Downey v. Alfa Insurance Corporation

Filing 62

MEMORANDUM OPINION AND ORDER denying 54 MOTION for Summary Judgment. Signed by Honorable Judge W. Harold Albritton, III on 4/11/2012. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
SUSAN DOWNEY,
Plaintiff,
v.
ALFA INSURANCE CORPORATION,
Defendant.

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Civil Action No. 2:10cv438-WHA
(wo)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion for Summary Judgment (Doc. #54), filed by
Defendant Alfa Mutual Insurance Company on February 24, 2012.
The Plaintiff, Susan Downey, filed a Complaint in this case on May 18, 2010, and filed
two Amended Complaints. In the Second Amended Complaint, Downy brings a claim of
gender discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended. Alfa
has filed a Motion for Summary Judgment as to Downey's claim.
For the reasons to be discussed, the Motion for Summary Judgment is due to be
DENIED.
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 nonmovant 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).
III. FACTS
The submissions of the parties establish the following facts, construed in a light most
favorable to the nonmovant:

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The Plaintiff, Susan Downey (“Downey”), has brought a gender discrimination claim for
denial of a promotion to a Claims Adjuster position in October 2008. Downey was hired by the
Defendant Alfa Mutual Insurance Company (“Alfa”) as a Customer Service Representative in
1993. In September of 2008, Downey applied for the position of Claims Adjuster. Downey was
interviewed by District Manager Skip Allen (“Allen”) and Harold Oakes ("Oakes"), Claims
Regional Manager. Allen and Oakes also interviewed a man, Tim Wilson (“Wilson”). Jerry
Johnson (“Johnson”), Senior Vice President, did not participate in Downy’s interview, although
Downey understood that he was scheduled to attend. Johnson did meet briefly with Wilson,
Allen, and Oakes during Wilson’s interview. After being interviewed, Downey was told on
October 23, 2008 by Allen that Wilson would be hired for the Claims Adjuster position. The
decision makers in the selection of Wilson over Downey were Allen and Oakes.
In December 2008, Downey filed an EEOC charge complaining of gender discrimination
in the selection of Wilson. In its response to the EEOC charge, Alfa stated that Allen and Oakes
considered Wilson the best candidate because Wilson's background included extensive
knowledge in Exceed, a policy administration computer system; Wilson had an excellent
reputation in problem-solving; and Wilson possessed other skills. (Doc. #54-6). In support of
the Motion for Summary Judgment, Alfa states that Downey and Wilson were both strong
candidates for the Claims Adjuster position, but Wilson was selected because he performed
better in his interview through his insightfulness and confidence; he had experience as an Exceed
software specialist, including an ability to analyze and resolve integration problems concerning
Exceed; Wilson received more assertive support from his supervisor; and Wilson had prior
underwriting experience. (Doc. #55 at p.7-8).

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In July 2009, Alfa transferred Wilson to a Claims Adjuster position which opened up at
another office, and placed Downey in the Claims Adjuster position for which Wilson had earlier
been selected over Downey.
IV. DISCUSSION
Where, as here, the plaintiff seeks to prove intentional discrimination on the basis of
gender under Title VII by using circumstantial evidence of intent, the court applies the
framework first set out by the United States Supreme Court in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, the plaintiff must establish a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802. After the plaintiff has established
a prima facie case of discrimination, 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 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. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133,
147 (2000). That is, even if a plaintiff establishes a prima facie case and offers sufficient
evidence of pretext as to each of the proffered reasons, summary judgment “will sometimes be
available to an employer in such a case.” Chapman v. AI Transport, 229 F.3d 1012, 1025 n.11

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(11th Cir. 2000).
Alfa concedes for purposes of the Motion for Summary Judgment that Downey can
satisfy the elements of her prima facie case of discrimination. Alfa states, however, that Downey
cannot establish pretext in Alfa’s legitimate non-discriminatory reasons for the selection of
Wilson over Downey.
Downey contends that she has produced four categories of circumstantial evidence to
defeat summary judgment which are as follows: she has refuted each of the articulated reasons,
she has presented evidence allowing for the inference that reliance on subjective criteria is a
pretext for discrimination, she has produced evidence that her qualifications vastly exceeded
Wilson’s, and she has produced evidence that women are under represented in the Claims
Adjuster position. The court, however, is not persuaded by the majority of these arguments.
The subjective nature of the reasons given by Alfa is not sufficient to establish pretext,
because subjective reasons are permissible, see Denney v. City of Albany, 247 F.3d 1172, 1185
(11th Cir. 2001); Downey has not shown that her qualifications sufficiently exceeded Wilson’s
so as to establish pretext because they are not of such weight and significance that no reasonable
person could have chosen Wilson over her, see Springer v. Convergys Customer Mgmt. Group,
Inc., 509 F.3d 1344, 1349 (11th Cir. 2007); and Downey’s statistical evidence consisting merely
of the percentage of women in the Claims Adjuster position is not sufficient to establish pretext,
see Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir. 1991) (stating that
statistics without an analytic foundation are virtually meaningless). It appears, however, that a
question of fact may have been raised by the evidence in support of and in opposition to the
articulated reasons for Wilson’s selection which may sufficiently undermine Alfa’s reliance on

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those reasons. Therefore, the court will focus on that contention by Downey.
There are two preliminary issues raised by Downey which must be addressed before the
court turns to the evidence regarding the articulated reasons.
A. Preliminary Issues
First, Downey has argued that the court should find that the reasons articulated in support
of the Motion for Summary Judgment, but not presented to the EEOC, are pretextual on that
basis. Downey cites the court to Bechtel Constr. Co. v. Sec’y of Labor, 50 F.3d 926 (11th Cir.
1995). The Eleventh Circuit has, however, clarified that it is the inconsistency of reasons
articulated by the employer which can establish pretext. See Tidwell v. Carter Products, 135
F.3d 1422, 1428 (11th Cir. 1998). In Tidwell, the court cited earlier precedent for the
proposition that, although a company gives differing explanations for a decision, there is no
evidence of pretext if the reasons are not inconsistent. Id. (citing Zaben v. Air Products &
Chem., Inc., 129 F.3d 1453, 1458-59 (11th Cir.1997).
The reasons articulated to the EEOC were that Wilson had extensive knowledge of
Exceed, a policy administration computer system; Wilson's excellent reputation in problem
solving; and Wilson's other skills. In support of summary judgment, Alfa has additionally
articulated that Wilson had a stronger recommendation from his supervisor, Wilson had prior
underwriting experience, and Wilson had a better interview. The three reasons Downey has
pointed to as being additional reasons, are not inconsistent with the reasons given the EEOC.
The court cannot conclude, therefore, that the three additional reasons are evidence of pretext
merely because they were not presented to the EEOC. See Keaton v. Cobb Co., 545 F. Supp. 2d
1275, 1305 (N.D. Ga. 2008) (additional reasons not presented to EEOC were not pretext because

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were not inconsistent with prior reasons), aff’d, No. 08-11220, 2009 WL 212097 (11th Cir. Jan.
30, 2009).
Second, Downey asks the court not to consider the newly articulated reasons because
they were only provided in response to leading questions by Alfa’s counsel in depositions, even
though they were not mentioned earlier in the deposition, and so should be stricken as being akin
to sham affidavit evidence, citing Van T. Junkins and Assoc. v. U.S. Indus., 736 F.2d 656, 657
(11th Cir. 1984). For example, in his deposition Oakes was asked whether there was any other
information he received that was relevant to his decision and said “no,” Oakes Dep. at p.80, but
when his counsel asked whether the fact that Wilson worked as an auto underwriter lead him to
believe Wilson was better qualified, Oakes said that it was one of the factors in their selection.
Id. at p.82 12-16. The rationale of Van T. Junkins, and cases applying it, do not apply however
to testimony given within the context of a single deposition. The court, therefore, declines to
strike the deposition testimony on that basis.
Downey also asks the court not to consider deposition evidence because it was given in
response to leading questions, citing Morales-Arcadio v. Shannon Produce Farms, Inc., No.
605cv62, 2007 WL 2106188 (S.D. Ga. July 18, 2007). Alfa responds that because the
deposition was noticed by Downey, Alfa’s counsel was questioning the witnesses on crossexamination, where leading questions are permissible. Because the evidence in question can be
reducible to admissible form, cf. Rowell v. Bellsouth Corp., 433 F.3d 794, 799-800 (11th Cir.
2005), the court will consider the testimony, but will revisit the issue if called upon to do if there
are designations of deposition testimony for trial containing what Downey contends are leading
questions.

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B. Downey's Evidence to Establish Pretext of Articulated Reasons
With respect to the reasons articulated by Alfa, Downey has both specifically addressed
what she perceives as the failings of each reason articulated for the selection of Wilson over her,
and has also advanced the overarching argument that Alfa’s stated reliance on qualifications and
interview performance of Wilson is not worthy of credence because that information was not
known to Oakes at the time the decision was made to hire Wilson. It is that contention to which
the court now turns.
It is undisputed that Allen and Oakes were the decision makers in the selection of Wilson
over Downey. In addition, Alfa has not differentiated between the decision-making roles of
Allen and Oakes in the articulation of the reasons for Wilson’s hire. In describing the decisionmaking process with respect to the selection of Wilson over Downey, Alfa has explained that
Johnson’s role in the selection of Claims Adjusters typically is to meet with the candidate
recommended by his subordinates, and that he has veto authority with respect to a decision made
by them. (Doc. #55 at p. 7). Alfa has stated in the context of this case, however, that decision
makers Allen and Oakes wanted Johnson to meet both Wilson and Downey during their
interviews. Alfa points out that Downey stated in her deposition that she was “set up to
interview with Harold Oakes and Jerry Johnson on that day . . . .” Downey Dep. at p. 38: 17-19.
Alfa states, without explanation, that Johnson was not available for Downey’s interview.
According to Allen’s testimony, Johnson did stop by during Wilson’s interview, however, and
Allen and Oakes invited him in. Allen Dep. p. 92:2-5.
Johnson's deposition testimony is not consistent with Alfa's explanation of the selection
process for Wilson. Johnson testified that he does not recall that he was going to be present at an

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interview for Downey. Johnson Dep. at p. 17: 2-6. In fact, Johnson stated that he did not recall
even being told by Oakes and Allen that Downey was being considered for the Claims Adjuster
position. Id. at p.20: 13:19. Johnson also testified that Oakes and Allen did not tell him about
candidates they were considering for the vacancy Wilson filled. Id. at p.20: 9-12. Johnson was,
however, aware that Wilson was being considered for the Claims Adjuster job at the time Wilson
was being considered, because Oakes and Allen told him that. Id. at 19-: 23-20:19. When asked
why Oakes and Allen told him that Wilson was being considered, Johnson stated “[b]ecause
they told me they were considering hiring [Wilson].” Id. at p.20: 16-19. He further testified
that he would not think that they would have told him this in Wilson's presence, id. at p.21: 1-5,
supporting a contention that he was told before Wilson’s interview. In his deposition, Johnson
explained that he typically he likes to meet with "the final candidate that is being considered" for
a Claims Adjuster position. Id. at p.17 :2-23. Therefore, when taken in a light most favorable to
the nonmovant, Johnson's testimony that he was told by Allen and Oakes that they were
considering hiring Wilson, apparently ahead of Wilson’s interview; Allen’s testimony that
Johnson stopped by Wilson’s interview; and Johnson’s testimony that he was not aware that
Downey was being considered, viewed against the backdrop of Johnson's usual practice of
meeting with "the final candidate," would allow a reasonable jury to conclude that the decision
to hire Wilson had been made by Oakes and Allen before the interview of Wilson by them.
While selection before the interview is not necessarily indicative of pretext itself , cf.
Springer v. Convergys Customer Management Group, Inc., 509 F.3d 1344 (11th Cir. 2007), in
this particular case, the evidence that selection occurred before the interview could call into
question Alfa’s reliance on reasons for Wilson’s selection if, as Downey contends, those reasons

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were based on information the decision maker did not learn until the interview.
As to the reasons of Wilson's performance during the interview, his supervisor's
recommendation, his Exceed experience, and his prior underwriting experience, it is clear that
Oakes learned that information at or after the interview. For example, Wilson's supervisor's
recommendation of Wilson was mentioned by Allen to Oakes after the interview of Wilson.
Oakes Dep. at p. 89:5-15. In his deposition, Oakes also explained that during Wilson's
interview, Wilson talked about his roles at Alfa, including underwriting and his work on the
Exceed team. Id. at 44: 12-16. When asked whether his knowledge of Wilson’s background and
experience at Alfa came from what Wilson told Oakes at the interview, or whether Oakes had
some independent knowledge before the interview of what Wilson's background was, Oakes
responded, “I don’t think I had any independent [sic] prior to that.” Id. at p. 44: 19-45:2.
With regard to the remaining articulated reason, namely, Wilson’s problem-solving skills,
the timing of Oakes's knowledge is somewhat unclear because the scope of this articulated
reason is unclear. Alfa takes the position in its brief in support of summary judgment that
Wilson's problem-solving ability related to his experience with Exceed, (Doc. #55), which, as
noted above, was learned by Oakes during the interview. Accepting the reason as articulated in
the brief, therefore, and viewing the evidence in a light most favorable to the non-movant, there
is a question of fact as to whether Oakes was aware of any problem-solving abilities of Wilson
based on his work with Exceed at the time the decision was made to hire Wilson.
As Downey points out, while at various points in his deposition Oakes referred to
problem-solving abilities of Wilson in his work with Exceed, at other times Oakes referred to
problem-solving abilities of a “Business Analyst” generally. In other words, it may be that the

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articulated reason of Wilson’s problem-solving skills was not based on Wilson’s own skills at
all, but was instead based on problem-solving skills possessed by all Business Analysts. Even
accepting that the problem-solving skills articulated as a reason for his hire were based on
Wilson’s title as a Business Analyst at the time of his selection as Claims Adjuster, however, the
court has not been pointed to evidence that Oakes had knowledge of Wilson's job experience
before Oakes interviewed Wilson. In fact, Oakes testified, as noted above, that he learned of
Wilson's background with Alfa at the interview. Additionally, it is not clear from Oakes's
deposition when he formed his impression of the problem-solving skills of Business Analysts
generally. In his deposition, Oakes was asked about his understanding of the job of a Business
Analyst, and then asked whether he had that understanding because his own wife is a Business
Analyst. Oakes answered, "[w]ell, she wasn't at the time, but I do know it now.” Oakes Dep. at
p. 94: 2-14. Alfa argues that Oakes's wife's job duties are merely consistent with what Oakes
knew at the time of Wilson's selection, but the evidence, taken in a light most favorable to the
nonmovant, could reasonably support the inference that Oakes formed his impression of the
duties of a Business Analyst generally after he made the decision to choose Wilson. Therefore, a
reasonable jury could find that reliance on problem-solving abilities of Business Analysts
generally also is not worthy of credence.
Taken in a light most favorable to Downey, therefore, the evidence supports a reasonable
inference that the decision to choose Wilson was made before Alfa's decision maker, Oakes,
learned the information pointed to to support those reasons. Furthermore, under a theory that
Oakes and Allen together made the decision to select Wilson before the interview, a reasonable
jury could conclude that even if Allen had knowledge of Wilson’s background at the time of the

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decision, because he did not discuss that information with Oakes, Wilson’s background did not
play a part in the decision by Oakes and Allen to select Wilson. Accordingly, the evidence at
this point in the proceedings is sufficient to undermine all of the reasons articulated for Wilson's
selection. To be clear, the court is not suggesting that merely because the evidence would allow
a reasonable jury to conclude that Wilson had been selected prior to the interview of Wilson by
Allen and Oakes, pretext has been established. It is evidence of the timing of the decision, when
taken in a light most favorable to the nonmovant, combined with Oakes's deposition testimony
which can be reasonably read to say that he was not aware of Wilson's qualifications until the
interview with Wilson, which calls into question all of the reasons articulated for the selection of
Wilson over Downey, thereby establishing pretext.
While the court certainly agrees with Alfa that a plaintiff's ultimate burden in a Title VII
case is to prove intentional discrimination, "a prima facie case and sufficient evidence to reject
the employer's explanation may permit a finding of liability." Reeves, 530 U.S. at 149. This is
not a case in which the "evidence that supports the employer's case," id. at 148-49, warrants
summary judgment.
V. CONCLUSION
As explained above, the deposition testimony in this case presents questions of fact
which, when viewed in a light most favorable to the nonmovant, would allow a reasonable jury
to discount reliance by the decision makers on the reasons articulated for selecting a male
employee for promotion instead of the Plaintiff and decide, based on all the evidence, that
Downey was not initially given the promotion because she is a woman. Those questions may
ultimately be resolved in favor of Alfa at trial, but because they reasonably could be resolved in

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a manner which would render Alfa liable under Title VII, the Motion for Summary Judgment
(Doc,. #54) is due to be and is hereby ORDERED DENIED.

Done this 11th day of April, 2012.
/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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