Shuford v. City of Montgomery, Alabama
MEMORANDUM OPINION AND ORDER; For the foregoing reasons, the Motion for Summary Judgment is GRANTED to the City as to all of Shuford's claims. Signed by Honorable W. Harold Albritton, III on 4/12/2011. (jg, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CITY OF MONTGOMERY,
) CIVIL ACTION NO. 2:10cv203-WHA-WC
MEMORANDUM OPINION AND ORDER
This case is before the court on a Motion for Summary Judgment (Doc. #17) filed by
Defendant City of Montgomery, Alabama (the “City”). The Plaintiff, Robert Shuford
(“Shuford”), filed an Amended Complaint in this case, alleging sex discrimination (Count One),
race discrimination (Count Two), and retaliation (Count Three), all in violation of Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e, et seq. For the reasons to be discussed, the Motion for
Summary Judgment is due to be GRANTED.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper “if there is no genuine issue as to any material fact and . . .
the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment “always bears the initial responsibility of
informing the district court of the basis for its motion,” relying on submissions “which it believes
demonstrate the absence of a genuine issue of material fact.” Id. at 323. Once the moving party
has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a
genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of materials in the
record,” or by “showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include
“depositions, documents, electronically stored information, affidavits or declarations,
stipulations (including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials.”
To avoid summary judgment, the nonmoving party “must do more than show that there is
some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the non-movant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).1
In his briefs, Shuford cites to cases from Alabama state court to describe the standard for
summary judgment. This is erroneous, as a motion for summary judgment filed in federal court
is governed by federal summary judgment standards. See, e.g., Tidd v. Walmart Stores, Inc., 757
F. Supp. 1322, 1324 (N.D. Ala. 1991) (“The standards for deciding a motion for summary
judgment are set for this court by the Federal Rules of Procedure, the Federal Rules of Evidence,
The submissions of the parties establish the following facts, viewed in a light most
favorable to Shuford, the non-movant:
The City’s Hiring Process
The City hires employees through a multi-step process that involves the Montgomery
City-County Personnel Board (the “Personnel Board”). The Personnel Board is a separate entity
from the City, and serves the City as well as Montgomery County, the Montgomery Airport
Authority, and the Montgomery Housing Authority. See Montgomery, Ala. Code, app. A, ch. 4,
§ 6; Ex. A to Def.’s Br. in Supp. of Summ. J. at 1.2 The Personnel Board helps to recruit and
qualify applicants for employment with the City. See Ex. A to Def.’s Br. in Supp. of Summ. J. at
1-2. Specifically, when the City is determining whom to hire for a particular position, it chooses
from a register of qualified applicants. See, e.g., Montgomery, Ala. Code, app. A, ch. 4, § 6.
This register is created by the Personnel Board. Id.
The Personnel Board must follow certain requirements when creating the register.
If appointment is to be made from employment or promotional lists, the names of
persons willing to accept appointment shall be certified by the Personnel Director
in the order in which they appear on the lists. The number of names certified
shall exceed by four the number of vacancies to be filled.
and the evidentiary standards developed thereunder, not by decisions of the state courts.”).
Exhibit A to Defendant’s Brief in Support of Motion for Summary Judgment is an
Affidavit of Barbara M. Montoya, the Director of the Personnel Board.
Id. § 6(b). Therefore, generally, if one vacancy exists, the Personnel Board will deliver a register
of five applicants to the City from which the City selects one to fill the vacancy.
Sometimes, however, the register contains more than five applicants for one vacancy.
This is because Rule VIII(a)(1) of the Personnel Board Rules and Regulations states that
“[w]here more than one person is eligible in the last ranked position . . . all applicants tied at that
score shall be certified.” Montgomery, Ala. Personnel Bd. Rules & Regs. r. VII, § 8(a)(1),
available at http://www.montgomeryal.gov/Modules/ShowDocument.aspx?documentid=220.
Therefore, if there are two applicants tied at fifth who are applying for a single vacancy, the
Personnel Board will certify a register of six applicants instead of five.
Shuford’s Employment History
Shuford is an African-American male who, during all relevant times of this case, worked
as a mechanic and supervisor in the City’s fleet management department. He has worked for the
City for over 15 years. Shuford also has over 40 years of experience working in the field of fleet
management, as well as a degree in fleet management.
Shuford has been involved in previous employment disputes with the City. He was once
a witness in a suit by an ex-employee against the City’s fleet management department.
Additionally, prior to the events of this case, Shuford filed three EEOC charges and a federal
lawsuit against the City.
Shuford is not Selected for the May 9 Position
On May 9, 2008, the Personnel Board posted a job opening for the position of Garage
Superintendent (the “May 9 Position”). Shuford applied for this position.
Subsequently, the Personnel Board certified Shuford as number one on the register.3
Because there was a tie among applicants ranked at the fifth place on the register, the register
contained more than five applicants.
During the interview process, the City determined that Shuford’s application contained
“false information and misrepresentations.” Ex. H to Def.’s Reply Br. at 1. Specifically, after
learning of the problems with Shuford’s application, Terry Gaddis (“Gaddis”), the Director of
Fleet Management for the City, filed a “Form 13” with the Personnel Board listing five problems
with Shuford’s candidacy:
First, Mr. Shuford indicated on the job application . . . he had experience
in purchasing vehicle/equipment parts and materials . . . . when questioned on
explaining his experience . . . he stated that he had no actual experience
within the past five (5) years and was unable to answer basic questions related to
Second . . . . [Shuford’s] experience in preparing and monitoring a budget is very
limited during the past five (5) years.
Third, [Shuford stated in his application that he] “developed PM plans with the
Integrated 400 computerized Vehicle Maintenance Scheduling” when in fact
during the interview, he stated he only ensured PM’s were accomplished on City
vehicles/equipment by his mechanics, but never actually developed, prepared and
executed a preventative maintenance program for the City’s vehicle/equipment
fleet. He also had problems answering basic questions in this area that he would
have known if he had developed, prepared and executed a PM program.
[Fourth, Shuford’s answers in response to questions on an engine oil analysis
issue were unimpressive, and] . . . . Shuford stated that he had no actual
experience dealing the with [sic] engine oil analysis program during the past five
Neither party explains how the Personnel Board scores or ranks applicants.
[Fifth,] . . . Shuford demonstrated he could not follow simple written instructions
on completing a requisition exercise during the interview.
Ex. S to Def.’s Br. in Supp. of Summ. J. at 2.
Because of these problems, Shuford was removed from the register and was not
considered for the May 9 Position. Ex. L to Def.’s Br. in Supp. of Summ. J. ¶ 2. Instead, the
City hired Rovanda Schritter, a white female.
Shuford is not Selected for the January 22 Position
On January 22, 2009, another Garage Superintendent Position (the “January 22
Position”) opened, and on or about this date, the City hired a white male. However, the City did
not engage in its usual hiring practices, and never posted or made an announcement to notify
applicants of this opening.
Shuford is not Selected for the Service Center Manager Position
On March 12, 2009, the Personnel Board posted a job opening for the position of Service
Center Manager (the “Service Center Manager Position”). Shuford applied for this position.
On April 7, 2009, the Personnel Board certified a register of ten candidates to the City,
because six applicants were tied for fifth place. Ex. A to Def.’s Br. in Supp. of Summ. J. at 3;
Ex. G to Def.’s Reply Br. Shuford was tied for first place on the register. Ex. G to Def.’s Reply
Br. For a reason unexplained by the parties, only nine candidates were interviewed for the
The City convened a panel of three individuals to interview the candidates. The panel
members were (1) Mr. Eugene Knox (“Knox”), the Deputy Director of fleet management, a
black male; (2) Ms. Diane Burke (“Burke”), the Deputy Director of the Sanitation Department, a
black female; and (3) Mr. Royce Albright (“Albright”), the Assistant Director for Administration
of fleet management, a white male.
Shuford performed poorly at his interview. Burke stated, in an affidavit, that Shuford
“did not have the experience and knowledge which his application seemed to reflect that he
had.” Ex. O to Def.’s Br. in Supp. of Summ. J. ¶ 3. For example, Shuford wrote on his
application that he had “coordinated the timing of service requests, especially large or time
intensive projects, in order to ensure a balanced workload and to determine the projected
completion times for repairs/maintenance.” Ex. J to Def.’s Br. in Supp. of Summ. J. at 4.
However, when asked to “[d]escribe a work priority system you have used and explain some
‘exceptions’ you had to make while using the system,” Shuford’s response to the interviewers
indicated that he did not have a thorough understanding of the current priority system used by
the City’s fleet management department. See Ex. O to Def.’s Br. in Supp. of Summ. J. ¶ 3.
Shuford had worked for the City’s fleet management department for a long time, and, according
to Burke, should have had a thorough knowledge of the priority system. Id. Additionally, Burke
stated that Shuford “had a hard time articulating his responses and did not present well in the
interview.” Id. After the interview, the three interviewers scored each applicant’s answers to the
interview questions, and combined each interviewer’s score to get a total score for each
applicant. Id. ¶ 4; see also Ex. Q to Def.’s Br. in Supp. of Summ. J. (score sheets of each
applicant filled out by each interviewer). Shuford’s total score was the second-worst out of nine
candidates. Ex. O to Def.’s Br. in Supp. of Summ. J. ¶ 4.
The interviewers then discussed which applicant they preferred to hire. Knox expressed
support for one candidate (not Shuford), and when the others disagreed, Knox refused to
participate in the remainder of the selection process. Burke and Albright then independently
prepared a list of their three favorite candidates, based on each candidate’s (1) score; (2)
experience; and (3) presentation in the interview. While Burke and Albright did not agree on the
order of the top three candidates, each had selected the same top three, and agreed to submit this
list to Gaddis, the Fleet Management Director, without ranking them, so Gaddis could choose
whom to hire. Shuford was not in the top three. Ultimately, Gaddis interviewed all three
candidates, and hired Steve Lammon (“Lammon”), a white male. Gaddis stated that Lammon
was a good candidate because of his (1) previous experience running an automotive service
center; (2) technical knowledge; (3) experience supervising employees; and (4) interpersonal
Shuford’s claims are based on the City’s failure to promote him to three separate jobs: (1)
the May 9 Position; (2) the Service Center Manager Position; and (3) the January 22 Position.
Shuford argues that the City’s failure to promote him to each of these jobs was the result of
retaliation (Count Three), that the City’s failures to promote him to the January 22, 2009 Garage
Superintendent position and the March 12, 2009, Service Center Manager position were the
result of race discrimination (Count Two), and that the City’s failure to promote him to the May
9, 2008 Garage Superintendent position was the result of sex discrimination (Count One).
Title VII prohibits an employer from discriminating “against any individual with respect
to his compensation, terms, conditions, or privileges of employment because of such individual’s
race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). Title VII further
prohibits an employer from discriminating “against any of his employees . . . because he has
opposed any practice made an unlawful employment practice by this subchapter, or because he
has made a charge, testified, assisted or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The critical element in
establishing wrongful discrimination or retaliation in violation of Title VII is discriminatory or
retaliatory intent. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). Such intent
can be established through (1) statistical proof of a pattern of discrimination or retaliation; (2)
direct evidence of discrimination or retaliation, which consists of evidence that, if believed,
would prove the existence of discrimination or retaliation without inference or presumption; or
(3) circumstantial evidence of discriminatory or retaliatory intent using the framework
established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). See Holifield
v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997).
Where, as here, Shuford seeks to prove retaliation as well as intentional discrimination on
the basis of race and gender by using circumstantial evidence of intent, the court applies the
framework first set out by the United States Supreme Court in McDonnell Douglas. Under this
framework, the plaintiff must establish a prima facie case of discrimination or retaliation.
McDonnell Douglas, 411 U.S. at 802. After the plaintiff has established a prima facie case, the
burden of production is placed upon the employer to articulate a legitimate nondiscriminatory
reason for its employment action. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254
(1981). The plaintiff may seek to demonstrate that the proffered reason was not the true reason
for the employment decision “either directly by persuading the court that a discriminatory [or
retaliatory] reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Id. at 256; Combs v. Plantation
Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). A plaintiff’s prima facie case, combined with
sufficient evidence to find that the employer’s asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated or retaliated. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000).
Count Three - Retaliation Claims
Shuford has brought retaliation claims with respect to all three of the promotions that he
was denied in this case. To state a prima facie case of retaliation, a plaintiff must show that: (1)
he engaged in an activity protected under Title VII; (2) he suffered an adverse employment
action; and (3) there was a causal connection between the protected activity and the adverse
employment action. Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
Because, as discussed below, Shuford loses on all three failure to promote claims for reasons
other than failing to meet his prima facie case with respect to retaliation, the court assumes
without deciding that Shuford has met his prima facie case with respect to retaliation.4
The May 9, 2008 Garage Superintendent Position - Sex Discrimination and
Shuford asserted that he served as a witness for an ex-employee, and filed EEOC
complaints and a federal lawsuit against the City, and that the City was aware of this activity.
Shuford argues that the City’s failure to promote him to the May 9 Position was the result
of sex discrimination and retaliation.5 The City responds that there are legitimate,
nondiscriminatory reasons why Shuford was not promoted.6 The City does not argue that
Shuford failed to meet his prima facie case with respect to sex discrimination, and, as previously
discussed, the court will assume that Shuford met his prima facie case with respect to retaliation.
Because Shuford has satisfied his prima facie case, the burden shifts to the City to
articulate a legitimate nondiscriminatory reason for choosing not to promote Shuford. This
burden is “exceedingly light” and the employer “need not persuade the court that its proffered
reasons are legitimate; the defendant’s burden is merely one of production, not proof.” Cooper
v. Southern Co., 390 F.3d 695, 725 (11th Cir. 2004), overruled on other grounds, Ash v. Tyson
Foods, Inc., 546 U.S. 454, 457 (2006) (internal quotation marks omitted).
In this case, the City met its burden by stating that Shuford did not receive the May 9
Position because he included false information and misrepresentations on his application.7 See
Ex. L to Def.’s Br. in Supp. of Summ. J. ¶ 2; Ex. S to Def.’s Br. in Supp. of Summ. J. at 2. After
the City interviewed Shuford, Gaddis filed a Form 13 that described these misrepresentations, as
Shuford mentions race on occasion in his argument regarding the May 9 Position, but his
Amended Complaint alleges only sex discrimination in his claim regarding that position (Count
The City also contends that Shuford failed to exhaust his administrative remedies as to
this claim, because the EEOC charge did not specify a sex discrimination claim. However,
because the court concludes that there were legitimate, nondiscriminatory reasons why Shuford
was not promoted, the court need not address the exhaustion issue.
The City makes its merits arguments regarding the May 9 Position under only the
heading of “Count III - Retaliation,” and not under a “Sex Discrimination” heading. See Def.’s
Br. in Supp. of Summ. J. at 14. However, the City’s arguments include a discussion of
“Legitimate reasons Plaintiff did not receive the job openings,” that apply equally to both
discrimination and retaliation.
well as how Shuford did a poor job responding to a question about the City’s engine oil analysis
program, and how Shuford failed to follow written instructions in a requisition exercise during
the interview. Ex. S to Def.’s Reply Br. at 2. This form establishes that the City could have
reasonably believed that Shuford made misrepresentations on his employment application. See,
e.g., Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (stating that the
inquiry behind disparate treatment claims is whether the employer believed that the employee
committed misconduct, and whether that belief led to adverse employment action against the
employee; “[t]hat the employee did not in fact engage in misconduct reported to the employer is
irrelevant to the question whether the employer believed the employee had done wrong”);
Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 n.3 (11th Cir. 1999) (“An
employer who fires an employee under the mistaken but honest impression that the employee
violated a work rule is not liable for discriminatory conduct.”); Chapman v. AI Transp., 229 F.3d
1012, 1036 (11th Cir. 2000) (en banc) (holding that it is a legitimate, nondiscriminatory reason
not to hire a candidate who has a poor interview as subjectively determined by the candidate’s
interviewers); Masso v. Miami-Dade Cnty., 247 F. App’x 190, 191-92 (11th Cir. 2007) (finding
an employer’s reasonable belief that an employee falsified her employment application to be a
legitimate, nondiscriminatory reason for adverse employment action).
Because the City has articulated a legitimate nondiscriminatory reason for its decision not
to promote Shuford, the burden shifts to Shuford to show that this reason was a pretext for
discrimination or retaliation.
To demonstrate pretext, a plaintiff must show that the employer’s offered reason was not
the true reason for its decision, “either directly by persuading the court that a discriminatory [or
retaliatory] reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Jackson v. Ala. State Tenure
Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (citing Burdine, 450 U.S. at 256) (quotation
marks omitted). Furthermore, the plaintiff must “produce sufficient evidence for a reasonable
factfinder to conclude that each of the employer’s proffered nondiscriminatory reasons is
pretextual.” Chapman, 229 F.3d at 1037.
Shuford responds by stating: “[i]n its affidavit, the Defendant asserts that it disqualified
the Plaintiff based on misrepresentation, but fails to set forth specifically, what the Plaintiff
misrepresented.” Pl.’s Resp. in Opp. to Summ. J. at 10. However, the Form 13 itself, cited by
the City, indicates that the City believed Shuford committed at least two misrepresentations in
his job application by misstating his job experience with respect to (1) “purchasing
vehicle/equipment parts and materials;” and (2) developing “PM plans” with the 400 system.
Ex. S. to Def.’s Reply Br. at 2.
Shuford responds to this fact by stating that he was actually very familiar with the 400
system, and that the interviewers were wrong to believe otherwise. Shuford points to an
affidavit of Dallas Venable (“Venable”), who stated that (1) Venable is experienced in working
with the 400 system; (2) he is personally acquainted with Shuford; and (3) Shuford “totally
understands and has the ability to work [the 400] system.” Pl.’s Ex. D at 2-4. However, as
previously stated, what matters in a Title VII case is not whether Shuford actually was familiar
with the 400 system, but rather, whether the City reasonably believed that Shuford was
unfamiliar. In any event, even if the court were to conclude that Venable’s assertion proved that
the City’s interviewers did not really believe that Shuford was unfamiliar with the 400 system,
this argument only responds to one of the misrepresentations the City states existed on Shuford’s
Because Shuford has failed to rebut the City’s legitimate, nondiscriminatory reasons,
summary judgment is due to be granted on Shuford’s sex discrimination claim and, for the same
reason, on his retaliation claim with respect to the May 9 Position.
The March 12, 2009 Service Center Manager Position - Race Discrimination and
Shuford argues that the City’s failure to promote him to the Service Center Manager
Position was the result of race discrimination and retaliation. The City argues that (1) Shuford
fails to meet his prima facie case for race discrimination; and (2) in any event, the City had
legitimate reasons for choosing a different candidate for the Service Center Manager Position.
Prima Facie Case
The City argues that Shuford fails to meet his prima facie case with respect to race
discrimination because he has failed to show that “he was treated disparately from a similarlysituated employee outside of his protected class.” Def.’s Br. in Supp. of Summ. J. at 8. The
court rejects this argument. To establish a prima facie case for failure to promote, an employee
must show that (1) he belongs to a protected class; (2) he was qualified for a job for which his
employer was seeking applicants; (3) despite his qualifications, he was rejected; and (4) after his
rejection, the employer continued to seek applicants or filled the position with a person outside
of the plaintiff’s protected class. See Walker v. Mortham, 158 F.3d 1177, 1186 (11th Cir. 1998);
Williams v. Ala. Indus. Dev. Training, 146 F. Supp. 2d 1214, 1219 (M.D. Ala. 2001). In this
case, (1) Shuford was in a protected class, black; (2) Shuford was qualified for the position, or at
least, the City does not contest his qualifications with respect to the prima facie case; (3) Shuford
was not hired; and (4) the City hired a white male, Lammon, for the position. Therefore,
Shuford satisfies his prima facie case.
Legitimate, Nondiscriminatory Reasons
Because Shuford has satisfied his prima facie case, under McDonnell Douglas, the
burden shifts to the City to articulate a legitimate nondiscriminatory reason for choosing not to
promote Shuford. The City argues that it did not promote Shuford because it determined that he
was not the best candidate for the position.
First, the City notes that Shuford performed poorly during his interview with Knox,
Albright, and Burke. In fact, according to the interview point totals created by Knox, Albright,
and Burke, Shuford performed the second-worst out of nine candidates in the interview. Second,
the City notes that Lammon, the candidate ultimately selected, had (1) previous experience
running an automotive service center in the private sector; (2) technical knowledge; (3)
experience supervising employees; and (4) interpersonal skills. These reasons are sufficient to
meet the City’s burden of proffering a legitimate, nondiscriminatory reason for choosing not to
promote Shuford. See Thomas v. Troy City Bd. of Educ., 302 F. Supp. 2d 1303, 1307-08 (M.D.
Ala. 2004) (Thompson, J.) (concluding that an employer’s determination that a plaintiff is less
qualified than another candidate for a position is a legitimate, nondiscriminatory reason).
Because the City has articulated a legitimate, nondiscriminatory reason for its decision
not to promote Shuford, the burden shifts to Shuford to show that this reason was a pretext for
Shuford presents several arguments for why he believes that the City’s proffered reasons
are pretext. First, Shuford claims that the interview scoring system was subjective, and
therefore, the City was simply manipulating its scoring system to select whom it wanted for the
job. The City does not dispute that its interview scoring system was subjective, nor need it do
so. An employer can rely on subjective criteria in selecting applicants, and these criteria can
constitute legitimate, nondiscriminatory reasons for choosing not to hire a particular applicant.
Chapman, 229 F.3d at 1033 (“A subjective reason can constitute a legally sufficient, legitimate,
nondiscriminatory reason under the McDonnell Douglas / Burdine analysis. Indeed, subjective
evaluations of a job candidate are often critical to the decisionmaking process[.]”).
Second, Shuford claims that the panel made up of Burke, Knox, and Albright was created
simply to make it seem like the panel was controlled by black individuals. Specifically, Burke
and Knox are both black, and Shuford claims that Burke was placed in “control” of the panel,
even though anything Albright wanted was done. Shuford also claims that Burke “has very little
knowledge of what Fleet Management is all about.” The court rejects this argument, because not
only does it fail to rebut the City’s proffered nondiscriminatory reasons, but Shuford presents no
evidence in support of it.
Third, Shuford claims that the City improperly certified ten applicants rather than five for
the Service Center Manager Position. Shuford points to the City’s hiring policy, which states
that the Personnel Board will certify the top five applicants for a particular position. Shuford
claims that Lammon, who ultimately received the position, was only interviewed because the
City interviewed more than five applicants.
The City states, and Shuford acknowledges, that if there is a tie for applicants at the fifth
certified position, then all of the applicants tied for fifth will be certified and the certification list
may exceed five applicants. The City states that there was a tie of six individuals for the fifth
slot, and therefore, ten applicants were certified to be interviewed. In support, the City
submitted the register listing all of the certified applicants, including the six tied at fifth place, as
well as the affidavit of Montoya stating that there was a six-way tie. Ex. E to Def.’s Br. in Supp.
of Summ. J. at 3; Ex. G to Def.’s Br. in Supp. of Summ. J. at 1. Shuford attacks this argument
for two reasons. First, Shuford claims that the argument is unbelievable. This claim is
insufficient to survive summary judgment, as it is a bald claim with no supporting evidence.
Second, Shuford states that Venable, who received a ranking of fifth, was not notified that he
was tied with another applicant for fifth, and therefore, there must not have been any ties for
fifth.8 Shuford asserts that the City has a policy of notifying applicants when they are tied on a
certification list. However, the only supporting evidence Shuford presents is one instance where
the City notified an applicant he was tied on a certification list. Pl.’s Ex. G at 2. Moreover,
Montoya, the director of the Personnel Board, stated in an affidavit that, for a short period of
time, the Personnel Board used to notify applicants if there was a tie, but it no longer does so,
nor was there ever a formal policy that required the Personnel Board to do so. Ex. E to Def.’s
Reply Br. at 3. The court finds, based on Montoya’s affidavit and the weak evidence presented
Shuford presents no evidence of whether the other individuals tied for fifth were notified
of a tie.
by Shuford, that there is no issue of fact that the City had a policy of notifying applicants that
they were tied for a position on the certification list. Nor does Shuford create an issue of fact
that the City did not actually have a six-way tie for fifth place on the register.
Fourth, Shuford claims that the certification list presented by the City was fabricated. It
is a very serious assertion to claim that a party is lying and presenting fabricated evidence to the
court. Despite that serious allegation of wrongdoing, Shuford fails to present any evidence in
support of his claim that the list is fabricated. Due to the lack of any supporting evidence, the
court rejects Shuford’s allegation, and cautions against making such unsupported charges in the
Fifth, Shuford criticizes Lammon’s experience and qualifications and claims that he is
more qualified than Lammon. Shuford characterizes as “humorous” the fact that Lammon
previously worked as a car salesman, and critiques the fact that Lammon “merely attended”
training courses during his career. Shuford asserts that he has a degree in fleet management, 40
years of experience working in the industry, and more experience working for the City than
Lammon. Shuford also criticizes the City’s reliance on the fact that Lammon appeared to be a
The Eleventh Circuit has stated that where a claim of discrimination is based on relative
qualifications, the “plaintiff must show that the disparities between the successful applicant’s
and [his] own qualifications were ‘of such weight and significance that no reasonable person, in
the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.’”
Cooper, 390 F.3d at 732. Shuford has not proven such a wide disparity in qualifications.9
Instead, Shuford’s arguments boil down to Shuford’s opinion that he was a better candidate than
Lammon. However, an employee may not “substitute his business judgment for that of the
employer.” Chapman, 229 F.3d at 1030; see also Ash v. Tyson Foods, 190 Fed. App’x 924, 927
(11th Cir. 2006) (noting that, in the Eleventh Circuit cases, “comparative qualifications and other
alleged indicia of discrimination (i.e., subjective criteria used by the decision-maker, plaintiff’s
belief that his (or her) qualifications were superior), were held insufficient for a factfinder
reasonably to find that the decision was not based on the qualifications of the applicants.”).
Sixth, Shuford demands that the City produce the specific answers Lammon gave to
questions in his interview. There is no requirement that an employer do this to avoid liability
under Title VII, and this court will not impose such a requirement today.
Seventh, Shuford notes that the top three candidates selected by Albright and Burke were
all white males. Shuford attempts to imply that if the top three candidates out of ten candidates
all happened to be white, then Albright and Burke must have harbored racist motives in selecting
their top three candidates. Shuford’s argument is insufficient to survive summary judgment.
Shuford presents no evidence of how many of the applicants or certified applicants were white.
If all of the applicants except Shuford were white, for example, then his argument carries no
weight at all. In any event, Shuford’s bare argument that the three final candidates for the
In fact, it is unclear whether Shuford is even as qualified as Lammon. Shuford does not
state how much experience Lammon has, nor does Shuford explain any of Lammon’s credentials
besides noting that Lammon was a car salesman in the past, so it is impossible to compare
Shuford’s experience with Lammon.
position were white, when considered in light of the fact that Shuford has made no viable
arguments of pretext, is not enough to create a genuine issue of material fact in this case.
In sum, because Shuford’s arguments fail to show that the City’s proffered legitimate,
nondiscriminatory reasons for choosing not to promote Shuford were pretext, summary judgment
is due to be granted both as to Shuford’s race discrimination claim, and as to his retaliation
claim, against the City with respect to the Service Center Manager Position.
The January 22, 2009 Garage Superintendent Position - Race Discrimination and
Shuford argues that the City’s failure to promote him to the January 22 Position was the
result of race discrimination and retaliation. The City argues that Shuford failed to exhaust his
administrative remedies by failing to file an EEOC charge with respect to this claim.
Prior to filing a Title VII lawsuit, “a private plaintiff must file an EEOC complaint
against the discriminating party and receive statutory notice from the EEOC of his or her right to
sue the respondent named in the charge.” Forehand v. Fla. State Hosp. at Chattahoochee, 89
F.3d 1562, 1567 (11th Cir. 1996) (citing Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215 (5th
Cir. Unit B 1982)).10 If the plaintiff receives notice of his or her right to sue, the plaintiff may
then bring a judicial complaint, but that complaint “‘is limited by the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge of discrimination.’”
A.M. Alexander v. Fulton Cnty., Ga., 207 F.3d 1303, 1332 (11th Cir. 2000) (citing Mulhall v.
In Stein v. Reynolds Sec., Inc., 667 F.2d 33, 34 (11th Cir. 1982), the Eleventh Circuit
adopted as binding precedent all decisions issued by any Unit B panel of the Fifth Circuit after
October 1, 1981.
Advance Sec., Inc., 19 F.3d 586, 589 n.8 (11th Cir. 1994)), overruled on other grounds, Manders
v. Lee, 338 F.3d 1304, 1328 n.52 (11th Cir. 2003). This means that “judicial claims are allowed
if they ‘amplify, clarify, or more clearly focus’ the allegations in the EEOC complaint . . .
[however,] allegations of new acts of discrimination are inappropriate.” Gregory v. Ga. Dep’t of
Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (quoting Wu v. Thomas, 863 F.2d 1543, 1548
(11th Cir. 1989)).
“[C]onditions precedent to a Title VII action,” such as filing a proper EEOC charge, “are
not jurisdictional prerequisites.” Jackson v. Seaboard Coast Line R.R. Co., 678 F.2d 992, 1009
(11th Cir. 1982); see also Myers v. Cent. Fla. Invs., Inc., 592 F.3d 1201, 1224 (11th Cir. 2010).
On the other hand, if a defendant denies “‘specifically and with particularity’ that the
preconditions have not been fulfilled . . . . [then t]he plaintiff . . . bears the burden of proving that
the conditions precedent . . . have been satisfied.” Jackson, 678 F.2d at 1010.
Shuford admittedly did not file an EEOC charge that specifically complained about
discrimination or retaliation with respect to the January 22, 2009 Garage Superintendent
position. Shuford claims that he nevertheless exhausted his administrative remedies because he
“filed this complaint along with his complaint against the Defendant with regard to Lammons
[sic].” Pl.’s Resp. in Opp. to Summ. J. at 19. It is difficult to understand the meaning of this
statement. The court interprets this statement to mean that Shuford claims that he complained
about alleged race discrimination and retaliation with regard to the January 22 Position in the
same EEOC charge that he used to complain about the March 12, 2009 Service Center Manager
Position.11 Yet the EEOC charge that he filed relating to the Service Center Manager Position
says nothing whatsoever about the January 22 Position; rather, it specifically bases the charge
on, and only discusses, the Service Center Manager Position. See Ex. M to Def.’s Br. in Supp.
of Summ. J. at 1. That charge also lists May 22, 2009 as the earliest and only date the
discrimination complained of in that charge took place, by the hiring then of a white male for the
Service Center Manager Position. Ex. M to Def.’s Br. in Supp. of Summ. J. at 1. Therefore, this
charge does not serve in any way to exhaust Shuford’s administrative remedies with respect to
the January 22 Position.
Shuford next argues that the alleged discrimination that occurred with respect to the
January 22 Position was “an ongoing act.” Shuford provides no supporting evidence for this
claim, either. As a matter of fact, the court notes that in Shuford’s EEOC charge filed with
respect to the Service Center Manager Position, which he filed six months after the City filled
the January 22 Position, Shuford did not check the box for “CONTINUING ACTION” under
“Date(s) Discrimination Took Place,” but stated under “Earliest,” “05-22-2009.” Ex. M to
Def.’s Br. in Supp. of Summ. J. at 1.
In sum, Shuford fails to present any evidence to satisfy his burden of showing that he
exhausted his administrative remedies with respect to the January 22 Position, or that there is any
legal reason for excusing his failure to do so. See Jackson, 678 F.2d at 1010. Therefore,
summary judgment is due to be granted with respect to Shuford’s claim that he did not receive
the January 22 Position due to race discrimination and retaliation.
Shuford provides no evidence that he filed a separate charge along with his charge
regarding the Service Center Manager Position, which he surely would have done if that had
been the case.
For the foregoing reasons, the Motion for Summary Judgment is GRANTED to the City
as to all of Shuford’s claims.
Done this 12th day of April, 2011
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE
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