R. DAVID PROCTOR, District Judge.
This case is before the court on Defendants' Motion for Summary Judgment. (Doc. # 18). The parties have fully briefed the Motion for Summary Judgment (Docs. # 19, 21, 23), and the Motion is under submission. After careful review, and for the reasons explained below, the court concludes that the Motion for Summary Judgment is due to be granted.
This employment discrimination action concerns two promotions granted by Defendant Shelby County Board of Education (the "Board") in 2012 and 2014, respectively. Plaintiff applied for the positions, was qualified for them, and interviewed for the positions, but was not selected for either position. He claims the failure to promote him was discriminatory. The court begins its review of the facts by discussing Plaintiff's work history and leadership activities. Then, the court will discuss each promotion, in turn.
Plaintiff began working for Shelby County Schools ("SCS") in 1986 as a substitute bus driver. (Dukes Deposition at 13-14).
Since the beginning of his career with SCS, Plaintiff has consistently driven a bus route transporting students to Montevallo High School. (Id. at 23). Plaintiff also has driven a morning bus route transporting students from Montevallo High School and Calera High School to the College and Career Center in Columbiana, Alabama. (Id. at 23-24, 35). He has transported students from the Career Center to Montevallo High School each morning as well. (Id. at 35). Finally, he has driven afternoon routes that transport elementary, middle, and high school students in Montevallo to the Wilton community. (Id. at 37-38). Plaintiff has been a bus driver in the same community for more than twenty years, although he drives different routes from year to year. (Id. at 38). Plaintiff has served on a committee of bus drivers who make recommendations to the SCS administration about "bus routes, bus equipment and apparatus needs, policies with respect to bus drivers, and other matters." (Doc. # 22-2 at 3).
In 2008, Plaintiff obtained a bachelor's degree from the Birmingham Easonian Baptist Bible College. (Dukes Deposition at 16-18). He has served as a pastor at two churches. (Id. at 31-32). And, he has held the position of "dean" for an extension of the Birmingham Easonian Baptist Bible College located in Shelby County. (Id. at 33-34). As dean, Plaintiff registers students for classes, manages the facility and secretary, and helps fundraising for the bible college. (Id.).
In addition to his employment positions, Plaintiff has served as the president of the Shelby County Education Support Professionals, a division of the Alabama Education Association for SCS support personnel. (Id. at 49; Doc. # 22-2 at 1-2). As a union representative, Plaintiff has helped SCS bus drivers handle problems related to bus transportation and has been consulted by SCS administrators about "bus routes, equipment, purchasing, and policies[.]" (Doc. # 22-2 at 3). As of the date of his deposition, Plaintiff served as president of the Shelby County chapter of the NAACP. (Dukes Deposition at 37).
On February 22, 2012, the Board posted a notice of vacancy with two proposed transportation route supervisor positions. (Doc. # 20-1 at 57). At the time they were posted, neither position had been budgeted for. (See id.) (mentioning that an assistant band director position was budgeted for, but not indicating whether the route supervisor positions were budgeted for). Thirty-nine candidates, including Plaintiff, applied for the job. (Doc. # 20-2 at 33-35).
SCS's job description for a transportation route supervisor contains five qualifications: (1) a preference for a bachelor's degree; (2) "a complete understanding of bus route and safety issues"; (3) at least five years of school transportation experience; (4) a Class B commercial driver's license with certain bus driver endorsements, which could be obtained within six months of hiring; and (5) computer literacy. (Doc. # 22-16 at 1). A route supervisor performs several functions related to bus transportation, including:
(Doc. # 22-16 at 1-2).
During the interviews, the panelists asked Plaintiff and the other finalists about their training backgrounds and experiences, their perceptions about the most important function of the route supervisor position, and their experiences with software. (E.g., Doc. # 20-13 at 6-7) (listing questions asked during the route supervisor interviews). They asked the applicants to describe what factors should be considered when reviewing a bus route. (E.g., id. at 6). They also asked the applicants to explain how they would handle certain problems, such as angry or feuding parents and overcrowded buses. (Id. at 6-7). The panelists rated the applicants' answers to the questions on a one to five numerical scale. (See id.). During Plaintiff's interview, Howard mentioned Plaintiff's race while confirming his biographical details. (Dukes Deposition at 94-95). Nevertheless, Plaintiff does not recall any inappropriate questions asked during the interview. (Id. at 93).
Of the eleven interviewed applicants, Brian Miller
Under SCS policy, the interview panel submits a recommended applicant for hire to SCS's superintendent without providing the superintendent information about the unsuccessful applicants. (Doc. # 20-9 at 3). Thereafter, the superintendent makes a formal recommendation to the Board. (Id.). The parties dispute whether the Board receives information about the unsuccessful applicants. Plaintiff asserts that the Board must receive such information because Jimmy Bice, a Board member, once told him that the Board would consider a black applicant for a position in the transportation department "if we ever get a decent resume from a black." (See Docs. # 22-1 at 2; 22-2 at 1; 20-7 at 13). To the contrary, Jim Miller, SCS's assistant superintendent for human resources, has averred that the Board receives no information about unsuccessful applicants. (Doc. # 20-9 at 3). Moreover, Bice has testified that he was unaware of Plaintiff's applications for the relevant positions because Board members "were never told who applied unless we asked." (Doc. # 20-7 at 12). In April 2012, the Board voted to approve Miller's promotion from bus driver to route supervisor. (Doc. # 20-9 at 13-14).
The parties have also addressed the question of why SCS chose to hire one route supervisor, instead of two route supervisors. According to Defendants, SCS's superintendent chose to only fill one route supervisor position because SCS needed to reduce expenses when one of Shelby County's municipalities, Alabaster, created a separate school district. (Doc. # 20-10 at 2-3). Ferguson has recalled that the panel knew there would only be one route supervisor hired by the date the interviews occurred. (Doc. # 20-11 at 2-3). In contrast, Plaintiff has averred that members of the interview panel told him that they were interviewing for two route supervisors.
After Plaintiff failed to obtain the route supervisor position, he complained to a Board member about the racial makeup of the Transportation Department. (Doc. # 22-2 at 5). As Plaintiff explains in his affidavit,
(Id.). Bobby Pierson, another SCS bus driver, has affirmed that the conversation between
Plaintiff and Aubrey Miller occurred. (Doc. # 22-1 at 2). Pierson also recounts that he discussed "the fact that there are no minorities in the Transportation Department" with Lewis Brooks, an SCS assistant superintendent. (Id. at 1).
In June 2014, the Board posted a vacancy notice for a transportation supervisor position. (Doc. # 20-8 at 103). Twenty-two candidates, including Plaintiff, applied for the position. (Doc. # 20-5 at 17-18). SCS officials chose to interview four applicants, including Plaintiff, for the position. (Doc. # 20-14 at 2). Two applicants — Plaintiff and Debra Cummings — were interviewed by a panel on June 18, 2014. (Doc. # 22-14). For the other two applicants, the interview panel decided to rely upon the interviews those applicants had completed in connection with a different position, transportation coordinator. (Docs. # 20-9 at 5; 20-10 at 4; 20-14 at 3). Jim Miller has explained that considering a prior interview for a subsequent opening "was consistent with how we had handled similar situation in which a candidate would be interviewed for more than one position in a short time frame." (Doc. # 20-9 at 5).
The transportation supervisor serves as the second-in-command within SCS's transportation department. (Doc. # 20-2 at 31). SCS's job description for a transportation supervisor requires the transportation supervisor to hold a bachelor's degree, completely understand "bus route and safety issues," possess a minimum of five years' experience in "school transportation," and have an Alabama driver's license. (Doc. # 22-17 at 1). Moreover, a transportation supervisor "[m]ust hold or obtain a valid commercial driver's license and school bus license." (Id.). The Board may accept alternative qualifications to those listed in the description. (Id.). A transportation supervisor performs several transportation and leadership functions, including:
(Id. at 1-2). The interview panel believed that all four interviewees were qualified for the transportation supervisor position. (Doc. # 20-9 at 4-5). As discussed more fully below (in the analysis section), Plaintiff disputes that Brent Copes was qualified to become transportation supervisor because he did not hold a valid commercial driver's license at the time he was hired. (Doc. # 21 at 10).
Four SCS employees interviewed Plaintiff and Cummings for the transportation supervisor position: (1) Randy Fuller, SCS's superintendent; (2) Lewis Brooks, an assistant superintendent; (3) Jim Miller, an assistant superintendent; and (4) Vines, who had been promoted to transportation coordinator.
Miller, Brooks, and Fuller have testified that Copes was the best-qualified candidate due to his leadership experience as principal and assistant principal. (Docs. # 20-9 at 7; 20-10 at 4; 20-14 at 3-4). Vines has recounted that the other three panelists identified Copes as the best candidate. (Doc. # 20-15 at 5). Vines knew at the time that Copes had leadership experience as a principal and assistant principal, and he believed that Copes's work as assistant principal would provide him valuable experience as transportation supervisor because SCS assistant principals managed the transportation at their schools. (Id.). Therefore, Vines agreed with recommending Copes as transportation supervisor. (Id.). During his deposition, Vines explained that he trusted the judgment of the three panelists who had also interviewed Copes because he had less experience than them. (Doc. # 20-4 at 29-30).
On June 24, 2014, Tom Ferguson, a deputy superintendent, submitted a written recommendation to hire Copes as transportation supervisor. (See Doc. # 20-8 at 108). The written recommendation mentioned Copes's experience as "a school administrator at the elementary, middle and high school levels." (Doc. # 20-6 at 19). The Board considered Ferguson's recommendation during a June 24, 2014 meeting that occurred at noon. (Doc. # 20-8 at 108). Three of the five Board members attended the meeting. (Id.). Two Board members — Aubrey Miller and Steve Martin — were absent. (Id.). This Board meeting lasted for seven minutes, and the Board merely approved Ferguson's hiring recommendations for a transportation supervisor and an elementary school principal. (Id.). Ferguson has testified that the June 24th Board meeting was a special Board meeting, rather than a regular Board meeting that would have occurred on a Thursday evening.
Following Plaintiff's failed promotion application in 2014, Plaintiff and Pierson confronted Bice about the lack of black employees in the transportation department. (Doc. # 22-1 at 2). Bice responded that SCS might not have received a good resume from a black applicant. (Docs. # 22-1 at 2; 22-2 at 1). As already referenced, Bice indicated a black applicant could be considered for a position in that department if they received a decent resume. (Id.).
Under Federal Rule of Civil Procedure 56, summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment always bears the initial responsibility of informing the court of the basis for its motion and identifying those portions of the pleadings or filings which it believes demonstrate the absence of a genuine issue of material fact. Id. at 323. Once the moving party has met its burden, Rule 56 requires the non-moving party to go beyond the pleadings and — by pointing to affidavits, or depositions, answers to interrogatories, and/or admissions on file — designate specific facts showing that there is a genuine issue for trial. Id. at 324.
The substantive law will identify which facts are material and which are irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) ("Anderson"). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the non-movant. See Allen v. Bd. of Pub. Educ. for Bibb Cty., 495 F.3d 1306, 1314 (11th Cir. 2007); Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted. See id. at 249.
When faced with a "properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations." Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). As Anderson teaches, under Rule 56(c) a plaintiff may not simply rest on her allegations made in the complaint; instead, as the party bearing the burden of proof at trial, she must come forward with at least some evidence to support each element essential to her case at trial. See Anderson, 477 U.S. at 252. "[A] party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.'" Id. at 248 (citations omitted).
Summary judgment is mandated "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp., 477 U.S. at 322. "Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative." Sawyer v. Sw. Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003) (citing Anderson, 477 U.S. at 250-51).
"[A]t the summary judgment stage the judge's function is not himself 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. "Essentially, the inquiry is `whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law." Sawyer, 243 F. Supp. 2d at 1262 (quoting Anderson, 477 U.S. at 251-52); see also LaRoche v. Denny's, Inc., 62 F.Supp.2d 1366, 1371 (S.D. Fla. 1999) ("The law is clear . . . that suspicion, perception, opinion, and belief cannot be used to defeat a motion for summary judgment.").
Plaintiff raises race discrimination claims under Title VII of the Civil Rights Act and 42 U.S.C. § 1981. Title VII racial disparate treatment claims and § 1981 race discrimination claims are evaluated using the same analytical framework. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998) ("Both [Title VII and § 1981] have the same requirements of proof and use the same analytical framework, therefore we shall explicitly address the Title VII claim with the understanding that the analysis applies to the § 1981 claim as well."). Thus, the court analyzes Plaintiff's disparate treatment Title VII and § 1981 race discrimination claims together for purposes of summary judgment.
Typically, Title VII and § 1981 discrimination claims that rely on circumstantial evidence are evaluated under the McDonnell Douglas burden-shifting framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See also Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012) ("A plaintiff typically makes a case of discrimination through indirect evidence using the burden-shifting framework set out in McDonnell Douglas. . . ."). A plaintiff presents a prima facie failure to promote case by showing: (1) he or she is a member of a protected class; (2) he or she was qualified and applied for the promotion; (3) he or she was rejected despite being qualified; and (4) "other equally or less qualified employees who were not members of the protected class were promoted." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004), abrogated on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006). Here, Defendants have not disputed that Plaintiff makes out prima facie failure to promote claims under Title VII and § 1981.
Once the plaintiff successfully demonstrates a prima facie case, the defendant is required to articulate a legitimate, non-discriminatory reason for its conduct. Wilson, 376 F.3d at 1087. This burden has been described as "exceedingly light." Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994). "If the employer satisfies its burden by articulating one or more reasons, then the presumption of discrimination is rebutted, and the burden of production shifts to the plaintiff to offer evidence that the alleged reason of the employer is a pretext for illegal discrimination." Wilson, 376 F.3d at 1087. Here, the Board explains that it promoted Miller and Copes to route supervisor and transportation supervisor, respectively, because they were more qualified for those promotions than Plaintiff. (Doc. # 19 at 16). That qualifies as a legitimate, non-discriminatory reason for the promotions. Wilson, 376 F.3d at 1090.
When deciding a pretext issue at summary judgment, the court evaluates "whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence." Ash v. Tyson Foods, Inc., 664 F.3d 883, 892 (11th Cir. 2011) (internal quotation marks and citation omitted). A legitimate reason for a decision is not classified as a pretext unless the plaintiff shows that the reason was false "and that discrimination was the real reason." Springer v. Convergys Customer Mgmt. Grp, Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) (emphasis in original) (quoting Brooks v. Cty. Comm'n of Jefferson Cty., 446 F.3d 1160, 1163 (11th Cir. 2006)). When a pretext issue hinges on the relative qualifications of a plaintiff and another successful applicant (in other words, when a plaintiff claims pretext is demonstrated because of the relative qualifications of himself and the incumbent), the court does not rule upon whom the defendant employer "should have hired." Kidd v. Mando Am. Corp., 731 F.3d 1196, 1206 (11th Cir. 2013) (emphasis in original). Rather, the court "review[s] the qualifications of the selected candidate and plaintiff, and determine[s] whether the difference between the two is of `such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.'"
Among other Rule 56 evidence, Plaintiff presents statistical evidence that no African-Americans have worked in SCS's transportation department — a department within SCS's central office — as proof of pretext. (See Doc. # 21 at 28). Statistical evidence can be relevant to determining whether an employer's legitimate, non-discriminatory reason for an action is pretext for discrimination. Miles v. M.N.C. Corp., 750 F.2d 867, 870 (11th Cir. 1985). Yet, statistical evidence is not meaningful to analyzing a pretext issue if there is no way to discern whether the disparities shown by the evidence "are the result of legitimate or racially-discriminatory variables." Ogletree v. City of Auburn, 619 F.Supp.2d 1152, 1170 (M.D. Ala. 2009) (quoting Blackledge v. Ala. Dep't of Mental Health & Mental Retardation, 2007 WL 3124452, at *20 (M.D. Ala. Oct. 25, 2007)). "Statistics without any analytical foundation are virtually meaningless." Wilson, 376 F.3d at 1089 (internal quotation marks omitted) (quoting Evans v. McClain of Ga., Inc., 131 F.3d 957, 963 (11th Cir. 1997)). For example, in Wilson, the court held that the plaintiff's statistical evidence that the employer had only hired two female vice-presidents for forty-four vice-president openings in a seven-year period was not probative evidence of pretext because the plaintiff offered no "other relevant information, including the number of women who expressed interest in vice president positions." Id. at 1088-89. Similarly, the Eleventh Circuit has also rejected statistical evidence about the number of black gas dealers in predominantly white areas of the Atlanta metropolitan area as "statistical evidence of discriminatory intent" where the plaintiff failed to proffer "evidence as to how many blacks applied and were rejected and evidence of the success rate of equally qualified white applicants." Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir. 1994).
In their summary judgment motion, Defendants explain that Miller was a more qualified candidate for route supervisor because he "regularly drove different routes while regular bus drivers, like Plaintiff, drove the same routes every day." (Doc. # 19 at 17). Certainly, knowledge of routes across Shelby County could be valuable for a position that primarily concerns creating and changing bus routes. (See Doc. # 22-16 at 1). Plaintiff responds that his leadership experience, driving experience, and training experience made him more qualified for the position. (Doc. # 21 at 21) (referring to Doc. # 21 at 17-19). But, while Plaintiff certainly possessed more driving experience than Miller, Miller was a bus driver for more than five years before his promotion — the minimum transportation experience required for a route supervisor. (Docs. # 20-9 at 11; 22-16 at 1). And, the panelists who interviewed the route supervisor applicants have uniformly explained that they believed Miller possessed more knowledge about bus routes because of his substitute driving experience. (Docs. # 20-11 at 3; 20-12 at 3; 20-13 at 3; 20-15 at 3). Finally, it must be reiterated that out of eleven interviewees the panelists gave Plaintiff the sixth-highest interview score (102) and Miller the fifth (103.5). (Doc. # 20-9 at 11). The panelists thought the two were closely situated. All in all, Plaintiff's argument that he was more qualified than Miller relies on second-guessing the business judgment that substitute driving experience in several areas of Shelby County was more valuable than Plaintiff's driving experience, which was concentrated in one area of the county. The court cannot critique such business judgments when deciding whether one applicant or another was more qualified. Cf. Kidd, 731 F.3d at 1207 (explaining that courts cannot second-guess honest business judgments for promoting one individual over another under Title VII). Simply put, the difference in qualifications between Miller and Plaintiff is not so vast that no reasonable person could have selected Miller for the promotion to route supervisor. See id. at 1206.
Plaintiff contends that Defendants' proffered rationale for promoting Miller is pretextual because one panelist rated Plaintiff's experience at the same level as Miller's experience. (Doc. # 21 at 21). But, collectively, the four panelists gave Miller an overall higher score than Plaintiff for the experience question used during the interviews.
Finally, Plaintiff argues that Fuller's retraction of the second route supervisor opening is evidence of pretext. (Doc. # 21 at 22). The court is not convinced. First, none of the Rule 56 evidence before the court indicates that Plaintiff would have been the applicant hired for the second route supervisor position. None of the panelists have testified that Plaintiff was their second choice, and he only received the sixth-highest interview score. Nothing in the record — other than Plaintiff's suppositions — indicates that he would have been selected for the second route supervisor opening in the event Fuller had decided to fill it. Second, contrary to Plaintiff's argument, the Rule 56 evidence indicates that Alabaster merely began its school district's separation process from SCS in 2011 and did not finalize the separation until 2013. (Doc. # 22-11 at 4). Although Fuller has testified that he began considering budget cuts before February 2012 (see Doc. # 20-10 at 2-3), the court is not persuaded that the posting of two route supervisor openings shows that Fuller had budgeted for both positions. Indeed, neither of the route supervisor positions was budgeted for when SCS began accepting applications for them in February 2012. (Doc. # 20-1 at 57). For these reasons, the withdrawal of the second route supervisor opening offers no Rule 56 evidence in support of Plaintiff's pretext argument.
Because Plaintiff presents insufficient Rule 56 evidence for a reasonable factfinder to find that Defendants' proffered reason for promoting Miller to route supervisor was a pretext for unlawful discrimination, Defendants are due to be granted summary judgment on all Title VII and § 1981 claims pertaining to the 2012 route supervisor promotion decision.
In their summary judgment brief, Defendants state that the Board promoted Copes to transportation supervisor because his leadership experience as principal and vice principal made him a superior candidate. (Doc. # 19 at 18). The Rule 56 evidence indicates that SCS wanted a transportation supervisor with prior leadership experience, as the interview score sheet described the transportation supervisor as a "leadership position." (E.g., Doc. # 20-10 at 11). Copes had school-level administrative experience as principal and vice principal that Plaintiff lacked. Additionally, Copes received a higher average score on the leadership question than Plaintiff did. (See Docs. # 20-9 at 18-22, 28; 20-10 at 7, 11; 20-14 at 6, 9; 20-15 at 14) (giving Copes an average score of 3.625 on question one of the interview and Plaintiff an average score of 3 on that question). Plaintiff responds that the panelists' reliance on Copes's administrative experience is inconsistent with Brooks's testimony that "transportation experience" was the main qualification for a transportation supervisor. (See Doc. # 20-5 at 26). During his deposition, though, Brooks clarified that Copes's driving experience as a teacher and his handling of transportation issues as a principal and vice principal constituted sufficient transportation experience. (Id. at 30-31). And, Brooks explained that transportation experience could be gained at the school level because principals supervised transportation of students at their respective schools. (Id. at 32). Brooks's testimony regarding transportation experience does not contradict his testimony that Copes's leadership experience made him a more qualified candidate.
In his opposition brief, Plaintiff claims that Copes was not qualified to be a transportation supervisor because he did not hold a commercial driver's license ("CDL") at the time he was hired. (Doc. # 21 at 10-11). This argument misconstrues the transportation supervisor qualifications. SCS required the transportation supervisor to "hold or obtain" a CDL. (Doc. # 22-17 at 1). The phrasing of this requirement plainly contemplates that a transportation supervisor could obtain his or her CDL after hiring. Indeed, Vines, who served as SCS's transportation supervisor prior to Copes's hiring, has testified that he did not acquire a CDL until after he became a transportation supervisor. (Doc. # 20-4 at 8).
Plaintiff also claims that he was more qualified than Copes because he had more transportation experience and more recent transportation experience. (Doc. # 21 at 24). But, Plaintiff fails to address the distinction between non-supervisory transportation experience and supervisory transportation experience. The transportation supervisor's primary responsibilities included administrative and management duties. (See Doc. # 22-17 at 1) (indicating that the supervisor's primary responsibilities included assisting the coordinator "in administering transportation program" and assisting "in the management and purchasing of equipment as well as in the budget planning process"). Copes directly supervised the bus drivers at his school when he served as an assistant principal. (See Docs. # 20-2 at 33; 20-3 at 20; 22-2 at 4). In contrast, Plaintiff worked in a non-supervisory role as a bus driver, although at least one of the panelists has acknowledged that Plaintiff acted as "a leader with the bus drivers." (Doc. # 20-2 at 33). The court finds that the interview panelists reasonably could have determined that Copes's supervisory and administrative experience would be superior for the transportation supervisor position. Plaintiff argues that his transportation experience should be considered superior because Copes obtained any relevant transportation experience several years before his hiring as transportation coordinator. (Doc. # 21 at 24). That argument fails to show that no reasonable person could have selected Copes, as a reasonable person could have valued Copes's less recent transportation experience — which included supervisory and management duties — over Plaintiff's non-supervisory transportation experience. Cf. Kidd, 731 F.3d at 1206. Accordingly, Plaintiff has not established a triable issue of pretext regarding the 2014 promotion based on his comparison of Copes's qualifications to his own qualifications.
Plaintiff argues that additional evidence — in addition to the disparity in qualifications — shows the pretextual nature of Defendants' rationale. First, Plaintiff claims that Defendants covered up a written reprimand Copes received a month before being hired as transportation supervisor.
Second, Plaintiff argues that various deviations from SCS's standard procedures support his pretext argument. (Doc. # 21 at 27-28). See Hurlbert v. St. Mary's Health Care Sys., Inc., 439 F.3d 1286, 1299 (11th Cir. 2006) ("[A]n employer's deviation from its own standard procedures may serve as evidence of pretext."). The court is not convinced that the panelists' decision to not interview Copes again for the supervisor position qualifies as a failure to follow hiring policy. Plaintiff identifies no established policy requiring SCS to interview applicants after the job is posted, and Jim Miller merely testified that it would be normal to interview people during that period. (See Doc. # 20-2 at 20-21). While Fuller testified during his deposition that SCS has "a process of interviewing with questioning" and that it tries "to stay consistent to that process" (see Doc. # 20-3 at 33), that testimony does not provide probative evidence of a policy to interview all applicants with the same interview panel or to interview all applicants after posting an opening. The Rule 56 record shows that an SCS interview panel — with three of the same supervisors that interviewed Plaintiff — asked Copes essentially identical questions to those Plaintiff received. Plaintiff also contends in his opposition brief that the "hurried nature of the selection process" is proof of pretext. (Doc. # 21 at 28-29). But, Plaintiff presents no Rule 56 evidence that the Board violated any standard procedure by approving employment recommendations in a specially called meeting, rather than a regular meeting. (See id.). Therefore, the process by which Copes was promoted to transportation supervisor offers no significant Rule 56 evidence from which a reasonable jury could find pretext. Thus, although Plaintiff has attacked several aspects of the decisions to deny his requests for promotion and argued that Defendants should have followed different procedures in the employment process, those arguments miss the mark. He is in essence appealing to the court's judgment as to the wisdom of Defendants' decisions. But neither § 1981 nor Title VII are designed to make federal courts "sit as a super-personnel department that reexamines an entity's business decisions." Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). See also Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir. 1997) (holding that "federal courts do not sit to second-guess the business judgment of employers"), abrogated in part on other grounds by Ash, 546 U.S. 454 (2006).
Third, Plaintiff argues that the complete lack of African-American employees in the SCS's transportation department is statistical evidence of pretext. (Doc. # 21 at 28). Based on the Rule 56 record presented to the court, the court disagrees. Plaintiff does not present any evidence regarding the number of African-Americans who expressed interest in transportation department positions; he merely presents evidence that Pierson and he applied for transportation department positions. Cf. Wilson, 376 F.3d at 1089. Nor does Plaintiff offer evidence about the success rate of equally qualified white and African-American applicants. Cf. Howard, 32 F.3d at 524. Without such contextual evidence to assist a factfinder in analyzing why the transportation department lacks African-American employees, the statistical evidence is "virtually meaningless" to determining whether Defendants' rationale for the promotion decision is pretextual. Wilson, 376 F.3d at 1089.
Fourth, Plaintiff claims that the Board provided incorrect information to the Equal Employment Opportunity Commission ("EEOC") when it responded to his EEOC charge that constitutes circumstantial evidence of discrimination. (Doc. # 21 at 26-27). The court agrees with Plaintiff that the EEOC response contains some inaccurate information. The Board informed the EEOC that Fuller, Vines, Brooks, and Miller interviewed the four applicants for the supervisor position (Doc. # 22-7 at 1), but it is apparent that Vines did not participate in the interview panel that examined Copes and Northcutt. The Board also told the EEOC that Copes "developed a computer program that created transportation routes for the bus routes," but that statement was not true, as Copes actually told the interview panel that he used mapping software to create bus routes.
Although, under certain circumstances, a defendant's misstatements in an EEOC position statement may be circumstantial evidence that could support a finding of discrimination, the court concludes that this evidence is insufficient to support a triable issue of pretext here because neither misstatement involves a material issue. One of the misstatements in the position statement concerns a procedural aspect of the promotion, and the other misstatement concerns a transportation-related qualification. The position statement — consistent with the Board's current briefing — describes the transportation supervisor role as an administrative and leadership position and states that Copes had significant leadership experience. (Doc. # 22-7 at 2).
Because Plaintiff presents insufficient Rule 56 evidence for a reasonable jury to find that Defendants' proffered reason for promoting Copes to transportation supervisor was a pretext for unlawful discrimination, Defendants are due to be granted summary judgment on all Title VII and § 1981 claims pertaining to the 2014 transportation supervisor decision.
Plaintiff argues, in the alternative, that he has presented a "convincing mosaic" of circumstantial evidence to create an inference of race discrimination for the 2014 promotion decision. (Doc. # 21 at 29). The court disagrees.
In Smith v. Lockheed-Martin, the Eleventh Circuit held that a plaintiff does not always have to establish a prima facie case under the McDonnell Douglas framework to present a triable Title VII claim of unlawful discrimination through circumstantial evidence. 644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff can present a triable issue of discriminatory intent through a convincing mosaic of circumstantial evidence from which a reasonable jury could find intentional discrimination by the decisionmaker. Id. Or, stated in other words, "[a] `convincing mosaic' may be shown by evidence that demonstrates, among other things, (1) `suspicious timing, ambiguous statements . . ., and other bits and pieces from which an inference of discriminatory intent might be drawn,' (2) systematically better treatment of similarly situated employees, and (3) that the employer's justification is pretextual." Lewis v. City of Union City, 877 F.3d 1000, 1018 (11th Cir. 2017) (quoting Silverman v. Bd. of Educ. of City of Chi., 637 F.3d 729, 733-34 (7th Cir. 2011)). In Lockheed-Martin, the circumstantial evidence presented by the plaintiffs was overwhelming and included: (a) a documented history of disparate treatment of Caucasian and African-American employees; (b) a spreadsheet listing employees under investigation by name and race that the defendant's disciplinary review committee used to make disciplinary decisions; and (c) a news program reporting the defendant's struggles with racism in the workplace, which focused on violence by a white supremacist. See id. at 1329-40. The Eleventh Circuit concluded, among other reasons, that the plaintiffs presented a triable race discrimination claim because the defendant "consciously injected race considerations into its discipline decision making without an adequate explanation for doing so." Id. at 1341.
The evidence of race discrimination in this case falls far short of that presented in Lockheed-Martin. Plaintiff has only presented a single ambiguous (at best) statement from a Board member to support his argument that the relevant decisionmakers considered race in employment decisions. Cf. id. at 1329-40 (explaining in detail the less favorable treatment received by Caucasians in a defendant's disciplinary process). Despite Plaintiff's evidence that no African-Americans have been employed by SCS's transportation department, he has not offered evidence from which the court could find that Defendants systematically treated white employees more favorably than similarly situated black employees in promotion decisions. Cf. Lewis, 877 F.3d at 1018. And, for the reasons explained above, a reasonable factfinder could not conclude that Defendants' reason for promoting Copes was a pretext for race discrimination. Cf. id. Therefore, Plaintiff's Title VII and § 1981 claims regarding the 2014 transportation supervisor promotion cannot survive summary judgment on a mosaic theory.
For the reasons explained above, Defendants' Motion for Summary Judgment (Doc. # 18) is due to be granted.
(Doc. # 22-7 at 2).
