Thaggard v. State of Alabama Department of Youth Services

Filing 77

MEMORANDUM OPINION AND ORDER that (1) Defendant's 56 Motion for Summary Judgment be and the same is hereby GRANTED. (2) Defendant's 73 Motion to Strike is DENIED AS MOOT. (3) All claims and this case are DISMISSED WITH PREJUDICE. (4) The pretrial and the trial scheduled in this matter are CANCELLED. This Court will enter a separate final judgment taxing costs. Signed by Honorable Ira De Ment on 10/16/2008. (dmn)

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION T H O M A S THAGGARD, P l a in tif f , v. S T A T E OF ALABAMA DEPARTMENT O F YOUTH SERVICES, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-483-ID (W O )

M E M O R A N D U M OPINION AND ORDER T h o m a s Thaggard brings this action against the State of Alabama Department of Y o u th Services ("DYS") alleging discrimination on the basis of race and age, and retaliation. T h a g g a rd claims that DYS denied his applications for promotions in 2006 and 2007 for the p o sitio n of youth services specialist in violation of his rights under Title VII of the Civil R ig h ts Act of 1964, 42 U.S.C. § 2000e, et seq., and the Age Discrimination in Employment A c t, 29 U.S.C. §§ 621-34 ("ADEA"). This cause is before the Court on DYS's Motion for S u m m a ry Judgment (Doc # 56), filed September 15, 2008. The Court has carefully

c o n sid e re d all submissions in support of and in opposition to the motions and the relevant ca se law. For the reasons set forth below, the Court finds that DYS's Motion for Summary J u d g m en t is due to be GRANTED. I . JURISDICTION AND VENUE T h e Court exercises subject matter jurisdiction over Plaintiff's claims pursuant to 28 U .S .C . §§ 1331 (federal question) and 1343(4) (civil rights). The parties contest neither

p e rs o n a l jurisdiction nor venue, and the Court finds an adequate factual basis for each. I I . SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact an d that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). " A n issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to f in d for the nonmoving party. An issue is `material' if it might affect the outcome of the c a se under the governing law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1 4 8 9 , 1496 (11th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 )). "A genuine issue of material fact does not exist unless there is sufficient evidence f a v o rin g the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v . AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of M ia m i, 52 F.3d 918, 921 (11th Cir. 1995) (internal quotation marks and citations omitted)). T h e party seeking summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the

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n o n m o v in g party has failed to present evidence in support of some element of its case on w h ic h it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e nonmovant and must draw all justifiable inferences from the evidence in the nonmoving p a rty's favor. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); M c C o r m ic k v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (the evidence a n d all reasonable inferences from the evidence must be viewed in the light most favorable to the nonmovant). After the nonmoving party has responded to the motion for summary ju d g m e n t, the court must grant summary judgment if there is no genuine issue of material f a c t and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 5 6 (c). I I I . FACTS 1

Plaintiff's brief attempts to support numerous factual assertions with citations to evidence that have not been submitted to this Court. This Court will not consider any facts th a t are not in evidence. See, e.g., Singh v. I.N.S., 213 F.3d 1050, 1054 (9th Cir. 2000) 3

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T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following relevant facts: T h ag g ard is a white male born June 4, 1948. Thaggard was hired by DYS in February 1 9 7 7 as a Counselor Aide II. By March 1987, Thaggard had been promoted to Counselor I. Thaggard's promotion to Counselor I in 1987 was the last promotion he has received. T h rou g h o u t Thaggard's thirty-year career at DYS, he has received a number of disciplinary a c tio n s , including two suspensions, two letters of reprimand, and nine written warnings. T h a g g a rd has been arrested twice for possession of marijuana, although the charges in both c a se s were dropped. In March 2006, Thaggard filed charges of discrimination with the EEOC against DYS b a se d upon events that are not relevant to this case. Later in 2006, a position for youth s e rv ic e s specialist became available, which would have been a promotion from his current p o sition as counselor I. Thaggard applied for this position, and in May 2006, Thaggard rec eive d a letter from Debra Spann, Personnel Manager for DYS, which stated that Thaggard h a d been certified for consideration for the position of youth services specialist. The letter a ls o indicated that Thaggard's "rank" was "Band 1 (Tied with 5)." T h a g g a rd interviewed for the specialist position. Both of the DYS employees who in ter v iew e d Thaggard for the position, Tim Davis and Janice Lewis, are black. Thaggard did

(statements in motions are not evidence and are not entitled to evidentiary weight). 4

n o t receive the promotion; rather, DYS selected Victor Black, a black male born in 1966, for the position, effective September 1, 2006. After he was denied this promotion, Thaggard a m e n d e d his pending March 2006 EEOC complaint to include the Victor Black promotion. O n September 7, 2006, the EEOC issued a Right to Sue letter to Thaggard regarding this c o m p lain t. O n September 11, 2006, Thaggard filed another charge of discrimination with the E E O C , which reasserted the Victor Black promotion as discrimination. Subsequently, a s e c o n d position for youth services specialist became available, which Thaggard also applied f o r. On February 7, 2007, Thaggard received a letter from DYS certifying him for

c o n s id e ra tio n for the position. Thaggard's rank was listed as "Band 1 (Tied with 26)." T h a g g a r d interviewed with Davis and Lewis a second time for this position. However, T h a g g a rd did not receive this promotion because DYS promoted Arnea Linden and James W h ite to the position effective March 6, 2007. O n May 10, 2007, Thaggard filed yet another EEOC charge of discrimination based u p o n this second youth services specialist position. No right to sue letter has yet been issued b y the EEOC regarding this claim. Thaggard filed the instant lawsuit in this Court on June 1 , 2007. I V . DISCUSSION A. D is c r im in a tio n Claims 1. T itle VII Framework

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T itle VII makes it an unlawful employment practice for an employer "to fail or refuse to hire or to discharge any individual, or otherwise discriminate against any individual with re sp e c t to his compensation, terms, conditions, or privileges of employment, because of such ind ividu al's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). A plaintiff may establish a Title VII claim through the introduction of direct evidence o f discrimination, or through circumstantial evidence that creates an inference of d is c rim in a tio n . Bass v. Bd. of County Comm'rs, 256 F.3d 1095, 1103 (11th Cir. 2001). F o r a plaintiff to base a Title VII claim on circumstantial evidence of discrimination, th e plaintiff must first establish a prima facie case of discrimination using the McDonnell D o u g la s framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Therefore, in order to establish a prima facie case of race discrimination under Title VII, the p la in tif f must show that: (1) he was qualified and applied for the position; (2) he was rejected d e sp ite his qualifications; and (3) other equally or less qualified employees who are not m e m b e rs of his race were hired. Bass, 256 F.3d at 1104. Once the plaintiff has made out a p rim a facie case of discrimination, the burden shifts to the employer to articulate some le g itim a te , non-discriminatory reason for the employee's rejection. Id. If the employer meets th is burden of production, the burden shifts back to the plaintiff to establish that each of the d e f e n d a n t's proffered reasons for hiring someone of a different race is pretextual. Id. 2. A D E A Framework

T h e ADEA makes it "unlawful for an employer to fail or refuse to hire or to discharge

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a n y individual or otherwise discriminate against any individual with respect to his c o m p e n s a tio n , terms, conditions, or privileges of employment, because of such individual's ag e." 29 U.S.C. § 623(a)(1). A s is the case for Title VII cases, ADEA claims based upon circumstantial evidence o f discrimination use the McDonnell Douglas framework. See McDonnell Douglas, 411 U.S. 7 9 2 ; Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000). Under that framework, th e plaintiff must first establish a prima facie case of discrimination by showing that he (1) w a s a member of the protected age group, (2) was subjected to adverse employment action, (3 ) was qualified to do the job, and (4) was replaced by or otherwise lost a position to a yo u n g e r individual. Chapman, 229 F.3d at 1024. If the plaintiff establishes a prima facie c a se , the burden shifts to the employer to provide a legitimate, non-discriminatory reason for s e le c tin g the younger individual. Id. If the employer does so, then the burden shifts back to th e plaintiff to show that the reasons articulated by the employer are pretextual. Id. at 102425. 3. 2 0 0 6 Promotion

T h a g g a rd claims that DYS's decision to promote Black to the position of youth s e rv ic e s specialist in 2006 discriminated against him on the basis of age and race. DYS has m o v e d for summary judgment on these claims on the grounds that (1) Thaggard's claim is tim e barred because he filed it more than ninety days after he received his right to sue letter f ro m the EEOC; and (2) that DYS did not discriminate when it chose not to promote

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T h a g g a rd to the position. U n d e r both Title VII and the ADEA, a claim is time barred if it is filed more than n in e ty days after the plaintiff receives a right to sue letter from the EEOC. Santini v. C le v ela n d Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000) ("Title VII and ADEA actions may n o t be brought more than 90 days after a complainant has adequate notice that the EEOC has d is m is s e d the Charge."). The EEOC issued Thaggard a right to sue letter regarding his d iscrim inatio n claim for the 2006 promotion of Black on September 7, 2006. However, T h a g g a rd did not file this lawsuit until June 1, 2007, which is more than eight months after th e right to sue letter was issued. T h a g g a rd argues that this claim was timely filed after a second right to sue letter was is s u e d on April 27, 2007. However, a second right to sue letter will only extend the ninetyd a y time limit if it was issued pursuant to a discretionary reconsideration on the merits of the p rio r determination. See Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 557 (11th C ir. 1997). There is no evidence that the second right to sue letter was issued pursuant to a rec o n side ratio n of the original claim. Therefore, the ninety-day period expired well before T h a g g a rd filed this case on June 1, 2007, and his claims regarding the 2006 Black promotion a r e time barred. Consequently, DYS is entitled to summary judgment with respect to these c la im s . 4. 2 0 0 7 Promotions

T h a g g a rd filed his charge of discrimination for the 2007 promotion with the EEOC

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o n May 10, 2007. The EEOC never issued Thaggard a right to sue letter for this claim, but D Y S has waived the exhaustion of remedies defense for this claim. Because the procedural re q u ire m e n t of exhausting administrative remedies with the EEOC prior to filing a civil suit is not a jurisdictional requirement, it is a defense that may be waived by the defendant. See S o lo m o n v. Hardison, 746 F.2d 699, 701 (11th Cir. 1984). a. D ir e ct Evidence

T h a g g a rd argues that he has presented this Court with direct evidence of racial d isc rim in a tio n . Direct evidence of discrimination is evidence which, if believed, would p ro v e the existence of a fact in issue without inference or presumption. Bass, 256 F.3d at 1105. Only the most blatant remarks, whose intent could be nothing other than to

d is c rim in a te , constitute direct evidence of discrimination. Id. Moreover, for statements of d is c rim in a to ry intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision. Id. Remarks by non-decisionmakers or re m a r k s unrelated to the decisionmaking process itself are not direct evidence of d is c rim in a tio n . Id. A s direct evidence of discrimination, Plaintiff submits the following statements B o o k e r made during his deposition: Q: O k a y. Well, with the disproportionate number of blacks versus whites in the student populations, sometimes may be approaching two-thirds, h a s it been beneficial to have more black staff members out here? H a s it been beneficial? Y es. 9

... A: Q:

A: Q: A: Q: A:

It helps, yeah. I t helps to have more black staff members? Y eah. O k a y. Now, do you find that black staff members have, generally speaking, a better ability to relate to black students in the population? G e n e r a lly speaking, yes.

P l.' s Resp. to Motion for Summary Judgment (Doc. # 68), Ex. E, at 11-12. However, these s ta te m e n ts do not constitute direct evidence of discrimination. Compare Haynes v. W.C. C a y e & Co., 52 F.3d 928, 930 (11th Cir. 1995) (statement that "women were simply not to u g h enough to do the job" and "it would require a man to do the job" was direct evidence o f discrimination), with Damon v. Fleming Supermarkets Of Fla., 196 F.3d 1354, 1359 (11th C ir. 1999) (statement that "what the company needed was aggressive young men like [D' A n g elo] to be promoted" was not direct evidence of discrimination). b. C ir c u m s ta n t ia l Evidence under McDonnell Douglass Framework

T h a g g a rd further argues that he has presented sufficient circumstantial evidence of d is c rim in a tio n to establish a prima facie case of discrimination under both Title VII and the A D E A . DYS argues that Thaggard has failed to make a prima facie case (1) under both Title V II and ADEA because he was not qualified for the position he applied for, and (2) under th e ADEA because the people DYS promoted were not substantially younger than Thaggard. i. P r im a Facie Case

A n individual is "qualified" for a position, for purposes of employment discrimination la w , if he meets the criteria that the employer has specified for the position. Wright v. S o u th la n d Corp., 187 F.3d 1287, 1301 n.16 (11th Cir. 1999). DYS argues that Thaggard was 10

n o t qualified for the youth services specialist position because he did not meet the criteria s p e c if ie d in the job announcement. The job announcement for the DYS specialist position s ta te s : T h i s position requires knowledge of rehabilitation and treatment practices, in d iv id u a l and group behavior, and crisis intervention methods applicable to ju v e n ile delinquents. This position also requires the ability to plan, assign, and e v a lu a te the work of others. The ability to maintain effective working re la tio n s h ip s and to express ideas clearly and concisely are required. A c c o rd in g to DYS, Thaggard did not meet these requirements. However, taking the e v i d e n c e in the light most favorable to Thaggard, this Court finds that there is sufficient e v id e n c e that a reasonable trier of fact could find that DYS believed Thaggard was " q u a lifie d " for purposes of employment discrimination law. Indeed, Thaggard had thirty ye a rs of experience working at DYS when he interviewed for the specialist position. M o re o v e r, DYS interviewed Thaggard each time he applied for the position, from which a re a so n a b le fact finder could infer that DYS thought that he met the minimum requirements f o r the position. In addition, DYS has not presented this Court with any evidence that T h a g g a rd failed to meet the criteria in the job announcement in order to be considered " u n q u a lif ie d ," and Thaggard has met his burden to present evidence sufficient to create a g e n u in e issue of material fact. Therefore, DYS is not entitled to summary judgment on this is s u e . Furthermore, DYS argues that it is entitled to summary judgment with respect to the p ro m o tio n of Linden to the specialist position because she is only 8 years younger than

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T h a g g a r d . However, an eight year age difference is sufficient to establish a prima facie case o f age discrimination. See, e.g., Damon, 196 F.3d at 1360 (five year age difference su f f icie n t); Carter v. DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir. 1997) (three year age d if f e re n c e sufficient). Consequently, this Court finds that Thaggard has met his burden to e s ta b lis h a prima facie case of discrimination under both Title VII and the ADEA. ii. L e g itim a te , Nondiscriminatory Reasons

S in c e this Court has found Thaggard has established a prima facie case of d is c rim in a tio n , the burden shifts to DYS to provide a legitimate, nondiscriminatory reason f o r promoting Linden and White to the specialist position, rather than Thaggard. Bass, 256 F .3 d at 1104. D Y S has put forward the following justifications for failing to promote Thaggard: (i) T h a g g a rd 's disciplinary history and performance problems; (ii) Thaggard's arrest record; and (iii) Thaggard did not interview as well as the candidates who were promoted. T h a g g a rd 's disciplinary history includes, over his thirty year career at DYS, two s u s p e n sio n s , two letters of reprimand, and nine written warnings. Davis stated that he was a w a re of Thaggard's arrest for marijuana, but was not aware the charges were dismissed. W ith respect to the interview, Davis felt that Thaggard's performance during the in te rv ie w was insufficient. When Davis asked Thaggard what DYS's policy on the use of p h ys ic a l force on students was, Thaggard said he didn't know. This concerned Davis for two re a s o n s . First, Thaggard had worked at DYS for thirty years, and he felt in that time

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T h ag g ard should have become very familiar with that policy. Second, it was a standard in te rv ie w question for the specialist position. Thaggard had been asked the very same q u e s tio n when he sought the position in 2006, yet he had not bothered to learn the policy. D av is also asked Thaggard if he thought he would have any trouble enforcing DYS's p o lic ie s, even policies he might disagree with. Thaggard responded that he couldn't say for c e rta in that he would always be able to enforce DYS policies under all circumstances. This a n s w e r also concerned Davis. F u rth erm o re, Lewis provided specific examples of problems with Thaggard's p e rf o rm a n c e and character that concerned her. Lewis had provided Thaggard with specific o p p o rtu n itie s to demonstrate the leadership skills required by the specialist position, but T h a g g a rd turned down those opportunities. For example, Thaggard had been offered an o p p o rtu n ity to serve as acting youth service specialist--the very job Thaggard sought--but T h a g g a rd turned down the opportunity. Moreover, Lewis stated that she had observed that T h a g g a rd had "mood swings", and on one occasion, Thaggard came into her office and asked h e r "Have you ever thought about doing something that you know that's wrong, that you s h o u ld n 't do it?" T h e Court finds that DYS has met its burden to show legitimate, nondiscriminatory re a s o n s for failing to promote Thaggard to the specialist position. See Bass, 256 F.3d at 1106 (h o ld in g subjective reasons are adequate to constitute legitimate nondiscriminatory reasons so long as defendant articulates a "clear and reasonably specific factual basis upon which it

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b ase d its subjective opinion."). iii. P re te x t

T h a g g a rd never adequately addresses DYS's articulated nondiscriminatory reasons f o r failing to promote him. Thaggard focuses primarily on comparing his alleged

d e f icie n c ies with corresponding problems with Black. The problem with this approach is th a t Black was promoted over Thaggard in 2006--and this Court has already found that c laim is time-barred. The issue being addressed is the promotion of Linden and White in 2 0 0 7 . Thaggard never adequately addresses how DYS's nondiscriminatory reasons are p retex tual in the context of the 2007 promotion. Accordingly, this Court finds that Thaggard h as failed to meet his burden to show that DYS's legitimate, nondiscriminatory reasons are p re te x tu a l. Therefore, DYS is entitled to summary judgment on Thaggard's Title VII and A D E A claims of discrimination. B. R e ta lia tio n Claim T o establish a claim of retaliation, a plaintiff must prove (1) that he engaged in s ta tu to rily protected activity, (2) he suffered a materially adverse action, and (3) there was s o m e causal relation between the two events. See Goldsmith v. Bagby Elevator Co., 513 F .3 d 1261, 1277 (11th Cir. 2008). Once the plaintiff establishes the elements of a retaliation c la im , the employer has an opportunity to articulate a legitimate, nonretaliatory reason for th e challenged employment action as an affirmative defense to liability. Id. The plaintiff b e a rs the ultimate burden of proving retaliation by a preponderance of the evidence and that

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th e reason provided by the employer is a pretext for prohibited retaliatory conduct. Id. T h a g g a rd alleges that DYS's decision to promote Black in September 2006 was re ta lia tio n for his EEOC charge of discrimination filed in March 2006. Thaggard also alleges th a t DYS's decision to promote Linden and White in March 2007 was retaliation for the E E O C charge of discrimination he filed in September 2006. E a c h of the denied promotions occurred approximately six months after the alleged p ro te c te d speech (the EEOC charges of discrimination). The Eleventh Circuit has held that s h o rte r periods of three to four months are insufficient temporal proximity to establish a c a u s a l relationship. See, e.g., Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th C ir. 2007) (noting that "[a] three to four month disparity between the statutorily protected e x p re ss io n and the adverse employment action is not enough," and "in the absence of other e v id e n c e tending to show causation, if there is a substantial delay between the protected ex p ress io n and the adverse action, the complaint of retaliation fails as a matter of law"). A cc o rdin g ly, this Court finds that Thaggard has failed to provide sufficient evidence for a re a so n a b le jury to find that his termination was causally related to any protected expression. T h e r e f o r e , DYS is entitled to summary judgment on Thaggard's retaliation claims. V . CONCLUSION F o r the reasons set forth above, it is CONSIDERED and ORDERED that (1) D e f e n d a n t's Motion for Summary Judgment (Doc # 56) be and the same is h e re b y GRANTED.

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(2 ) (3 ) (4 )

D e f e n d a n t's Motion to Strike (Doc. # 73) is DENIED AS MOOT. A ll claims and this case are DISMISSED WITH PREJUDICE. T h e pretrial and the trial scheduled in this matter are CANCELLED.

T h i s Court will enter a separate final judgment taxing costs. D O N E this 16th day of October, 2008. /s/ Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE

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