Emanuel v. George C. Wallace Community College

Filing 34

MEMORANDUM OPINION AND ORDER that defendant's Motion for Summary Judgment (doc. 18 ) is granted. Signed by Honorable William Keith Watkins on 10/27/08. (Attachments: # 1 appeals checklist)(vma, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION R I C H EMANUEL, P l a in tif f , v. G E O R G E C. WALLACE C O M M U N IT Y COLLEGE, D e f e n d a n t. ) ) ) ) ) ) ) ) ) )

C A S E NO. 2:07-CV-819-WKW [WO]

M E M O R A N D U M OPINION AND ORDER T h is case is before the court on Defendant's Motion for Summary Judgment (Doc. # 1 8 ). Plaintiff filed a brief in opposition to summary judgment (Doc. # 24), to which D e f en d a n t replied (Doc. # 25). After careful consideration of the arguments of counsel, the re le v a n t law and the record as a whole, the court finds that motion is due to be granted. I . JURISDICTION AND VENUE T h e court exercises subject matter jurisdiction pursuant to 28 U.S.C. § 1331 for all c la im s arising under federal law. The court also has original jurisdiction over claims based u p o n violations of civil rights. See 28 U.S.C. § 1343. The parties do not contest personal ju ris d ic tio n or venue, and the court finds that there are allegations sufficient to support both. I I . FACTS AND PROCEDURAL HISTORY O n September 12, 2007, Plaintiff Dr. Rich Emanuel ("Emanuel") filed suit against D e f en d a n t George C. Wallace Community College ("GCWCC") alleging one count of race

a n d gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000(e)-2000e-17 ("Title VII"). (Doc. # 1 ¶ 15.) Emanuel claims GCWCC "pass[ed] him o v e r for the position of Speech Instructor" because he is a Caucasion male, and hired a less q u alified African-American female instead. (Doc. # 1 ¶¶ 5, 15.) He is requesting declaratory an d injunctive relief, reinstatement, back pay, reimbursement for lost benefits, compensatory d am ag es, attorney's fees, and litigation expenses. (Doc. # 1, at 3.) In January 2002, GCWCC announced that it was hiring a full-time Speech Instructor f o r its Sparks Campus in Eufaula, Alabama. (Doc. # 19 ¶ 10 & Ex. 15; Doc. # 24 ¶ 10.) The jo b vacancy announcement listed required and preferred qualifications for the position. (D o c . # 19 Ex. 14.) The applicant was required to have "18 graduate semester hours or 27 q u a rte r hours in Speech" (or an alternative option not applicable in this case), and the p re f e rre d qualifications were: (1) an "additional 18 graduate semester hours or 27 graduate q u a rte r hours in English, reading, or another closely related subject"; (2) "[t]eaching e x p e rie n c e in a community college"; and (3) a "[d]emonstrated commitment to, and e x p e rie n c e in, integrating technological innovations into the curriculum." (Doc. # 19 Ex. 1 4 .) Emanuel applied for the position and participated in three rounds of interviews, one w ith the selection committee responsible for interviewing all minimally qualified applicants, o n e with the final interview committee, which is selected by the president of GCWCC, and o n e with the current president of GCWCC, Dr. Linda C. Young ("Young"). (Doc. # 19 ¶¶ 1 1 , 12.) Emanuel was part of a final candidates list that also included Shatangi Ware

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(" W a re " ) and Jill Coons. (Doc. # 19 ¶ 11; Doc. # 24 ¶ 11.) E m a n u e l has a doctorate in communication theory and research from Florida State U n iv e rs ity ("Florida State"), in addition to a master's degree and a bachelor of science degree f ro m Auburn University ("Auburn") and University of Montevallo respectively. (Doc. # 23 E x . 12.) His teaching experience includes jobs as an associate professor at Alabama State U n i v e r s ity, University of Montevallo College of Fine Arts, Enterprise Junior College, and T if t College of Mercer University, in addition to jobs as an instructor with the USAF Air C o m m a n d and Staff College and Huntingdon College, and as a graduate student with Florida S t a t e and Auburn. (Doc. # 23 Ex. 12.) Ware has an associate of arts degree in public re la tio n s , a bachelor of arts degree from the University of Alabama in business, and a m a ste r's degree in communication studies from the University of Alabama. (Doc. # 23 Ex. 1 0 .) She also has teaching experience as a speech instructor at a community college. (Doc. # 23 Ex. 10.) Young selected Ware for the Speech Instructor position. In a "Statement to the Search F ile for Speech Instructor" ("Statement") dated June 22, 2006, Young announced that she h a d selected Ware as the top candidate after interviewing the finalists.1 In the Statement, Y o u n g enumerated the following as her reasons for selecting Ware: (1) her "obvious e n th u s ia sm for her discipline"; (2) her "obvious concern for students and the teaching and

According to Young's deposition, the purpose of the Statement, which was required by law, was to "make a statement to the file as to why [GCWCC] select[ed] a certain candidate for the job" and to document that for the record. (Young Dep. 178:5-10, June 13, 2008.)

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lea rn in g process"; (3) her record of "successful teaching" in the courses GCWCC would h a v e her teach; (4) her "strong record of involvement in professional development activities in her discipline, including presentations to the Southern States Communication A s s o c ia tio n " ; (5) her "strong understanding of and support for the community college p h ilo s o p h y" ; (6) her experience "with technology in her discipline, including the use of W e b C T and the Internet"; and (7) the fact that her qualifications "seemed to be the best m a tc h for the needs of the institution." (Doc. # 23 Ex. 9.) Emanuel subsequently filed a c h a rg e of discrimination with the Equal Employment Opportunity Commission ("EEOC") f o r race and gender discrimination in the hiring decision. In response, GCWCC claimed it h a d followed hiring procedures and described the reasons why Young selected Ware. (Doc. # 23 Ex. 17 at 2-3.) Those reasons are essentially a recitation of the reasons from the S ta te m e n t, with some exceptions discussed later. (See Doc. # 23 Ex. 17.) The EEOC denied E m an u el's claims and sent him a right-to-sue letter. (Doc. # 19 Exs. 18, 21.) III. STANDARD OF REVIEW T h is case is before the court on a summary judgment motion. "Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on f ile , together with the affidavits, if any, show there is no genuine issue as to any material fact an d that the moving party is entitled to judgment as a matter of law.'" Greenberg v. B e llS o u th Telecomm., Inc., 498 F.3d 1258, 1263 (11th Cir. 2007) (per curiam) (citation to fo rm er rule omitted); Fed. R. Civ. P. Rule 56(c), as amended December 1, 2007 (Summary

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ju d g m e n t "should be rendered if the pleadings, the discovery and disclosure materials on file, a n d any affidavits show that there is no genuine issue as to any material fact and that the m o v an t is entitled to judgment as a matter of law."). 2 The party moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the basis fo r its motion, and identifying those portions of [the record, including pleadings, discovery m a te ria ls and affidavits], which it believes demonstrate the absence of a genuine issue of m a te ria l fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant may meet th is burden by presenting evidence indicating there is no dispute of material fact or by s h o w in g that the nonmoving party has failed to present evidence in support of some element o f its case on which it bears the ultimate burden of proof. Id. at 322-24. If the movant meets its evidentiary burden, the burden shifts to the nonmoving party to establish, with evidence beyond the pleadings, that a genuine issue material to each of its c la im s for relief exists. Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991); C e lo te x , 477 U.S. at 324; Fed. R. Civ. P 56(e)(2) ("When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or d e n ia ls in its own pleading; rather, its response must . . . set out specific facts showing a

Effective December 1, 2007, "[t]he language of Rule 56[was] amended . . . to make the rule[ ] more easily understood and to make style and terminology consistent throughout the rules. These changes . . . are stylistic only." Fed. R. Civ. P. 56 advisory committee notes. Thus, although Rule 56 underwent stylistic changes, its substance remains the same and therefore, all cases citing the prior rule remain equally applicable to the current rule.

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g e n u in e issue for trial."). What is material is determined by the substantive law applicable to the case. Celotex, 477 U.S. at 248; Lofton v. Sec'y of the Dep't of Children & Family S e r v s ., 358 F.3d 804, 809 (11th Cir. 2004) ("Only factual disputes that are material under the su b stan tiv e law governing the case will preclude entry of summary judgment."). F u rth erm o r e, "[t]he mere existence of some factual dispute will not defeat summary ju d g m e n t unless that factual dispute is material to an issue affecting the outcome of the case." McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (internal q u o ta tio n marks and citation omitted). A genuine issue of material fact exists when the nonmoving party produces evidence th a t would allow a reasonable fact-finder to return a verdict in its favor. Greenberg, 498 F .3 d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001) (to establish a genuine issue of material fact, the nonmoving party must produce evidence s u c h that a reasonable trier of fact could return a verdict in his favor). If the evidence on w h ich the nonmoving party relies, however, "is merely colorable . . . or is not significantly p ro b a tiv e . . . summary judgment may be granted." Anderson v. Liberty Lobby, Inc., 477 U.S. 2 4 2 , 249-50 (1986). "A mere `scintilla' of evidence supporting the [nonmovant's] position w ill not suffice; there must be enough of a showing that the [trier of fact] could reasonably f in d for that party," Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation o m itte d ), and the nonmoving party "must do more than simply show that there is some m e ta p h ys ic a l doubt as to the material facts," Matsushita Elec. Indus. Co. v. Zenith Radio

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C o r p ., 475 U.S. 574, 587 (1986). Conclusory allegations based on subjective beliefs are lik e w is e insufficient to create a genuine issue of material fact and do not suffice to oppose a motion for summary judgment. Holifield v. Reno, 115 F.3d 1555, 1564 n.6 (11th Cir. 1997) (p e r curiam) (Plaintiff's "conclusory assertions . . . in the absence of supporting evidence, a re insufficient to withstand summary judgment."); Harris v. Ostrout, 65 F.3d 912, 916 (11th C ir. 1995) (grant of summary judgment appropriate where inmate produces nothing beyond " h is own conclusory allegations" challenging actions of the defendants); Fullman v. G r a d d ic k , 739 F.2d 553, 557 (11th Cir. 1984) ("[M]ere verification of a party's own co n clus o ry allegations is not sufficient to oppose a motion for summary judgment . . . ."). H e n c e, when a plaintiff fails to set forth specific facts supported by appropriate evidence s u f f ic ie n t to establish the existence of an element essential to his case and on which the p lain tiff will bear the burden of proof at trial, summary judgment is due to be granted in fa v o r of the moving party. Celotex, 477 U.S. at 323 ("[F]ailure of proof concerning an e ss e n tial element of the nonmoving party's case necessarily renders all other facts im m a ter ial." ); Barnes v. Sw. Forest Indus., Inc., 814 F.2d 607, 609 (11th Cir. 1987) (If on an y part of the prima facie case the plaintiff presents insufficient evidence to require s u b m is s io n of the case to the trier of fact, granting of summary judgment is appropriate.). Thus, in cases where the evidence before the court is admissible on its face or can be red u ce d to admissible form and indicates there is no genuine issue of material fact, and where the party moving for summary judgment is entitled to it as a matter of law, summary

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ju d g m e n t is proper. Celotex, 477 U.S. at 323-24 (summary judgment appropriate where p le a d in g s , evidentiary materials and affidavits before the court show there is no genuine issue as to a requisite material fact). I V . DISCUSSION E m a n u e l based his Title VII discrimination charge on two theories ­ disparate impact a n d disparate treatment ­ but has since dropped the disparate impact theory. (Doc. # 24, at 1 .) In a Title VII discrimination action brought for disparate treatment on the basis of race o r gender, a plaintiff must prove with either direct or indirect evidence that the employer in te n tio n a lly discriminated against the plaintiff. Cooper v. Southern Co., 390 F.3d 695, 723 (1 1 th Cir. 2004), overrruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 ( 2 0 0 6 ) (per curiam). If proving discrimination with circumstantial evidence, as is the case h e re , the plaintiff may rely on the framework established in McDonnell Douglas Corp. v. G r e e n , 411 U.S. 792 (1973). Cooper, 390 F.3d at 723-24. The plaintiff first must establish a prima facie case of discrimination. Id. at 724-25. Under the McDonnell Douglas

f ra m e w o rk , a prima facie case for failure to hire requires the plaintiff to establish "[(1)] that s h e or he is a member of a protected class; [(2)] that she or he applied and was qualified for a job for which the employer was seeking applicants; [(3)] that despite her or his q u a lif ic a tio n s , she or he was rejected; and [(4)] that after this rejection the position remained o p e n or was filled by a person not within the protected class." Welborn v. Reynolds Metals C o ., 810 F.2d 1026, 1028 (11th Cir. 1987) (per curiam) (citing McDonnell Douglas, 411 U.S.

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a t 802). Once a prima facie case has been established, a defendant can rebut it by offering a " le g itim a te , non-discriminatory reason for the allegedly discriminatory act." Cooper, 390 F .3 d at 725. "To satisfy that burden of production, `[t]he defendant need not persuade the c o u rt that it was actually motivated by the proffered reasons.'" Combs v. Plantation P a t t e r n s , 106 F.3d 1519, 1528 (11th Cir. 1997) (quoting Tex. Dep't of Cmty. Affairs v. B u r d i n e , 450 U.S. 248, 254 (1981)). "`[T]he employer need only produce admissible e v id e n c e which would allow the trier of fact rationally to conclude that the employment d e c is io n had not been motivated by discriminatory animus.'" Id. (quoting Burdine, 450 U.S. a t 258). Even a "subjective" reason for the employment decision will suffice as long as the e m p lo ye r "articulates a clear and reasonably specific factual basis upon which it based its s u b je c tiv e opinion." Chapman v. Al Transp., 229 F.3d 1012, 1034 (11th Cir. 2000) (listing ex am p les of traits like "ambition, loyalty, and tact" that are "essential to an individual's s u c c es s " but "often must be assessed primarily in a subjective fashion"). "Personal qualities . . . factor heavily into employment decisions concerning . . . professional positions," id. at 1 0 3 3 , but "criteria . . . only capable of subjective evaluation . . . . can be just as valid as o b je c tiv e reasons," id. at 1034. If the defendant successfully rebuts the prima facie case, "`the presumption of d is c rim in a tio n is eliminated.'" Cooper, 390 F.3d at 725 (citing Chapman, 229 F.3d at 1024). O n c e the presumption is eliminated, to survive summary judgment, the plaintiff must come

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f o rw a rd with evidence sufficient to permit a reasonable factfinder to conclude that the re a so n s for the adverse employment decision were pretextual.3 Id. A plaintiff cannot e sta b lis h pretext "simply by showing that [he] is more qualified" than the candidate who was h ir e d . Id. at 732. "[F]ederal courts do not sit to second-guess the business judgment of e m p lo ye rs. . . . [A] plaintiff may not establish that an employer's proffered reason is p re te x tu a l merely by questioning the wisdom of the employer's reason, at least not where . . . th e reason is one that might motivate a reasonable employer." Combs, 106 F.3d at 1543; see a l s o Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (" W e are not in the business of adjudging whether employment decisions are prudent or f a ir." ). The plaintiff must meet the employer's legitimate reason "head on" and not by " sim p ly quarreling with the wisdom of that reason." Chapman, 229 F.3d at 1030. Thus, to m e e t the evidentiary burden on pretext, the plaintiff must demonstrate "`such weaknesses, im p lausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered le g itim a te reasons for its action that a reasonable factfinder could find them unworthy of c re d e n ce .'" Combs, 106 F.3d at 1538 (quoting Sheridan v. E.I. DuPont de Nemours & Co., 1 0 0 F.3d 1061, 1071 (3d Cir. 1996) (en banc)). Pretext can be established by demonstrating a disparity in qualifications. In 2006, the S u p r e m e Court rejected the Eleventh Circuit's rule that "`the disparity in qualifications [must

The plaintiff must produce evidence sufficient to show pretext as to each legitimate interest the defendant offers in rebuttal. See Chapman, 229 F.3d at 1037 n.30 (recognizing Eleventh Circuit case law on this point and declining to rule on whether exceptions exist).

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b e ] so apparent as virtually to jump off the page and slap you in the face.'" Ash, 546 U.S. at 456-57 (citing Eleventh Circuit opinion below, 129 F. App'x 529, 533 (2005)). The Court c a lle d the "visual image of words jumping off the page to slap . . . a court . . . unhelpful and im p r e c is e ," but noted other presumably more palatable standards used by circuit courts.4 See A s h , 546 U.S. at 457-58; Drakeford v. Ala. Coop. Extension Sys., 425 F. Supp. 2d 1274, 1276 (M .D . Ala. 2006) (Albritton, J.). One of those circuit standards is from the Eleventh Circuit: T o establish pretext by comparing qualifications, "`disparities in qualifications must be of s u c h weight and significance that no reasonable person, in the exercise of impartial j u d g m e n t , could have chosen the candidate selected over the plaintiff for the job in q u e stio n .'" Id. at 457 (quoting Cooper, 390 F.3d at 732).5 The Eleventh Circuit has applied th is standard since Ash, explicitly noting that Ash approved it. See Brooks v. County C o m m 'n , 446 F.3d 1160, 1163 (11th Cir. 2006). Pretext also can be shown by producing evidence of an employer's inconsistent s ta te m e n ts . Tidwell v. Carter Prods., 135 F.3d 1422, 1428 (11th Cir. 1998); see also Combs, 1 0 6 F.3d at 1538. "[T]he existence of a possible additional non-discriminatory basis for [the p la in tif f 's ] [adverse employment action] does not, however, prove pretext." Tidwell, 135

The Court, however, declined to articulate a more specific standard in resolving that case. Ash, 546 U.S. at 458. Cooper contained both the face-slapping standard and the standard Ash more favorably cited. 390 F.3d at 732. Indeed, this district in Drakeford noted that Ash was "really an issue of language and clarity, rather than a substantive change to the legal threshold required to prove pretext" because the more favorably-cited Cooper standard was used in prior cases to "explain and clarify" the face-slapping language. 425 F. Supp. 2d at 1276-77.
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F .3 d at 1428; see also Moore v. Jefferson County Dep't of Human Res., 277 F. App'x 857, 8 5 9 (11th Cir. 2008) ("[E]vidence that an employer had additional reasons for terminating a n employee does not prove pretext."). In a recent unpublished opinion, the Eleventh Circuit re q u ire d employers' reasons to be "fundamentally inconsistent in order to constitute evidence o f pretext." Philips v. Aaron Rents, Inc., 262 F. App'x 202, 210 (11th Cir. 2008) (per c u ria m ) (citing Zaben v. Air Prods. & Chems., 129 F.3d 1453 (11th Cir. 1997) (per curiam)). G C W C C ' s Reasons for Hiring Ware The parties agree that Emanuel has established a prima facie case of disparate tre a tm e n t in violation of Title VII's anti-discrimination provisions. (Doc. # 19, at 23.) The b u rd e n thus shifts to GCWCC to provide legitimate, non-discriminatory reasons for its d e c is i o n to hire Ware instead of Emanuel. GCWCC offers three reasons for its hiring d ec isio n . First, prior to selecting Ware, Young received a telephone call from Stafford T h o m p s o n ("Thompson"), the president of Enterprise-Ozark Community College, "warning h e r that employing [Emanuel] might pose a problem for GCWCC." (Doc. # 19, at 23.) S ec o n d , Ware was a "better fit" for GCWCC. (Doc. # 19, at 23.) Ware would be "more e f f e c tiv e at relating to the student body in light of the fact that she was from the area, had a tte n d e d and graduated from a two-year institution, and recently taught part-time at a two[]ye a r institution." (Doc. # 19, at 24.) Her "enthusiasm, level of education, and experience a t the time made her a more suitable candidate." (Doc. # 19, at 24.) Ware's interview was m o re impressive than Emanuel's. (Doc. # 19, at 24.) And though Emanuel has a higher

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d e g re e and teaching experience at a four-year college, those credentials would be "of little b e n e fit" given the "small rural campus" at Eufaula and the exclusive focus for the job on te a ch in g as opposed to research. (Doc. # 19, at 23.) Third and finally, hiring Ware over E m a n u e l would save GCWCC approximately $33,000 a year in salary, and Young could not ju s tif y a higher expenditure "[i]n light of the needs of [GCWCC] for the particular position." (D o c. # 19, at 23.) In her deposition, Young testified to the reasons why she hired Ware: I selected her, Ms. Ware because I believed that she was the best suited for this p a rtic u la r job because she had graduated from a community college, she was f ro m the Dothan area,6 she had the qualifications of a master's degree that I f e lt was suitable for teaching this level of courses in speech communication a n d that we could employ her at $33,000 a year less than Dr. Emanuel and that I had gotten the call from [Thompson] indicating there's a problem with him a t Enterprise and I did not want to inherit a problem and pay $33,000 more a ye a r and have a problem.7

(Y o u n g Dep. 139:16-23-140:1-6, June 13, 2008.) Young also testified that her impression o f Ware after her telephone interview with her was "very favorable"; Ware was "very a rtic u la te and impressive on the phone" and "exhuberant in her voice," "[e]xcited," and she

Incidentally, Plaintiff quibbles with Young's citing Ware's Dothan background as suitable for the job on the more rural Eufaula campus. (Doc. # 24, at 4 n.2.) GCWCC has two campuses, however, one in Dothan and one in Eufaula. By virtue of having lived in Dothan, Ware arguably is more familiar with GCWCC and its students than someone who has not lived in Dothan. (Young Dep. 12:19-13:16.) Furthermore, Young testified that though the teaching position was for the Eufaula campus, faculty teaching at the Eufaula campus were expected to teach at the Dothan campus if necessary. (Young Dep, 14:4-8.) The Statement confirms this explanation except with respect to the telephone call from Thompson and the $33,000 difference in salary, issues the court takes up below, see infra pp. 19, 21-22.
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s p o k e "clearly" and "enunciate[d] well" with "[a] lot of inflection in her voice." (Young D e p . 95:4-7, 95:18-21, 96:1-4; 97:5-9.) Young reiterated that she thought Ware's having g r a d u a te d from a community college would help her to identify with GCWCC's students. (Y o u n g Dep. 120:18-23.) More specifically, she explained, a teacher who was a student in a two-year college "undestand[s] how instructors relate to students and how they should re la te to students because . . . of . . . more one-on-one attention" at a two-year college. (Y o u n g Dep. 149:17-150:19.) Young also testified that the other interviewers supported W a re 's candidacy. (Young Dep. 121:5-7.) As for Ware's lacking a doctorate, Young noted th a t GCWCC is not a research but a teaching institution, "so [that] there's really no need for [E m an u el's ] background." (Young Dep. 121:13-122:6.) Young based her hiring decision, however, not only on her positive impressions of W a r e , but also on the negative impression Thompson's telephone call gave of Emanuel. Y o u n g testified to a telephone conversation she claims she had with Thompson prior to h irin g Ware. (See Young Dep. 78-86.) She said it was "out of the ordinary" for Thompson to call her (Young Dep. 83:17-18) and that he stated he understood Emanuel was applying f o r a position at GCWCC and that she "`didn't need this problem' or something to that e f f e c t." (Young Dep. 82:19-23, 85:20-21.) She interpreted Thompson as referring to a legal p ro b le m related to Emanuel's employment at Thompson's school where Emanuel had p re v io u s ly worked. (Young Dep. 84:16-23, 85:20-86:2.) In her affidavit, Young describes th e telephone call this way:

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[ T h o m p so n ] telephoned me . . . and indicated that employing [Emanuel] could b e a potential problem for me and the college. This was an interesting phone c a ll to me . . . . The fact that [Thompson] called at all alarmed me as to the g ra v ity of the potential problem [Emanuel] may pose to the college if hired. A lth o u g h [Thompson] did not elaborate as to the particular nature of the p rob lem , I knew that [Emanuel] no longer worked for [Thompson's school]. I inferred from [Thompson's] comments that [Emanuel] had been a problem w h ile working at [the school] and would likewise be a problem if employed at G C W C C . I certainly do not inherit or hire problems knowingly. It was my ju d g m e n t, based on my conversation with [Thompson], that hiring [Emanuel] w o u ld be a mistake and would cause problems for the institution. (Doc. # 19 Ex. 33 at 2-3.) A c c o rd in g to Emanuel, what is disputable is whether the conversation took place prior to Young's selection. (Doc. # 24 ¶ 22.) Emanuel points to Young's admission in her d e p o sitio n that she was not "sure" whether the telephone conversation took place before she s e le c te d Ware but that she "believe[d]" it did. (Doc. # 24 ¶ 22 (citing Young Dep. 189:101 9 0 :1 1 ).) Other portions of the deposition, however, shore up Young's claim that the call o c c u rre d prior to her selection. Young answered when asked about whether she received the te le p h o n e call on July 12, "I would have, I received it before I made the decision." (Young D ep . 82:12-16.) Later, in response to the question of whether she was certain Thompson's te le p h o n e call predated the hiring decision, she stated simply in the affirmative. (Young Dep. 1 5 8 :1 8 -2 1 .) In her affidavit dated July 7, 2008, Young stated again, that although she could n o t recall the exact date Thompson called, "it would have been sometime before I made the d ec isio n to hire [Ware]." (Doc. # 19 Ex. 33 at 3.) Emanuel argues that Young's affidavit should be stricken because it is "inconsistent

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w ith her prior deposition testimony that she does not know when [the call] occurred." (Doc. # 24, at 6.) A district court may ignore sham affidavits. "When a party has given clear a n sw e rs to unambiguous questions which negate the existence of any genuine issue of m a ter ial fact, that party cannot thereafter create such an issue with an affidavit that merely c o n tr a d i cts , without explanation, previously given clear testimony." Van T. Junkins & A s s o c s., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). The flip side of the Van T . Junkins scenario is present in this case ­ Emanuel is not accusing GCWCC of creating a g e n u in e issue of material fact with a sham affidavit, but of avoiding one. That being the c a se , Emanuel fails to show that Young's deposition testimony gives a clear answer on when s h e received Thompson's telephone call that the affidavit later contradicts.8 To the contrary, th e court reads Young's affidavit only to clarify that though she does not recall the exact date o f the call, it must have been before hiring Ware. Emanuel offers no evidence to the c o n tra ry, from Thompson, or from any other source.9 E v en were the court to find, however, that GCWCC failed to show that Thompson's tele p h o n e call occurred prior to Young's selection, GCWCC would succeed in meeting its p ro d u c tio n burden. With or without the Thompson telephone call, GCWCC has met its

The court notes that to testify one knows when an event occurred and to testify one believes, though cannot be sure, when that event occurred is not inconsistent. It is reasonable to say one knows something without being sure of it; sureness expresses complete confidence in one's memory. GCWCC submitted with its reply brief an additional affidavit given by Thompson stating that his conversation with Young "took place prior to her having made an employment decision." (Doc. # 25 Ex.) Emanuel moved to strike the affidavit (Doc. # 26), which the court denied (Doc. # 31). The court, however, need not, and thus does not, rely on the Thompson affidavit that Emanuel opposes.
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b u rd e n to offer a legitimate, non-discriminatory reason for hiring Ware instead of Emanuel. A candidate's enthusiasm, excitement, familiarity with the institution and with the type of stu d e n ts at the institution, and cheaper salary are all plausible reasons that would motivate a reasonable employer in selecting a candidate. Ware met the minimum qualifications for th e job. She did not meet all of the preferred qualifications, but there would be no point in lab e lin g those qualifications "preferred" if no reasonable employer would hire a candidate w ith o u t them. Young gave specific and clear reasons for her favorable impressions of Ware. F rom these facts, a reasonable factfinder could conclude that GCWCC, in hiring Ware in ste a d of Emanuel, was not motivated by discriminatory animus but had chosen a candidate th a t fit the institution more suitably, impressed the president, and cost less than another c a n d id a te . E m a n u e l's Rebuttal Evidence on Pretext Thus, because the burden has shifted, Emanuel's evidence must create a genuine issue o f pretext to survive summary judgment.1 0 Emanuel's arguments for why the evidence points

Emanuel encourages the court to view GCWCC's selection against an "organizational backdrop." (Doc. # 24, at 13.) The court is unclear, however, on what role the backdrop has in this analysis, and whether Emanuel intended it as affirmative evidence of pretext. Emanuel appears to ask the court to focus on the Department of Post-Secondary Education's ("Department") guidelines for hiring African-Americans and females that Young "admit[ted] that she had and has an obligation to try to meet." (Doc. # 24, at 13.) He argues that Young testified to the Department's urging her to comply with the guideline goals. The court declines to delve into the details of the guidelines in its pretext analysis. As Young testified, none of the binding policies required her to consider race or gender in hiring a candidate and though she followed the required hiring processes, she never hired based on race and gender. (Young Dep. 26:4-29:7.) Because Emanuel points to no evidence that Young prioritized any racial or gender hiring goals over implementing the required process, and because Emanuel does not focus on or develop this argument in his brief opposing summary judgment, the court acknowledges this background but does not factor it into the pretext analysis.

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t o a genuine issue of pretext address each proffered non-discriminatory reason in turn. E m a n u e l says Thompson's telephone call is pretextual because the conversation did not occur p rio r to the selection and because GCWCC failed to mention the telephone call in the S tatem en t or GCWCC's position on Emanuel's EEOC charge but relied on that reason later. E m a n u e l argues the money saving reason is pretextual because GCWCC has been in c o n sis te n t in asserting this reason by leaving it out of the Statement and GCWCC's position o n the EEOC charge, and because GCWCC would be flouting binding rules by not c o n sid e rin g the candidate with the highest degree.1 1 Finally, Emanuel argues Ware's hiring b a se d on suitability is pretextual because it is "preposterous" that GCWCC was served well b y hiring a "vastly inferior" candidate, and again, because GCWCC would be flouting b in d in g rules by not considering the candidate with the highest degree.1 2 (Doc # 24, at 131 6 .) Emanuel challenges whether the Thompson telephone call occurred prior to Young's se lec tio n and argues that GCWCC's statements on the telephone call have been inconsistent. T h e court has already addressed whether the telephone call occurred before Young selected

Emanuel asserts that under the Southern Association of Colleges and Schools' ("SACS") policy, "primary consideration should have been given to the candidate with the most advanced degree." (Doc. # 24, at 15 (internal quotation marks omitted).) According to Emanuel, GCWCC is supposed to follow SACS's rules, and SACS's Comprehensive Standard 3.7.1 states: "`When determining acceptable qualifications of its faculty, an institution gives primary consideration to the highest earned degree in the discipline.'" (Doc. # 24 ¶¶ 11-12 (quoting the rule).)
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11

See supra note 11 (explaining rules that are supposedly binding GCWCC).

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W are in its analysis of GCWCC's production burden.1 3 The court found that Young's d e p o sitio n and affidavit, absent evidence to the contrary, confirmed that the telephone call h a d occurred prior to her selecting Ware, and that regardless, the court's summary judgment f in d in g stands, even setting aside the Thompson telephone call. See supra p. 16. Emanuel a rg u e s separately that GCWCC's position on the Thompson telephone call has been in c o n sis te n t. (Doc. # 24, at 14 ("Young failed to mention the [telephone call] reason in her [S tatem en t ] shortly after the decision[,] . . . [and] [s]he also failed to mention it in GCWCC's re sp o n se to the EEOC charge preceding this case, which she admittedly participated in d ra f tin g , reviewing, and signing.").) "`[S]hifting reasons allow the jury to question . . . c re d ib ility,'" Emanuel argues, and he lists a few Eleventh Circuit cases he claims supports h is point. (Doc. # 24, at 14 (quoting Cleveland v. Home Shopping Network, Inc., 369 F.3d 1 1 8 9 (11th Cir. 2004)).) What Emanuel fails to argue, however, is precisely how GCWCC is offering shifting e x p la n a tio n s for hiring Ware. Emanuel does not address the possibility ­ and he bears the b u rde n of proof on pretext ­ that GCWCC had valid reasons to not disclose Thompson's te le p h o n e call in the Statement or in the EEOC charge. Indeed, Young in her deposition o f f ers reasons why the Thompson telephone call was not in the earlier statements. Young te stif ie d that the Thompson telephone call was not in the Statement because the Statement

The court had to ascertain at that point when the telephone call took place in order to determine whether GCWCC's reason for hiring Ware was legitimate and non-discriminatory.

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a d d re ss e s the affirmative reasons for Ware's employment (Young Dep. 179:6-9) and that she n e v e r refers to other candidates when she lists the reasons for hiring them (Young Dep. 181: 1 1 -1 0 ). In the Statement, she only discusses the candidates' strengths. (Young Dep. 182:34 .) As for the EEOC position letter, Young admitted that she "consciously made a decision n o t to make any reference to the conversation," but it was because she "didn't want to go th e r e ," not knowing exactly what the problem with Emanuel's prior employment was. (Y o u n g Dep. 191:20-192:3.) She testified that she wanted to protect GCWCC from hiring a problematic candidate but that she also "didn't want to get [Emanuel] in trouble." (Young D e p . 192:13-18.) T h e se explanations do not reinforce Emanuel's position ­ they provide a cogent e x p la n a tio n of why Young chose not to broadcast the warning concerning Emanuel's prior e m p lo ym e n t, a warning Young knew was serious enough to prompt Thompson's telephone c a ll but was sensitive enough to warrant discreet handling. Emanuel's only evidence that Y o u n g 's explanation veils a discriminatory animus is that Young waited to disclose this in f o rm a tio n until after the Statement and EEOC position letter. An employer's proffering o f a reason additional to those previously disclosed, however, is not an inconsistency. In T id w e ll, the Eleventh Circuit concluded that though a jury could find an employer's reason f o r an employment action was "an additional, but undisclosed, reason for the decision[,] the e x is te n c e of a possible additional non-discriminatory basis for [the employment action] [did] n o t . . . prove pretext." 135 F.3d at 1428. Even if an employer gives different reasons for

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a n employment action, "`its reasons are not . . . necessarily inconsistent.'" Id. (quoting Z a b e n , 129 F.3d at 1458).1 4 GCWCC never made the statement that its Statement or EEOC p o s itio n letter accounted for the sole legitimate reasons for hiring Ware. Nor did GCWCC e x p lic itly validate Emanuel's reputation among his prior employers or otherwise indicate that its hiring of Ware had nothing to do with its evaluation of other candidates. Young simply c h o se to discuss in the Statement only those reasons for hiring Ware related to her positive a ttrib u te s, and chose to raise with the EEOC only those qualifications that were affirmative g ro u n d s for hiring Ware. The court finds that Emanuel has failed to show with sufficient and a p p ro p ria te evidence that there is a genuine issue as to whether GCWCC's reliance on the T h o m p so n telephone call was pretextual.15 Inc o n sisten cy in GCWCC's reasons is also Emanuel's argument for why the salary

In Tidwell, the EEOC's "no cause" determination mentioned the plaintiff's performance as a reason why he was terminated. 135 F.3d at 1427-28. The employer, on the other hand, maintained that reorganization and an evaluation of its geographic needs were the reasons for the termination. Id. at 1427. The plaintiff argued that the two positions were inconsistent and signaled pretext. Id. at 1427-28. The court disagreed. Id. at 1428. The most a jury could find, the court concluded, was an additional reason for the termination, not an inconsistent one. Id. Furthermore, contrary to Emanuel's suggestion (Doc. # 19, at 14), Emanuel's case is quite different from Cleveland, where the employer's shifting reasons did not foreclose finding against summary judgment. Cleveland, 369 F.3d at 1191-92, 1194 (reversing the district court for reviewing the facts in the light most favorable to the movant). There, the employer's reasons at trial for its employment action shifted from relying on a contract forbidding certain conduct to a non-compete agreement to an unwritten policy to standard industry practice, and the plaintiff offered affirmative evidence rebutting those charges. Id. at 1192. The employer's reasons changed with respect to a focused point. In this case, GCWCC has only offered additional evidence, and that evidence has not changed the plausibility and credibility of the previously offered reasons. Even if the court were to find otherwise, however, Emanuel's evidence would fail to create an issue of pretext with respect to GCWCC's other reasons for hiring Ware.
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e x p e n se reason for hiring Ware is pretextual. Young testified that she hired Ware instead of E m an u e l because there was a $33,000/year salary difference between employing the two c a n d id a te s , see supra p. 13, but neither the Statement nor the EEOC position cited the salary d if f e re n c e , and Emanuel argues that the absence creates a genuine issue of fact on pretext. (D o c . # 24, at 15.) That the salary difference was a previously undisclosed reason for hiring W a re , however, does not make it an inconsistent one. "[T]he existence of a possible a d d itio n a l non-discriminatory basis for [the employment action] does not . . . prove pretext." T id w e ll, 135 F.3d at 1428. In fact, Young testified as to why the $33,000 salary difference w a s not in the EEOC letter. She left the salary difference out of the EEOC position letter b e c au s e she "didn't feel like it was important [as] [Emanuel] was concerned about the race a n d gender." (Young Dep. 199:6-7.) She acknowledges that she should have put the $ 3 3 ,0 0 0 salary difference in the letter, and that she failed to tell the attorney drafting the letter of this reason. (Young Dep. 199:9-200:13.) The court nevertheless finds that Young's f a ilu re to mention the salary difference in the letter does not give rise to an inconsistency. A n d presumably, some of the same reasons for not including the Thompson call in the S ta te m e n t ­ that the Statement's function is to highlight the affirmative, not negative or c o m p a ra tiv e reasons for hiring a candidate ­ apply to the absence of the salary difference in th e Statement. See supra pp. 19-20. E m a n u e l also attempts to show pretext by pointing to the SACS policies that s u p p o s e d ly bound GCWCC in the hiring process; those policies allegedly require GCWCC

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to give "primary consideration to the candidate with the most advanced degree." (Doc. # 24, a t 15.) SACS accredits elementary, secondary, and higher education institutions in several s o u th e rn states. (Doc. # 24 ¶ 10; Young Dep. 105:10-19.) SACS is the crediting body for G C W C C and imposes regulations GCWCC must follow. (Doc. # 24 ¶¶ 9-10; Young Dep. 1 0 5 :20 -10 6 :2 . ) Emanuel argues that SACS's Comprehensive Standard 3.7.1 ("Standard"), w h ic h requires institutions to give "primary consideration to the highest earned degree in the d iscip lin e" when "determining acceptable qualifications of its faculty" applied to GCWCC's h irin g .1 6 (Doc. # 24 ¶¶ 11-12; Doc. # 24, at 15.) Young disputes the Standard's applicability to hiring faculty. (Young Dep. 107:3-4 (She understood the policy "to mean that it has n o th i n g to do with the hiring process.").) According to Young, this Standard applies to S A C S ' s review of an institution's faculty members' credentials; SACS looks to the highest d e g re e earned by each faculty member to verify her credentials. (Young Dep. 107:6-16, 141 9 , 109:6-111:22.) Young points out that if the Standard required what Emanuel argues it re q u ire s, then GCWCC "would have to employ anybody in [its] search that has a doctorate d eg ree over anybody else any time [GCWCC] [had] a search." (Young Dep. 109:8-12.) Neither party has presented useful outside evidence on how to interpret the SACS S t a n d a rd . Even if the court were to interpret the Standard in favor of Emanuel's reading, h o w e v e r, it would not create a genuine issue as to pretext. First of all, the Standard requires

Comprehensive Standard 3.7.1 of the Principles of Accreditation reads in relevant part: "The institution employs competent faculty members qualified to accomplish the mission and goals of the institution. When determining acceptable qualifications for its faculty, an institution gives primary consideration to the highest earned degree in the discipline."

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o n ly that the institution give "primary consideration" to the highest degree in the discipline. T h e standard lists other considerations ­ "competence, effectiveness, and capacity, including, a s appropriate, undergraduate and graduate degrees, related work experiences in the field, p ro f e ss io n a l licensure and certifications, honors and awards, continuous documented e x c e llen c e in teaching, or other demonstrated competencies and achievements that contribute to effective teaching and student learning outcomes." (Doc. # 23 Ex. 14 (emphasis added).) A s the language suggests, the end goal of the Standard is to ensure effective teaching and s tu d e n t learning. It would turn that purpose on its head if the Standard instructed institutions to give determinative consideration to the highest degree even at the expense of c o m p r o m is in g effective teaching and student learning outcomes. The court declines to read th e Standard to require an institution to choose the candidate with the highest degree when o th e r considerations suggest that effective teaching and student learning outcomes are better a c h i e v e d through hiring another candidate. Because hiring the candidate with the highest d eg ree is not required, and because there is no evidence of the applicability of the Standard in this instance, GCWCC's decision to hire Ware despite Emanuel's higher qualification is n o t pretextual solely because of the SACS Standard. E m a n u e l relies on the SACS standard to discredit Young's third set of reasons for h irin g Ware ­ that she was a better fit for GCWCC. (See Doc. # 24, at 16.) As just e x p la in e d , the SACS policy does not signal pretext. The majority of Emanuel's challenge, h o w e v e r, relies on comparing his qualifications with Ware's. In Emanuel's words, Ware is

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a "greatly inferior candidate" and is "obviously much less-experienced than Emanuel," and it is "preposterous" and "defies logic" that Ware was preferable to Emanuel. (Doc. # 24, at 1 5 - 1 6 .) Emanuel argues that because Ware's credentials are "vastly inferior" to his,

G C W C C 's reason for hiring Ware as a better fit "is downright spurious"; in particular, b e c au s e Ware does not meet all of the preferred qualifications as he did, and because she has o n ly one year of part-time teaching experience as compared to his twenty years of teaching e x p e rie n c e, the court should "pierce the veil of deference" usually afforded employers. (Doc. # 24, at 16.) To establish pretext by comparing qualifications, "disparities in qualifications must b e of such weight and significance that no reasonable person, in the exercise of impartial ju d g m e n t, could have chosen the candidate selected over the plaintiff for the job in question." C o o p e r , 390 F.3d at 732; see discussion supra pp. 10-11. Emanuel fails to meet this stan d ard . According to his definition of "qualifications," the disparity in qualifications seems g re a te r than it really is, but his argument is circular. Emanuel assumes without argument that c e r ta in credentials are the only viable qualifications for the position, and based on those " q u a lif ic a tio n s ," concludes that he is more qualified than other candidates. But he focuses p rim a rily on credentials mentioned in the list of minimum and preferred qualifications, and c o m m o n sense dictates that the qualifications for this job extend beyond those on that list. E m p l o ye r s that hire to serve the public must consider factors beyond those credentials. E m a n u e l seems to sidestep qualifications related to attitude, affability, and affordability, and

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u n d e re stim a te s how they should factor into hiring for that position. It is not unreasonable for a n educational institution to look beyond paper qualifications or quantifiable criteria to select its faculty (see Doc. # 23 Ex. 8 (interview score card sheet as an example of the quantifiable c rite ria that favor Emanuel)). Even if the court, however, were to rely only on the qualifications Emanuel highlights, th e disparity between his qualifications and Ware's would not be egregious enough. Despite E m a n u e l's protestations, the choice between a candidate with a doctorate and one with only a master's degree is not a clear one. GCWCC is a teaching, not a research institution, so as Y o u n g testified, GCWCC has less need for or interest in faculty with doctorates. (Young D e p . 122:1-6.) Furthermore, a doctorate is not a perfect proxy for adequate teaching c a p a b ilitie s .1 7 Though years of teaching experience complement Emanuel's degree, that ex p erien ce is compromised by Thompson's warning. Moreover, Ware's qualifications were s a tis f a cto ry for the job. She had an advanced degree, and she met some of the preferred q u a lif ic a tio n s . (Young Dep. 130:11-13.) Emanuel's evidence, at most, "question[s] the w is d o m of the GCWCC's reasons," Combs, 106 F.3d at 1543; it does not create a genuine iss u e as to whether GCWCC's reasons were pretextual. In conclusion, the court finds that Emanuel has not met his burden on summary

Even Young, who herself has a doctorate, admitted as much. In response to the question of whether she learned more by earning a doctorate, Young responded, "Not necessarily." (Young Dep. 114:17-19.) And when asked whether she learned anything, presumably about teaching, when she received her doctorate, she candidly stated, "Not much . . . I don't think that necessarily having a doctorate makes you a better teacher." (Young Dep. 114:20-118:1.)

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ju d g m e n t to create a genuine issue as to whether each of GCWCC's legitimate reasons for h irin g Ware instead of Emanuel was pretextual. Emanuel has offered nothing more on p re te x t than a "mere scintilla of evidence," Walker, 911 F.2d at 1577. V. CONCLUSION F o r the foregoing reasons, it is ORDERED that Defendant's Motion for Summary J u d g m en t (Doc. # 18) is GRANTED. D O N E this 27th day of October, 2008. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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