Hope v. Alabama Department of Transportation (JOINT ASSIGN)(MAG+)

Filing 48

MEMORANDUM OPINION AND ORDER: it is ORDERED that the 28 motion for summary judgment is GRANTED, and all claims asserted by Plf Ronald Hope are DISMISSED with prejudice. Signed by Honorable Judge Gray M. Borden on 7/11/2018. (wcl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
RONALD HOPE,
Plaintiff,
v.
ALABAMA DEPARTMENT OF
TRANSPORTATION,
Defendant.

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CASE NO.: 2:17-cv-129-GMB
[WO]

MEMORANDUM OPINION AND ORDER
Plaintiff Ronald Hope filed this lawsuit on March 3, 2017, alleging discrimination
on the basis of his race during the course of his employment with the Alabama Department
of Transportation (“ALDOT”). Doc. 1. Now pending before the court is Defendant
ALDOT’s Motion for Summary Judgment. Doc. 28. After careful consideration of the
parties’ submissions, the applicable law, and the record as a whole, it is ORDERED that
the Motion for Summary Judgment (Doc. 28) is GRANTED, and the claim asserted by
Plaintiff Ronald Hope is DISMISSED with prejudice.
I. JURISDICTION AND VENUE
The court has subject-matter jurisdiction over the claims in this action pursuant to
42 U.S.C. § 2000e-5(f)(3) and 28 U.S.C. § 1331. The parties do not contest personal
jurisdiction or venue, and the court finds adequate allegations to support both.
II. FACTUAL AND PROCEDURAL BACKGROUND
Ronald Hope is a 58-year-old black male and a resident of Montgomery, Alabama,

who has been employed at ALDOT since 1982. Docs. 13 at 2 & 29-1 at 2. He is currently
employed as a materials engineer in the Southeast Region, Montgomery Area office, at the
level of Professional Civil Engineer II (“PCE II”). Docs. 13 at 2 & 29-1 at 5–6. As a PCE
II, Hope is “responsible for the supervision and management” of the Southeast Region’s
materials section, which includes “pavement design, materials testing and the control of
asphalt and concrete for 10 counties.” Doc. 13 at 2.
In 1998, Hope was promoted to the position of Transportation Administrator
(“TA”). Doc. 29-1 at 3. In this position, Hope became the materials engineer “responsible
for the administrative work in the planning, maintenance, and/or construction of highway
facilities and other structures,” which included “the production of asphalt, concrete and
also geo-text styles.” Docs. 29-1 at 4–6 & 29-4 at 2. Hope did not need a Professional
Engineer (“PE”) license for this position. Doc. 29-4 at 2. However, on December 15, 2011,
Hope earned his PE license by passing an examination. Doc. 29-4 at 2. This enabled Hope
to transfer laterally into the PCE II classification, which does require a PE license. Doc.
29-4 at 2. Prior to December 2015, the salary for TAs and PCE IIs was equivalent, so
whenever TAs obtained their PE licenses, they were eligible to be classified as PCE IIs.
Doc. 29-4 at 2 & 4–5. Hope was not eligible for an increase in pay with the transfer because
of an Alabama State Personnel Board rule prohibiting salary increases for lateral transfers.
Doc. 29-4 at 2 & 7.
According to ALDOT’s records, Hope received a “mid-appraisal” on November 21,

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2011; December 19, 2012; November 21, 2013; May 8, 2015; July 7, 2016;1 and February
22, 2018. Doc. 45-2 at 2. Mid-appraisals are mid-year performance evaluations designed
to provide documented feedback on an employee’s performance and to suggest
opportunities for improvement. See Docs. 13 at 3–4, 16 at 2 & 36-1. The evaluations
should take place “[m]idway through the appraisal year” and involve a “discussion of
strengths, development needs, and action plans.” Doc. 36-1 at 1.
On July 5, 2016, Hope received both a mid-appraisal and annual appraisal (for the
June 1, 2015 through June 1, 2016 time period) demonstrating inadequate performance.
Doc. 14-1 at 1. Specifically, Hope received an overall performance score of 24.40, which
fell within the “Meets Standards” range, but earned an unsatisfactory grade in the category
of “Cooperation with Coworkers.” Doc. 29-1 at 34. He also earned a 1 (“Partially Meets
Standards”) on a 0–4 scale for “communicates with individuals both orally and written”
and “attends and participates in area meetings, etc.” Doc. 29-1 at 35. The appraisal form
indicated that no disciplinary actions were taken against Hope during this time period and
included two additional “tasks” as part of a Performance Improvement Plan. Doc. 29-1 at
35–36. Hope received annual raises each year from 2014 to 2017, but was downgraded
from a two-step raise to a one-step raise. Docs. 29-1 at 22 & 29-2 at 2–11.
In February 2017, Hope recommended to David Bohannon, his supervisor, that
ALDOT hire Derek Lovett to fill an open Civil Engineer Graduate (“CEG”) position in the

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According to Hope’s charge of discrimination and ALDOT’s evidentiary submission, Hope received this
mid-appraisal on July 5, 2016. See Docs. 14-1 at 1 & 29-1 at 34. ALDOT does not provide an explanation
for this discrepancy, but the distinction is not material to this analysis.

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Montgomery Area office. Doc. 29-1 at 37. Bohannon is a PCE II, Senior with the authority
to make final personnel decisions. Doc. 29-1 at 7–8. Though Hope has no ultimate
authority to hire or promote employees, he has the ability to make personnel
recommendations to Bohannon. Doc. 29-1 at 20. Hope admitted in his deposition that his
authority to recommend––but not hire or promote––is no different from any other ALDOT
employee in a PCE II position. Doc. 29-1 at 21. Bohannon did not hire Lovett because
Lovett’s name did not appear on the Certificate of Eligibles (“COE”), a list published by
the State Personnel Department of all candidates eligible to be hired or promoted to a
certain position. Doc. 29-1 at 26–27 & 37. In an email, Bohannon informed Hope that he
could not select Lovett and directed Hope to “contact all candidates . . . for availability to
interview for the Materials CEG vacancy.” Doc. 29-1 at 37. Hope also had recommended
Patricia Greene and Cedric Trawick for the position, neither of whom was ultimately
chosen.2 Doc. 29-1 at 10–12 & 25.
In the amended complaint, Hope alleges that he received his mid-appraisals late,
which negatively affected his salary by depriving him of the time necessary to “correct any
deficiencies with work performance.” Doc. 13 at 3. Hope alleges that white PCE II
coworkers received their mid-appraisals in a timely manner. Doc. 13 at 3. He also asserts
that his annual appraisal scores have been “systematically lowered” since he obtained his

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There is no information in the record––aside from Hope’s charge of discrimination––regarding Lovett,
Green, or Trawick’s race, nor the race of the individual Bohannon ultimately promoted. However, based
on the nature of the factual allegations in Hope’s charge of discrimination and amended complaint, the court
assumes that Lovett, Green, and Trawick are black, while the individual chosen by Bohannon was white.
See Doc. 13 at 3 (“Whites in my Section were either promoted or hired in many instances with only a mere
recommendation. There were no qualified Blacks hired, rehired or promoted in the Materials Section of
the S.E. Region Montgomery Area (SERMA) from October 2013 to today’s date.”).

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PE license in 2011. Doc. 13 at 4. His supervisors “resorted to extremely late” midappraisals because they “could not down grade [sic] [Hope] fast enough on the Annual
Appraisals.” Doc. 13 at 4. This “greatly diminished” his opportunity for a promotion, even
though he alleges that he qualified for a promotion to the position of PCE II, Senior. Doc.
13 at 4. “Moreover, [w]hite engineers received adjustments in salary after obtaining” their
PE licenses. Doc. 13 at 4.
Hope further claims that from October 2013 to the date he filed suit he was
prevented from hiring or promoting any black employees, while white PCE II coworkers
had been permitted to promote or hire “based on their recommendations or the results of
their interview process.” Doc. 13 at 3. According to Hope, ALDOT hired or promoted
white employees in his section without his consent on three occasions: (1) “by forging [his]
signature on a legal document at the request of [his supervisor] Mr. Graben”; (2) when he
was “demanded” to promote a white employee “without a choice”; and (3) when a white
employee “was promoted in my Section without [Hope] having any prior knowledge.”
Doc. 13 at 3–4.
Hope filed a Charge of Discrimination with the U.S. Equal Employment
Opportunity Commission (“EEOC”) on August 1, 2016. Doc. 14-1. The EEOC could not
conclusively determine whether Hope’s claim had merit, and it issued a right-to-sue letter
in December 2016. Doc. 1-1. Hope then filed suit on March 3, 2017. Doc. 1. After Hope
filed his amended complaint, ALDOT filed a motion to dismiss on May 9, 2017. Docs. 13
& 14. The court denied ALDOT’s motion, and ALDOT subsequently moved for summary
judgment. Docs. 17, 18 & 28.
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In the wake of ALDOT’s summary-judgment submission, Hope argued that he
could not adequately respond to the motion because certain of ALDOT’s discovery
responses were inadequate. Docs. 31 & 32. The court held a hearing on this issue, after
which it court ordered ALDOT to supplement its responses to two of Hope’s
interrogatories, and ordered both parties to supplement their briefing on the summaryjudgment motion. Doc. 39. In response, Hope again asserted that ALDOT’s interrogatory
responses were inadequate. Doc. 41. ALDOT replied that, with the exception of an
inadvertent omission,3 it has complied with the court’s order and responded satisfactorily
to Hope’s discovery requests. Doc. 45. To date, Hope has not responded substantively to
the pending motion for summary judgment, and has instead devoted nearly all of his
briefing to the assertion that ALDOT has fallen short of its discovery obligations.
III. STANDARD OF REVIEW
Summary judgment is appropriate “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). “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary
judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of
material fact is genuine only if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Id. at 248.
The moving party “always bears the initial responsibility of informing the district

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ALDOT addressed the omission in its brief and attached a second amended discovery response to cure
this deficiency. Docs. 45 at 4 & 45-2.

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court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, which it believes demonstrate the absence of a genuine [dispute] of material
fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (internal quotation marks
omitted). In responding to a properly supported motion for summary judgment, the
nonmoving party “must do more than simply show that there is some metaphysical doubt
as to the material fact.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586 (1986). Indeed, the nonmovant must “go beyond the pleadings” and submit
admissible evidence demonstrating “specific facts showing that there is a genuine [dispute]
for trial.” Celotex, 477 U.S. at 324 (internal quotation marks omitted). If the evidence is
“merely colorable, or is not significantly probative, summary judgment may be
granted.” Anderson, 477 U.S. at 249 (citations omitted).
When a district court considers a motion for summary judgment, it “must view all
the evidence and all factual inferences reasonably drawn from the evidence in the light
most favorable to the nonmoving party, and must resolve all reasonable doubts about the
facts in favor of the nonmovant.” Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1274 (11th
Cir. 2008) (citation and internal quotation marks omitted). The court’s role is not to “weigh
the evidence and determine the truth of the matter but to determine whether there is a
genuine issue for trial.” Anderson, 477 U.S. at 249. “If a reasonable fact finder evaluating
the evidence could draw more than one inference from the facts, and if that inference
introduces a genuine issue of material fact, then the court should not grant summary
judgment.” Allen v. Bd. of Pub. Educ. for Bibb Cnty., 495 F.3d 1306, 1315 (11th Cir.
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2007) (citation omitted). Importantly, if the nonmovant “fails to adduce evidence which
would be sufficient . . . to support a jury finding for [the nonmovant], summary judgment
may be granted.” Brooks v. Blue Cross & Blue Shield of Fla., Inc., 116 F.3d 1364, 1370
(11th Cir. 1997) (citation omitted).
IV. DISCUSSION
A.

ALDOT’s Supplemental Discovery Responses
As an initial matter, the court must determine whether ALDOT has complied with

its order and adequately responded to all of Hope’s discovery requests. On March 28,
2018, the court ordered ALDOT to (1) “identify all GREs, PCE Is, and PCE IIs who made
lateral moves after obtaining a Professional Engineer License from January 2011 to
present”; and (2) “list the date on which each PCE II or TA mid-year appraisal occurred in
the Southeast Region from January 2011 to present, grouped by the relevant employee.”
Doc. 39 at 1.
ALDOT has done so. In its first amended discovery response, ALDOT listed two
names in response to Hope’s fifth interrogatory: Ronald Hope and Carol G. Hall. Doc. 451 at 1. Hope had laterally transferred from the position of TA to PCE II in January 2012,
and Hall had transferred from the position of Transportation Manager to PCE I in April
2014. Doc. 45-1 at 1. In response to Hope’s seventh interrogatory, ALDOT provided the
names and corresponding mid-appraisal dates for all PCE IIs and TAs in the Southeast
Region since January 2011. Doc. 45-1 at 2–4. After Hope asserted that ALDOT omitted
two people from its response to his seventh interrogatory, ALDOT supplemented its

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response for a second time by including Christopher Hunter and James Adams.4 Doc. 452 at 3–4. Thus, ALDOT has demonstrated its compliance with the court’s order by
adequately responding to Hope’s fifth and seventh interrogatories. Having resolved all
outstanding discovery issues, the court may now turn to the merits of ALDOT’s motion for
summary judgment.
B.

Title VII Claim
Though he vigorously protested the sufficiency of ALDOT’s discovery responses,

Hope has yet to file a substantive response to ALDOT’s summary-judgment motion despite
twice having been ordered to do so. Docs. 30 & 39. As a result, ALDOT’s factual
assertions are largely uncontroverted. However, the court “cannot base the entry of
summary judgment on the mere fact that the motion was unopposed.” United States v. One
Piece of Real Property Located at 5800 SW 74th Ave., Miami, Fla., 363 F.3d 1099, 1101
(11th Cir. 2004). Instead, it “must consider the merits of the motion.” Id. While this does
not require a “sua sponte review of all of the evidentiary materials on file,” the court must,
at a minimum, “review all of the evidentiary materials submitted in support of the motion
for summary judgment.” Id. at 1101–02. Accordingly, and particularly in light of Hope’s
pro se status, the court has evaluated the merits of the motion and examined Hope’s
submissions for any substantive discussion buried in his discovery arguments.
ALDOT argues that Hope has not established a prima facie case of employment
discrimination and that, even if he had, his claim fails because ALDOT has articulated a

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In its brief, ALDOT mistakenly refers to this as “Interrogatory Number 5.” Doc. 45 at 4.

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legitimate reason for its employment actions. Title VII of the Civil Rights Act of 1964
(“Title VII”) prohibits employers from discriminating against employees on the basis of
their race. See 42 U.S.C. § 2000e-2(a)(1).

Where, as here, the plaintiff asserts

circumstantial and not direct evidence of discrimination, the court applies the framework
first established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). That is, the
plaintiff must first establish a prima facie case of employment discrimination, creating a
presumption that the employer discriminated against him. Flowers v. Troup Cnty. Sch.
Dist., 803 F.3d 1327, 1336 (11th Cir. 2015). To establish a prima facie employment
discrimination case, “a plaintiff must show (1) [he] belongs to a protected class; (2) [he]
was qualified to do the job; (3) [he] was subjected to adverse employment action; and (4)
[his] employer treated similarly situated employees outside [his] class more favorably.”
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
If the plaintiff establishes a prima facie case, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its employment action. Flowers, 803
F.3d at 1336. If the employer meets this burden, the plaintiff must then demonstrate by
competent evidence that the employer’s proffered reason is merely a pretext for
discrimination in the course of his employment. Id. The “ultimate burden of persuading
the court that [he] has been the victim of intentional discrimination” remains with the
plaintiff. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Here, the court does not reach the McDonnell Douglas burden-shifting analysis
because Hope has not established a prima facie case. Hope alleges disparate treatment
based on three discrete theories: (1) late mid-appraisals, (2) inability to promote or hire
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black employees, and (3) ALDOT’s failure to promote Hope or increase his salary after
earning his PE license in 2011. In a prior Report and Recommendation, the court
concluded that Hope brought just one Title VII employment discrimination claim based on
disparate treatment with the three examples of allegedly discriminatory treatment serving
as factual support. Doc. 17; see Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113
(2002) (finding that acts that occurred prior to the onset of Title VII’s statute of limitations
in any given case can still serve as “background evidence in support of a timely claim”).
Accordingly, the court will determine whether any evidence in the records supports one of
Hope’s three theories and creates a dispute of a material fact.
Even assuming that Hope has proven he is a member of a suspect class, was
qualified for his job, and was subject to an adverse employment action, Hope’s path to a
successful prima facie case fails at the third element because he has not identified any
similarly situated employees of a different race who were treated differently. While Hope
alleged that similarly situated white employees were treated differently by (1) receiving
timely mid-appraisals, (2) being granted the authority to hire or promote employees, and
(3) receiving pay increases after earning their PE licenses, he has produced no evidence to
support any of these contentions.
In fact, Hope admits as much in his deposition. For example, when asked if he had
any proof or evidence that white PCE IIs were given timely mid-appraisals, Hope replied
“No, I don’t have any evidence.” Doc. 29-1 at 15. He also was unable to provide any
names of white PCE IIs who received timely mid-appraisals. Doc. 29-1 at 15–16. Next,
when asked about his authority to hire or promote employees, Hope replied that he has
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only the authority to make personnel recommendations to his superiors. Doc. 29-1 at 20–
21. When asked if he had the same authority to make hiring recommendations as any white
PCE II, Hope replied “I think so.” Doc. 29-1 at 21. Finally, Hope has submitted no
evidence that other similarly situated employees received raises after earning PE licenses.
When asked in his deposition about his salary after earning the license and subsequent
classification of PCE II, Hope explained that he “just feel[s] like [he] should have received
an increase in salary,” but that this feeling is not based on “some sort of rule or policy.”
Doc. 29-1 at 23. Hope admitted that he received yearly increases in salary based on merit.
Doc. 29-1 at 23. This lack of evidence of disparate treatment is fatal to Hope’s Title VII
claim, as he is required at the summary-judgment stage to “set forth by affidavit or other
evidence specific facts” instead of relying on “mere allegations” from his complaint. Lujan
v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). Indeed, “unsupported speculation does
not meet a party’s burden of producing some defense to a summary judgment motion.”
Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005) (internal quotation marks
omitted).
Even in the absence of a prima facie employment discrimination case, however, a
plaintiff survives summary judgment “if he presents circumstantial evidence that creates a
triable issue concerning the employer’s discriminatory intent.” Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). “A triable issue of fact exists if the record,
viewed in a light most favorable to the plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination by the
decisionmaker.” Id. (internal quotation marks omitted). Thus, even where a plaintiff fails
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to present evidence of a comparator or otherwise establish a prima facie case, “so long as
the circumstantial evidence raises a reasonable inference that the employer discriminated
against the plaintiff, summary judgment is improper.” Id.; see also Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (noting that the McDonnellDouglas circumstantial evidence standard is “flexible and depend[s] on the particular
situation”); Rioux, 520 F.3d at 1281 (finding the plaintiff satisfied his burden “with respect
to pretext” despite being unable to establish a comparator).
Hope has not presented a convincing mosaic of circumstantial evidence. The
evidence of record, even viewed in the light most favorable to Hope, does not give rise to
any inference that ALDOT discriminated against Hope on the basis of his race. The
evidence establishes that Hope’s mid-appraisal dates have not been significantly different
from those of his PCE II coworkers, and that there is no ALDOT policy mandating that
mid-appraisals be issued by a certain date. Moreover, due to his position, Hope had only
the ability to make recommendations on personnel matters, and did not have any decisionmaking authority or ability to hire, fire, or promote. As Hope admitted in his deposition,
there is no evidence that any PCE II of another other race had any more authority over
personnel matters than did Hope. And there is no evidence in the record that any other
ALDOT employee received a salary increase after earning a PE license and being
reclassified from a TA to a PCE II. On the other hand, ALDOT established that the pay
scales for both positions are identical and that it is prohibited by State Personnel
Department regulations from approving a salary increase for such a lateral transfer.
Finally, it is undisputed that ALDOT has increased Hope’s salary on a yearly basis since
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2014.
Thus, the only suggestion of discrimination comes not in the form of any evidence
in the record, but rather through Hope’s own speculation and conjecture. And Hope’s
submissions do little, if anything, to account for these shortcomings. Hope initially argued
that he could not identify any comparators because of ALDOT’s insufficient response to
his interrogatories. But ALDOT cured this shortcoming and Hope still was unable to
identify an appropriate comparator. See Docs. 41, 42 & 45. Hope reasserted the argument
from his amended complaint that ALDOT’s late mid-appraisals deprived him of the ability
to correct the deficiencies in his work performance and thus negatively impacted his salary,
but was unable to point to any similarly situated coworker who was treated more favorably.
See Doc. 31 at 2. ALDOT’s promotion of white employees in Hope’s section while
declining his recommendation for certain black employees, which Hope claims to be the
“greatest form of direct and indirect discrimination” in his case, is insufficient by itself to
create an inference that Hope was discriminated against. Doc. 31 at 3.
Hope astutely acknowledged in briefing that “knowing and proving are two different
entities.” Doc. 41 at 5. While Hope has expressed his strong belief that he has been
discriminated against on the basis of his race during his employment at ALDOT, his failure
to provide any evidence that raises even a slight inference of intentional discrimination is
fatal to his Title VII claim. “[A] pro se litigant does not escape the burden of establishing
by sufficient evidence a genuine issue of material fact on a necessary element of his claim.”
Johnson v. Deloach, 692 F. Supp. 2d 1316, 1323 (M.D. Ala. 2010). Accordingly, summary
judgment is due to be entered in favor of ALDOT.
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V. CONCLUSION
For the foregoing reasons, it is ORDERED that the motion for summary judgment
(Doc. 28) is GRANTED, and all claims asserted by Plaintiff Ronald Hope are DISMISSED
with prejudice. A final judgment will issue separately.
DONE this 11th day of July, 2018.

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