Turner v. City of Auburn et al

Filing 119

MEMORANDUM OPINION AND ORDER: The Court finds that Defendant is entitled to summary judgment on all of Plaintiff's claims. Accordingly, it is hereby ORDERED as follows: (1) Defendant's 91 MOTION for Summary Judgment is GRANTED; (2) All of Plaintiff's claims are DISMISSED WITH PREJUDICE; (3) Defendant's 100 MOTION to Strike 99 Exhibit List is DENIED in part and GRANTED in part; (4) The trial in this matter is CANCELLED; (5) The Court will enter a separate final judgment in favor of Defendant consistent with this Memorandum Opinion and Order. Signed by Hon. Chief Judge Mark E. Fuller on 12/19/2008. (dmn)

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION C H R IS E. TURNER, P l a in tif f , v. C IT Y OF AUBURN, D e f e n d a n t. ) ) ) ) ) ) ) ) )

C A S E NO. 3:07-cv-162-MEF (W O )

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION C h ris Turner ("Plaintiff") filed a Complaint (Doc. #1) on February 23, 2007, b rin g in g claims of race discrimination, retaliation, and disparate impact against City of A u b u rn ("Defendant") relating to his employment as a firefighter. Pursuant to 42 U.S.C. § 1983 ("section 1983"), Plaintiff alleges that he has been denied rights created by federal s ta tu te s and by the United States Constitution. Plaintiff also alleges race discrimination, re ta lia tio n , and disparate impact pursuant to 42 U.S.C. § 2000e, et seq ("Title VII"). Plaintiff seeks declaratory relief, compensatory damages, punitive damages, equitable re lie f , costs, and attorneys' fees. This cause is before the Court on Defendant's Motion f o r Summary Judgment (Doc. # 91) filed on September 19, 2008. In this motion, D e f en d a n t argues that it is entitled to summary judgment because Plaintiff cannot e sta b lis h a prima facie case or meet his burden under the McDonnell Douglas framework o n any of his claims. The Court agrees that Plaintiff cannot meet his burden of proof and

f in d s that the motion for summary judgment is due to be GRANTED for the reasons set f o rth in this Memorandum Opinion and Order. II. JURISDICTION AND VENUE J u ris d ic tio n over Plaintiff's federal claims is proper under 28 U.S.C. §§ 1331 (f e d era l question) and 1343 (civil rights). The parties do not contest personal jurisdiction o r venue, and the Court finds adequate allegations in support of both personal jurisdiction a n d venue. I I I . SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on f ile , together with the affidavits, if any, show that there is no genuine issue as to any m a te ria l fact and that 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 moving for summary ju d g m e n t "always bears the initial responsibility of informing the district court of the b asis 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 b e lie v e s demonstrate the absence of a genuine issue of material fact." Id. at 323. The m o v a n t can meet this burden by presenting evidence showing there is no dispute of m a ter ial fact, or by showing the non-moving party has failed to present evidence in

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s u p p o rt of some element of its case on which it bears the ultimate burden of proof. Id. at 3 2 2 -2 3 . O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving p a r ty to go beyond the pleadings and by [its] own affidavits, or by the `depositions, a n sw e rs to interrogatories, and admissions on file,' designate `specific facts showing that th e re is a genuine issue for trial.'" Id. at 324. To avoid summary judgment, the n o n m o v in g party "must do more than simply show that there is some metaphysical doubt a s to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 5 7 4 , 586 (1986). On the other hand, a court ruling on a motion for summary judgment m u s t believe the evidence of the non-movant and must draw all justifiable inferences f ro m the evidence in the non-moving party's favor. Anderson v. Liberty Lobby, Inc., 477 U .S . 242, 255 (1986). After the nonmoving party has responded to the motion for s u m m a ry judgment, the court must grant summary judgment if there is no genuine issue o f material fact and the moving party is entitled to judgment as a matter of law. See Fed. R . Civ. P. 56(c). I V . FACTS T h e Court has carefully considered all documents, declarations and affidavits s u b m itte d in support of and in opposition to the motion. The submissions of the parties, v i e w e d in the light most favorable to the non-moving party, establish the following facts:

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A . The Parties P la in tif f is an African American male. Defendant is a municipality and g o v e r n m e n t a l entity located in Lee County, Alabama. Defendant employed Plaintiff as a f u ll-tim e firefighter in 1991. Plaintiff asserts numerous claims against Defendant relating to his employment including race discrimination, retaliation, and disparate impact. B. 1991 Settlement Agreement I n 1991, Plaintiff was a class member in a race discrimination lawsuit against D e f en d a n t. There, the parties resolved the suit by entering into a settlement agreement ("S ettlem en t Agreement"). The Settlement Agreement obligated Defendant to hire P la in tif f as a full-time firefighter. Plaintiff was a probationary firefighter for one year and th e n became a permanent firefighter in 1992. The Settlement Agreement also required th a t Defendant use an outside assessment center for filling Lieutenants' positions and C a p ta in s ' positions. It did not require that Defendant use outside assessment for filling T e a m Leader positions. As a result, Defendant could fill Team Leader positions using its o w n internal assessment. C. Team Leader Promotion August 23, 2005 In 1989, Defendant created the position of Team Leader to supervise college s tu d e n t firefighters drawn from Auburn University. Defendant used a structured in ter v iew procedure to fill Team Leader positions. Under this procedure, applicants in te rv ie w e d , role played, or acted as a judge in a hypothetical scenarios. In August of

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2 0 0 5 , Defendant for the first time used a written exam entitled "Examination 702 ­ L ie u te n a n t's Exam" ("Team Leader exam") to fill a Team Leader position. Defendant p u rc h a se d the Team Leader exam from International Public Management Association for H u m a n Resources. Under Defendant's new promotion procedure, a Team Leader a p p lica n t had to score a minimum of seventy points on the Team Leader exam in order to p ro c e ed with the application process. Plaintiff complained to Fire Chief Larry Langley (" L a n g ley") before and after taking the Team Leader exam that he thought it was racially d i s c r i m i n a t o r y. N e v e rth e les s, Plaintiff was qualified to apply for a Team Leader position, and in A u g u s t of 2005, Plaintiff applied. Several other firefighters also applied for the position. In total, six applicants sat for the Team Leader exam. Two individuals, a Caucasian male n a m e d Walter Allen ("Allen") and Plaintiff, both failed to score seventy points on the T e a m Leader exam. The other four applicants, all Caucasian males, scored greater than s e v e n ty points on the Team Leader exam and progressed to the next stage in the p ro m o tio n a l process. David Hines received the Team Leader promotion on August 23, 2 0 0 5 , and the other three applicants who passed the Team Leader exam ("eligible a p p lic a n ts " ) were placed on a hiring list. Nine months later in May of 2006, three new T e a m Leader positions opened at a new fire station. The Defendant awarded the jobs to th e eligible applicants on the hiring list who had applied for a Team Leader position in A u g u s t of 2005 and scored greater than seventy points on the Team Leader Exam.

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N e ith e r Plaintiff nor Allen were awarded a Team Leader position. D. Lieutenant Reclassification February 1, 2006 O n February 28, 2005, thirteen Team Leaders petitioned Langley to be reclassified a s Lieutenants. Team Leaders had equal pay and were the same grade as Lieutenants. Over time, the job responsibilities of Team Leaders and Lieutenants became identical. However, Team Leaders wore a team leader badge and did not wear Lieutenant's bars. Team Leaders felt their morale was affected by not having a recognized rank and asked L a n g le y to give them Lieutenant's titles. Legal counsel advised Defendant that re c las sif yin g Team Leaders as Lieutenants would not violate the Settlement Agreement if D e f en d a n t made a full disclosure to all affected persons. Therefore, Defendant asked c la ss members of the earlier lawsuit to agree to an amendment of the Settlement A g re e m e n t that would allow for a reclassification. Three class members, including P lain tiff , objected to the amendment. On February 1, 2006, thirteen Team Leaders were r e c la s s if ie d as Lieutenants. No one except the Team Leaders became Lieutenants as a re su lt of the reclassification. Four of the Team Leaders became Lieutenants without o u ts id e assessment. One Team Leader that Defendant reclassified to a Lieutenant was an A f ric a n -A m e ric a n male. E . Charge of Discrimination O n January 8, 2006, Plaintiff signed a Charge of Discrimination against Defendant w ith the Equal Employment Opportunity Commission ("EEOC"). By signing the Charge

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o f Discrimination, Plaintiff declared under penalty of perjury that his statements in the c h a rg e were true and correct. In the charge, Plaintiff complained of discrimination on the b a sis of race. Plaintiff stated that Defendant promoted Caucasian firefighters to Team L e a d er positions but did not promote him because of his race. Plaintiff also complained o f retaliation. F. Alleged Discriminatory, Retaliatory and Disparate Impact Conduct In this lawsuit, Plaintiff contends that he was discriminated against on the basis of h is race when he was not promoted to Team Leader on August 23, 2005. He also alleges th a t he was discriminated against when he was not promoted to Lieutenant on February 1, 2 0 0 6 . Additionally, Plaintiff claims that Defendant unlawfully retaliated against him for b e in g a party to the Settlement Agreement and filing a Charge of Discrimination with the E E O C on January 8, 2006. Furthermore, Plaintiff alleges that Defendant's employment p ra c tic e s are unlawful under disparate impact theory. G . The Lawsuit O n February 23, 2007, Plaintiff filed suit in this Court. Plaintiff seeks declaratory a n d equitable relief as well as damages for alleged discrimination on the basis of race, re ta lia tio n , and disparate impact. Plaintiff complained of the following acts of d isc rim in a tio n : (1) Defendant did not promote him to the position of Team Leader in A u g u st of 2005 and promoted less qualified Caucasian employees, and (2) Defendant did n o t promote him to the rank of Lieutenant in February of 2006 and promoted less

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q u a lifie d Caucasian employees. Plaintiff also complained of retaliation and disparate im p a c t. Plaintiffs sought a remedy for the alleged race discrimination pursuant to section 1 9 8 3 and Title VII. Plaintiff also sought a remedy for retaliation and disparate impact p u rsua n t to Title VII. V . DISCUSSION P la in tif f seeks recovery pursuant to section 1983 and Title VII on his race d is c rim in a tio n claims. Plaintiff also seeks recovery under Title VII for retaliation and d is p a ra te impact. The Court will first consider Plaintiff's race discrimination claims. A. Alleged Discrimination P la in tif f argues he was discriminated against on two occasions: (1) on August 23, 2 0 0 5 when Defendant did not promote him to the position of Team Leader, and (2) on F e b ru a ry 1, 2006, when Defendant did not promote him to the rank of Lieutenant. The C o u rt concludes that no reasonable fact finder could find Plaintiff has established a prima fa c ie case on either claim. Therefore, Defendant is due to be granted summary judgment o n Plaintiff's race discrimination claims P lain tiff seeks recovery pursuant to Title VII and section 1983. In this Circuit, T itle VII and section 1983 claims have the same legal elements when the claims are based o n the same set of facts. See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164 (19 8 9 ); Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008); see also R icha rd so n v. Leeds Police Dep't, 71 F.3d 801, 805-806 (11th Cir. 1995). Because

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P lain tiff 's claims are based on the same facts, the Court's discussion of Plaintiff's d is c rim in a tio n claims are the same whether the Court is considering Plaintiffs claims p u rs u a n t to Title VII or section 1983. An employee bringing a claim under Title VII must initially establish a prima facie c a se of discrimination through one of three methods: by presenting direct evidence of d is c rim in a to ry intent, presenting circumstantial evidence of discrimination by satisfying th e analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and its p ro g e n y, or by introducing statistical evidence of discrimination. Walker v. NationsBank o f Florida, N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). Because Plaintiff has presented n e ith e r appropriate statistical evidence, nor direct evidence, in support of his claims of d is c rim in a tio n , the Court will address only Plaintiffs' circumstantial evidence. To establish a discrimination claim by circumstantial evidence using the M c D o n n e l l Douglas framework, the employee has the initial burden of showing, by a p re p o n d e ra n c e of the evidence, a prima facie case of the proscribed practice. Young v. G e n e r a l Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988), cert. denied, 488 U.S. 1004 (1 9 8 9 ). The essence of the prima facie case is that the employee presents circumstantial e v id e n c e sufficient to generate a reasonable inference by the fact finder that the employer u s e d prohibited criteria in making an adverse decision about the employee. If established, th e prima facie case raises a rebuttable presumption that the employer is liable to the e m p lo ye e . Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981).

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" D e m o n s tra tin g a prima facie case is not onerous; it requires only that the plaintiff e sta b lis h facts adequate to permit an inference of discrimination." Holifield v. Reno, 115 F .3 d 1555, 1562 (11th Cir. 1997). The Eleventh Circuit Court of Appeals has repeatedly emphasized that the re q u is ite showings that make up a prima facie case are not meant to be rigid or inflexible. See, e.g., Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999) (collecting cases). In cases where the evidence does not fit neatly into the classic p rim a facie case formula, for example, [the Eleventh Circuit h a s] stated that "[a] prima facie case of disparate treatment c a n be established by any `proof of actions taken by the e m p l o ye r from which we infer discriminatory animus because e x p e rie n c e has proved that in the absence of any other ex p lan a tio n it is more likely than not that those actions were b o tto m ed on impermissible considerations.'" Id . at 1268 (citing Hill v. Metro. Atlanta Rapid Trans. Auth., 841 F.2d 1533 (11th Cir. 1 9 8 8 ), modified, 848 F.2d 1522 (11th Cir. 1988) (quoting Furnco Constr. Corp. v. W a t e rs , 438 U.S. 567, 576 (1978))). Once a plaintiff establishes the requisite elements of the prima facie case, the d e f en d a n t has the burden of producing a legitimate, non-discriminatory reason for the c h a lle n g e d employment action. See, e.g., Holifield v. Reno, 115 F.3d at 1564 (citing T e x a s Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981)). The employer's burden is " e x ce e d in g ly light." Holifield, 115 F.3d at 1564. This burden is one of production, not p e rs u a s io n and consequently, the employer need only produce evidence that could allow a ratio n al fact-finder to conclude that the challenged employment action was not made for a 10

d is c rim in a to ry reason. See, e.g., Davis v. Qualico Miscellaneous, Inc., 161 F. Supp. 2d 1 3 1 4 , 1321 (M.D. Ala. 2001). If such a reason is produced, a plaintiff then has the ultimate burden of proving the re a s o n to be a pretext for unlawful discrimination. See, e.g., Holifield, 115 F.3d at 1565; C o m b s v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (plaintiff "has the o p p o rtu n ity to discredit the defendant's proffered reasons for its decision"). Thus, once th e employer articulates a legitimate, non-discriminatory reason, the burden returns to the e m p lo ye e to supply "evidence, including the previously produced evidence establishing th e prima facie case, sufficient to permit a reasonable fact-finder to conclude that the re a so n s given by the employer were not the real reasons for the adverse employment d e c is io n ." Davis, 161 F. Supp. 2d at 1322 (citing Chapman v. AI Transp., 229 F.3d 1012, 1 0 2 4 (11th Cir. 2000) (en banc)). The plaintiff may seek to demonstrate that the p ro f f ere d reason was not the true reason for the employment decision "either directly by p e rs u a d in g the court that a discriminatory reason more likely motivated the employer or in d ire c tly by showing that the employer's proffered explanation is unworthy of credence." Burdine, 450 U.S. at 256; Combs, 106 F.3d at 1528. A plaintiff's prima facie case, c o m b in e d with sufficient evidence to find that the employer's asserted justification is f a ls e , may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000). T o make out a prima facie case of racial discrimination in promotion under Title

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V II, a plaintiff must show (1) he belongs to a protected class; (2) he was qualified and a p p lied for the promotion; (3) he was rejected despite his qualifications; and (4) his e m p lo ye r promoted equally or less qualified employees outside his class. See Wilson v. B /E / Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). Defendant does not contend th a t Plaintiff is not a member of a protected class. Defendant argues that Plaintiff cannot e sta b lis h a prima facie case of race discrimination because Plaintiff was not qualified for th e positions and Defendant did not promote equally or less qualified employees outside P la in t if f ' s class. The Court agrees. 1 . August 23, 2005 Team Leader Promotion (Count I) P la in tif f argues Defendant unlawfully discriminated against him on August 23, 2 0 0 5 when Defendant did not promote him to the position of Team Leader. In particular, P lain tiff alleges that the Team Leader exam was unlawful because it was racially d isc rim in a to ry. Defendant, in response, argues that it used the Team Leader exam to sc re e n for qualified candidates and that it is industry practice to use a written exam in p r o m o t io n procedures. a . Prima facie case T h e parties do not dispute that Plaintiff is a member of a protected class and that D e f en d a n t rejected Plaintiff's application for the Team Leader position. To establish a p rim a facie case, therefore, Plaintiff must demonstrate that he was qualified for the Team L e a d er position and that Defendant promoted an equally or less qualified employee

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o u ts id e his class. Courts focus on the employer's requirements when considering whether a n individual is qualified for the promotion at issue. See e.g., Combs v. Plantation P a tte rn s , 106 F.3d 1519, 1543 (11th Cir. 1997) (stating "federal courts do not sit to se c o n d -g u e ss the business judgment of employers"); Nix v. WLCY Radio/Rahall C o m m c ' n s , 738 F.2d 1181, 1187 (11th Cir. 1984) (holding an "employer may fire an e m p lo ye e for a good reason, a bad reason, a reason based on erroneous facts, or for no re a s o n at all, as long as its action is not for a discriminatory reason"). An employee's e x p e c ta tio n s do not establish requisite qualifications. Lee v. GTE Florida, Inc., 226 F.3d 1 2 4 9 , 1255 (11th Cir. 2000) (finding that employee's opinion that she is more qualified th a t other candidate "is insufficient to raise a genuine issue of fact"); Holifield v. Reno, 1 1 5 F.3d 1555, 1564 (11th Cir. 1997) (explaining that a plaintiff's "opinion, without m o re , is not enough to establish a prima facie case" of discrimination); Brooks v. County C o m m 'n of Jefferson County, Ala., 446 F.3d 1160, 1165 (11th Cir. 2006) (noting that the p la in tif f 's beliefs that his qualifications were superior are insufficient). Defendant re q u ire d Team Leader candidates to score a minimum of seventy points on the Team L e a d er Exam in order to proceed with the application process. While Plaintiff was e lig ib le to sit for the Team Leader exam, he was not qualified for the position because he d id not score seventy points on the exam. Therefore, no reasonable fact finder could c o n c lu d e that Plaintiff was qualified for the position. E v e n assuming that Plaintiff was qualified to be a Team Leader, he cannot

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e sta b lis h the fourth element of a prima facie case because he cannot show that Defendant p ro m o ted an equally or less qualified employee outside his class. To demonstrate this e le m e n t, a plaintiff must show that the disparities in qualifications are of "such weight a n d significance that no reasonable person, in the exercise of impartial judgment, could h a v e chosen the candidate selected over the plaintiff for the job in question." See Cooper v . Southern Co., 390 F.3d 695, 732 (11th Cir. 2004), overruled on other grounds by Ash v . Tyson Foods, Inc., 546 U.S. 454 (2006) (per curiam). In other words, a comparator is a n employee "similarly situated [to the plaintiff] `in all relevant respects.'" Wilson, 376 F .3 d at 1091. Here, a Caucasian male, Allen, also failed to score seventy points on the Team L e a d er exam. Like Plaintiff, Allen did not progress to the next stage of the promotional p ro c e s s . Plaintiff has not identified any comparator for the Team Leader promotion. Plaintiff also failed to present evidence that no reasonable person could have selected D e f e n d a n t's choice for Team Leader, David Hines, over Plaintiff. Because Plaintiff did n o t demonstrate he was qualified and did not identify a similarly situated comparator, no re a so n a b le fact finder could find that Plaintiff has established a prima facie case of race d is c rim in a tio n .1 2 . February 1, 2006 Lieutenant Reclassification (Count II)

Defendant has also presented evidence that it had a legitimate, non-discriminatory reason for not promoting Plaintiff to Team Leader: Plaintiff failed to score a seventy on the Team Leader exam. 14

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P la in tif f argues Defendant unlawfully discriminated against him on February 1, 2 0 0 6 , when Defendant did not promote him to the rank of Lieutenant. Plaintiff defines D e f en d a n t's reclassification as a promotion; Defendant claims it was an administrative re n a m in g . Regardless of the parties' labels, the question before this Court is whether D e f en d a n t unlawfully discriminated against Plaintiff when it did not make Plaintiff a L ie u te n a n t on February 1, 2006.2 a . Prima facie case In order to establish a prima facie case of racial discrimination in promotion, P la in tif f must first show that he was qualified for the promotion. Plaintiff argues that he w a s qualified for the rank of Lieutenant. In support of this conclusion, Plaintiff offered a f f id a v its from other employees who stated that he met the requisite qualifications. However, as discussed with respect to the Team Leader promotion, the Court must focus th e employer's requirements when determining whether an individual is qualified for a p ro m o tio n . See Section V.A.1.a. The opinions of Plaintiff and other employees are not p ro b a tiv e . Defendant contends that Plaintiff was not qualified for a Lieutenant promotion b e c au s e Plaintiff was not a Team Leader in February of 2006. The record is clear that

Plaintiff's main argument is that Defendants created the Team Leader position to circumvent the Settlement Agreement by promoting Caucasians to Lieutenant positions without outside assessment. Defendant counters that the reclassification did not violate the Settlement Agreement because the Settlement Agreement had expired. The question whether Defendant violated the Settlement Agreement is not before this Court. Instead, the Court must determine whether Defendant unlawfully discriminated against Plaintiff when it did not promote Plaintiff to Lieutenant on February 1, 2006. 15

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P la in tif f was not a Team Leader when Defendant reclassified the Team Leaders as L ie u te n a n ts . Because Plaintiff was not qualified for the promotion, no reasonable fact f in d e r could find that Plaintiff has established a prima facie case.3 B . Plaintiff's Claim of Alleged Retaliation (Count IV)4 In his Complaint, Plaintiff alleges that Defendant unlawfully retaliated against him f o r opposing unlawful employment practices pursuant to Title VII. Retaliation claims a ls o require analysis under the McDonnell Douglas shifting framework. See Pennington v . City of Huntsville, 261 F.3d 1262, 1265 (11th Cir. 2001). Under this framework, the p la in tif f has the initial burden of showing, by a preponderance of the evidence, a prima fa c ie case. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Once the plaintiff e sta b lis h e s a prima facie case, the defendant has the burden of producing a legitimate, n o n -d is c rim in a to ry reason for the challenged employment action. Combs v. Plantation P a tte rn s , 106 F.3d 1519, 1538 (11th Cir. 1997). If the defendant produces such a reason, th e n the plaintiff has the ultimate burden of proving the reason to be a pretext for u n la w f u l retaliation. Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2008).

Plaintiff also cannot establish the fourth element of the prima facie case because Plaintiff cannot show that Defendant promoted an equally or less qualified employee outside his class. On February 1, 2006, Defendant reclassified thirteen Team Leaders as Lieutenants. Plaintiff was not a Team Leader in February of 2006. No one except the Team Leaders became Lieutenants. Defendant, therefore, only promoted employees who were more qualified than Plaintiff. In addition, Defendant proffered evidence that its legitimate, non-discriminatory reason for denying Plaintiff the rank of Lieutenant was that Plaintiff was not a Team Leader in February of 2006. In an order dated December 2, 2008 (Doc. #114), the Court dismissed Count III pursuant to a joint Stipulation for Dismissal (Doc. #95). 16
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1 . Prima facie case T o establish a prima facie case of retaliation under Title VII, an employee must s h o w : (1) he engaged in protected activity; (2) his employer was aware of that activity; (3) h e suffered adverse employment action; and (4) there was a causal link between his p ro te c te d activity and the adverse employment action. Maniccia v. Brown, 171 F.3d 1 3 6 4 , 1369 (11th Cir. 1999) (citing Little v. United Tech., 103 F.3d 956, 959 (11th Cir. 1 9 9 7 )). D e f en d a n t contends that Plaintiff has not established the fourth element of the p r im a facie case ­ the causal link between the protected activity and the adverse e m p lo ym e n t action. Thus, this Court need not address whether Plaintiff's actions c o n stitu te protected activity; whether his employer knew of her protected activity; or w h e th e r he suffered an adverse employment action. Instead, the Court will focus its in q u iry on the causal link element. "The causal link element is construed broadly so that `a plaintiff merely has to p ro v e that the protected activity and the negative employment action are not completely u n re la te d .'" Pennington, 261 F.3d at 1267 (citations omitted). One common method of e sta b lis h in g the causal link element with circumstantial evidence is close temporal p rox im ity between the adverse employment action and the protected activity. However, w h e re there is significant delay between the protected conduct and the allegedly re ta lia to ry acts, the timing of the events does not constitute circumstantial evidence of

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c a u s a tio n . See, e.g., Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (c itin g with approval several court of appeals decisions for the proposition that a three to fo u r month gap is insufficient to establish the causal relation prong in a retaliation case); W a s c u r a v. City of South Miami, 257 F.3d 1238, 1244-45 (11th Cir. 2001) (While a close te m p o r a l proximity between two events may support a finding of a causal connection b etw ee n those two events, the three and one-half month period between plaintiff's p ro te c te d conduct and the adverse employment action challenged does not, standing a lo n e , establish a causal connection); Keel v. United States Dep't of Air Force, 256 F. S u p p . 2d 1269, 1291 (M.D. Ala. 2003) (more than seven month gap between protected c o n d u c t and allegedly retaliatory conduct was insufficient as a matter of law to establish th e causation element of the prima facie case of retaliation); Gaddis v. Russell Corp., 242 F . Supp. 2d 1123, 1146-47 (M.D. Ala.), aff'd without opinion, 88 Fed. App. 385 (11th C ir. 2003) (granting employer summary judgment on three of plaintiff's retaliation claims b e c au s e plaintiff was unable to establish the requisite causal connection between her p ro te c te d conduct and her adverse employment actions where lapses of time six months o r longer existed between the protected conduct and the adverse employment actions). In a d d itio n to temporal proximity, a plaintiff must also establish that the defendant was a c tu a l ly aware of the protected expression at the time the defendant took the adverse e m p lo ym e n t action to satisfy the "causal link" prong of a prima facie retaliation case. Raney v. Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997) (citing

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G o ld s m ith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)). The Court will first a d d re ss Plaintiff's retaliatory claim with respect to the Team Leader promotion. It will th e n discuss Defendant's alleged retaliation in denying Plaintiff the rank of Lieutenant.

a. Alleged Retaliation During Team Leader Promotion i. Prima Facie Case P la in tif f claims that Defendant unlawfully retaliated against him when Defendant d id not promote him to Team Leader on August 23, 2005 because he was a party to the S e ttle m en t Agreement. Plaintiff was a party to the Settlement Agreement in 1991. He w a s denied a Team Leader position fourteen years later in 2005. No reasonable fact f in d e r could find that Plaintiff established a causal link between the Settlement A g re e m e n t and the Team Leader promotion because the events occurred more than a d e c ad e apart. Therefore, Plaintiff cannot establish a prima facie case of retaliation for the T e a m Leader promotion.5 b . Alleged Retaliation During Lieutenant Reclassification i. Prima Facie Case P la in tif f also alleges that Defendant unlawfully denied him the rank of Lieutenant o n February 1, 2006 because he filed a Charge of Discrimination with the EEOC in

Even if Plaintiff could establish a prima facie case, Defendant proffered that its legitimate non-discriminatory reason for denying Plaintiff a Team Leader position was that Plaintiff did not score seventy points on the Team Leader exam. Plaintiff did not offer evidence that Defendant's proffered reason was pretextual. 19

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J a n u a ry of 2006. Plaintiff filed the charge on January 8, 2006. On February 1, 2006, D e f en d a n t did not promote Plaintiff to Lieutenant. Because Plaintiff filed the charge s h o rtly before Defendant awarded the position to other employees, Plaintiff has satisfied th e temporal proximity requirement of causal link prong. To satisfy the causal link prong, h o w e v e r, Plaintiff must also demonstrate that Defendant was actually aware of the C h a rg e of Discrimination at the time Defendant denied Plaintiff the rank of Lieutenant. Plaintiff did not offer any evidence that Defendant was aware in February of 2006 that he h a d made a complaint to the EEOC. Therefore, no reasonable fact finder could find that P la in tif f has established a prima facie case of retaliation with respect to the Lieutenant r e c la s s i f i c a ti o n . ii. Legitimate Non-Discriminatory Reason A s s u m in g , arguendo, that Plaintiff has satisfied the elements of a prima facie re talia tio n case with respect to the Lieutenant reclassification, Plaintiff's claim still fails u n d e r the McDonnell Douglas framework. Once a plaintiff has established a prima facie c a se of retaliation, the defendant then has the burden of producing a legitimate, nond is c rim in a to ry reason. Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1 9 9 7 ). Defendant has presented evidence of a legitimate non-discriminatory reason for d e n yin g Plaintiff the rank of Lieutenant on February 1, 2006: Plaintiff was not a Team L e a d er. All other employees that Defendant reclassified were Team Leaders, and one e m p lo ye e who became a Lieutenant was an African-American male.

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iii. Pretext O n c e the employer meets its burden of production by proffering a legitimate, nond is c rim in a to ry reason, the court's inquiry "proceeds to a new level of specificity in which th e plaintiff must show that the proffered reason really is a pretext." Equal Employment O p p o r tu n ity Comm'n v. Joe's Stone Crab, Inc., 220 F.3d 1263, 1272-73 (11th Cir. 2000). To establish pretext, Plaintiff must demonstrate that the proffered reason was not the true rea so n for the retaliation "either directly by persuading the court that a discriminatory rea so n more likely motivated the employer or indirectly by showing that the employer's p ro f f ere d explanation is unworthy of credence." Brooks v. County Comm'n of Jefferson C o u n ty , Ala., 446 F.3d 1160, 1163 (11th Cir. 2005). "If the proffered reason is one that m ig h t motivate a reasonable employer, a plaintiff cannot recast the reason but must meet it head on and rebut it ... [q]uarreling with that reason is not sufficient." Wilson, 376 F.3d a t 1088 (citation omitted). Therefore, "to avoid summary judgment [the plaintiff] must in tro d u c e significantly probative evidence showing that the asserted reason is merely a p re te x t for discrimination." Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1 9 9 3 ) (emphasis added). The ultimate burden of persuading the trier of fact that the e m p lo ye r unlawfully retaliated against the employee remains with the plaintiff. Crawford v . Carroll 529 F.3d 961, 975 (11th Cir. 2008). In Bass v. Bd. of County Commr's, F.3d 1095 (11th Cir. 2001), the Eleventh C irc u it stated that the employer's failure to "follow its own normal hiring procedures may

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b e evidence of pretext." Id. at 1008. If the employer's explanation is inconsistent with th e description of the promotion process, then evidence of pretext might exist. Hill v. S e a b o a r d Coast Line R.R., 885 F.2d 804, 810 (11th Cir. 1989). However, "courts `are not in the business of adjudging whether employment decisions are prudent or fair.'" Lee v. G T E Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (quoting Deines v. Texas Dep't o f Protective and Regulatory Servs., 164 F.3d 277, 281 (5th Cir. 1999)). Instead, the c o u rt's "sole concern is whether unlawful discriminatory animus motivates a challenged e m p lo ym e n t decision. Id. Here, Plaintiff argues that Defendant's alleged violation of the Settlement A g re e m e n t proves pretext for unlawful retaliation. The record establishes that Defendant re c la ss if ie d thirteen Team Leaders as Lieutenants only after the Team Leaders petitioned D e f en d a n t for the change. Defendant's proffered reason for denying Plaintiff the rank of L ie u te n a n t in February of 2006 is that Plaintiff was not a Team Leader at that time. No re a so n a b le fact finder could be persuaded that a discriminatory reason more likely m o tiv a te d the employer to deny Plaintiff the promotion, especially because one Team L e a d er that Defendant promoted was an African American male. Therefore, Plaintiff has n o t satisfied his burden of showing that the proffered reason was a pretext for retaliation. C . Plaintiff's Claim of Alleged Disparate Impact (Count V) P lain tiff alleges that Defendant's employment practices are unlawful under Title V II because the practices have a substantial adverse impact on a protected group. In

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o rd e r to state a prima facie case of disparate impact racial discrimination under Title VII, a n employee must establish that (1) there is a significant statistical disparity among m e m b e r s of different racial groups; (2) there is a specific, facially-neutral employment p o lic y or practice; and (3) there is a causal nexus between the specific policy or practice a n d the statistical disparity. Cooper, 390 F.3d at 724; Joe's Stone Crab, Inc., 220 F.3d at 1 2 6 5 . "[T]he plaintiff's burden in establishing a prima facie case goes beyond the need to s h o w that there are statistical disparities in the employer's work force." Watson v. Ft. W o r th Bank & Trust, 487 U.S. 977, 994 (1988). "[T]he plaintiff must offer statistical e v id e n c e of a kind and degree sufficient to show that the practice in question has caused th e exclusion of applicants for jobs or promotions because of their membership in a p r o te c te d group.... [S]tatistical disparities must be sufficiently substantial that they raise s u c h an inference of causation." Id. at 994-95. A s a threshold matter, the court must determine whether the plaintiff has submitted s u f f ic ie n t proof of a statistically significant disparity. Albemarle Paper v. Moody, 422 U .S . 425, 427 (1975). There is no set mathematical standard that a plaintiff must meet in o rd e r to show significant disparate impact. See Richardson v. Lamar County Bd. of E d u c ., 729 F. Supp. 806, 817 (M.D. Ala.1989), aff'd, 935 F.2d 1240 (11th Cir. 1991) (c itin g Moore v. Southwestern Bell Tel. Co., 593 F.2d 607, 608 (5th Cir.1979)). Various f o rm u la s can be used to measure the degree of impact in a specific case, including s ta tis tic a l proof in the form of selection rates, pass/fail comparisons,

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p o p u la tio n /w o rk f o rc e comparison, and regression analyses. See, e.g., Teamsters v. U.S., 4 3 1 U.S. 324, 339 (1977) (using population/workforce comparison); Alexander v. Fulton C o u n ty , 207 F.3d 1303, 1372 (11th Cir. 2000) (using comparison between racial c o m p o s itio n of sheriff's department and general demographics of the surrounding area). Whatever the form, a plaintiff's statistical evidence must be sufficient to show significant d is p a rity among members of different groups. See, e.g., Joe's Stone Crab, Inc., 220 F.3d at 1272 (finding gross statistical disparity between the percentage of female food servers in the Miami Beach community (31.9%) and the percentage of female food servers w o rk in g at Joe's (0%)); Garner v. Runyon, 769 F. Supp. 357, 360 (N.D. Ala. 1991) (h o ld in g that a pool of four African American applicants is "scant statistical evidence" a n d insufficient to show statistical disparity); Sims v. Montgomery County Com'n, 873 F. S u p p . 585, 600 (M.D. Ala. 1994) (finding sufficient evidence of adverse impact by lo o k in g at a fifteen year period in which employer's facially neutral policy was in place). The United States Supreme Court has indicated that "small or incomplete data sets" are g ro u n d s for challenging statistical evidence. Watson, 487 U.S. at 996-97. One district c o u rt found that a statistical pool of two African American test takers was too shallow for a disparate impact analysis. Nash v. Consolidated City of Jacksonville, 895 F. Supp. 1 5 3 6 , 1543 (M.D. Fla. 1995). H e re , Plaintiff has not identified a specific employment practice that caused s ta tis tic a lly significant discriminatory impact. Assuming, however, that Plaintiff alleged

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th e Team Leader exam had a disparate impact on African Americans, Plaintiff has not p ro d u c e d competent evidence which shows that the Team Leader exam disproportionately a f f e c te d African American employees. Indeed, the Court does not have any statistical d a ta before it. Only six applicants took the Team Leader exam and Plaintiff was the only A f ric a n American test-taker. Therefore, no reasonable fact finder could find that Plaintiff h a s established a prima facie case of disparate impact because he has not shown a s ig n if ic a n t statistical disparity among members of different racial groups.6 D . Defendant's Motion to Strike P lain tiff submitted several affidavits in support of his Opposition to Summary J u d g m e n t (Doc. # 97). Before the Court is Defendant's Motion to Strike Affidavit and P o r tio n s of Affidavit Submitted in Opposition to Motion for Summary Judgment (Doc. # 1 0 0 ) filed on October 14, 2008. Defendant argues that the Court should strike portions o f Plaintiff's affidavit and the affidavits of Gerald Stephens, Eddie Ogletree, and William F e lto n in their entirety because the affidavits are not based on personal knowledge and c o n stitu te hearsay. The Court will address each affidavit in turn.

The Court is aware of a case from the Middle District of Florida where a plaintiff established a prima facie case of disparate impact using non-statistical evidence of past discrimination. Nash v. Consolidated City of Jacksonville, 895 F. Supp. 1536, 1543 (M.D. Fla. 1995). In that case, the record reflected a nine-year history of discrimination through the use of promotional exams. Here, the Plaintiff has not presented the Court with evidence of past promotional exams that resulted in racial discrimination. 25

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1 . Eddie Ogletree and Gerald Stephens's Affidavit Testimony Regarding P la in tiff's Qualifications D ef en d an t argues that the testimony in Eddie Ogletree and Gerald Stephens's a f f id a v its must be stricken because it is conclusory and because it is based on their su b jec tiv e evaluations of Plaintiff's performance. An affidavit submitted in opposition to a motion for summary judgment must comply with the requirements of Rule 56(e) of the F e d e ra l Rules of Civil Procedure. Rule 56(e) states that affidavits submitted in o p p o s itio n to a motion for summary judgment, such as the affidavit at issue here, shall be made on personal knowledge, shall set forth such f a c ts as would be admissible in evidence, and shall a f f irm a tiv e ly show that the affiant is competent to testify to th e matters stated therein. Fed. R. Civ. P. 56(e). The requirements of Rule 56 make it plain that affidavits which set f o rth conclusory arguments rather than statements of fact based on personal knowledge a re improper. See, e.g., Thomas v. Ala. Council on Human Relations, Inc., 248 F. Supp. 2 d 1105, 1112 (M.D. Ala. 2003); Story v. Sunshine Foliage World, Inc., 120 F. Supp. 2d 1 0 2 7 , 1030 (M.D. Fla. 2000). Accord, Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (1 1 th Cir. 2000). Affidavits which fail to meet the standards set forth in Rule 56(e) may b e subject to a motion to strike. Givhan v. Electronic Eng'rs, Inc., 4 F. Supp. 2d 1331, 1 3 3 4 (M.D. Ala. 1998). However, if an affidavit contains some improper material, the c o u rt need not strike the entire affidavit, rather it may strike or disregard the improper p o rtio n s and consider the remainder of the affidavit. Id. at 1334 n.2. 26

H e re , Defendant argues that Eddie Ogletree and Gerald Stephens's affidavit tes tim o n y must be stricken because they contain "beliefs" rather than appropriate tes tim o n y based upon "personal knowledge" as Rule 56(e) requires. The Court agrees in p a rt and disagrees in part. With respect to Plaintiff's qualifications, the affidavits make p la in that the testimony is based on personal knowledge and includes specific facts the af fian ts observed during their employment with Defendant. Therefore, Defendant's m o tio n to strike portions of the affidavits addressing Plaintiff's qualifications is due to be D E N IE D . However, the testimony addressing whether Defendants had a legitimate re a so n to deny Plaintiff's promotions are problematic conclusory statements that e ss e n tia lly constitute legal arguments. Consequently, Defendant's motion to strike p o rtio n s of Eddie Ogletree and Gerald Stephens's affidavit testimony is due to be G R A N T E D to the extent their testimony claims Defendant had no legitimate reason not to p ro m o te Plaintiff. 2 .W illia m Felton's Affidavit Testimony Regarding Defendant's Work E n v ir o n m e n t D e f e n d a n t argues that the testimony in William Felton's ("Felton's") affidavit m u s t be stricken because the affidavit contains statements that constitute hearsay. The C o u rt has separated Felton's affidavit testimony into two parts and will address each in d iv id u a lly.

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a . Promotion Rumors F e lto n 's affidavit testimony claims he heard rumors that the promotion process at th e fire station was "fixed." Felton also alleges that Ellis Mitchell told him that he would h a v e trouble because Caucasian firefighters did not want to "house" in the dormitory with a n African American man. These statements constitute hearsay pursuant to Federal Rule o f Evidence 801(c) because they are offered to prove the truth of the matter asserted. Also, these statements do not constitute admissions of a party opponent pursuant to F e d e ra l Rule of Evidence 801(d)(2) because Plaintiff did not establish that the declarant is D e f e n d a n t's "agent or servant" or when the declarant made the statement. City of T u s c a lo o s a v. Harcros Chemicals, Inc., 158 F.3d 548, 557 (11th Cir. 1998) (holding that " a statement by [a] party's agent or servant concerning a matter within the scope of the a g e n cy or employment, made during the existence of the relationship...is deemed an a d m is s io n by a party opponent and is excluded from the definition of hearsay"). For th e se reasons the Court finds that Defendant's motion to strike from Felton's affidavit the ru m o rs and statements allegedly made to Felton by Ellis Mitchell is due to be G RA N TED . b . Use of N-Word F e lto n 's affidavit testimony includes statements that his co-workers regularly used th e N-word. Defendant argues that these statements constitute inadmissible hearsay and m u s t be stricken from Felton's affidavit. The Court finds that this argument is untenable.

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T h e se statements are not offered in evidence to prove the truth of the matter asserted in th e statements, but rather they are offered to show the effect that the statements had on F e lto n after he heard them. Consequently, they are not hearsay as defined by Federal R u le of Evidence 801(c). For this reason, the Court finds that Defendant' motion to strike f ro m Felton's affidavit the alleged use of the N-word is due to be DENIED. 3. Plaintiff's August 24, 2008 Affidavit Testimony Regarding Racial C o m m e n ts and Student Firefighters D e f e n d a n t argues that Plaintiff's affidavit testimony dated August 24, 2008 must b e stricken because it contains hearsay and speculative evidence. Plaintiff's claimed that h e "has endured numerous instances of negative comments related to [his] race." As d is c u ss e d with respect to Felton's affidavit testimony, the negative comments are not o f f ere d in evidence to prove the truth of the matter asserted in the statements, but rather th e y are offered to show the effect that the statements had on Plaintiff. Therefore, they a re not hearsay as defined by Federal Rule of Evidence 801(c) and Defendant's motion to s trik e them from Plaintiff's affidavit is due to be DENIED. Plaintiff's affidavit testimony also includes statements that he will soon be c o m p e tin g with Caucasian student firefighters for promotions. Defendant argues that th e se statements must be stricken because they are irrelevant. Pursuant to Federal Rule of E v id e n c e 401, "`relevant evidence' means evidence having any tendency to make the ex isten ce of any fact that is of consequence to the determination of the action more

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p ro b a b le or less probable than it would be without the evidence." Fed. R. Evid. 401. Pursuant to Federal Rule of Evidence 402, evidence which is not relevant is not a d m is s ib le . Plaintiff's statement that he will soon be competing with Caucasian student f ire f ig h te rs is irrelevant because future promotions are not of consequence to the d e te rm in a tio n of this action. Consequently, Defendant's motion to strike portions of P la in tif f 's August 24, 2008, affidavit testimony is due to be GRANTED to the extent the te s tim o n y discusses Defendant's future potential hires. VI. CONCLUSION F o r the reasons set forth in this Memorandum Opinion and Order, the Court finds th a t Defendant is entitled to summary judgment on all of Plaintiff's claims. Accordingly, it is hereby ORDERED as follows: (1) Defendant's Motion for Summary Judgment (Doc. # 91) is GRANTED; (2) All of Plaintiff's claims are DISMISSED WITH PREJUDICE; (3 ) Defendant's Motion to Strike (Doc. #100) is DENIED in part and GRANTED in part; (4 ) The trial in this matter is CANCELLED; (5) The Court will enter a separate final judgment in favor of Defendant consistent w ith this Memorandum Opinion and Order. DONE this the 19 th day of December, 2008.

/s/ Mark E. Fuller CHIEF UNITED STATES DISTRICT JUDGE

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