisoner litigants no special assistance “out of a sense of fairness to other parties who choose counsel and must bear the risk of their attorney's mistakes. Thus, a litigant who chooses himself as a legal representative should be treated no differently.” Id. (quoting Jacobsen v. Filler, 790 F.2d 1362, 1364-65 (9th Cir.1986) (internal quotation marks omitted)); see also Bass v. Wendy's of Downtown, Inc., 2013 WL 2097359, at *2 (6th Cir. May 16, 2013) (“[N]on-prisoner pro se litigants are treated no differently than litigants who choose representation by attorneys.”). II. Jefferson’s Failure To Promote Claim Fails As A Matter Of Law Under Sixth Circuit law, in order to establish a prima facie case of race discrimination based on a failure to promote claim, a plaintiff must show that: (1) he is a member of a protected Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 8 of 19 PageID #: 729 class; (2) he applied for and was qualified for a promotion; (3) he was considered for and was denied the promotion; and (4) an individual of similar qualifications who was not a member of the protected class received the job at the time plaintiff’s request for the promotion was denied. See White v. Columbus Metro. Hous. Auth., 429 F.3d 232, 240 (6th Cir. 2005). 7 “It is insufficient for a plaintiff in a failure to promote [discrimination] case merely to point to [a non-protected person] who received the job in satisfying the fourth prong” of a prima facie case. Provenzano v. LCI Holdings, Inc., 663 F.3d 806, 814 (6th Cir. 2011) (quoting White v. Columbus Metro Hous. Auth., 429 F.3d 232, 241 (6th Cir. 2005). Instead, “it is incumbent upon the plaintiff to establish that she and the non-protected person who ultimately was hired for the desired position had similar qualifications.” Id. If the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. White, 429 F.3d at 238. The Supreme Court has specifically rejected a requirement that employers “prove absence of discriminatory motive” and affirmed that employers need only “articulate some legitimate, nondiscriminatory reason for the employee's rejection.” Bd. of Trustees of Keene State Coll. v. Sweeney, 439 U.S. 24, 25 (1978) (citation omitted). “This is merely a burden of production, not of persuasion, and it does not involve a credibility assessment.” Upshaw v. Ford Motor Co., 576 F.3d 576, 585 (6th Cir. 2009). If the employer meets its burden, the burden shifts back to the plaintiff, who must then “prove by a preponderance of the evidence that the employer’s proffered reason was in fact a 7 It is well settled that the standards for claims brought under Title VII and § 1981 mirror one another and apply the same standards. See, e.g., Jackson v. Quanex Corp., 191 F.3d 647, 658 (6th Cir. 1999) (citations omitted) (“We review claims of alleged race discrimination brought under § 1981 . . . . under the same standards as claims of race discrimination brought under Title VII.”); Evans v. Toys R Us, Inc. 2000 WL 761803, *8 (6th Cir. June 2, 2000) (citing Harris v. Roadway Express, Inc., 923 F2d 59, 61 (6th Cir. 1991) (“It is well-settled in this circuit that claims arising under both §1981 and Title VII carry the same standards of proof.”). Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 9 of 19 PageID #: 730 pretext designed to mask illegal discrimination.” Hein v. All Am. Plywood Co., 232 F.3d 482, 489 (6th Cir. 2000); Braithwaite v. Dept. of Homeland Security, 2012 WL 975069 at *5 (6th Cir. Aug 23, 2013). The plaintiff can establish pretext by showing one of three things about the offered reason: (1) that it had no basis in fact; (2) that it did not actually motivate the decision at issue; or (3) that it was insufficient to justify the reason. Braithwaite, 2012 WL 975069 at *5 (citing Briggs v. Potter, 463 F.3d 507, 515 (6th Cir. 2006). A trier of fact may not reject an employer’s explanation unless there is a sufficient basis in the evidence for doing so. Upshaw, 576 F.3d at 586. “A reason cannot be proved to be a pretext for discrimination unless it is shown both that the reason was false, and that discrimination was the real reason.” Logan v. Denny’s, Inc., 259 F.3d 558, 574-75 (6th Cir. 2001) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)). “The ultimate question in every employment discrimination case involving a claim of disparate treatment is whether the plaintiff was the victim of intentional discrimination.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 153 (2000). As set forth below, Jefferson’s claim for race discrimination under both Title VII and 42 U.S.C. §1981 fails as a matter of law because Jefferson and Lay were not similarly qualified, and even if Jefferson meets his burden of establishing a prima facie failure to promote claim he cannot show that Fresenius’ legitimate, non-discriminatory reasons for selecting Lay for the team lead role were pretextual. Race played no part in Fresenius’ decision, and Jefferson cannot point to any admissible evidence to the contrary. A. Jefferson Cannot Establish A Prima Facie Case Because He And Lay Do Not Have ‘Similar Qualifications’ Plaintiff cannot establish the fourth element of his prima facie case—i.e. that another employee of similar qualifications who was not a member of the protected class received a promotion at the time the Plaintiff’s request for promotion was denied—because Plaintiff cannot Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 10 of 19 PageID #: 731 show that he and Dwight Lay were similarly qualified. As set forth above, it is insufficient for Jefferson in his failure to promote case to merely point to a non-protected person (Lay) who received the job in satisfying the fourth prong of a prima facie case. Provenzano, 663 F.3d 806. Instead, “it is incumbent upon the plaintiff to establish that [he] and the non-protected person who ultimately was hired for the desired position had similar qualifications.” Id. Here, at the time the team lead role became available in early Fall 2015, the differences between Jefferson and Lay were clear and numerous. First, Lay had acquired nearly four years of experience as an employee of Fresenius on the User Security team, in addition to approximately three years working at Fresenius on a temporary assignment through a staffing agency before he was hired by Fresenius. (SOF ¶ 11). Jefferson, on the other hand, had just two years and four months of experience as an employee of Fresenius on the User Security team, and just over two years as a contractor at Fresenius. (SOF ¶¶ 44, 46). Further, on the most recent 2014 performance evaluation, Lay had received an overall 1+ rating8 and “proficient” status, whereas Jefferson received a 2+ rating and overall “developing” status. (SOF ¶¶ 12, 49). Lay’s coworkers also recognized that Lay “knew everything about user security” whereas Jefferson had a more specialized role” and “had basic responsibility like the rest of the team.” (SOF ¶¶ 16, 17). Other relevant facts relating to their backgrounds illustrate additional qualification differences between the two men. For instance, both Jefferson and Lay had military experience, but Jefferson’s military experience resulted in a bad conduct discharge from the military. (SOF ¶ 28). Finally, Jefferson was terminated from prior employment due to an abuse of power involving minors, including “several incidents of aggressive behavior and threats of aggressive behavior” towards “youths 8 The performance ratings are based on a 1-5 scale, with “1” being outstanding, “2” proficient, “3” developing, “4” needs improvement, and “5” unsatisfactory. Proficient is described as: “on a leadership, technical and project completion basis, employee has demonstrated performance that consistently exceeds expectations for the given year.” Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 11 of 19 PageID #: 732 under [his] supervision.” (SOF ¶ 33). While Jefferson’s prior experiences create concerns over his decision-making ability, dependability, ability to work well with others, and judgment, there is no indication in the evidence that Lay had any similar issues at the time he was selected to move to the team lead role. In White, the Court considered years of experience, prior employment, job duties, and supervisory roles amongst other factors in determining whether Plaintiff’s qualifications were similar to those of the promoted candidate. Based on that analysis, the Court held that, “Comparing the qualifications of White and Walker, it is clear that Walker has superior experience in material and relevant respects, and therefore, White and Walker cannot be considered similarly qualified for the position, as required to meet the fourth prong of White’s prima facie burden.” White, 429 F.3d at 244. Likewise, in this case it is clear that Lay had “superior experience in material and relevant respects” such that Jefferson cannot establish that he was considered to have been similarly qualified for the team lead role. Thus, he cannot demonstrate the fourth prong of his prima facie failure to promote claim. B. Fresenius Has Articulated Legitimate, Non-Discriminatory Reasons For Selecting Lay For User Security Team Lead Fresenius selected Lay to be a User Security team lead because he was deemed to be the most qualified person for the role for several reasons. Lay had a lengthy tenure working for Fresenius on the User Security Team, a tenure that was significantly longer than Jefferson’s.9 Lay also received a higher performance rating than Jefferson - a 1+ rating and “proficient” status compared to Jefferson’s 2+ rating and “developing” status. (SOF ¶¶ 12, 49). Additionally, as explained above, Lay stood out because of unsolicited positive feedback Fresenius had received 9 At the time, Lay had been employed by Fresenius on the User Security team from October 2011 until September 2015, a period of nearly four years, whereas Jefferson had only been employed by Fresenius on the User Security team from April 29, 2013 until September 2015, a period of two years and four months. (SOF ¶¶ 11, 44, 46). Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 12 of 19 PageID #: 733 from customers about Lay’s job performance and because Lay had taken the initiative to go above and beyond in his work without being asked – i.e. other members of the team were already reaching out to Lay for Tier II technical guidance because of his technical and leadership skills and Lay had taken on some of the aspects of a “team lead” role without being asked when one of the Company’s managers was on a leave of absence. (SOF ¶¶ 13-15). “Hiring a more qualified candidate certainly suffices as a legitimate, non-discriminatory rationale for denying [plaintiff] the promotion.” Williams v. Columbus Metropolitan Housing Auth., 90 Fed. Appx 870, 873 (6th Cir. 2004). See also, Sutherland v. Michigan Dept. of Treasury, 344 F.3d 603, 616 (6th Cir. 2003) (employer’s decision to offer position to candidate who received higher total score than plaintiff was legitimate, non-discriminatory reason). C. Jefferson Cannot Establish Fresenius’ Articulated Reasons For Selecting Lay For User Security Team Lead Were Pretextual Even if Jefferson is able to establish a prima facie case, his claim still fails because he cannot establish that the articulated reasons for selecting Lay for the team lead role were a mere pretext for race discrimination. In this third stage, “the presumption of discrimination is gone and the plaintiff must demonstrate that the employer’s proffered nondiscriminatory reason was not the true reason for the employment decision, but rather a pretext for discrimination.” Provenzano, 663 F.3d 806 (citing Texas Dept. of Comm’y Affairs v. Burdine, 450 U.S. 248, 256 (1981)). A plaintiff can demonstrate pretext by showing that “the proffered reason (1) has no basis in fact, (2) did not actually motivate the employer’s challenged conduct, or (3) was insufficient to warrant the challenged conduct.” Dews v. A.B. Dick Co., 231 F.3d 1016 (6th Cir. 2000). “Relative qualifications establish triable issues of fact as to pretext where the evidence shows that either (1) the plaintiff was a plainly superior candidate, such that no reasonable employer would have chosen the latter applicant over the former, or (2) plaintiff was as qualified as if not better qualified than Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 13 of 19 PageID #: 734 the successful applicant, and the record contains other probative evidence of discrimination.” Scola v. Publix Supermarkets, Inc., 557 F. App'x 458, 469–70 (6th Cir. 2014). Plaintiff cannot show he was “a plainly superior candidate” nor that he was “as qualified” as Lay for the User Security team lead position. In his deposition, Jefferson pointed to two reasons that he believes he was more qualified than Lay for team lead: (1) Jefferson recently obtained an ITIL certification whereas Lay had not yet done so; and (2) Jefferson believes that Lay’s knowledge of user security came primarily from Lay’s on-the-job training and experience during Lay’s lengthy tenure at Fresenius. (Jefferson Dep. p. 308-311). Jefferson’s ITIL certification is irrelevant, however, because, as Jefferson readily admitted in his deposition, Jefferson did not obtain that certification until November, 2017 --i.e. well after the decision to reclassify Lay to team lead. Id. Jefferson’s apparent personal opinion that training and experience obtained “on-the-job” should not be valued for some reason is likewise insufficient to establish pretext. Jefferson cannot merely point to his subjective belief that he should have been selected for the team lead position instead of Lay. A plaintiff’s “subjective view of [his] qualifications in relation to those of the other applicants, without more, cannot sustain a claim of discrimination.” Hedrick v. W. Reserve Care Sys., 355 F.3d 444, 462 (6th Cir. 2004). Moreover, it is well established that in reviewing employer decisions regarding qualifications, “[t]he law does not require employers to make perfect decisions, nor forbid them from making decisions that others may disagree with.” Wheeler v. Miami Valley Career Tech. Ctr., 2017 WL 9473121, at *3 (6th Cir. Jan. 9, 2017) (quoting Hartsel v. Keys, 87 F.3d 795, 801 (6th Cir. 1996)). The finder of fact may not sit “as a super personnel department, overseeing and second guessing employers' business decisions.” Even if Jefferson could establish that he was “as qualified” as Lay for the User Security team lead role in September 2015, he cannot point to any probative evidence of discrimination in Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 14 of 19 PageID #: 735 the record. Based on the allegations contained in the Third Amended Complaint, Defendant anticipates Jefferson may attempt to establish pretext by pointing to issues relating to the job posting process. (See Third Amended Complaint, ¶ 10). In particular, Defendant anticipates that Plaintiff may attempt to point to the fact that the team lead position was posted for less than five days, to his unsupported conspiracy theory that someone working for Fresenius intentionally times the posting of job position to correspond with times Jefferson is out of the office, or otherwise point to his conspiracy theory that someone somewhere working for Fresenius “blocked” job postings, maintained a “broken job link” or “removed job links” for job positions. This argument fails. First, given that the team lead role resulted from a retitle, reclassification or re-grade of a position held by an incumbent and arose out of a transfer or reorganization of responsibilities within the department, it was not necessary nor required under the Company’s policy to keep the posting active for five days as is typically done for vacant positions. (SOF ¶ 8). Secondly, even if this team lead role should have been posted for a longer period of time under Fresenius’ internal policy, “an employer’s failure to follow self-imposed regulations or procedures is generally insufficient to support a finding of pretext.” White, 429 F.3d at 246 (citing Fischbach v. D.C. Dep’t of Corr., 86 F.3d 1180, 1183 (D.C. Cir. 1996); Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995). In any event, Fresenius did consider Jefferson (along with all then-current User Security team members) when it selected someone from among those team members to fulfill the role of “team lead” on the team. As such, the length of time the job was “posted” is frankly, irrelevant, and Jefferson cannot point to any admissible evidence connecting any alleged failure to properly “post” the position to his race. Defendant anticipates Jefferson may also attempt to establish pretext by pointing to his unsupported belief that Fresenius used educational requirements that were somehow inconsistent. Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 15 of 19 PageID #: 736 This argument likewise fails. Importantly, the job posting for the team lead position stated only that a “Bachelor’s Degree in Computer Science or equivalent experience” was required. (SOF ¶ 5) (emphasis added). Jefferson admits he was never told he was not selected for the team lead job based on his lack of a college degree or because he did not meet an educational requirement, nor was it a factor when Jefferson was subsequently offered (and turned down) a team lead position over the call handlers in 2016. See, SOF ¶¶ 51-52. Notably, Jefferson was hired by Fresenius as a User Security Administrator despite his lack of a college degree even though he claimed in his deposition that a college degree was required for that job position. (See, SOF ¶¶ 30, 46; Jefferson Dep. at p. 291:8 – 293:6). This testimony refutes Jefferson’s theory that educational requirements were allegedly “inconsistently” imposed as a means to discriminate based on race and his theory makes no sense. Jefferson can offer no admissible evidence upon which a reasonable jury could conclude that Defendant’s reasons for selecting Lay over Jefferson for the User Security team lead position were pretextual. As such, his failure to promote claim should respectfully be dismissed. III. Jefferson Has No Basis For His Claim Of Racial Harassment And It Should Be Dismissed Although the Complaint alleges, in a conclusory fashion, that “each Plaintiff” suffered racial harassment, Jefferson cannot support such a claim. (Complaint, Doc 53 at ¶ 30). For harassment to be actionable under 42 U.S.C. § 1981 or under Title VII, a plaintiff must show “the conduct in question was severe or pervasive enough to create an environment that a reasonable person would find hostile or abusive, and that the victim subjectively regarded as abusive.” Smith v. Leggett Wire Co., 220 F.3d 752, 760 (6th Cir. 2000) (citations omitted). Such an environment can only be found to exist when “the workplace is permeated with discriminatory intimidation, Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 16 of 19 PageID #: 737 ridicule, and insult…that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.” Farmer v. Cleveland Public Power, 295 F.3d 593, 605 (6th Cir. 2002) (quoting Harris v. Forklft Sys., Inc., 510 U.S. 17, 21 (1993)). When determining whether conduct is severe or pervasive enough to constitute a hostile work environment, courts consider “the frequency of the discriminatory conduct, its severity, whether it is physically threatening or humiliating, or a mere offensive utterance, and whether it unreasonably interferes with an employee’s work performance.” Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir. 2000). The severity of the harassment is evaluated from the perspective of a reasonable person in the employee’s shoes, considering the totality of the circumstances. Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 81 (1998). “Conduct must be extreme to amount to a change in the terms and conditions of employment…” Farragher v. City of Boca Raton, 524 U.S. 775, 778 (1998). Here, according to Jefferson’s sworn testimony, he does not claim to have experienced any conduct upon which a claim of racial harassment could be based. Rather, in support of his claim, he relies solely and entirely on the alleged “failure to promote” discrimination itself: Q: Are you claiming in this case that you were harassed during your employment based on your race? A: I - - I would say that the act of dealing with this process is a harassment for me. Q: So just the act - - the act of dealing with what process, the litigation process? A: No. That’s a whole ‘nother story. Q: You’re talking about the promotion issue? A: The promotion issue, as far as dealing with the humiliation, the suffering, going - - have to - - each time of I seek a promotion within this department, having to file some form of charges to even be considered. Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 17 of 19 PageID #: 738 (Jefferson Dep. at p. 321:19 – 322:7). As set forth above, Jefferson cannot establish that he was discriminated against based on his race when Lay was selected for the team lead position on the User Security team. As such, that claim cannot support a claim of race-based harassment. Even if Jefferson’s failure to promote claim had merit (which it does not), reclassifying one individual on Jefferson’s team is insufficient to meet the high standard of establishing a hostile work environment. The Sixth Circuit has held that a plaintiff cannot establish a constructive discharge by claiming, without more, that his employer’s “failure to promote [him] to what [he] perceives as [his] rightful position created intolerable work conditions.” Hartsel v. Keys, 87 F.3d 795, 800 (6th Cir. 1996), cert. denied, 519 U.S. 1055 (1997). See also, In re Rodriguez, 487 F.3d 1001, 1011 (6th Cir. 2007) (dismissing employee’s racial harassment and constructive discharge claims based on allegations his employer failed to promote him based on his race). Jefferson does not allege any other basis of race-related harassment – no comments, no physical behavior – much less does he come close to meeting his burden of showing he was subjected to an environment so “severe and pervasive” as to alter the conditions of his employment. Thus, he certainly does not establish harassment actionable under 42 U.S.C. 1981 or Title VII and his claim for same should be dismissed outright. V. CONCLUSION Based on the foregoing, the subject lawsuit should be dismissed as a matter of law as to Plaintiff Jefferson. Therefore, Fresenius respectfully requests that summary judgment be entered in its favor and Plaintiff Jefferson’s claims be dismissed with prejudice. Dated this 22nd day of January 2019. Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 18 of 19 PageID #: 739 Respectfully submitted, s/ Wendy V. Miller Wendy V. Miller, TN #023500 Anne T. McKnight, TN #026476 OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C. SunTrust Plaza 401 Commerce Street, Suite 1200 Nashville, TN 37219-2446 Telephone: 615.254.1900 Facsimile: 615.254.1908 Attorneys for Defendant CERTIFICATE OF SERVICE I hereby certify that on this the 22nd day of January 2019, the foregoing was filed electronically with the Clerk of the Court and served via first class U.S. Mail upon the following: Dennis Jefferson 321 Gaywood Drive Nashville, TN 37211 Timothy Waire 2510 Zion Road Columbia, TN 38401 Rosemary Webster 2120 Bransford Ave Nashville, TN 37204 /s/ Wendy V. Miller 37076589.1 Case 3:17-cv-00697 Document 97 Filed 01/22/19 Page 19 of 19 PageID #: 740