Coleman v. Alabama State University
MEMORANDUM OPINION AND ORDER that Dfts' 33 Motion for Summary Judgment is GRANTED on Plf's Title VII claims against Dft Alabama State University; further ORDERED that Dfts' 33 Motion for Summary Judgment is DENIED as moot on Plf 39;s state law claim, and that the state law claim is DISMISSED without prejudice pursuant to 28 USC § 1367(c)(3); further ORDERED that Dfts' 46 Motion for Leave to File Supplement to Reply Brief is DENIED as moot. Signed by Chief Judge William Keith Watkins on 10/24/2012. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
UNIVERSITY, et al.,
CASE NO. 2:11-CV-814-WKW
MEMORANDUM OPINION AND ORDER
Plaintiff Jay Coleman brings this action against his former employer, Alabama
State University (“ASU”), alleging gender-based disparate pay and retaliation in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to
2000e–17. He also brings a state law claim against ASU’s president and the members
of ASU’s board of trustees in their official capacities for equitable relief, asserting
that these Defendants improperly delegated their power to terminate employees.
Before the court is Defendants’ motion for summary judgment (Doc. # 33). Plaintiff
filed a response to which Defendants replied. (Docs. # 37, 45.) Based upon careful
consideration of the arguments of counsel, the relevant law, and the record as a
whole, Defendants’ motion for summary judgment is due to be granted on the federal
law claims, and supplemental jurisdiction is due to be declined on the state law claim.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is exercised pursuant to 28 U.S.C. §§ 1331 and
1343(a)(3), 42 U.S.C. § 2000e–5(f)(3), and 28 U.S.C. § 1367. The parties do not
contest personal jurisdiction or venue, and the court finds that there are allegations
sufficient to support both.
II. STANDARD OF REVIEW
“Summary judgment is appropriate ‘if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show there
is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law.’” Greenberg v. BellSouth Telecomms., Inc., 498 F.3d
1258, 1263 (11th Cir. 2007) (per curiam); Fed. R. Civ. P. 56(a). The party moving
for summary judgment “always bears the initial responsibility of informing the district
court of the basis for its motion, and identifying those portions of [the record,
including pleadings, discovery materials and affidavits], which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). The movant may meet this burden by presenting
evidence indicating there is no dispute of material fact or by showing that the
nonmoving party has failed to present evidence in support of some element of 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 claims for relief exists. Fed. R. Civ. P. 56(c); Celotex Corp., 477 U.S.
at 324; Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). What is
material is determined by the substantive law applicable to the case. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “The mere existence of some factual
dispute will not defeat summary judgment 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) (per curiam) (internal quotation marks and citation
A genuine issue of material fact exists when the nonmoving party produces
evidence that would allow a reasonable fact-finder to return a verdict in its favor.
Greenberg, 498 F.3d at 1263; Waddell v. Valley Forge Dental Assocs., 276 F.3d
1275, 1279 (11th Cir. 2001). However, if the evidence on which the nonmoving
party relies “is merely colorable, or is not significantly probative, summary judgment
may be granted.” Anderson, 477 U.S. at 249–50 (citations omitted). “A mere
‘scintilla’ of evidence supporting the [nonmovant’s] position will not suffice; there
must be enough of a showing that the [trier of fact] could reasonably find for that
party,” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990), and the nonmoving
party “must do more than simply 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). Conclusory allegations based on subjective beliefs are likewise 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) (per
curiam). Hence, when a plaintiff fails to set forth specific facts supported by
appropriate evidence sufficient to establish the existence of an element essential to
his case and on which the plaintiff will bear the burden of proof at trial, summary
judgment is due to be granted in favor of the moving party. Celotex Corp., 477 U.S.
On summary judgment, the facts must be viewed in the light most favorable to
the non-movant. See Lee v. Ferraro, 284 F.3d 1188, 1190 (11th Cir. 2002). Hence,
“the ‘facts, as accepted at the summary judgment stage of the proceedings, may not
be the actual facts of the case.’” Id. (quoting Priester v. City of Riviera Beach, 208
F.3d 919, 925 n.3 (11th Cir. 2000)).
III. FACTUAL AND PROCEDURAL BACKGROUND
The employer is Alabama State University. ASU’s president is William H.
Harris, and its board of trustees has nine members. The employee is Jay Coleman.
Mr. Coleman began his employment with ASU in 2004 as an assistant technical
operations manager. His starting salary of $33,638 was at the top of the range for the
advertised position. Mr. Coleman’s primary job responsibilities were to ensure that
the production lighting, audio, video, and stage layout systems were properly
designed and maintained in the Acadome, a multipurpose academic and physicaleducation facility on ASU’s campus. Mr. Coleman also assumed direct responsibility
for all facility productions systems in the technical operations manager’s absence.
When Mr. Coleman initially was hired, his department provided services only
to the ASU Acadome. That changed during the 2009–2010 fiscal year. The
department was renamed the Facilities Department and its services were expanded to
all buildings on ASU’s campus. After the reorganization, the Facilities Department
consisted of nine employees: (1) Facilities Director Gina Jobe Ishman; (2) Assistant
Facilities Director Don Perry; (3) Technical Operations Manager John Martin; (4) Mr.
Coleman; (5) Crew Chief Leonard Burk; (6) Events Coordinator Yunice Emir;
(7) Director of Housekeeping Betty Sims; (8) Senior Secretary Jennifer Williams; and
(9) Administrative Secretary Crystal Jackson.
Ms. Ishman was in charge of the
Facilities Department. She directly supervised Mr. Martin, who in turn was Mr.
Coleman’s immediate supervisor.
Although the responsibilities of the Facilities Department increased, the
employees’ pay did not. Needless to say, employee morale and performance suffered
as a result. Ms. Ishman sought to remedy the perceived pay inequity by requesting
a reclassification of the jobs in the Facilities Department, which would have permitted
pay increases, but after a third party’s independent evaluation, Ms. Ishman’s request
was denied. The increased volume of work continued, therefore, without any
corresponding increase in pay and was a topic of concern raised during several staff
At the staff meetings, Mr. Coleman frequently vocalized his displeasure with
the additional job duties. In particular, on October 21, 2010, Ms. Isham met with her
staff to discuss various departmental issues, including her concern about the lack of
coverage for after-hours and weekend events. Responding to Ms. Ishman’s request
for employee feedback, Mr. Coleman reported that he did not want to work events
after hours or on weekends. He also repeated his concern that the Facilities
Department staff was not being compensated adequately for the workload increase.
He questioned why the department staff was expected “to do more work campus wide
. . . without being compensated accordingly.” (Pl.’s Dep. 79; see also Ishman’s Dep.
48–49 (providing that Mr. Coleman vocalized his opinion that the Facilities
Department’s employees warranted additional pay for working events outside the
Acadome).) Continuing in his protest, Mr. Coleman also complained that a year
earlier, he was required to assume Mr. Martin’s job responsibilities without additional
compensation while Mr. Martin was on medical leave. (Ishman’s Dep. 79–80;
Ishman’s Aff. ¶ 12.) He compared himself with Ms. Emir, who in early 2009 received
extra pay for serving in Ms. Ishman’s stead while Ms. Ishman was on maternity leave.
(Ishman’s Dep. 79–80; see also Williams’s Dep. 26 (testifying that Mr. Coleman
expressed his dissatisfaction with Ms. Emir’s interim appointment as facilities
director while Ms. Ishman was on maternity leave).) Mr. Coleman also complained
during that meeting that Ms. Ishman had received an increase in pay, but that he had
not. (Williams’s Dep. 26.)
Ms. Isham perceived that Mr. Coleman’s tone during the October 21 meeting
was disrespectful, elevated, and unprofessional. (Ishman’s Dep. 49–50; Ishman’s
Aff. ¶ 5; see also Jackson’s Dep. 27–29 (describing Mr. Coleman’s tone as “loud”).)
Additionally, at one point during the meeting when Mr. Martin attempted to interject,
Mr. Coleman put his hand in Mr. Martin’s face. (Ishman’s Aff. ¶ 5.) As a
consequence, Ms. Ishman issued Mr. Coleman a written formal reprimand the same
date for his “unprofessional conduct” during the October 21 meeting. (Formal
Reprimand (Def.’s Ex. 10).) She wrote, “Your recent incident, in my opinion,
displays your lack of cooperation and unwillingness to correct your conduct and
performance. For instance, you have raised your voice, refused to follow instructions,
and put your hand in your supervisors [sic] face.” (Formal Reprimand 2.) In the
formal reprimand, Ms. Ishman also cited prior instances concerning Mr. Coleman’s
alleged unruly comments, unprofessional conduct, insubordination, and his
complaints about working at events occurring after hours and on weekends. (Formal
Reprimand 2.) After consultation with Carmen Douglas, the vice president for human
resources, Ms. Ishman increased the discipline to a suspension. On November 8,
2010, Ms. Isham provided written notification to Mr. Coleman of her
recommendation to suspend him for five days without pay on grounds of
“insubordination and disrespect to . . . supervisors” during the October 21 meeting.
(Not. of Suspension (Pl.’s Ex. 13).) Notwithstanding a letter from Mr. Coleman’s
attorney protesting the discipline, the recommendation was approved by ASU’s
president on November 17, 2010. (Nov. 17, 2010 Mem. (Pl.’s Ex. 15).)
After his five-day suspension, Mr. Coleman filed a charge of discrimination
with the Equal Employment Opportunity Commission (“EEOC”), dated January 31,
2011. In his EEOC charge, Mr. Coleman alleged that ASU discriminated against him
on the basis of his gender by paying him less than “females in similar situations.”
(Jan. 2011 EEOC Charge (Defs.’ Ex. 33).) He also contended that Ms. Ishman issued
him the formal reprimand and five-day suspension in retaliation for his complaints
during the October 21 meeting about perceived gender-based disparate pay. (Jan.
2011 EEOC Charge.)
A week later, on February 8, 2011, Mr. Coleman filed an internal grievance
with Ms. Ishman, alleging that Mr. Martin made “false, vicious and malicious
statements” against him. (Pl.’s Grievance Against Martin.) Specifically, Mr.
Coleman alleged that on a day when Mr. Coleman was on leave, Mr. Martin falsely
accused him of calling the fire marshal to the Acadome. Ms. Ishman investigated the
grievance, found it unsubstantiated, and documented her findings in a letter addressed
to Mr. Coleman and dated February 21, 2011. Mr. Coleman did not receive the letter,
however. (Pl.’s Dep. 94.) Mr. Coleman contends in this litigation that Ms. Ishman
simply ignored his grievance as further punishment for his oral complaints about
gender-based pay disparities.
According to Mr. Coleman, Ms. Ishman continued to treat him with contempt.
Specifically, he refers to his March 2, 2011 request for a lateral transfer from his
position in the Facilities Department to the position of academic advisor in ASU’s
Department of Education. (Pl.’s Lateral Transfer Request (Defs.’ Ex. 21).) At that
time, Ms. Ishman told Mr. Coleman that she did not oppose his transfer request.
(Ishman’s Dep. 43.) It is undisputed, however, that Mr. Coleman was not transferred
to the position he requested. Mr. Coleman contends that, notwithstanding Ms.
Ishman’s initial affirmation, he never heard another word about his transfer request
from Ms. Ishman.
Mr. Coleman characterizes Ms. Ishman’s inaction as a
continuation of her attempts to punish him for his having complained to her about
what he perceived to be discriminatory salaries between him and female employees.
Mr. Coleman maintains that Ms. Ishman’s hostilities against him culminated
in her recommending his termination on July 19, 2011. The following is an account
of what occurred four days preceding Ms. Ishman’s recommendation. On July 15,
2011, Mr. Coleman went to ASU’s facilities office to check his box, and ran into Mr.
Martin in the office. Also present were Ms. Jackson and Ms. Williams. Mr. Martin
reminded Mr. Coleman of an orientation event scheduled at ASU on Sunday. Mr.
Coleman, in turn, reminded Mr. Martin that he [Mr. Coleman] served as a part-time
preacher. He informed Mr. Martin that he was scheduled to officiate an out-of-town
funeral and that he would not rush back for the ASU event. Mr. Martin then accused
Mr. Coleman of allowing his minister duties to take precedence over his job
responsibilities. Agitated by Mr. Martin’s remark, Mr. Coleman retorted twice to Mr.
Martin, “I will go to jail for you.” (Martin’s Dep. 41.) Mr. Coleman walked out of
the office at which time Mr. Martin audibly muttered to Ms. Jackson, “[T]hat sounded
like a threat to me.” (Martin’s Dep. 42.) Mr. Coleman suddenly reappeared, walked
up to Mr. Martin, pointed his index finger at Mr. Martin’s nose, and said in a raised
voice, “[L]et me tell you what[;] that was not a threat[;] that was a promise.”
(Martin’s Dep. 45.) Mr. Coleman walked out of the office again, but just before
exiting said to Mr. Martin, “I am not your boy.”1 (Martin’s Dep. 46.)
Mr. Martin memorialized this event in a memorandum to Ms. Ishman, dated
July 15, 2011. In that memo, Mr. Martin concluded:
From the tone of this incident, and Mr. Coleman’s use of the phrase, “I
will go to jail for you,” I was left with the impression that he was
threatening me with some type of assault or physical attack that would
result in criminal charges for himself, such as felonious assault or
something more severe.
(Martin’s Letter (Defs.’ Ex. 23).) Ms. Isham and Danielle Kennedy-Lamar, the vice
president for university relations, met with Mr. Coleman after receiving Mr. Martin’s
memo. During the meeting, Mr. Coleman admitted making the alleged statements to
Mr. Martin. (Ishman’s Aff. ¶ 17.)
On July 19, 2011, Ms. Ishman wrote a letter to Ms. Douglas, requesting Mr.
Coleman’s termination based upon Mr. Coleman’s threatening statements to Mr.
Martin and past instances of unprofessional and insubordinate conduct. (Ishman’s
Mr. Coleman’s brief relies principally on Mr. Martin’s deposition for the account of this
episode. (See Pl.’s Summ. J. Resp. 18–19 (Doc. # 37).) Mr. Coleman has not denied that the
oral exchange transpired between him and Mr. Martin. He appears to deny, however, that his
remarks were intimidating. (See, e.g., Report of Findings and Recommendations of H’rg Officer
1 (noting that “[w]hile Mr. Coleman did not view his behavior as intimidating[,] he did
characterize himself as being ‘hot’ and ‘mad’” during his exchange with Mr. Martin on July 15,
Aff. ¶ 17.) Mr. Coleman contested the recommendation and consequently received
a hearing. The hearing officer found that the evidence substantiated the charge
against Mr. Coleman of threatening and intimidating a co-employee and
recommended Mr. Coleman’s termination pursuant to Section 6.1.1 of ASU’s Human
Resources Policies and Procedures Manual. On August 24, 2011, President Harris
approved Mr. Coleman’s termination.
On September 27, 2011, Mr. Coleman filed a second EEOC charge, alleging
that his termination was in retaliation for filing his earlier EEOC Charge. (Sept. 2011
EEOC Charge (Defs.’ Ex. 35).) The next day, Mr. Coleman, acting pro se, filed this
lawsuit against ASU, alleging Title VII gender-based disparate pay and retaliation
claims. After obtaining counsel, Mr. Coleman amended his complaint on January 30,
2012, to add a state law claim against ASU’s president and the members of ASU’s
board of trustees in their official capacities.2
The Amended Complaint sets forth three Title VII counts against ASU. Count
I alleges that ASU discriminated against Mr. Coleman by paying similarly-situated
female employees higher wages than he was paid. Count II alleges that ASU
retaliated against Mr. Coleman by disciplining, suspending, and terminating him in
retaliation for his oral complaints to Ms. Ishman, about alleged unlawful pay
On March 29, 2012, the board voted to ratify the termination of Mr. Coleman.
discrimination. Count II alleges that ASU fired Mr. Coleman in retaliation for filing
an EEOC charge against ASU on January 31, 2011. Counts II and III also incorporate
allegations that Mr. Coleman’s firing was the culmination of a pattern of retaliatory
acts, including ASU’s failure to take any action in response to his request for a lateral
transfer and his internal grievance against Mr. Martin. (Am. Compl. ¶ 17.) He
further adds that his termination was in retaliation for his being identified on June 3,
2011, as a potential witness in a sexual harassment lawsuit against ASU that was
pending in this district at that time. See Weatherly v. Ala. State Univ., No. 10cv192WKW (M.D. Ala., filed Mar. 4, 2010). The Amended Complaint also includes a state
law claim (Count IV) against ASU’s president and the members of ASU’s board of
trustees seeking a declaratory judgment and writ of mandamus for violations of state
law in the administration of ASU’s policies.3
The board of trustees at the time of Mr. Coleman’s termination consisted of Elton Dean,
Oscar Crawley, Bobby Junkins, Taylor Hodge, Buford Crutcher, Thomas Figures, Lawrence
Lemak, Marvin Wiggins, and Herbert Young.
Defendants move for summary judgment on Mr. Coleman’s Title VII and state
law claims. Part A addresses Mr. Coleman’s Title VII claims against ASU. Part B
discusses Mr. Coleman’s supplemental state law claim against ASU’s president and
the members of ASU’s board of trustees.
Federal Law Claims (Title VII)
Mr. Coleman brings gender-based disparate pay and retaliation claims against
ASU pursuant to Title VII, 42 U.S.C. §§ 2000e–2(a)(1) and 2000e–3(a). Title VII
prohibits discrimination in employment on the basis of sex. § 2000e–2(a)(1). It also
prohibits retaliation against an employee “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.” § 2000e–3(a).
Because Mr. Coleman does not present direct evidence of discrimination or
retaliation, his Title VII claims are governed by the burden-shifting framework set out
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Crawford v.
Carroll, 529 F.3d 961, 975 (11th Cir. 2008). First, under McDonnell Douglas, a
plaintiff must create an inference of discrimination or retaliation by establishing a
prima facie case. If the plaintiff establishes a prima facie case, the burden shifts to
the defendant to present a legitimate, nondiscriminatory or non-retaliatory reason for
the employment action. If the defendant succeeds, the burden shifts back to the
plaintiff to demonstrate that the asserted reason was a pretext for discrimination or
retaliation. Crawford, 529 F.3d at 975–76. The pretext analysis “requires the court
to determine, in view of all the evidence, ‘whether the plaintiff has cast sufficient
doubt on the defendant’s proffered nondiscriminatory [or non-retaliatory] reasons to
permit a reasonable factfinder to conclude that the employer’s proffered legitimate
reasons were not what actually motivated its conduct.’” Id. at 976 (quoting Combs
v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)).
To establish a prima facie case of discriminatory pay, a plaintiff must show that
he or she “occupies a position similar to that of a higher paid employee who is not a
member of [his or] her protected class.” Crawford, 529 F.3d at 975 (citing Meeks v.
Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir. 1994)). “In a comparator
analysis, the plaintiff is matched with a person or persons who have very similar
job-related characteristics and who are in a similar situation to determine if the
plaintiff has been treated differently than others who are similar to him.” Cooper v.
S. Co., 390 F.3d 695, 735–36 (11th Cir. 2004) (quotation marks, citation, and
emphasis omitted), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S.
454, 457 (2006). “A comparator is an employee similarly situated to the plaintiff in
all relevant respects.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1280 (11th Cir.
2008) (internal quotations and alteration omitted).
Mr. Coleman fails to establish a prima facie case of gender-based disparate pay
because none of the five possible comparators whom he has identified – Ms.
Kennedy, Ms. Ishman, Ms. Emir, Ms. Jackson, and Ms. Williams – is similarly
situated to him. Ms. Kennedy, the vice president for university relations, worked in
an entirely different academic department in an entirely different managerial position.
Ms. Ishman was Mr. Coleman’s supervisor in a director-level position, with different
job-related characteristics. Ms. Jackson and Ms. Williams served in administrative
secretarial positions, whereas Mr. Coleman worked as an assistant technical
operations manager. These four proffered comparators did not hold jobs similar to
Mr. Coleman’s or occupy positions with job-related characteristics similar to Mr.
Coleman’s. Hence, any assertion that these employees’ compensation was not
directly commensurate with Mr. Coleman’s compensation does not create an
inference of gender-based pay discrimination.
As to Ms. Emir, Mr. Coleman does not argue that as the events coordinator, she
performed similar job functions as he did . Rather, his contention focuses on the time
period during which Ms. Emir undisputedly received a pay increase for performing
Ms. Ishman’s job in an interim appointment while Ms. Ishman was on maternity
leave. He argues that Ms. Emir was in a similar situation as he because she assumed
her supervisor’s responsibilities just as he assumed his supervisor’s (Mr. Martin) job
duties when his supervisor took medical leave. The only difference between the two,
according to Mr. Coleman, is that Ms. Emir received additional pay during that time
period, and Mr. Coleman did not.
ASU argues that the factor that distinguishes Ms. Emir’s situation from Mr.
Coleman’s is that Ms. Emir assumed Ms. Ishman’s duties under an interim
appointment for which Mr. Coleman was not eligible when he performed Mr.
Martin’s duties. ASU submits evidence that Ms. Emir’s then-existing position as
events coordinator did not require her to perform the duties of the facilities director
in the facilities director’s absence, thus, qualifying Ms. Emir for an interim
appointment. (Ishman’s Dep. 80.)
Mr. Coleman does not dispute Ms. Emir’s eligibility for an interim
appointment. As to his situation, Mr. Coleman worked as Mr. Martin’s assistant, and
his job description provided that he was to perform technical operations in Mr.
Martin’s absence. (See, e.g., Job Description (“When the Operations Manager is not
present, [the assistant technical operations manager] assumes direct responsibility for
all facility productions systems.” (Defs.’ Ex. 3)).) Because Mr. Coleman does not
submit evidence suggesting that he was eligible for an interim appointment when he
assumed Mr. Martin’s job duties in Mr. Martin’s absence, Ms. Emir is not a proper
The failure of Mr. Coleman to identify a suitable comparator and the absence
of any “other evidence of discrimination,” Rioux, 520 F.3d at 1277, are fatal to his
prima facie case. Mr. Coleman is left only with his belief that he feels that ASU
discriminated against him, but “his opinion, without more, is not enough to establish
a prima facie case of [gender-based pay] discrimination” Holifield, 115 F.3d at 1564.
Summary judgment is appropriate, therefore, on Mr. Coleman’s disparate pay claim
because he cannot establish that ASU treated similarly situated employees outside of
his class more favorably in terms of pay.5
ASU also cites its Policies and Procedures Manual that governs the formula for paying
an employee who is placed in an interim appointment position. (ASU’s Manual 2.7.2 (Defs.’ Ex.
20).) Mr. Coleman does not dispute that Ms. Emir was paid in accordance with ASU’s policy
with respect to interim appointments.
Because Mr. Coleman fails to establish a prima facie case, it is unnecessary to reach the
pretext stage. See Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181–82 (11th Cir. 2010)
(noting that pretext becomes a relevant issue only after the plaintiff has established a prima facie
case). It is notable, however, that much of Mr. Coleman’s pretext argument is based upon broad,
unsupported assertions that he otherwise was denied promotional opportunities because ASU
awarded the better paying jobs to females in his department without posting and without
requiring interviews. Mr. Coleman cites no evidence, for example, to support his argument that
ASU appointed Ms. Ishman as the facilities director in 2008 without any competitive or
application process. (See Pl.’s Summ. J. Resp. 30; Defs.’ Reply 5 (Doc. # 45).) Mr. Coleman
cannot raise a genuine issue of material fact based upon an unsupported argument in a brief. To
the extent that Mr. Coleman also is seeking to raise independent gender discrimination claims
based upon alleged denial of promotional opportunities (Pl.’s Summ. J. Resp. 31–32), these
claims are not alleged in his Amended Complaint, and the law is well established that “[a]
To establish a prima facie case of retaliation under Title VII, the plaintiff must
show that “(1) [he or] she engaged in an activity protected under Title VII; (2) [he or]
she suffered an adverse employment action; and (3) there was a causal connection
between the protected activity and the adverse employment action.” Crawford, 529
F.3d at 970.
Mr. Coleman’s Statements Made During the October 21, 2010
Mr. Coleman contends that ASU issued him a formal reprimand on October 21,
2010, and a five-day suspension on November 8, 2010, in retaliation for his
complaining to Ms. Ishman during the October 21 staff meeting about perceived
inequities in pay he believed were attributable to gender. With respect to the prima
facie case, ASU does not challenge that a formal reprimand and five-day suspension
are adverse employment actions or that a causal connection exists between these
disciplinary measures and the alleged protected conduct. Accordingly, for purposes
of the summary judgment analysis, the court presumes that Mr. Coleman satisfies the
second and third elements of his retaliation prima facie case.
plaintiff may not amend h[is] complaint through argument in a brief opposing summary
judgment.” Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004).
ASU contends, however, that the prima facie case fails on the first element.
It argues that Mr. Coleman did not engage in protected conduct first, because the
increased workload was shared by all employees in the department, males and
females alike, and second, because Mr. Coleman did not hold a reasonable, good faith
belief that ASU had engaged in an unlawful practice.
To demonstrate a prima facie case of retaliation, a plaintiff does not have to
prove that the employer practice under protest was actually unlawful “ so long as [he
or] she had a reasonable good faith belief that the discrimination existed.” Meeks, 15
F.3d at 1021. The court need not weigh in on whether Mr. Coleman’s held a
reasonable, good faith belief that ASU had engaged in unlawful gender-based wage
discrimination. Even if it is assumed that Mr. Coleman engaged in statutorily
protected activity, summary judgment is nonetheless appropriate for ASU.
Accordingly, the court proceeds directly to whether ASU’s stated reason for issuing
Mr. Coleman a formal reprimand and a five-day suspension was a pretext for
ASU has proffered a legitimate, non-retaliatory reason for both adverse
employment actions by asserting that the punishment was imposed based upon Mr.
Coleman’s perceived unprofessional and disrespectful conduct toward his superiors
during the October 21 meeting. Indeed, Mr. Coleman has not denied that he spoke
in a loud voice or that he put his hand in Mr. Martin’s face during the October
21meeting. Because ASU satisfies its burden, Mr. Coleman can avoid summary
judgment only by demonstrating that the proffered reason is not the actual reason, but
instead was a pretext for retaliation.
Mr. Coleman argues that temporal proximity alone should sustain a finding of
pretext. (Pl.’s Summ. J. Resp. 34, 38.) It is true that temporal proximity can be
sufficient to establish a prima facie case of retaliation. See Higdon v. Jackson, 393
F.3d 1211, 1220 (11th Cir. 2004). The court is unaware of any authority establishing,
however, that where the prima facie case has been successfully rebutted, the temporal
closeness between the protected activity and the adverse action is sufficient on its
own to sustain a pretext finding. The case upon which Mr. Coleman relies does not
say what he claims it says. In fact, it says the opposite. See Roberson v. Alltel Info.
Servs., 373 F.3d 647, 656 (5th Cir. 2004) (“Without more than timing allegations, and
based on [the employer’s] legitimate, nondiscriminatory reason . . . , summary
judgment in favor of [the employer] was proper” on the employee’s retaliation claim).
With respect to Mr. Coleman’s argument that pretext is established based upon what
he deems as ASU’s continuous retaliation against him, the fallacy of that argument
is addressed in the next section of this opinion.
Mr. Coleman’s EEOC Charge Filed on January 31, 2011
Mr. Coleman also alleges that Ms. Ishman recommended his termination on
July 19, 2011, in retaliation for his having filed an EEOC charge against ASU on
January 31, 2011. ASU argues that Mr. Coleman cannot show a causal connection
between the filing of his EEOC charge and his termination.
Where there is evidence that the decision maker was aware of the protected
conduct, a “‘close temporal proximity’ between the protected expression and [the]
adverse action is sufficient circumstantial evidence of a causal connection for
purposes of a prima facie case.” Higdon, 393 F.3d at 1220 (quoting Shotz v. City of
Plantation, Fla., 344 F.3d 1161, 1180 n.30 (11th Cir. 2003)). Absent any other
evidence of causation, however, “‘mere temporal proximity between . . . knowledge
of protected activity and an adverse . . . action . . . must be very close.” Id. (quoting
Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001)). “Even a three-month
interval between the protected expression and the employment action . . . is too long.”
Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1182 (11th Cir. 2010); Higdon, 393
F.2d at 1220 (holding that, by itself, three months was insufficient to prove
Here, the filing of Mr. Coleman’s EEOC charge on January 31, 2011, preceded
his termination notice by five-and-a-half months. Under Eleventh Circuit case law,
a five-and-a-half-month temporal gap between Mr. Coleman’s protected activity and
his discharge is too protracted to give rise to a presumption of a retaliatory motive on
the part of ASU in firing Mr. Coleman. Moreover, Ms. Ishman attests that she did not
become aware that Mr. Coleman had filed “anything with the EEOC” until after this
lawsuit was filed (Ishman’s Aff. ¶ 19), a contention that Mr. Coleman does not
challenge on summary judgment.
Presumably to shorten that temporal gap and demonstrate the required causal
connection, Mr. Coleman points out that he was fired less than a month after he
received his right-to-sue letter from the EEOC. (Doc. # 37, at 35, 38.) Mr. Coleman
cites no authority and presents no argument that would permit him to create a new
starting point for measuring the temporal gap based upon the date he received his
right-to-sue letter, and there are sound reasons why his argument cannot prevail.
First, the Supreme Court has rejected the suggestion that an employee’s receipt of a
right-to-sue letter qualifies as a protected activity. In Clark County School District,
the Supreme Court characterized as “utterly implausible” the respondent’s
“suggestion that the EEOC’s issuance of a right-to-sue letter – an action in which the
employee takes no part – is a protected activity of the employee.” 532 U.S. at 273.
The protected activity – the activity that required action on Mr. Coleman’s part – was
Mr. Coleman’s filing of his EEOC charge. Second, there is no indication that Ms.
Ishman was aware of the right-to-sue letter when she recommended his termination.
The only evidence establishes that she was not aware of it at that time.6 On this
record, and absent any further argument from Mr. Coleman, the date of filing (i.e.,
January 31, 2011) remains the pertinent starting date for measuring the temporal gap.
An inference of causation cannot be drawn, therefore, based on the temporal
proximity between the issuance of the right-to-sue letter and Ms. Ishman’s
For the same reason, the causal connection cannot be resurrected based upon
Mr. Coleman’s contention that on June 3, 2011, he was identified as a potential
witness in a then-pending discrimination lawsuit in this district, see Weatherly v. Ala.
State Univ., No. 10cv192-WKW (M.D. Ala., filed Mar. 4, 2010), and six weeks later
notified of his termination. He provides no evidence or even argument that he played
any role in his disclosure as a potential witness. Similarly, because there is no
evidence indicating how that disclosure occurred, there are no facts from which it can
It is notable that, although not a premise advanced by Mr. Coleman, the Supreme Court
in Clark County School District also rejected the appeals court’s suggestion that the employer
first received knowledge of the plaintiff’s EEOC charge when it became aware of the right-to-sue
letter and that, therefore, it was inferrable that “the transfer proposal made three months later was
[the employer’s] reaction to the charge.” 532 U.S. at 273.
be inferred that he played a part in that disclosure.7 The June 3 disclosure deadline
is not a qualifying protected activity, and Mr. Coleman cannot chalk the temporal
starting line for his prima facie case causation argument at June 3, 2011.
Mr. Coleman makes a final attempt to hurdle the prima facie case, but this
attempt also falls short. He argues that he was subjected to a series of adverse acts
immediately after the October 21, 2010 meeting, and that these continuous acts,
considered collectively, demonstrate the causal link. The Eleventh Circuit has
recognized, albeit in an unpublished opinion, that a plaintiff may establish the causal
connection required to state a prima facie Title VII retaliation case where “a series
The Amended Complaint includes an allegation that “[o]n June 3, 2011, Coleman was
identified in another Alabama State Title VII pending case as a possible witness.” (Am. Compl.
¶ 7.) In his deposition, Mr. Coleman clarified that this other case was the Weatherly action. In
the portions of his deposition upon which Mr. Coleman relies to oppose summary judgment
(Doc. # 37, at 17 ¶ 29), however, there is no explanation as to how on June 3, 2011 “it was
discovered that [Mr. Coleman] could be a potential witness” in the Weatherly case or who made
the discovery. (Pl.’s Dep. 171.) As ASU points out in its reply brief, Mr. Coleman was
disclosed as a potential witness for the plaintiffs in the Weatherly action on a witness list filed in
that case on September 30, 2011, which was more than two months after Mr. Coleman’s notice
of termination. Moreover, Mr. Coleman testified during his deposition that he was asked to
testify in the Weatherly case about his alleged retaliatory termination from ASU’s employment,
which again would mean that his involvement in the Weatherly action occurred after his
termination. (Defs.’ Reply 7–8.) ASU points out that an employer cannot retaliate against an
employee within the meaning of Title VII if the protected conduct occurred after the employer
took adverse action against the employee. At the very least, the evidence indicating that Mr.
Coleman’s termination preceded the adverse employment action suggests a disconnect in Mr.
Coleman’s argument. Given the court’s finding that on this record the third-party disclosure of
Mr. Coleman as a potential witness in Weatherly is not protected conduct by which to gauge the
temporal closeness, it need not be resolved which party bears the evidentiary fault at the
summary judgment stage for the sketchy details as to how and to whom the disclosure was made
on June 3.
of adverse employment acts commenced almost immediately” after the known
protected activity. Jones v. Fulton Cnty., Ga., 446 Fed. App’x 187, 191 (11th Cir.
2011). Under this formulation, however, these retaliatory acts “must be material (or
substantial) to be considered.” Id. at 192 (citing Burlington N. & Santa Fe Ry. Co.
v. White, 548 U.S. 53, 66–68 (2006)). Here, the retaliatory acts about which Mr.
Coleman complains including the failure of Ms. Ishman to respond both to his
internal grievance against Mr. Martin and to his request for a lateral transfer. These
are not sufficiently substantial such that Ms. Ishman’s inaction on both matters “could
well dissuade a reasonable worker from making or supporting a charge of
discrimination.” Burlington, 548 U.S. at 57. Additionally, Mr. Coleman does not
refute ASU’s evidence that Mr. Coleman would not have met the criteria for a lateral
transfer. (Douglas’s Aff. ¶ 98 (Doc. # 34-7).)
In sum, Mr. Coleman has not presented any evidence of causation. He fails,
therefore, to establish a prima facie case of retaliation under Title VII.
Even it were assumed that Mr. Coleman satisfied his prima facie case, his
claim nonetheless would fail. ASU presents a legitimate, non-retaliatory reason for
Mr. Coleman’s termination by relying on Mr. Coleman’s threatening remarks and
behavior toward Mr. Martin. See Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763,
770 (11th Cir. 2005) (“So long as the employer articulates ‘a clear and reasonably
specific’ non-discriminatory basis for its actions, it has discharged its burden of
production” to articulate a non-discriminatory reason for its employment action)
(quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254–55 (1981)).
Mr. Coleman attempts to raise a genuine issue of material fact as to pretext by
arguing that ASU failed to adhere to the progressive disciplinary guidelines in
Section 6.1.1 of ASU’s Human Resources Policies and Procedures Manual. ASU
argues that the disciplinary guidelines in Section 6.1.1 cannot serve as a basis for
demonstrating pretext based upon their discretionary nature.
The Eleventh Circuit has indicated that circumstances may exist where an
employee can establish pretext by demonstrating an employer’s failure to follow a
progressive discipline policy in his or her case. See Ritchie v. Indus. Steel, Inc., 426
Fed. App’x 867, 873 (11th Cir. 2011); see also Morrison v. Booth, 763 F.2d 1366,
1374 (11th Cir. 1985) (“Departures from normal procedures may be suggestive of
discrimination.”). An employer’s failure to follow that policy, however, does not
show pretext “if management has discretion as to whether to follow the discipline
policy.” Ritchie, 426 Fed. App’x at 873; see also Mitchell v. USBI Co. 186 F.3d
1352, 1355–56 (11th Cir. 1999) (“Standing alone, deviation from a company policy
does not demonstrate discriminatory animus.”).
Here, Section 6.1.1 includes a chart listing “disciplinary guidelines” for certain
offenses and provides that a reprimand is the rule of thumb for a first offense for
“[t]hreatening, intimidating, coercing, or interfering with another student or
employee.” (Manual, § 6.1.1 (Pl.’s Ex. 21).) These guidelines reflect recommended,
not mandatory, punishments. Specifically, the introductory paragraph of Section
6.1.1 provides that “[a]ll disciplinary action will be considered on a case by case
basis. When warranted by the facts, discipline up to and including termination may
be imposed for a first offense.” (Manual, § 6.1.1.) Given the discretion afforded
ASU in implementing discipline under Section 6.1.1, any deviation from the
recommended guidelines does not constitute evidence of pretext. Mr. Coleman also
presents no other basis for showing that ASU’s alleged deviation from its disciplinary
policy occurred in a retaliatory manner. He introduces no evidence, for instance,
indicating that ASU implemented its disciplinary policies differently in a case where
an employee who had not filed an EEOC charge had engaged in similar misconduct
as Mr. Coleman. See Rojas v. Florida, 285 F.3d 1339, 1344 & n.4 (11th Cir. 2002).
Finally, Mr. Coleman points out that Ms. Ishman did not witness the incident
for which she sought Mr. Coleman’s termination. The pretext point he is trying to
make by this assertion is unclear. Mr. Coleman presents no evidence that calls into
question Ms. Ishman’s sincere belief that the incident occurred in the manner reported
by Mr. Martin. See Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1471 (11th Cir.
1991) (holding that the employee failed to show pretext by presenting evidence that
he did not engage in the misconduct because there was no evidence that the
employer’s belief that he committed the misconduct “was unworthy of credence”).
All told, Mr. Coleman urges the court “to do nothing more than second-guess a
business decision made by [his employer].” Rojas, 285 F.3d at 1344. That this court
cannot do. See id. (Examination of “whether a business decision is wise or nice or
accurate” is not permitted under Title VII.).
In sum, ASU’s asserted legitimate, non-retaliatory reason for Mr. Coleman’s
termination stands unscathed by any pretext evidence. ASU is entitled to summary
judgment on Mr. Coleman’s retaliatory termination claim.
Supplemental State Law Claim
Because ASU is entitled to summary judgment on all federal law claims, the
court in its discretion declines supplemental jurisdiction over the remaining state law
claim. See 28 U.S.C. § 1367(c)(3); see also Raney v. Allstate Ins. Co., 370 F.3d 1086,
1089 (11th Cir. 2004) (“We have encouraged district courts to dismiss any remaining
state claims when . . . the federal claims have been dismissed prior to trial.”).
Defendants’ motion for summary judgment on the state-law claims, therefore, is due
to be denied as moot, and the state law claims are due to be dismissed without
prejudice. See § 1367(d).
Based on the foregoing, it is ORDERED that Defendants’ motion for summary
judgment (Doc. # 33) is GRANTED on Plaintiff’s Title VII claims against Defendant
Alabama State University.
It is further ORDERED that Defendants’ motion for summary judgment (Doc.
# 33) is DENIED as moot on Plaintiff’s state law claim, and that the state law claim
is DISMISSED without prejudice pursuant to 28 U.S.C. § 1367(c)(3).
It is further ORDERED that Defendants’ Motion for Leave to File Supplement
to Reply Brief (Doc. # 46) is DENIED as moot.
An appropriate judgment will be entered separately.
DONE this 24th day of October, 2012.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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