MEMORANDUM OPINION

SHARON LOVELACE BLACKBURN, Senior District Judge.

This case is presently pending before the court on defendant's Motion for Summary Judgment. (Doc. 36.) Plaintiff Elliott Carter has sued his former employer, defendant Cellco Partnership, alleging that defendant discriminated against him on the basis of his race and gender and that it retaliated against him for complaining about discrimination. Upon consideration of the record, the submissions of the parties, the arguments of counsel, and the relevant law, the court is of the opinion that defendant's Motion for Summary Judgment, (doc. 36), is due to be granted in part and denied in part.

I. SUMMARY JUDGMENT STANDARD

Pursuant to Fed. R. Civ. P. 56(a), summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); see Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). Once the moving party has met its burden, the non-moving party must go beyond the pleadings and show that there is a genuine issue of fact for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Fed. R. Civ. P. 56(c)(1); see also Clark, 929 F.2d at 608 ("it is never enough simply to state that the non-moving party cannot meet its burden at trial").

In deciding a motion for summary judgment, the court's function is not to "weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. "[C]ourts are required to view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion.'" Scott v. Harris, 550 U.S. 372, 378 (2007)(quoting United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)(per curiam)). Nevertheless, the non-moving party "need not be given the benefit of every inference but only of every reasonable inference." Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999)(citing Brown v. City of Clewiston, 848 F.2d 1534, 1540 n.12 (11th Cir. 1988)); see also Scott, 550 U.S. at 380 ("When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.").

II. STATEMENT OF FACTS

Cellco hired Carter, an African-American male, in December 2007 as a retail sales representative in its Tuscaloosa store. (Doc. 38-1 at 6-7 [Carter's Depo. at 12-14].) Retail sales representatives sell wireless phones and services to individuals and small businesses. Carter received training on Cellco's policies, including its Code of Conduct and Selling with Integrity. (Id. at 40, 42 [Carter's Depo. at 147-48, 157].) As a retail sales representative, Carter was paid both a base salary and commission. (Id. at 39-40 [Carter's Depo. at 145-46].) Each time he sold a phone, accessory, or new line of service, he would receive a credit towards his commission quota, or, if he had met his quota, he would receive commission. (Id. at 40 [Carter's Depo. at 146-47].) According to Carter, Ken Griffin, his store manager, appointed him as the small business representative in the Tuscaloosa store, and, in this position, Carter participated in weekly conference calls to generate new business sales.1 (Id. at 7-8 [Carter's Depo. at 14-15, 20].)

On or before May 12, 2012, Carter saw a posting for an available Business Account Executive [BAE] position and applied. (Id. 38-1 at 8 [Carter's Depo. at 21].) Because of his business sales experience, he believed he would be a good fit for the BAE position. (Id. at 6 [Carter's Depo. at 13].) Monica Pate, a white female, made the hiring decisions for her BAE positions. (Doc. 38-6 at 9 [Pate's Depo. at 30].) On May 12, 2012, Carter applied for the BAE position. (Doc. 42-7.)

The day Carter applied for the BAE position he talked to Pate, and she told him about some of the qualifications for the position, that the position was challenging, and some things that he could look forward to as a BAE; she did not mention her requirement that, to be considered for a BAE position, the applicant had to participate in her "mentor program." (Doc. 38-1 at 9-10 [Carter's Depo. at 25-28].) Carter also talked to Griffin about the BAE position, and Griffin told Carter he would be a "good fit" for the position. (Id. at 10 [Carter's Depo. at 29].) Griffin testified that Carter was not qualified to hold a BAE position based on his annual reviews. (Doc. 38-3 at 12 [Griffin's Depo. at 43].) However, for purposes of deciding Cellco's Motion for Summary Judgment the court assumes that Griffin told Carter he was a "good fit" for the BAE position.

Applications for the BAE position went through HR to be screened before they were sent to Pate. (Doc. 38-6 at 16 [Pate's Depo. at 59-60].) David Giegel, district manager (white), testified that he would interview the slate of candidates HR sent to him to find the "best person that was available," but he did not recall if he was required to interview every applicant on the slate. (Doc. 42-3 at 6 [Giegel's Depo. at 20].) Pate testified that she did not interview every applicant on the slate from HR and that she did not know of a policy that she was required to interview all candidates on the slate. (Doc. 38-6 at 15-16 [Pate's Depo. at 55-57, 60].) Carter was included on the slate of qualified applicants for the BAE position. (Id. at 15 [Pate's Depo. at 54-55].)

Pate testified that she did not interview Carter because he had not contacted her or mentored with the business sales division prior to submitting his application. (Id. at 22-23 [Pate's Depo. at 84-85]; see doc. 38-2 at 2.) According to her deposition testimony, the "mentor program" [were] created "to make sure that [interested individuals] really understood what business sales was about before applying." (Id. at 9 [Pate's Depo. at 31].) She described the mentor program as follows:

(Id. [Pate's Depo. at 32].)

Pate selected Robin Harris, a white female who was working as a retail sales representative at the Tuscaloosa store with Carter, for the BAE position. Harris applied for the BAE position on May 15, 2012, and Pate interviewed her two days later on May 17, 2012. (Doc. 42-6; doc. 42-9.) Pate made the decision to offer the BAE position to Harris on the same day she interviewed Harris — May 17, 2012. (Doc. 38-6 at 23-24 [Pate Depo. at 88-89].)

Harris had started working at the Tuscaloosa store as a greeter in December 2009; she was employed through a temp agency. (Doc. 42-1 at 6 [Harris's Depo. at 17].) Thereafter, Harris applied for, and received, a position with Cellco as a customer service employee, a non-sales position. (Id. at 6, 16 [Harris's Depo. at 19, 59]; doc. 42-16.) Later she moved to a position of a retail sales associate. (Doc. 42-1 at 16 [Harris's Depo. at 59]; doc. 42-16.) Pate admits Carter had more experience with Cellco than Harris at the time they applied for the BAE position. (Doc. 38-6 at 20 [Pate's Depo. at 73-76].) Also, Carter had five years of experience working for another wireless company. (See doc. 42-7.) Pate considered prior sales experience at another wireless company was relevant experience because the experience would help the person selected do the BAE job. (Doc. 38-6 at 17 [Pate's Depo. at 64].) Harris did not have any sales experience prior to beginning work for Cellco.

On her application for the BAE position, Harris did not mention participating in a mentor program. (Doc. 42-9.) She testified that she did not participate in a formal mentor program before her selection for the BAE position; she said:

(Doc. 42-1 at 13-14 [Harris's Depo. at 47-50 (emphasis added)].) Harris did not participate in any ride-along program or sit in on sales calls. (Id. at 15 [Harris's Depo. at 54-55].) Pate testified to her recollection of Harris's participation in the "mentor program":

(Doc. 38-6 at 13 [Pate's Depo. at 47-48 (emphasis added)].) Harris never rode with any BAE employees before she was interviewed and selected by Pate for the BAE position. (Doc. 42-1 at 15 [Harris's Depo. at 54-55].)

Pate made the decision to hire Harris five days after Carter applied for the position and before she had told him that she would not interview him. On May 17, 2012, Pate interviewed Harris. (See doc. 42-6.) She used the Interview Evaluation form to document scores, ratings, and interview details for an applicant following an interview. (Doc. 38-6 at 24 [Pate's Depo. at 89].) The Interview Evaluation form, completed by Pate, stated that Harris's overall rating was "much more than acceptable" and that the recommendation was to "make offer." (Id. at 20 [Pate's Depo. at 77]; doc. 42-6.) Pate testified that she told Harris the day of her interview that she was going to give Harris the job. (Doc. 38-6 at 22 [Pate's Depo. at 81-82].) Carter testified that he did not know if Harris had participated in a mentor program.

(Id. at 13 [Carter's Depo. at 39].) Although Pate testified that every employee she had hired for a business sales position had participated in her mentor program, (see doc. 38-6 at 12-13 [Pate's Depo. at 43-48]), the job posting did not state participating in a mentor program, or contacting Pate and indicating interest in the job before applying, were requirements for an interview or for selection. Pate testified:

(Doc. 38-6 at 22-23 [Pate's Depo. at 84-86].)

On May 23, 2012, after she had selected Harris, Pate sent an email to Carter stating that she wanted him to "mentor with [her] team" before she would "move forward with an interview." (Doc. 38-2 at 2.) Pate did not interview Carter for the available BAE position. (Doc. 38-6 at 23 [Pate's Depo. at 86-87].)

Carter never knew there was any mentor program at any time before Harris was selected for the BAE position. (Doc. 38-1 at 12-13 [Carter's Depo. at 36-38].) Pate talked to Carter, after Harris had been selected for the BAE position, and she recommended that Carter come to Birmingham on his off days to ride along with some of the sales representatives to see how they conducted sales. (Id. at 12 [Carter's Depo. at 35-37].) Carter never reached out to Pate about mentoring because he was terminated shortly after his conversation with Pate. (Id. at 13 [Carter's Depo. at 38].)

Although Pate never interviewed Carter for the BAE position, she filled out an Interview Evaluation form and submitted it to Human Resources [HR]; this form indicated that Pate had interviewed Carter for the BAE position on May 23, 2012. (Doc. 38-6 at 23 [Pate's Depo. at 86-87]; doc. 42-8.) Pate testified that she did not know where she obtained the information used to rate Carter on the form; nothing on the Interview Evaluation form came from an interview with Carter. (Doc. 38-6 at 23-24 [Pate's Depo. at 88-90].) Pate rated Carter as a "Less Than Acceptable" applicant. (Doc. 42-8.) She noted on this form that the "feedback" from Griffin and Giegel about Carter "was not good." (Id.) She testified, however, that she could not recall anything Griffin or Giegel may have told her about Carter. (Doc. 38-6 at 24-25 [Pate's Depo. at 92-93].) Griffin testified he had talked to Pate about Carter only after she had selected Harris for the BAE position. (Doc. 38-3 at 9 [Griffin Depo. at 30-31].) Giegel testified that he did not remember talking to Pate about Carter's application for the BAE position, whether Carter would make a good BAE, and/or how Carter was doing in retail sales. (Doc. 42-3 at 25 [Giegel's Depo. at 93-94].) Pate concedes that the Interview Evaluation form is "inaccurate" as it appears to show that she actually interviewed Carter for the available BAE position on May 23, 2012. (Doc. 38-6 at 26 [Pate's Depo. at 99-100]; see doc. 42-8.)

Pate hired three BAEs during her tenure as the hiring manager. (Doc. 38-6 at 12 [Pate's Depo. at 42].) According to Pate, all three of the selected applicants — Harris, Joseph Heckle, and Jeff Moon — had participated in her mentor program. (See id. at 12-13 [Pate's Depo. at 43-48].) All three individuals are white. (Id. at 25 [Pate's Depo. at 93].)

With regard to Moon, Pate testified:

(Doc. 38-6 at 12 [Pate's Depo. at 43].) Moon met with her and spent time with other BAEs making sales calls. (Id. [Pate's Depo. at 44].) He also called his district manager and expressed an interest in the BAE position; Pate considered this to be part of his mentor program. (Id. [Pate's Depo. at 44].)

With regard to Heckle, Pate testified that he told her "he was interested in a BAE position;" he also came on a number of occasions to be with other BAEs when they made sales calls, he attended a Monday morning meeting to meet the other BAEs, and he drove around the prospective territory. (Id. at 13 [Pate's Depo. at 46-47].)

After Harris was selected for the BAE position, Carter complained to Griffin that Harris got the BAE job because she was a white female and that he was not selected because he was a black male. (Doc. 38-1 at 17, 75 [Carter's Depo. at 54-55, 57, 287-88].) Griffin denies that Carter made such a complaint. (Doc. 38-3 at 9-10 [Griffin's Depo. at 31-33].) However, for purposes of deciding Cellco's Motion for Summary Judgment, the court will assume Carter made such a complaint. According to Carter, Griffin told him, "We as black people, you know, we have to work hard, and that, you know, throughout society things like this happen;" and, "[Y]ou can't let that get [you] down." (Doc. 38-1 at 17 [Carter's Depo. at 56].)

Cellco has a zero tolerance policy regarding discrimination or retaliation. (Doc. 42-2 at 10 [Dennis's Depo. at 34].) Its managers are trained to contact HR if an employee complains about discrimination and that all such complaints will be investigated. (Id. at 7, 9 [Dennis's Depo. at 24, 31]; doc. 42-3 at 10 [Giegel's Depo. at 35].) Michele Dennis, an HR consultant, testified that an employee complaining he did not get a job because he is a black male would be a complaint of discrimination and this complaint should be reported to HR. (Doc. 42-2 at 4, 10 [Dennis's Depo. at 11-12, 33].)

Cellco prohibits sales representatives from using the electronic serial numbers [ESN] from a HopeLine phone,2 or any other inactive devices, to process device upgrades, add additional lines of service, or any other sales transactions. (Doc. 38-3 at 19 [Griffin's Depo. at 71]; doc. 38-4 at 48-49 [Bryant's Depo. at 185-89].) On three occasions — February 16, 2012, March 2, 2012, and April 28, 2012, Cellco's records showed that Carter used ESNs from previously owned devices to process sales transactions. (Doc. 38-1 at 29-30 [Carter's Depo. at 103-05, 106-07]; doc. 38-2 at 4.)

Cellco's Code of Conduct requires all sales representatives to create accurate records and properly use both its property and property entrusted to it by others; specifically, the Code of Conduct provides:

(Doc. 38-2 at 28-19.) Cellco's policies prohibit the use of HopeLine phones or any other inactive ESNs to process sales transactions. (Doc. 38-3 at 19 [Griffin's Depo. at 71]; doc. 38-4 at 48 [Bryant's Depo. at 185-88].) Employees who activate a new line of service and then place an inactive ESN on the new line would be able to engage in a fraudulent scheme that manipulated Cellco's billing systems to create false records and could cause the company to lose money. (Doc. 38-4 at 48-50 [Bryant's Depo. at 187-89, 192-96].)

According to Griffin, in December 2011, during a Friday morning meeting, he provided specific training to the employees at the Tuscaloosa store on Cellco's policy regarding its prohibition on the use of inactive ESNs. (Doc. 38-3 at 19 [Griffin's Depo at 69-71].) Griffin distributed written materials that stated, in pertinent part, "Employees who knowingly activate new service with the intention of placing a non-working ESN on the customers new MTN [mobile telephone number] are not compliant with our companywide code of conduct guidelines." (Doc. 38-3 at 20 [Griffin's Depo. at 75-76]; 42-17.) He is not 100% sure that Carter ever got a copy of the written material. (Doc. 38-3 at 21 [Griffin's Depo. at 77-78].) Carter testified that he did not recall Griffin having any Friday morning meetings in 2011. (Doc. 38-1 at 41 [Carter's Depo. at 150].) According to Carter, there were meetings, but they were to discuss sales, not policy, and were conducted by other managers. (Doc. 38-1 at 41-42 [Carter's Depo. at 150, 155-56].).

However, the use of HopeLine ESN numbers was a common practice; in fact, some managers had instructed employees to use the ESN number from a HopeLine phone. (Doc. 42-4 at 3-4, ¶¶ 5, 10; doc. 42-5 at 3-5 ¶¶ 7-8, 12, 16-17.) Carter testified that he was taught by his store managers before Griffin to conduct transactions using the ESN from an inactive device and that he had performed this type transaction thousands of times. (Doc. 38-1 at 23 [Carter's Depo. at 78].) Cedric Atchison, an employee at Trussville store, was told by Kerry Gould, as store manager and district manager, to use the ESNs of HopeLine phones to complete transactions. (Doc. 42-5 at 5, ¶¶ 16-17.) Atchison testified that he used a HopeLine phone everyday when he worked under Gould and that he had continued to use HopeLine phones routinely when he moved to a retail sales position under the same management. (Id. ¶ 17.)

Sometime before May 23, 2012, Carter's three non-compliant transactions appeared on a report reviewed by Josh Bryant, a senior analyst in the compliance department. (Doc. 38-4 at 24-25 [Bryant's Depo. at 91-93].) Bryant determined that the transactions could have resulted in fraud in violation of Cellco's policy, and he notified Carter's store manager, Griffin. (Doc. 38-4 at 33 [Bryant's Depo. at 126]; doc. 38-3 at 25-26 [Griffin's Depo. at 96-97]; see doc. 38-5 at 68.) According to Bryant, the end result of the scheme is that the customer received a free or discounted smartphone, but he or she is no longer paying for the data package that would have allowed Cellco to recoup the costs of offering the smartphone at a discounted price. (Doc. 38-4 at 50 [Bryant's Depo. at 197-98].) Presumably, Carter received commissions on the transactions. (Id. at 33 [Bryant's Depo. at 127-28].) However, Bryant never talked to Carter about the transactions at issue. (Id. at 17 [Bryant's Depo. at 63].) Before Bryant received the compliance report that triggered the investigation into Carter's use of the ESN on HopeLine phones, he had never heard of Carter, he did not know Carter had applied for a promotion, and he did not know Carter's race or his gender. (Id. at 46-47 [Bryant's Depo. at 179-81].)

Bryant noticed irregularities at other stores as well, including Anniston, Carrollton, Ft. Payne, Cullman, Auburn, Florence, and Warner Robbins. (Id. at 27-28 [Bryant's Depo. at 104-05].) He contacted the Anniston store manager because the transactions on the report were very similar to the transactions at the Tuscaloosa store. (Id. at 29 [Bryant's Depo. at 111].) To the best of his recollection, no one was terminated from the Anniston store, but he said that information would not be shared with the compliance department. (Id. at 30 [Bryant's Depo. at 113].) Bryant did not recall whether he had contacted any other store managers about information in this report. (Id. [Bryant's Depo. at 114].)

Bryant testified that he told Griffin that "these are transactions that I've reviewed. They are excessive, and . . . he [Griffin] should look into them to determine if there was any type of commission fraud." (Id. at 33 [Bryant's Depo. at 126].) Bryant followed up with an email to Griffin, in which Bryant wrote:

(Doc. 38-5 at 67-68; see also id. at 72.)

Before meeting with Carter, Griffin contacted the previous owners of the old handsets. He found that each handset used in the transactions at issued had been donated by the owner to the HopeLine program. In emails dated May 29 and 30, 2012, Griffin told Michele Dennis, Human Resources, that he had talked with each customer whose old handset was used in the identified transactions, and they all told him they had donated their old handsets to the HopeLine program. (Id. at 67.) Griffin did not talk to the customers to whom Carter had sold the new smartphones. (Doc. 38-3 at 15 [Griffin's Depo. at 56]).

On May 30, 2012, Griffin interviewed Carter about the transactions, and Carter admitted to using the ESNs from HopeLine phones. (Doc. 38-1 at 31 [Carter's Depo. at 110-11]; doc. 38-3 at 27, 30 [Griffin's Depo. at 101, 116]; doc. 38-2 at 4.) Carter told Griffin he had been doing these same type transactions for four years and performed the same type of transactions thousands of times. (Doc. 38-1 at 23, 31 [Carter's Depo. at 78, 110-11].) Carter testified, however, that he never transferred an ESN number from a HopeLine phone to a new activation for a smartphone and he never used a Hopeline ESN number for an upgrade or new line of service; instead, he used a new phone on the new activation, then he transferred the new phone to the existing MTN. (Doc. 38-1 at 23 [Carter's Depo. at 79-80].) He testified that he was taught to use the ESN from an inactive phone, like the phones in the HopeLine box, "when [he] first started working at Verizon," and that he had performed "that same transaction thousands and thousands of times." (Id. [Carter's Depo. at 78].)

Griffin completed a South Area Termination Request Form between May 29, 2012 and May 31, 2012. (Doc. 38-3 at 55.) On this form, he noted the "Reason for Termination" was "Code of Conduct," and the "Triggering Event[s]/Date[s]" were as follows:

(Id at 55.) The Termination Request Form also contains a section entitled, "Employee Response/Mitigating Circumstance, if applicable." (Id.) In this section, Griffin wrote:

(Id. at 55-56 [emphasis added].)

With regard to the May 30, 2012, discussion, Carter testified that Griffin `wanted me to explain to him about the transactions;" he recalled the conversation as follows:

(Doc. 38-1 at 31 [Carter's Depo. at 110-12 (emphasis added)].)

Carter testified that he had no reason to believe that Griffin knew that any other retail sales representative had performed any similar transactions using a phone from the HopeLine box. (Doc. 38-1 at 31-32 [Carter's Depo. at 113-14.] Griffin testified that he had not seen any other employee use the ESN from a HopeLine phone, but he had heard about other employees doing the same thing as Carter. (Doc. 38-3 at 16 [Griffin's Depo. at 58-59].) Giegel testified this was a "company problem" because compliance was looking into these transactions. (Doc. 42-3 at 22-23 [Giegel's Depo. at 84-85].) Kerry Gould testified this was a region-wide problem, but Carter was the only person he could name that was terminated. (Doc. 42-18 at 18 [Gould's Depo. at 66-68].)

Griffin never asked Carter the names of the other employees who were conducting these same transactions and he never did anything to investigate the other employees despite the fact there were only nine or ten employees in Griffin's store. (Doc. 38-3 at 27-28 [Griffin's Depo. at 101, 104-06].)

Griffin testified as follows:

(Doc. 38-3 at 17 [Griffin's Depo. at 61 (emphasis added)].) Griffin requested Carter be terminated and filled out the termination request form and submitted the termination form to HR. (Doc. 42-12.)

HR received the completed Termination Request Form on May 31, 2012, and "recommend[ed] termination." (Doc. 38-3 at 57.) Dennis talked to Griffin and relied on what Griffin had told her. (Doc. 42-2 at 30-31 [Dennis's Depo. at 115-17].) Therefore, based on the information captured in the Compliance Report, the investigation by Bryant, the investigation by Griffin, and Carter's admission that he used HopeLine phones in transactions not authorized by the persons who had donated the phone, Cellco terminated Carter's employment on June 7, 2012, approximately two weeks after he had complained about race and gender discrimination. (Doc. 38-1 at 21 [Carter's Depo. at 73; doc. 38-3 at 15 [Griffin's Depo. at 53, 55]; doc. 42-11.)

On that day, Griffin was away from the Tuscaloosa store on June 7, 2012, and Gould told Carter he was terminated. (See doc. 42-11.)

III. DISCUSSION

Carter raises three claims in his Amended Complaint: Count One — "Racial Discrimination/Harassment Claims," Count Two — "Title VII and 42 [U.S.C.] § 1981 Retaliation Claims," and Count Three — "Title VII Gender Discrimination Claims." The Amended Complaint alleges claims for disparate treatment and retaliation based on the BAE selection decision and his termination. It also contains allegations of harassment. At a hearing on Cellco's Motion to Compel, counsel for Carter informed the court that Carter was not pursuing claims of discriminatory or retaliatory harasssment. Therefore to the extent such claims are set forth in the Amended Complaint, they will be dismissed.

A. PROMOTION

When a plaintiff seeks to establish a claim of employment discrimination by circumstantial evidence, the court analyzes such claim under the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later refined in Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Burdine, 450 U.S. at 252-53. If plaintiff successfully establishes a prima facie case, the burden of production shifts to the defendant "to articulate some legitimate, nondiscriminatory reason" for the employment action. McDonnell Douglas, 411 U.S. at 802. If defendant succeeds in carrying this burden, then plaintiff must prove that the defendant's articulated reasons are a mere pretext for unlawful motives, in this case, race discrimination or retaliation. Burdine, 450 U.S. at 253. At all times, plaintiff bears the burden of persuasion on the ultimate question of whether the defendant acted with an unlawful motive. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993). If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiff's claim. See Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997).

1. Prima Facie Case

To establish a prima facie case of race and/or gender discrimination with regard to promotion decisions, plaintiff must prove:

Brown v. Alabama Dep't of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010)(quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997); citing Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004))(emphasis added). Cellco alleges that Carter cannot establish a prima facie case because he cannot prove Harris was similarly-situated to him; it contends: "The undisputed facts show that each employee that Pate hired for BAE positions participated in the Mentor Program that she had developed. Carter did not participate in the program, and, therefore, was not similarly situated to the employees that Pate hired." (Doc. 37 at 33 [citing Pate Dep. at 42:13-48:16; Carter Dep. at 35:13-36:4 and Ex. 1].).

However, the extent to which Pate's subjective requirement for the applicant to have participated in her mentor program was a motivating factor is better reserved "for the rebuttal stage of the McDonnell-Douglas framework." Mortham, 158 F.3d at 1190.

Howell v. Morrison Mgmt. Specialists, Inc., No. 4:10-CV-1587-RDP, 2013 WL 6568935, at *11 (N.D. Ala. Dec. 13, 2013)(emphasis and footnote added). The internal Position Information for the BAE position did not include participation in Pate's mentor program as a qualification or requirement for the position. (Doc. 42-19 at 2-3.) Therefore, the court finds, for purposes of deciding whether Carter has shown a prima facie case, participation in the mentor program is not a "relevant respect" for determining whether Harris and Carter were similarly situated. Therefore, Harris's participation in the mentor program is not a sufficient distinction to prevent her from being a proper comparator. See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005).

The court finds that Carter has established a prima facie case of discrimination with regard to his non-selection for the BAE position received by Harris.

2. Articulated Non-Discriminatory Reason

"Once a prima facie case is established, a defendant must proffer legitimate, nondiscriminatory reasons for its employment decision." Damon v. Fleming Supermarkets, 196 F.3d 1354, 1361 (11th Cir. 1999)(citing Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998)). Cellco has presented evidence that Pate selected Harris instead of Carter because Harris had participated in her mentor program. This evidence is sufficient to meet Cellco's burden of production.

3. Pretext

If a defendant carries its burden of production, "the presumption of discrimination [created by plaintiff's prima facie showing] is eliminated, and the plaintiff must submit evidence showing that the articulated reason is pretextual. If pretext is established, summary judgment in favor of the defendant is generally inappropriate." Walker v. Prudential Property & Cas. Ins. Co., 286 F.3d 1270, 1274 (11th Cir. 2002)(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); Chapman v. AI Transport, 229 F.3d 1012, 1025 n. 11 (11th Cir. 2000); Combs, 106 F.3d at 1538). A plaintiff may establish that an articulated reason is a pretext for unlawful discrimination "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Carter v. City of Miami, 870 F.2d 578, 584 (11th Cir. 1989)(quoting Goldstein v. Manhattan Industries, 758 F.2d 1435, 1445 (11th Cir. 1985)(citing Burdine, 450 U.S. at 256)). If a plaintiff chooses to establish pretext by showing that his employer's proffered reason is unworthy of credence, he must attack that reason "head on and rebut it." Chapman, 229 F.3d at 1030. He must offer evidence that "casts sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable fact finder to conclude that the employer's proffered `legitimate reasons were not what actually motivated its conduct.'" Combs, 106 F.3d at 1538 (quoting Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)).; see also Damon, 196 F.3d at 1361.

The "pretext analysis focuses on a narrow question: Would the proffered evidence allow a reasonable factfinder to conclude that the articulated reason for the decision was not the real reason?" Prudential, 286 F.3d at 1276 (citations omitted). "`Discrimination is about actual knowledge, and real intent, not constructive knowledge and assumed intent.' When evaluating a charge of employment discrimination, then, [the court] must focus on the actual knowledge and actions of the decision-maker." Id. at 1274 (quoting Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1262 (11th Cir.2001) and citing Bass v. Board of County Comm'rs, 256 F.3d 1095, 1105 (11th Cir.2001))(emphasis added).

The record contains evidence that Harris, the applicant selected for the BAE position did not participate in a formal mentoring program. Harris testified that Pate, the decision-maker, was like a mentor and that she would talk to other BAEs when they came to the Tuscaloosa store where she was working. Harris, unlike Moon and Heckle — previously selected applicants for BAE positions, did not ride along with BAEs on sales call or listen to BAEs make telephone sales calls. This lack of a formalized program or any real substance to the mentor program may be sufficient to support a finding that reliance of the mentor program in the selection of BAEs is insufficient to have motivated Pate's decision.

Also, and perhaps most telling, Pate did not interview any other candidates and, in fact, attempted to disguise her failure to interview Carter by creating a false Interview Evaluation form. Viewing the evidence in the light most favorable to the plaintiff, Pate created the Interview Evaluation form for Carter after she had selected Harris for the job and she rated him as unqualified without reason. Moreover, a reasonable jury could find that Pate, with or without input from Griffin, created the negative evaluation on the day that Carter complained to Griffin that he was not selected for the BAE because of his race and gender.

Finally, the court finds the fact that Pate never hired an African-American BAE, together with consideration of the other evidence of record is sufficient to allow a reasonable jury to conclude that the articulated reason is unworthy of credence and the real reason Carter was not selected was his race and his gender.

Therefore, Cellco's Motion for Summary Judgment as to Carter's promotion claim will be denied.

B. TERMINATION

1. Prima Facie Case

a. Race and Gender Discrimination

"When, as here, the plaintiff claims that his employer discharged him on account of his race [and/or gender], he must establish four elements: (1) that he is a member of a protected class . . .; (2) that he was qualified for the position he held; (3) that he was discharged from that position; and (4) that in terminating his employment, his employer treated him less favorably than a similarly[-]situated individual outside of his protected class. . . . Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011)(citing Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (11th Cir.2003)(citing McDonnell Douglas, 411 U.S. at 802)). Cellco contends that Carter cannot establish a prima facie case of discriminatory discharge because he "has no evidence that the Compliance Department from Verizon Wireless discovered that other employees were making similar fraudulent transactions, and that those employees admitted to making the transactions but were not fired." (Doc. 37 at 17.) Carter contends that he can "by-pass the `similarly situated' prong by demonstrating that he was replaced by someone outside his protected class." (Doc. 41 at 38 [citing Maynard, 342 F.3d at 1289].) The court agrees.

In this Circuit, the law is well establish that, "[a] prima facie case of discriminatory discharge may be established in different ways. One way is the method recognized by [defendant]: a member of a protected class makes out a prima facie case if he establishes that he was qualified for the job, but was fired and replaced by one outside the protected class." Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1185 (11th Cir. 1984)(citations omitted).

In the instant action, Carter has presented evidence that he was replaced by a white female. (Doc. 42-4 at 6, ¶ 18.) Therefore, the court finds that Cellco is not entitled to summary judgment based on Carter's failure to prove a prima facie case for discriminatory discharge.

b. Retaliation

In order to establish a prima facie case of retaliation in violation of Title VII and Section 1981, plaintiff must establish: (1) a statutorily protected expression; (2) an adverse employment action; and (3) a causal relationship between the protected expression and the adverse action. Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 978 n.52 (11th Cir. 2008). Cellco contends that Carter cannot establish a prima facie case of retaliation based on mere temporal proximity alone because such evidence alone does not satisfy "but for" causation and because Bryant notified Griffin of Carter's wrongdoing before Carter's complaint. The court disagrees.

The court finds that whether or not Carter can establish but-for causation sufficient to prove retaliation is better decided after the court determines whether or not he has established a prima facie case.

In an unpublished opinion the Eleventh Circuit held:

Mealing v. Georgia Dep't of Juvenile Justice, 564 Fed. Appx. 421, 426-27 and n.9 (11th Cir. 2014)(emphasis added), cert. denied, 135 S.Ct. 1165 (2015).4

The court finds that the Eleventh Circuit has indicated its intention to continue to apply the McDonnell Douglas framework to Title VII retaliation claims and to decide whether retaliation was the but-for cause of an adverse action at the pretext stage.

The court finds that Carter has established a prima facie case of retaliation with regard to his termination. Viewing the evidence in the light most favorable to Carter, the non-moving party, the court finds Carter complained to Griffin that he was not selected for the BAE position because of his race and his gender. Although the evidence is not clear as to the precise day this complaint was made, from the record, the court discerns that it was sometime after May 17, 2012 — the day Pate interviewed Harris — and before May 23, 2012 — the day Pate said she talked to Carter, which, accordingly to Carter, was after Harris had been selected for the position and he had complained to Griffin about discrimination. On the same day Pate said she had "interviewed" Carter, May 23, 2012, Bryant sent the email to Griffin regarding Carter's HopeLine telephone transactions. The Bryant email is the instigating event that lead to Carter's discharge on June 7, 2012. The court finds that the concurrence of Carter's complaints and the events leading to his termination demonstrated that these events are not totally unrelated.

Therefore, the court finds that Cellco is not entitled to summary judgment based on Carter's failure to prove a prima facie case of retaliatory discharge.

2. Articulated Reason

"Once this presumption [of discrimination or retaliation] is raised by establishing a prima facie case, `[t]he burden then shifts to the employer to rebut [it] by producing evidence that [the employer's] action was taken for some legitimate, non-discriminatory [and non-retaliatory] reason.'" Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011)(quoting EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir.2002)(citing Burdine, 450 U.S. at 254-55)); see also Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008)(citing Coutu v. Martin County Bd. of County Comm'rs, 47 F.3d 1068, 1073, 1075 n.54 (11th Cir. 1995)).

Cellco contends that it "has met its `exceedingly light' burden of providing a legitimate, non-discriminatory and non-retaliatory reason for Carter's discharge: namely, his use of ESNs from Hopeline devices to process fraudulent transactions." (Doc. 37 at 23.) This reason is sufficient to shift the burden back to Carter to show either (1) Cellco's articulated reason is unworthy of credence or (2)(a) that Carter's race or gender played a factor in his termination or (2)(b) that retaliation was the but-for cause of his termination. See Burdine, 450 U.S. at 256; Mealing 564 Fed. Appx. at 426-27 and n.9

3. Pretext

The law in this circuit is well established: A plaintiff may not establish pretext merely by quarreling with the wisdom of the alleged discriminatory and/or retaliatory decision. Combs, 106 F.3d at 1543. If a plaintiff chooses to establish pretext by showing that his employer's proffered reason is unworthy of credence, he must attack that reason "head on and rebut it." Chapman, 229 F.3d at 1030. He must offer evidence that "casts sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable fact finder to conclude that the employer's proffered `legitimate reasons were not what actually motivated its conduct.'" Combs, 106 F.3d at 1538 (quoting Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)).; see also Damon, 196 F.3d at 1361.

The "pretext analysis focuses on a narrow question: Would the proffered evidence allow a reasonable factfinder to conclude that the articulated reason for the decision was not the real reason?" Prudential, 286 F.3d at 1276 (citations omitted). "`Discrimination [and retaliation are] about actual knowledge, and real intent, not constructive knowledge and assumed intent.' When evaluating a charge of employment discrimination, then, [the court] must focus on the actual knowledge and actions of the decision-maker." Id. at 1274 (quoting Silvera v. Orange County Sch. Bd., 244 F.3d 1253, 1262 (11th Cir.2001) and citing Bass v. Board of County Comm'rs, 256 F.3d 1095, 1105 (11th Cir.2001))(emphasis added). The relevant inquiry on the issue of pretext is "highly focused" — "The district court must, in view of all the evidence, determine whether the plaintiff has cast sufficient doubt on the defendant's proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude that the employer's proffered legitimate reasons were not what actually motivated its conduct." Combs, 106 F.3d at 1537-38 (11th Cir. 1997)(citing Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)). "To satisfy this threshold showing of pretext, a plaintiff may discredit the employer's proffered legitimate reasons by showing (1) that the proffered reasons [have] no basis in fact, (2) that the proffered reasons did not actually motivate the employment decision, or (3) that they were insufficient to motivate the employment decision." Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1564 (11th Cir. 1995)(Johnson, J, concurring)(citations omitted). However, "If the proffered reason is one that might motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it." Springer v. Convergys Customer Management Group Inc., 509 F.3d 1344, 1350 (11th Cir. 2007)(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir.2004)). "In other words, it does not matter whether the plaintiff is actually innocent of the infraction for which the adverse employment action is taken; the only relevant inquiry is whether the employer believes he is guilty." Masso v. Miami-Dade County, 247 Fed. Appx. 190, 192 (11th Cir. Sept. 6, 2007)(emphasis added). "No matter how medieval [an employer's] practices, no matter how high-handed its decisional process, no matter how mistaken [its] managers, [Title VII ] does not interfere. Rather [the court's] inquiry is limited to whether the employer gave an honest explanation of its behavior." Chapman, 229 F.3d at 1030 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991))(other citations omitted).

Carter contends that Cellco's articulated reasons for his termination are unworthy of credence:

(Doc. 41 at 36-37.)

Although the court finds that Carter has presented an issue of fact as to whether other employees used ESN numbers off Hopeline phones as a placeholder for the new telephone number, the court finds Carter has not disputed the evidence regarding Josh Bryant's notice to Griffin regarding the use of the ESN numbers from previously owned devices, Griffin's investigation showing that the previously owned devices were donated to the HopeLine program, and Carter's subsequent admission to Griffin that he had removed the phones from the HopeLine box to complete transactions. Nothing in the record indicates that the compliance department was aware of any other employees using the HopeLine phones for this purpose. Even if the court assumes that employees used the HopeLine phones for similar purposes, the court has no evidence that Bryant, who instigated the investigation of Carter, and/or Griffin, who interviewed Carter about the transactions and recommended his termination were aware of other employees using the HopeLine phones in such a manner and did not take action. Based on these faces, viewed in the light most favorable to Carter, the court finds Carter has not demonstrated that Cellco's articulated reason for his termination is unworthy of credence and that the real reason was his race or gender discrimination or retaliation.

Therefore, the court finds that Cellco's Motion for Summary Judgment will be granted and Carter's claims based on his termination will be dismissed.

CONCLUSION

For the foregoing reasons, the court is of the opinion (1) that there are material facts in dispute and defendant is not entitled to judgment as a matter of law as to plaintiff's promotion claims and (2) that there are no material facts in dispute and defendant is entitled to judgment as a matter of law as to plaintiff's termination claims. Pursuant to statements made in open court, plaintiff's claims of discriminatory and retaliatory harassment will also be dismissed.

An Order denying in part and granting in part defendants' Motion for Summary Judgment, (doc. 36), will be entered contemporaneously with this Memorandum Opinion.