Arrington v. Alabama State University

Filing 42

OPINION. An appropriate judgment will be entered. Signed by Honorable Myron H. Thompson on 11/25/2008. (cb, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION VICKY ARRINGTON, Plaintiff, v. ALABAMA STATE UNIVERSITY, Defendant. ) ) ) ) ) ) ) ) )

CIVIL ACTION NO. 2:07cv717-MHT (WO)

OPINION Plaintiff against Vicky Arrington State brings this lawsuit ("ASU"),

defendant

Alabama

University

claiming gender discrimination in violation of Title VII of the Civil Rights Act, as amended, 42 U.S.C. §§ 1981a and 2000e through 2000e-17. Arrington claims

that ASU did not hire her to be its permanent Chief of Police because she is a woman. The case is before the court on ASU's motion for summary judgment. After reviewing the record, the

court concludes that ASU's motion should be granted for the reasons that follow.

I.

SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate "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 a judgment as a matter of law." Fed. R. Civ. P. 56(c). role at the summary-judgment stage is The court's to view the

evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

II. BACKGROUND Arrington was hired by ASU as a police investigator in 2002. In early 2003, ASU Vice President Leon

Frazier recommended that she be appointed Interim Chief of Police after the chief and his second-in-command

were deployed to Iraq.

2

Arrington was appointed to the position and served continuously until early 2005, when the chief retired. Shortly position after, of ASU announced of the vacancy ASU for the the

Chief

Police.

listed

qualifications as follows: "Bachelor's degree in criminal justice, public or business administration or closely related field. Master's degree preferred in one of the preceding areas. Extensive knowledge of modern police methods, procedures and administration; thorough knowledge of business management practices and principles; ability to exercise effective administrative and technical supervision over sworn and non-sworn security personnel engaged in law enforcement activities and the ability to exercise judgment and discretion in applying and interpreting departmental policies and procedures." Def. Ex. 4. The Human Resources Department forwarded three

applications to the screening committee for its review. They were for Arrington, Virgil Merrit, and Donnie

Nunley.

The screening committee interviewed and ranked Arrington and Merrit tied with

all three candidates.

scores of 65, and Nunley had a slightly lower score of 61. The screening committee ranked Arrington highest, 3

followed

by

Merrit,

and

finally

Nunley.

ASU

Vice

President Frazier reviewed the ranked candidates and selected Nunley over the other candidates because he was "[p]erceived as having [the] highest probability of overall success." Def. Ex. 6.

In a June 2007 memorandum to ASU President Joe A. Lee, Frazier noted that there was "no significant

variation between the three candidates" and that "none of [the candidates] are notably strong." Def. Ex. 7.

He also noted that two of the applicants were "internal to the Police Department and one was external to the university." Id.

In addition, Frazier wrote that, "given the history of the Police Department and its on-going proclivity for internal strife, dissension, and demonstrated antimanagerial orientations and ambitions, at the expense of the Department's effectiveness and the University's image, a case is made for an appointment from without the Department." Id.

4

Frazier

recommended

that

ASU

hire

Nunley

to

be

Chief of Police; reassign Arrington to the position of Police Investigator; and ensure that Arrington report directly to the Chief of Police so that she would not have to report to anyone she had supervised. Frazier

suggested that this arrangement would give "appropriate deference to the Id. first In female Police Chief at the that

University."

addition,

Frazier

noted

Arrington had "served valiantly and conscientiously" in the position of Interim Police Chief. Two weeks later, Personnel and Id. Human Resources

Director Olan Wesley sent a memorandum to President Lee asking that Lee rescind Frazier's recommendation, reopen the position, and appoint a new search committee. Wesley wrote that some of Frazier's comments in the recommendation "encouraged potential litigation," in

particular his comments regarding the climate of the police department and suggesting that the university should give some level of deference to Arrington as ASU's first female police chief. 5 Def. Ex. 8.

Subsequently,

Wesley

informed

Frazier

that

President Lee had approved re-opening the vacancy; the position was re-opened from July 21 through August 4, 2005; the job posting was identical to the previous posting. A second search committee, chaired by Joseph Pace, was formed. Six applicants were considered for the

position, including Arrington, Virgil Merritt, Jeffrey Young, Mark Mathies, Andy Dowell and Marion Brock. search committee scored them as follows: Young: The 88,

Arrington: 83.5, Merritt: 83.5, Mathies 83, Dowell: 74, and Brock: 78. Of these six, three were interviewed: Mathies was not interviewed reached for an interview;

Young, Merritt, and Brock. because he could not be

Dowell was not interviewed because he was unable to appear for an interview. ASU and Arrington disagree as

to why Arrington was not interviewed; ASU contends that Arrington while was offered, but declined, an interview,

Arrington claims that she never declined any The evidence reflects 6 that Pace called

interview.

Arrington,

informed

her

that

he

was

chairing

a

screening committee for the position of police chief, and offered her two interview times. Arrington was

surprised and asked about what happened with the first screening process. know what happened Pace informed her that he did not and suggested she speak with

Frazier.

Arrington called Frazier, who said he would Arrington did not follow

call her back but never did. up with Frazier or Pace.

The committee selected Young as the finalist for the position, and he was appointed police chief. In December 2006, Arrington filed a complaint with the Equal Employment Opportunity Commission ("EEOC"). The EEOC issued a right-to-sue letter on May 8, 2007, postmarked May 9, 2007. Arrington filed suit on August

9, 2007, 93 days after the letter was issued, asserting gender discrimination in violation of Title VII.

7

III. A.

DISCUSSION

Whether Arrington's Claim is Timely

Under Title VII, a complainant has 90 days after receiving lawsuit. an 42 EEOC right-to-sue § letter to bring her

U.S.C.

2000e-5(f)(1).

Arrington's

letter is dated May 8, 2007, and she filed suit August 9, 2007, 93 days later. ASU contends that Arrington's

claim is untimely because she did not file suit within 90 days from the date the letter was issued. The 90-day limit, however, runs from the date the letter is received. Stallworth v. Wells Fargo Armored

Services Corp., 936 F.2d 522, 524 (11th Cir. 1991). There is no hard and fast rule for determining when a complainant has received the letter; rather, courts Kerr Cir.

make this determination on a case-by-case basis. v. McDonald's Corp., 427 F.3d 947, 952 (11th

2005). In this case it is fair and reasonable to apply a three-day "mailbox rule" from the date that the letter is issued. In Baldwin County Welcome Ctr. v. Brown, 8

466 U.S. 147 (1984), the Supreme Court presumed that a right-to-sue letter was received three days from when it was issued. Id. at 148.1 that Similarly, a letter Eleventh when must a be

complainant picked up

receives at the

notice

post

office,

the

Circuit

allows her three days to obtain the letter from the post office. Zillyette v. Capital One Fin. Corp., 179 Applying a three-day

F.3d 1337, 1342 (11th Cir. 1999).

mailbox rule in this case provides a reasonable time for the letter to travel through the mail. To do

otherwise, as ASU requests, would essentially require a plaintiff to bring suit 90 days from when the letter is issued , contrary to the requirement that the clock

should not begin to run until the plaintiff's receipt of the letter.

1. Norris v. Florida Dep't of Health & Rehabilitative Services, 730 F.2d 682, 683 (11th Cir. 1984), is not to the contrary. In that case, the Eleventh Circuit refused to apply the three-day period because the plaintiff was asking for three days from when the letter was received, not when it was issued. 9

Accordingly, the court finds that it is appropriate to apply the three-day rule here. Because Arrington

received the letter on May 11, 2007, and because the 90 days from May 11 ended on August 9, 2007, the date that Arrington filed suit, her claim is timely.

B.

Arrington's Gender-Discrimination Claim

Title VII gender-discrimination claims are analyzed under the familiar burden-shifting framework laid out in McDonnell Douglas that Corp. v. Green, 411 U.S. must 792

(1973).

Under

framework,

Arrington

first

establish a prima-facie case of gender discrimination. See id. at 802. the presumption The burden then shifts to ASU to rebut of discrimination by providing a

legitimate, nondiscriminatory reason for the adverseemployment action. See Chapman v. AI Transport, 229 ASU's burden is

F.3d 1012, 1024 (11th Cir. 2000).

merely one of production, and thus it need not persuade the court that it was actually motivated by the reason advanced. See, e.g., Texas Dep't of Cmty Affairs v. 10

Burdine, 450 U.S. 248, 253-55, 258 (1981); McDonnell Douglas , 411 U.S. at 802. Once ASU satisfies its

burden, the burden shifts back to Arrington to persuade the court that ASU's proffered reason is pretextual. Arrington must produce enough evidence to allow a

reasonable factfinder to conclude that ASU's decision was not based on the reason given. at 1024. Arrington can make out a prima-facie case of gender discrimination based on ASU's decision to hire Jeffrey Young if she can show that (1) she is a member of a protected class; (2) she was qualified for the position that she sought; (3) she was rejected, and (4) the position went to a similarly situated person outside the protected class. See Wilson v. B/E Aero., Inc., Arrington has a woman and Chapman, 229 F.3d

376 F.3d 1079, 1089 (11th Cir. 2004). made such a showing. First, she is

therefore a member of a protected class; second, ASU does not dispute that Arrington was qualified for the position; third, Arrington 11 was not hired as police

chief;

and,

finally,

the

position

went

to

Jeffrey

Young, a male. Because Arrington has made out her prima-facie

case, the burden shifts to ASU to provide a legitimate, non-discriminatory basis for its decision not to hire her. ASU offers two reasons: first, it contends that

Arrington did not properly apply for the position, or, at the very least declined to interview for the

position; second, it contends that Young was selected over Arrington because he "was the best candidate for the job" in the eyes of the screening committee. particular, ASU points out that the job In

posting

specifically stated a preference for candidates with a master's degree in "criminal justice, public or

business administration or [a] closely related field," and that Young had such a degree in criminal justice, but Arrington did not. Arrington, in response, contends that both reasons are pretextual. that Arrington The court agrees that ASU's contention did not "apply" 12 for the position is

without merit; the committee itself treated Arrington as an applicant. to meet her This is not enough, however: in order Arrington must show that both

burden,

articulated reasons are pretextual.

Arrington cannot

show that ASU's other stated reason--that Young was the best candidate--is pretextual. showing, between Arrington the must show In order to make such a that "the and and disparities her own

successful were of

applicant's such weight

qualifications

significance

that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff." 1163 (11th Brooks Cir. v. County Comm'n, 446 marks F.3d and

1160,

2006)

(quotation

citation omitted).

In other words, Arrington's burden

is not to show that she was more qualified than Young, but rather that the difference in their qualifications were so extreme that no reasonable person could choose Young over Arrington. Arrington has not made such a showing. Indeed,

Young had extensive experience that arguably surpassed 13

Arrington's: he served as the deputy chief of police at Auburn University at Montgomery for 11 years, and

Arrington served as interim police chief for only two years. Further, the job posting plainly stated a

preference for candidates who already have a master's degree in one of several particular relevant fields. Arrington was working towards a master's degree in

counseling, which was not among the preferred fields enumerated in the job posting; Young, in contrast, had a master's degree in criminal justice, one of the

preferred fields. In light of the above record, Young was not so much less qualified than Arrington that no reasonable

factfinder could choose him over her.

Thus, Arrington

has not carried her burden of showing that ASU decided not to hire her because of her gender. Arrington also argues that she is entitled to

relief because (1) Frazier did not recommend her for the position after the first search and (2) ASU failed to interview her during the 14 second search. It is

unclear whether Arrington contends that these actions give rise to additional, distinct gender-discrimination claims or that they claim. distinct merely The support court in her will, the underlying however, of

failure-to-hire address them as

claims

interest

completeness. First, Arrington cannot make out a prima-facie case with respect to Frazier's recommendation, because she cannot show that she suffered an adverse-employment In order to action genderan

action when Frazier recommended Nunley. show that that could she suffered rise an to

adverse-employment an independent must or

give

discrimination `ultimate

claim,

Arrington decision'

"establish some

employment

make

other

showing of substantiality in the employment context." Crawford 2008). decision"; v. Carroll, there action and the 529 was F.3d no 961, 970 (11th Cir.

Here, no

"ultimate taken on

employment Frazier's was re-

was

recommendation, opened.

application

process

15

Second, Arrington cannot show that she is entitled to relief based on the failure to interview her. Even

if she were able to make out a prima-facie case, she has provided no evidence to suggest that the failure to interview her was based on anything other to than a

misunderstanding:

Pace

expected

Arrington

contact

him to schedule an interview, and Arrington expected Frazier to call her back to explain what happened.

Arrington has not come forward with any evidence to suggest that Frazier did not return her call because of bias. Rather, the record shows that it was Frazier who

first recommended that Arrington be appointed Interim Chief of Police; Frazier also noted that Arrington had served "valiantly and conscientiously" and sought to give her "deference" for serving as ASU's first female police chief. Frazier was Def. Ex. 7. motivated by There is no evidence that gender bias. Thus,

Arrington's claim that ASU's failure to interview her was motivated by gender bias is without merit.

16

**** Arrington has failed to establish any genuine She has

issues of material fact warranting a trial.

not put forth sufficient evidence to support a finding that ASU's articulated reason for hiring Young as ASU Chief of Police is unworthy of belief ASU's and thus a

pretext

for

gender

discrimination.

motion

for

summary judgment will be granted. An appropriate judgment will be entered. DONE, this the 25th day of November, 2008.

/s/ Myron H. Thompson UNITED STATES DISTRICT JUDGE