Ogletree et al v. City of Auburn et al

Filing 117

MEMORANDUM OPINION AND ORDER granting 76 Motion for Summary Judgment. Signed by Honorable William Keith Watkins on 3/31/2009. (Attachments: # 1 Civil Appeals Checklist)(wcl, )

IN THE UNITED STATES DISTRICT COURT F O R THE MIDDLE DISTRICT OF ALABAMA E A S T E R N DIVISION E D D IE OGLETREE, et al., P la in tif f s , v. C IT Y OF AUBURN, et al., D e f e n d a n ts. ) ) ) ) ) ) ) ) )

C A S E NO. 3:07-CV-867-WKW[WO]

M E M O R A N D U M OPINION AND ORDER I . INTRODUCTION B e f o re the court is Defendants' Motion for Summary Judgment (Doc. # 76), which is accompanied by an evidentiary submission and a brief (Doc. # 77). Defendants move for s u m m a ry judgment on Plaintiffs' claims alleging discriminatory failure to promote on the b a s is of race, disparate impact on the basis of race, and retaliation, in violation of the Equal P ro te c tio n Clause to the Fourteenth Amendment, as enforced by 42 U.S.C. § 1983 (" § 1983"), and Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 (" T itle VII"). Opposing the motion, Plaintiffs filed a Brief in Response (Doc. # 82), and an e v id e n tia ry submission (Doc. # 83). Defendants filed a Reply (Doc. # 88), and Plaintiffs f ile d a surreply (Doc. # 98). After careful consideration of the arguments of counsel, the re le v a n t law, and the record as a whole, the court finds that Defendants' Motion for Summary J u d g m e n t is due to be granted.

II. JURISDICTION AND VENUE T h e court exercises subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1 3 4 3 . The parties do not contest personal jurisdiction or venue, and the court finds that there a re allegations sufficient to support both I I I . STANDARD OF REVIEW S u m m a ry judgment should be granted only "if the pleadings, the discovery and d is c lo s u re materials on file, and any affidavits show that there is no genuine issue as to any m a te ria l fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 5 6 (c ). Under Rule 56, the moving party "always bears the initial responsibility of informing th e district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1 9 8 6 ). The movant can meet this burden by presenting evidence showing there is no g e n u in e issue of material fact, or by showing that the non-moving party has failed to present e v id e n c e in support of some element of its case on which it bears the ultimate burden of p ro o f . Id. at 322-24. "[T]he court must view all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 9 2 1 (11th Cir. 1995). Once the moving party has met its burden, "an opposing party may not rely merely on a lle g a tio n s or denials in its own pleading; rather, its response must ­ by affidavits or as o th e rw is e provided in this rule ­ set out specific facts showing a genuine issue for trial." Rule 56(e)(2). To avoid summary judgment, the non-moving party "must do more than

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simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. In d u s . Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A genuine factual dispute exists if "a reasonable jury could return a verdict for the non-moving party." Damon v. Fleming S u p e r m a r k e ts of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks a n d citation omitted). I V . FACTS In 2006, Plaintiffs, who at the time were lieutenants in the City of Auburn's Fire D iv is io n , applied for a battalion chief promotion. Neither was promoted, but four Caucasian f ire f ig h te rs were. Defendants say Plaintiffs were not promoted because they failed the w ritte n examination, not because they are African-American. Plaintiffs, however, say that r e a s o n is a coverup for race discrimination and retaliation and that the minimum score for p a s s in g the written examination created a disparate impact on African-Americans. Defendants move for summary judgment on all claims. The facts material to the resolution o f the summary judgment motion are set out below. Those facts are portrayed in the light m o s t favorable to Plaintiffs. A. P a r tie s T h e re are two Plaintiffs: Eddie Ogletree ("Ogletree") and Gerald Stephens (" S te p h e n s " ). They are African-American employees of the City of Auburn's Fire Division. Mr. Ogletree began his employment with the Fire Division in 1984. (Ogletree Dep. 20 (Ex. A to Doc. # 76).) In June 1996, he became a team leader; in February 2006, he was

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promoted to lieutenant. (Ogletree Dep. 10, 20.) Mr. Stephens began working for the Fire D iv is io n in January 1994. (Stephens Dep. 20, 22 (Unnumbered Ex. to Doc. # 80).) In 1996, h e was promoted to lieutenant. (Stephens Dep. 43-44.) Having been denied battalion chief p ro m o tio n s in 2006, Plaintiffs remain lieutenants. There are seven Defendants. The City of Auburn ("City") is a municipality organized u n d e r the laws of the State of Alabama. Larry Langley ("Langley") served as the fire chief f o r the City from 1997 until he retired in November 2007. (Langley Dep. 4-6 (Ex. H to Doc. # 76).) In December 2007, Lee Lamar ("Lamar") became the acting fire chief, an

a p p o in tm e n t which was made permanent in July 2008. (Lamar Dep. 5 (Ex. I to Doc. # 76).) Steven A. Reeves ("Reeves") has been employed with the City as its human resources d ire c to r since 1993. (Reeves Aff. ¶ 2 (Ex. F to Doc. # 76).) As part of his job

re s p o n s ib ilitie s , he took part in the decision regarding the process to be used to promote f ire f ig h te rs to battalion chief in 2006. (Reeves Aff. ¶ 3.) Bill Ham Jr. ("Ham") has been the C ity's mayor since 1998. (Ham Aff. ¶ 2 (Ex. C to Doc. # 76).) Mr. Ham has no hiring, p ro m o tin g or firing authority for the City. (Ham Aff. ¶ 4.) Since October 2004, Bill James (" J a m e s " ) has served as the City's public safety director. (James Dep. 5 (Ex. F to Doc. # 76).) Charles M. Duggan Jr. ("Duggan") became acting city manager in February 2006. (Duggan Aff. ¶ 2 (Ex. D to Doc. # 76).) Mr. Duggan has hiring and firing authority.

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(Duggan Aff. ¶ 3.) When the battalion chief promotions were made in 2006, he approved th e recommendations made to him as a result of the promotional process.1 (Duggan Aff. ¶ 4.) T h e re is one third-party defendant in this lawsuit: CWH Research, Inc. ("CWH"). (Third-Party Compl. (Doc. # 56).) CWH developed the written examination that Plaintiffs f a ile d . Defendants, as third-party plaintiffs, seek indemnification from CWH in the event th a t they are held liable on the claims brought against them by Plaintiffs.2 (Third-Party C o m p l. 1-4 (Doc. # 56).) B. F ir e Division 1. H ie r a r c h y

In 1996, in ascending order of rank, the City's Fire Division consisted of student f ire f ig h te rs , career firefighters, team leaders, lieutenants, captains, a deputy chief and a fire c h ie f . (Stephens Dep. 46.) After 1996, career firefighters were promoted to team leader, not lie u te n a n t. Mr. Stephens was the last employee promoted to lieutenant. (Stephens Dep. 48.) In 1996, there were promotions to both captain and lieutenant. (Stephens Dep. 51.) At this time, Mr. Stephens was promoted to lieutenant on the basis of an assessment center, which consisted of a panel of assessors, unaffiliated with the City or the Fire Division, who

Cortez Lawrence also was named as a defendant, but Plaintiffs since have "stipulate[d]" to his dismissal (Doc. # 68). Also pending in this lawsuit is CWH's Motion for Summary Judgment on the claims brought against it by Defendants (Doc. # 74). That motion is addressed in a separate Order.
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put him through scenarios applicable to real-life firefighting. Mr. Stephens did not take a w ritte n test. (Stephens Dep. 43-44, 45 & 51.) In November 2004, the captains petitioned the city manager to have their title changed to "battalion chiefs," and the change was made. (Lamar Aff. ¶ 6 (Ex. K to Doc. # 76); R e e v e s Aff. ¶ 18; Reeves Dep. 49-51 & 57 (Unnumbered Ex. to Doc. # 80).) The title c h a n g e did not result in any change "to the [team leaders'] job description or the rate of pay." (Reeves Aff. ¶ 18; see also Lamar Aff. ¶ 6; Reeves Dep. 52-53, 57.) In February 2006, the team leaders petitioned the City to be reclassified as " lie u te n a n ts ." (Lamar Aff. ¶ 7; Stephens Dep. 57.) The City agreed. (Lamar Aff. ¶ 7.) There was no difference in pay or any material change in job responsibilities. (Lamar Aff. ¶ 7; Stephens Dep. 57; Langley Dep. 28; Ogletree Dep. 17, 29-30; see generally Summ. J. B r. 15-16.) However, the insignia on a lieutenant's uniform included one bugle, while the in s ig n ia on a team leader's uniform had no bugles. (Summ. J. Resp. 6; Reeves Dep. 52-53.) Mr. Stephens, the only lieutenant at the time, opposed the re-titling, but Mr. Ogletree signed th e petition requesting the change. (Stephens Dep. 60, 64-65; Reeves Dep. 39-40; Ogletree D e p . 13, 18-19.) The reclassification of team leaders to lieutenants resulted in team leaders, i n c l u d i n g Mr. Ogletree, receiving the rank of lieutenant (Ogletree Dep. 10, 20); the other te a m leaders who were reclassified as lieutenants were Caucasian (Summ. J. Resp. 6). The f o u r Caucasian firefighters who, instead of Plaintiffs, subsequently were promoted to

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battalion chief in 2006 were among the team leaders whose titles were changed to lieutenant in February 2006. (Reeves Dep. 45-46, 76; see also Summ. J. Br. 16.) 2. 1 9 9 1 Hammock Court-Approved Settlement Agreement

In 1991, the City of Auburn settled a class action lawsuit filed on behalf of the City's F ire Division employees, alleging a pattern and practice of racial discrimination, and the c o u rt approved the Settlement Agreement. See Hammock v. City of Auburn, Ala., No. 876 8 0 -E (M.D. Ala. Feb. 15, 1991). Section 12 of that agreement provides that promotions for th e positions of captains and lieutenants must be accomplished through an assessment center. Section 12, titled "ASSESSMENT CENTER" provides in full: T h e City has submitted to this Court an Assessment Center which shall be a p p ro v e d by the Court and implemented by the City for use in the promotion o f Lieutenants and Captains with the Fire Division. Notwithstanding any la n g u a g e to the contrary contained in the City of Auburn Assessment Center C a n d id a te Orientation Manual, all promotions subject to Assessment Center in v o lv e m e n t shall be made by promoting the candidate rated Number 1 by the A s se s s m e n t Center for each such promotion. (H a m m o c k Court-Approved Settlement Agreement ¶ 12 (Ex. A to Doc. # 80).) Mr. Reeves describes an assessment center as a conglomeration of job-related devices u s e d to determine who the best candidates are for a promotion. (Reeves Dep. 20.) An a s s e ss m e n t center means that some individual or company not employed or affiliated with th e City had to implement the processes for the promotion. (Reeves Dep. 21.) After the H a m m o c k Settlement Agreement was approved, an outside consultant was hired to establish

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the assessment center used for promotions occurring in 1994 and 1996. (Reeves Dep. 21-22.) C. 2 0 0 6 Battalion Chief Promotions In 2006, a notice was posted for promotional openings for the battalion chief position. (L a m a r Dep. 16.) This was the first promotion process for the position since 1996. From F e b ru a ry through June, 2006, Mr. Reeves (human resources director), Mr. James (public s a f e ty director), Mr. Langley (fire chief), and Mr. Lamar (deputy fire chief) were involved in the promotion of firefighters within the Fire Division. (Reeves Dep. 12-13; Reeves Aff. ¶ 4.) Mr. Duggan (city manager) gave final approval of the promotions. (Reeves Dep. 13.) M r. Reeves, Mr. James, Mr. Langley and Mr. Lamar made the decision to hire CWH to develop the procedure for the battalion chief promotions. (Reeves Aff. ¶ 4; Lamar Dep. 1 7 -1 9 , 23-24.) Mr. Reeves worked with CWH to create and execute a contract for CWH to d e v e lo p a process for the battalion chief promotions. (Reeves Aff. ¶ 5; Reeves Dep. 14, 17; s e e also Ex. L (Letter of Agreement between City of Auburn and CWH).) Pursuant to the te rm s of the Letter of Agreement, CWH agreed to provide a job analysis review; to provide a validated, semi-customized written test; to handle scoring the test; to administer an a s s e s sm e n t center including its development, training and scoring; to provide a feedback le tte r to candidates and process summary to the City; and to conduct a content validation p ro c e s s for the test. (Letter of Agreement.) The written test was developed by CWH. Each firefighter applying for the battalion c h ie f position had to pass the written test before proceeding any further in the promotional

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process. The minimum score to pass the test was 70. Mr. Reeves says that the decision to u s e a cutoff score on the written examination was "a collective decision made by [him], the p u b lic safety director [Mr. James], the deputy fire chief [Mr. Lamar], and CWH," and that th e City had discretion to implement a cutoff score for the test. (Reeves Dep. 23 (brackets a d d e d ); see also Reeves Dep. 28 (testifying that "[h]ad the City said [it] d[i]dn't want to use a cutoff score, I don't think CWH would have argued with us"); Lamar Dep. 20 (confirming th a t the City, not CWH, had the "ultimate discretion as to whether or not [the] test would c o n ta in a cut-off score").) Mr. Reeves explained that a score of 70 "is the cut off score c o m m o n ly used in the fire service, including the Alabama Fire College and the National Fire A c a d e m y[ ;] it was consistent with the cut off score the City ha[d] used in past selection p ro c e s s e s, and . . . it was important to ensure that those who were promoted to this critical lif e and community safety position kn[e]w well the body of knowledge necessary to do the jo b of [b]attalion [c]hief." (Reeves Aff. ¶ 8.) Chris Hornick ("Hornick"), CWH's president, h o w e v e r, says that CWH was not involved in the collective decision to implement a cutoff s c o re : "The City of Auburn elected[,] against CWH's advice[,] to impose a test score cut-off o f 70 as a precondition to advancing to the assessment center. CWH recommended that the C ity allow all applicants to proceed to the assessment score regardless of test score."

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(Hornick Decl. 1 (brackets added).) Mr. Hornick, however, does not say why CWH re c o m m e n d e d against a cutoff score of 70.3 A s to the firefighters eligible to apply for the battalion chief positions, Mr. James d e te rm in e d that all non-probationary firefighters, probationary lieutenants, and nonp ro b a tio n a ry lieutenants would be allowed to apply. (Reeves Aff. ¶ 11; Langley Dep. 19; J am es Dep. 33-34; Lamar Dep. 34.) Nine Caucasian firefighters and three African-American f ire f ig h te rs took the written examination on April 10, 2006. (Ogletree Dep. 78; Reeves Aff. ¶ ¶ 12-13.) Of those twelve, seven firefighters did not attain a passing score of 70 and, thus, w e re not eligible for promotion. (Reeves Aff. ¶ 13.) The three African-American applicants, w h o were Mr. Ogletree, Mr. Stephens and a non-probationary firefighter, did not make the c u to f f score. (Reeves Aff. ¶ 3; Reeves Dep. 102-03.) Five of those who passed completed th e assessment center, and four were promoted. (Reeves Aff. ¶¶ 13-15.) The four

in d iv id u a ls promoted had been employed with the City for ten years or more. (Lamar Dep. 4 0 -4 1 ; Reeves Aff. ¶ 15.) M r. Ogletree and Mr. Stephens complain that they had more years of service, more tim e -in -g ra d e and "arguably more experience" than the four individuals promoted to the p o s itio n of battalion chief. (Summ. J. Resp. 10; see also Ogletree Dep. 1-10, 117, 138; S te p h e n s Dep. 153, 154, 157, 158; Summ. J. Resp. 9, 14-15.) As to experience, Mr. Ogletree

Defendants contend that Mr. Hornick's affidavit should be stricken. (Mot. Strike at 3 (Doc. # 86); see also Order (denying motion to strike, but providing that "only evidence that is admissible on its face or can be reduced to admissible form" would be considered on summary judgment) (Doc. # 89).) Accepting as true Mr. Hornick's conclusion, however, does not sway the outcome, as discussed infra.

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says, for example, that he was required to learn the City's "streets and numbers" (Ogletree D e p . 21), and that "most" battalion chiefs "don't know their streets and numbers," but instead le a rn them during "on-the-job training" (Ogletree Dep. 122). Mr. Ogletree believes that s o m e of the Caucasians who sat for the written examination and were promoted "did not have e n o u g h seniority or time-in-grade to qualify for the [b]attalion [c]hief promotion." (Summ. J . Resp. 18; Ogletree Dep. 25-26; see also Summ. J. Resp. 22 ("Seniority is the number of ye a rs that a firefighter has been with the department[,] and time-in-grade is the amount of tim e spent at [the employee's] current rank.").) Mr. Stephens "feels as though he is more q u a lif ie d for the [b]attalion [c]hief job than" the Caucasian individuals who were promoted. (Summ. J. Resp. 15 (citing Stephens Dep. 160).) Mr. Stephens can "think of no other re a s o n " other than race discrimination as to why he was not promoted to battalion chief. (Stephens Dep. 170; Summ. J. Resp. 15.) D. T h e Complaint and EEOC Charges T h e operative complaint is the Third Amended Complaint; it contains three counts. In Counts One and Two, Plaintiffs allege that they were discriminated against on the basis o f their race and retaliated against when they were not promoted to battalion chiefs in 2006. (Third Am. Compl. ¶¶ 13-31 (Doc. # 65).) In Count Three, Plaintiffs allege that Defendants' " e m p lo ym e n t procedures and/or testing mechanisms" pertaining to the 2006 battalion chief p ro m o tio n s created a disparate impact on African-American firefighters. (Third Am. Compl. ¶ ¶ 32-34.) As relief, Plaintiffs seek declaratory and injunctive relief, punitive damages,

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"compensatory damages, back pay, front pay, loss of retirement benefits and pension, [and] lo s s of promotion." (Third Am. Compl. 6 (brackets added); see also Third Am. Compl. 7 & 8 .) Plaintiffs bring their claims pursuant to the Equal Protection Clause of the Fourteenth A m e n d m e n t, as enforced by § 1983, and Title VII. (Third Am. Compl. ¶ 12.) Each Plaintiff re c e iv e d a letter dated April 14, 2006, that he had not passed the written examination. (See, e .g ., Ex. R to Doc. # 80 (letters notifying Ogletree and Stephens that they were "ineligible to participate in the assessment center" because they "did not pass the written test").) Within 1 8 0 days of that notification, they filed charges with the Equal Employment Opportunity C o m m is s io n ("EEOC"). (See Exs. K, L, P & X to Doc. # 80.) They received right-to-sue le tte rs dated July 18, 2007, from the EEOC, and filed suit within the required ninety days. (Third Am. Compl. ¶ 12; see Exs. E & F to Doc. # 2.) E. R e ta lia tio n A s stated, Count Two is a claim for retaliation. The factual basis for Mr. Stephens's re ta lia tio n claim is that in January 2005, Mr. Stephens submitted a grievance to the City's F ire Division, complaining of discriminatory promotional practices. (Stephens Aff. 1 (Ex. S to Doc. # 80).) Mr. Langley, who at the time was the fire chief, told Mr. Stephens that, if h e "continued with this discrimination grievance there would be a `red flag' next to [his] n a m e with the City of Auburn.'" (Stephens Aff. 1.) Mr. Stephens says that Mr. Langley's s ta te m e n t is "evidence that [Mr.] Langley's attitude about the grievance was related to the

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denial of the promotion in 2006." (Summ. J. Resp. 54.) The City, in turn, attributes the d e n i a l of the promotion solely to Mr. Stephens's failure to score at least 70 on the written e x a m in a tio n . (Summ. J. Br. 53; Summ. J. Reply 25.) As discussed infra, Mr. Ogletree has a b a n d o n e d his retaliation claim. V. DISCUSSION A. I n d iv id u a l Liability: Title VII and § 1983 1. B ill Ham

P la in tif f s "consent to the [s]ummary [j]udgment [m]otion as it relates to [Mayor] Bill H a m [ ] Jr." (Summ. J. Resp. 2.) Defendants' motion for summary judgment as to the claims a s s e rte d against Mr. Ham, therefore, is due to be granted. 2. T itle VII

The Individual Defendants are sued only in their personal capacities. It is not clear f ro m the Third Amended Complaint whether the individual Defendants are sued under Title V II, or only under § 1983, but both Plaintiffs and Defendants brief the Title VII claims as if th e y are against the City only. (Summ. J. Br. 38; Summ. J. Resp. 36.) The court will adopt th e same approach, given that personal liability cannot attach to individuals under Title VII. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) ("The relief granted under T itle VII is against the employer, not individual employees whose actions would constitute a violation of the Act."); accord Albra v. Advan, Inc., 490 F.3d 826, 830 (11th Cir. 2007).

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3.

§ 1983: Qualified Immunity

In their opening brief, the individual Defendants argue that they are entitled to q u a lif ie d immunity on the § 1983 equal protection claims against them in their individual c a p a c itie s . (Summ. J. Br. 30-35.) Plaintiffs do not mention the defense in their response, in s te a d focusing only on the merits. In their reply, Defendants argue that Plaintiffs' failure to address their qualified immunity arguments constitutes abandonment of those claims to w h ic h the defense is asserted. To receive qualified immunity, "an official must first establish that `he was acting w ith in the scope of his discretionary authority when the allegedly wrongful acts occurred.'" McCullough v. Antolini, ___ F.3d ___, 2009 WL 469327, at *4 (11th Cir. 2009) (quoting Lee v . Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). Once a defendant establishes that he was a c tin g within the scope of his discretionary authority, the burden shifts to the plaintiff to d e m o n s tra te that qualified immunity is "inappropriate." Id. To meet his burden, the plaintiff m u s t demonstrate, first, that the summary judgment facts "make out a violation of a c o n s titu tio n a l right," and, second, that "the right at issue was `clearly established' at the time o f defendant's alleged misconduct." Pearson v. Callahan, 129 S. Ct. 808, 816 (2009) (q u o tin g Saucier v. Katz, 533 U.S. 194 (2001)). To the extent that the individual Defendants were involved in the decisions affecting P la in tif f s ' employment,4 it is clear from the summary judgment evidence ­ and Plaintiffs
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As to certain Defendants, including City Manager Duggan, Defendants contend that they had no involvement. (Summ. J. Br. 34.)

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plead their claims on the precondition (see Third Am. Compl. ¶¶ 5-11) ­ that the individual D e f e n d a n ts were acting within their discretionary authority as city officials when they made th e employment decisions at issue. See Holloman ex. rel. Holloman v. Harland, 370 F.3d 1 2 5 2 , 1304 (11th Cir. 2004) (The appropriate inquiry on the question of discretionary a u th o rity is not whether a defendant had "authority to commit the allegedly illegal act," but w h e th e r the acts complained of were part of the defendant's job-related duties). This element is undisputed. P la in tif f s , however, have not made any attempt to demonstrate that qualified immunity is "inappropriate." McCullough, ___ F.3d at ___, 2009 WL 469327, at *4; (see Summ. J. R e sp . 53.) As the burden is on Plaintiffs to show that the individual Defendants are not e n title d to the defense, the court finds that Plaintiffs have failed to defeat Defendants' p ro p e rly-s u p p o rte d motion seeking summary judgment on the ground of qualified immunity. Summary judgment, therefore, is due to be entered in the individual Defendants' favor on the § 1983 equal protection claims on the basis of qualified immunity.5 The claim proceeds, for th e time being, against the City.

The analysis on the merits of the § 1983 claims applies equally to the individual Defendants and provides an alternative basis for granting summary judgment in the individual Defendants' favor on the § 1983 claims.

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B.

T h e City: Title VII and § 1983 Claims Alleging Disparate Treatment and

R e t a lia t io n T itle VII makes it unlawful for employers "to discriminate against any individual with re s p e c t to his compensation, terms, conditions, or privileges of employment, because of such in d iv id u a l's race. . . ." 42 U.S.C. § 2000e-2(a)(l). Title VII also forbids employers from d is c rim in a tin g against an employee who has (1) "opposed any practice made an unlawful e m p lo ym e n t practice [by Title VII]"; or (2) "made a charge, testified, assisted, or participated in any matter in any investigation, proceeding, or hearing under [Title VII]." 42 U.S.C. § 2000e-3(a); accord Crawford v. Metro. Gov't of Nashville & Davidson County, 129 S. Ct. 8 4 6 , 849 (2009). As the parties acknowledge, Plaintiffs' Title VII race discrimination and § 1983 equal p ro te c tio n claims are premised on the same evidence. (Summ. J. Br. 38; Summ. J. Resp. 53.) The same is true for Plaintiffs' Title VII and § 1983 retaliation claims. "Title VII and section 1 9 8 3 claims have the same elements where the claims are based on the same set of facts." Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008); accord Underwood v . Perry County Comm'n, 431 F.3d 788, 793 (11th Cir. 2005). Plaintiffs' Title VII claims, th u s , need not be discussed separately from the § 1983 claims,6 and, the analysis is governed

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No contrary argument has been advanced by either party.

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by the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U .S . 792, 802 (1973).7 U n d e r McDonnell Douglas, the establishment of a prima facie case creates a p re s u m p tio n that the employer unlawfully discriminated or retaliated against the employee. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). In turn, this "presumption p la c e s upon the defendant the burden of producing an explanation to rebut the prima facie c a s e ." Id. at 506-07. If the employer produces competent evidence of a legitimate,

n o n d is c rim in a to ry reason for the adverse employment action, meaning that "the proffered re a s o n is one that might motivate a reasonable employer," the burden shifts to the employee to "meet that reason head on and rebut it." Chapman v. AI Transp., 229 F.3d 1012, 1030 (1 1 th Cir. 2000). At this juncture, an employee "must come forward with evidence sufficient to permit a reasonable fact finder to conclude that the legitimate reason[] given by the e m p lo ye r w[as] not its true reason[], but w[as] a pretext for discrimination." Vessels v. A tla n ta Indep. Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005) (brackets added). "The focused in q u iry in the last step requires the plaintiff to demonstrate `such weaknesses, im p la u s ib ilities, inconsistencies, incoherencies, or contradictions in the employer's proffered l e g i t i m a t e reasons for its action that a reasonable factfinder could find them unworthy of c re d e n c e .'" Rioux, 520 F.3d at 1275 (quoting Combs v. Plantation Patterns, 106 F.3d 1519,

When a plaintiff presents "discrimination by direct evidence, application of McDonnell Douglas is inappropriate." EEOC v. Alton Packaging Corp., 901 F.2d 920, 923 (11th Cir. 1990). As explained later in this opinion, the racial slurs are not direct evidence of discrimination. Plaintiffs do not contend that there is any other direct evidence in this case.

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1538 (11th Cir. 1997)). "[A] plaintiff's prima facie case, combined with sufficient evidence t o find that the employer's asserted justification is false, may permit the trier of fact to c o n c lu d e that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing P ro d s., Inc., 530 U.S. 133, 148 (2000). "The result of this three step dance is that the burden [ o f persuasion] is always on plaintiff to show that defendant's action is discriminatory." Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir. 2005) (per curiam) (brackets a d d e d ). F o r the reasons set out below, Plaintiffs have failed to present evidence that creates a genuine issue of material fact that the City's use of a cutoff score on the written e x a m in a tio n is a pretext for racial discrimination or retaliation. As a result, Plaintiffs' discrim inatory failure-to-promote claims and Mr. Stephens's retaliation claim cannot survive D e f e n d a n ts ' summary judgment motion. 1. F a ilu r e to Promote

In itia lly, it is useful to clarify what is not at issue. To quote Plaintiffs, this lawsuit "is n o t an attack on the validity of the [written] test itself." (Summ. J. Resp. 35.) In other words, " P la in tif f s do not maintain that the test itself was discriminatory." (Summ. J. Resp. 35.) Rather, Plaintiffs contend that the use of a cutoff score on the written test "as the first step in the promotional process, without the consideration of experience, seniority, time-in-grade, [ k n o w le d ge of] streets and numbers and the [Hammock] Court[-]ordered assessment center," c a u s e d Plaintiffs to be ineligible for "continu[ing] in the promotional process and the

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promotion itself." (Summ. J. Resp. 34 (brackets added).) While Plaintiffs admit that four C a u c a sia n applicants also were excluded from the promotion by failing the test, they say that " it is undisputed that the African[-]Americans [who] failed the exam have longer tenure with th e City['s] Fire Division than the candidates who passed the exam." (Summ. J. Resp. 34.) The prima facie elements of a discriminatory failure-to-promote claim are set out in S p r in g e r v. Convergys Customer Management Group Inc., 509 F.3d 1344 (11th Cir. 2007): In order to establish a prima facie case on the basis of a failure to promote, P la in tif f must demonstrate that: (i) she belonged to a protected class; (ii) she w a s qualified for and applied for a position; (iii) despite qualifications, she was re je c te d ; and (iv) the position was filled with an individual outside the p ro te c te d class. Id . at 1348 n.2. T h e City challenges the second element dealing with qualifications. The City says, w ith o u t citation to authority, that it is "somewhat unclear" in this circuit what is required for a plaintiff to sustain his prima facie burden on the qualifications element. (Summ. J. Br. 40.) It contends that Plaintiffs' inability to score at least 70 on the written test should end the in q u iry. (Summ. J. Br. 41.) Plaintiffs, however, argue that the City is "attempt[ing] to use th e very discriminatory conduct about which [they] complain as an instrument to argue that [ th e y] do not meet the qualification requirement[.]" (Summ. J. Resp. 38.) Plaintiffs argue th a t, "but for the cut off score exam, [they] were qualified for the Battalion Chief position." (Summ. J. Br. 37.)

19

Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997),8 a Title VII case involving an allegedly racially discriminatory termination, contains a warning against using the employer's ra tio n a le for the adverse action to prevent an employee from proving a prima facie case of d is c rim in a tio n : Where the issue of the plaintiff's "job performance is intertwined with the is su e of whether his termination was pretextual, [his] job performance will not be examined u n til a later stage of the McDonnell Douglas analysis." Id. at 1562 n.3 (brackets added). Taking the same approach as in, but not citing, Holifield, the Eleventh Circuit in Sledge v. G o o d y e a r Dunlop Tires North America, Ltd., 275 F.3d 1014 (11th Cir. 2001), held that the p la in tif f 's inability to pass a prescribed written test did not render him unqualified for the p ro m o tio n . See id. at 1019. The Sledge court analyzed the defendant's reason for denying th e plaintiff a promotion ­ i.e., that he did not pass the required written examination ­ at the p re te x t stage, see id. at 1015 n.1 & 1019-20, rather than at the prima facie case stage, as u rg e d by the employer, id. at 1018-19; see also Scarborough v. Mineta, No. 3:03cv328, 2006 W L 931859, at *6 (N.D. Fla. April 10, 2006) ("Because [plaintiff] was terminated from tra in in g based on evaluations which [plaintiff] contends were themselves unlawfully d is c rim in a to ry, it would be inappropriate to treat the evaluations as positively establishing th a t [he] was unqualified for the position."); Gunn v. Whizz Temp. Agency, No. 90-C-4235, 1 9 9 2 WL 209284, at *3 (N.D. Ill. Aug. 18, 1992) ("Although defendant contends plaintiff w a s not qualified for the position because she did not pass the tests, the significance of
8

In Holifield, the Eleventh Circuit affirmed the judgment of the district court "for the reasons stated in its dispositive order" and attached that order as an Appendix. 115 F.3d at 1556-57.

20

plaintiff's alleged failure of the tests will be addressed during the discussion of whether [ d e f e n d a n t's ] articulated reason for not hiring plaintiff was pretextual."). H e re , the reason the City contends Plaintiffs were not qualified for the promotion is th e same reason as its nondiscriminatory reason for not promoting Plaintiffs ­ i.e., that P la in tif f s "failed to score a 70 on the written test." (Summ. J. Br. 41.) Consequently, h e e d in g Holifield's caution and consonant with Sledge, the court will not require Plaintiffs to demonstrate qualifications at the prima facie case stage, but will address qualifications at th e next two stages of the McDonnell Douglas analysis. No other challenge to the prima fa c ie case having been made by the City, the court finds that Plaintiffs' failure-to-promote c la im properly advances to the next McDonnell Douglas stage. The City has introduced admissible evidence that the reason for not promoting either P la in tif f is because he did not score at least 70 on the written test. Texas Dep't of Cmty. A ffa ir s v. Burdine, 450 U.S. 248, 255 (1981). That reason is "clear and reasonably specific," id . at 258, and if "taken as true, would permit the conclusion that there was a

21

nondiscriminatory reason for the adverse action," St. Mary's Honor Ctr., 509 U.S. at 511.9 T h e presumption created by the prima facie case, therefore, is rebutted, and the issue turns o n whether Plaintiffs have offered sufficient proof to raise a genuine issue of material fact th a t the City's stated reason for not promoting them ­ i.e., that they failed to score 70 on the w ritte n examination ­ is pretext. Plaintiffs say it is for several reasons.1 0 (Summ. J. Resp. 4 0 - 4 4 .)

In another section of their brief, Plaintiffs cite Lee v. Conecuh County Board of Education, 634 F.2d 959 (5th Cir. 1981), and argue that the City's "past history of racial discrimination" requires the City to prove its nondiscriminatory reason by "`clear and convincing'" evidence. (Summ. J. Resp. 50 (citing Lee, 634 F.2d at 963); but see Summ. J. Surreply 2 (qualifying "that there is a long history of `alleged' racial discrimination").) Because Plaintiffs' argument is undeveloped, it will not be considered. This opinion, therefore, does not present the time or place to explore whether Lee's holding applies outside of "the distinctive context of claims alleging discrimination, whether in employment or other areas, by a school district with a history of unlawful segregation." Castaneda v. Pickard, 648 F.2d 989, 994 n.2 (5th Cir. 1981) (emphasis added). There is, however, authority suggesting that it does not apply outside that context. See Harris v. Birmingham Bd. of Educ., 712 F.2d 1377, 1383 (11th Cir. 1983) (applying Lee's "clear and convincing" standard in class action against school board operating under a desegregation order; "[i]mplicit in [Lee's] holding[] is that proof of an immediate past history of racial discrimination may be established by showing the existence of various desegregation orders"); Lee v. Russell County Bd. of Educ., 684 F.2d 769, 773 n.5 (11th Cir. 1982) (noting that where the discrimination lawsuit "arises out of a school desegregation order the nature of defendant's rebuttal burden may be greater" (citing Lee, 634 F.2d at 963)). Nor is it necessary to examine whether the alleged past history of racial discrimination, ostensibly arising from the Hammock litigation that was settled in 1991, was "immediate," as required under Lee, 634 F.2d at 963. It is notable, however, that in Lee, as well as in Harris, the plaintiffs also introduced probative statistical evidence of recent discrimination. See Lee, 634 F.2d at 964; Harris, 712 F.2d at 1380-81. As will become clear, such evidence is missing in this case. Plaintiffs begin their discussion of pretext by listing multiple contentions in rapid-fire, singlesentence form. (Summ. J. Resp. 40-41.) They do not provide any elaboration, do not support these contentions with citations to the record, and do not refer back, with appropriate citations, to other sections of their brief. While it "is not the court's function to weed through the summary judgment submissions in search of evidence to support [Plaintiffs'] position," Foster v. Mid State Land & Timber Co, Inc., No. 2:06cv405, 2007 WL 3287345, at *11 (M.D. Ala. Nov. 5, 2007) (brackets added); (see also Uniform Scheduling Order § 2 (Doc. # 35)), the court nonetheless has attempted to connect the dots between Plaintiffs' contentions and the record citations set forth in other parts of their brief. As discussed, however, Plaintiffs' contentions fail to create a genuine of issue of material fact as to pretext.
10

9

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a.

A lle g e d Connection Between Tenure and Test Taking

P l a i n t i f f s argue that the City knew that, "because of their tenure" ­ Mr. Ogletree h a v in g been employed with the Fire Division since 1984 (Ogletree Dep. 20) and Mr. S te p h e n s since 1994 (Stephens Dep. 20, 22) ­ they would have more "trouble" than the C a u c a sia n applicants attaining a score of 70 on the written examination. (Summ. J. Resp. 4 1 .) In another part of their brief (Summ. J. Resp. 34-35), Plaintiffs cite an unsigned and u n s w o rn letter from CWH's president to the EEOC, in which CWH says that "[t]he tenure (tim e since date of hire) of candidates who passed the test was 8 years," but that the "average te n u re of candidates who failed the test was 16 years." (CWH EEOC Resp. (Ex. F to Doc. # 76).) "Research studies exist in the professional literature that suggest that older, more te n u re d workers perform more poorly as a group on standardized tests than younger w o rk e rs ." (CWH EEOC Resp.) Plaintiffs do not cite any exception to the hearsay rule that w o u ld allow consideration on summary judgment of an unsigned, unsworn letter to the E E O C summarizing conclusions from unnamed studies by unnamed authors. That flaw aside for the moment, Plaintiffs also do not provide any specifics as to the te n u re of the Caucasian applicants, instead choosing to rely on a conclusory statement in their b rie f , with no citation to the record (Summ. J. Resp. 34), and a lone statement from Mr. R e e v e s that, "to the extent . . . [Plaintiffs] had been employed longer [than those promoted], o s te n s ib ly they had worked more shifts than these others" (Summ. J. Resp. 10 (citing Reeves D e p . 74)). Even assuming, however, that there was specific evidence that Plaintiffs' tenure

23

with the Fire Division exceeded that of the Caucasian test takers, Plaintiffs' argument is w e a k e n e d by the fact that four arguably less-tenured Caucasian applicants also failed the w ritte n test. But, more important on this record, it simply is impossible to infer any c o n n e c tio n between Plaintiffs' seniority with the Fire Division and an intent to discriminate o n the basis of race. Rather, Plaintiffs' contentions are based upon pure speculation, and " [ s ]p e c u la tio n does not create a genuine issue of fact; instead, it creates a false issue, the d e m o litio n of which is a primary goal of summary judgment." Cordoba v. Dillard's, Inc., 4 1 9 F.3d 1169, 1181 (11th Cir. 2005) (internal quotation marks and citation omitted). In s h o rt, Plaintiffs cannot establish pretext on such a sketchy argument. b. C o n te n t Validity of the Test

P la in tif f s argue that the City's reason for the non-promotions is pretextual "because th e City has not and cannot prove the content validity of the test[.]" (Summ. J. Resp. 41.) This argument, however, loses all vitality ­ and candidly is perplexing ­ in light of Plaintiffs' e x p re s s statement that they are not "attack[ing] the validity of the test itself." (Summ. J. R e sp . 35.) It also lacks merit at the pretext stage because Plaintiffs, not the City, bear the b u rd e n of persuasion on pretext. Chapman, 229 F.3d at 1030. Relatedly, to the extent that P la in tif f s argue that the written test was "not scientifically validated not to adversely affect A f ric a n Americans" (Summ. J. Resp. 41), the argument fails for the same reasons.

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c.

V io la tio n of the Hammock Order

Two of Plaintiffs' arguments focus on accusations that the City's use of a written e x a m in a tio n with a cutoff score violates the Hammock Order that approved the Settlement A g re e m e n t resolving that litigation.1 1 See Hammock v. City of Auburn, Ala., No. 87-680-E (M .D . Ala. Feb. 15, 2009). (Summ. J. Resp. 49-51.) Citing § 12 of the Hammock

S e ttle m e n t Agreement, they argue that it requires that "all Captains [later redesignated b a tta lio n chiefs by the City] and Lieutenants promotions shall be accomplished through an a s s e s sm e n t center," but that "there is nothing in the Order that authorizes the City to screen w h ic h applicants go to the assessment center by use of a cut off score." (Summ. J. Resp. 49 (b ra c k e ts added).) Plaintiffs, thus, argue that the cutoff score on the written examination is a filter by which to eliminate applicants from proceeding to the assessment center, while the C ity takes the position that "a written test option was part of the assessment center offered b y CWH ­ not a separate matter" (Summ. J. Br. 43). The City, in essence, argues that " [ t]h e re was no intent to avoid a promotional process[,]" as that is what the City specifically s o u g h t to do ­ establish a promotional process through consultation with CWH. (Summ. J. R e p ly 16.) Alternatively, the City construes the Hammock Order as not disallowing an " o b je c tiv e measure of job knowledge" in the form of a written examination. (Summ. J. Br. 4 3 .) The City also asserts that, even assuming that "there was some technical violation (w h ic h the City adamantly denies), such is not evidence of race discrimination unless there
11

Plaintiffs do not in this case seek to state an independent cause of action for alleged violations of the Order. Nor do they bring a claim alleging breach of the Hammock Settlement Agreement.

25

is evidence that the City violated the order with the intent to discriminate against black a p p lic a n ts ." (Summ. J. Reply 15; see also Summ. J. Br. 43.) Here, Plaintiffs cite solid authority for the proposition that parties subject to a consent d e c re e are legally bound to adhere to its terms and that a failure to do so puts the infringing p a rty at risk of being held in contempt of court. (Summ. J. Resp. 51.) The Third Amended C o m p la in t, however, does not state an independent cause of action for alleged violations of th e Hammock Order, see supra note 11. Assuming without deciding that the court-approved H a m m o c k Settlement Agreement is the legal equivalent of a consent decree, the issue is not w h e th e r the City should be held in contempt of court for alleged violations of the Hammock O rd e r concerning the promotional procedures the City implemented to fill the battalion chief p o s itio n s in 2006. Rather, as to a violation's relevance to this lawsuit and Plaintiffs' claims, th e issue is whether any violation of the Hammock Order during the promotional process, if s u c h evidence exists, is sufficient to raise a jury question as to pretext. As to this issue, P la in tif f s cite no authority. But cf. Kobrin v. Univ. of Minn., 121 F.3d 408, 413 & 414-15 (8 th Cir. 1997) (rejecting the plaintiff's argument that the university's breach of a provision o f a consent decree that required the university to "recalculate . . . faculty gender statistics" p ro v e d that the proffered reason for not hiring the plaintiff was a pretext for unlawful sex d is c rim in a tio n ; holding that, "even if the University had recalculated the . . . faculty gender s ta tis tic s , [the plaintiff] would not have been hired"); NLRB v. Local 483 & Local 11, Int'l A ss 'n . of Bridge, Structural & Ornamental Ironworkers, AFL-CIO, 672 F.2d 1159, 1164 (3d

26

Cir. 1982) ("A failure to comply with the consent decree does not necessarily constitute a v io la tio n of the [National Labor Relations] Act," prohibiting "unfair labor practices[.]"). Here, Plaintiffs appear to argue that a deviation by the City from the Hammock Order in the process implemented to fill the battalion chief positions in 2006 creates a jury issue on th e issue of pretext because it illustrates the "differences in treatment" by the City between A f ric a n -A m e ric a n and Caucasian fire fighters. (Summ. J. Resp. 49.) But, that rationale is n o t persuasive. All twelve applicants for the battalion chief job ­ African-Americans and Caucasians a lik e ­ were required to take the written examination. (Ogletree Dep. 78; Reeves Aff. ¶ ¶ 12-13.) All received the same study materials. (See generally Summ. J. Br. 12-13; R e e v e s Aff. ¶ 14 (attesting that "[t]he application process was the same for each candidate[;] [ i]d e n tic a l test aid materials were distributed to each applicant"); Reeves Aff. ¶ 10.) All a p p lic a n ts who failed to score at least 70 on the written examination ­ those applicants being f o u r Caucasians and three African-Americans ­ were precluded from proceeding in the p ro m o tio n a l process and were not promoted. The evidence establishes that the AfricanA m e ric a n and Caucasian applicants for the battalion chief positions were treated equally, not d i f f e re n tly. On these facts, even assuming that the City's decision to implement a cutoff s c o re on the written examination for the battalion chief promotions violated the Hammock O rd e r, Plaintiffs have failed to provide evidence of any link between that alleged violation

27

and an alleged discriminatory intent by the City in requiring that all applicants for the b a tta lio n chief position score 70 on the written examination. P la in tif f s also complain that there are other incidents of the City's violations of the H a m m o c k Order illustrating differential treatment between Caucasian and African-American f ire f ig h te rs . In particular, Plaintiffs complain that, shortly before the battalion chief positions o p e n e d up, twelve team leaders "received a rank increase to [l]ieutenant without undergoing a n assessment center pursuant to the [Hammock] Order." (Summ. J. Resp. 49.) On this f a c tu a l record, however, it is too long an evidentiary leap from that event to an inference of a racially discriminatory intent by the City when it denied Plaintiffs a promotion because they f a ile d to score 70 on the written examination. See Clark v. Coats & Clark, Inc., 990 F.2d 1 2 1 7 , 1228 (11th Cir. 1993) ("[T]o avoid summary judgment [the plaintiff] must introduce s ig n if ic a n tly probative evidence showing that the asserted reason is merely a pretext for d is c rim in a tio n . " ) . For one thing, it is undisputed that Mr. Ogletree was one of the team le a d e rs reclassified to the rank of lieutenant; it is difficult to conceive how a decision that Mr. O g le tre e claims was beneficial to him later can be said to signify a discriminatory motive in th e City's decision to deny him a promotion to battalion chief. (See, e.g., Summ. J. Resp. 49; O g le tre e Dep. 10, 20.) For another thing, Plaintiffs have presented insufficient facts and a r g u m e n t s , and no authority, that establishes that the title change from team leader to lie u te n a n t ­ which undisputedly did not result in a change in pay, but did result in a change

28

in the uniform insignia1 2 (Lamar Aff. ¶ 7; Stephens Dep. 57; Langley Dep. 28) ­ was a " p r o m o t io n " governed by § 12 of the Hammock Settlement Agreement. See Perryman v. W e s t, 949 F. Supp. 815, 819 (M.D. Ala. 1996) (Job action must affect "a term or condition o f employment and [the job action] is not adverse merely because the employee dislikes it o r disagrees with it.") (brackets added). The court is not under an obligation, and declines to undertake one, to develop Plaintiffs' argument and scour the record for supporting e v id e n c e , should there be any. Cf. Argyropoulos v. City of Alton, 539 F.3d 724, 738 (7th Cir. 2 0 0 8 ) (Title VII employee's "perfunctory and undeveloped" argument was waived.); R e so lu tio n Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (There "is no b u rd e n upon the district court to distill every potential argument that could be made based u p o n the materials before it on summary judgment."). T o the extent that the alleged violation of the Hammock Order concerning the title c h a n g e would be relevant to the issue of whether the City discriminated against Plaintiffs b a s e d on their race in requiring them and all other applicants ­ African-American and C a u c a sia n alike ­ to score 70 on the written examination, Plaintiffs simply have not met their b u rd e n of presenting evidence from which it can be inferred that a violation of the Hammock O rd e r occurred. Even if they had, there is no evidence from which discriminatory intent can

Plaintiffs believe, but cite no authority in support of that belief, that the title change effectuated a promotion because the insignia on a lieutenant's uniform included one bugle, but the insignia on a team leader's uniform had no bugles. (Summ. J. Resp. 6; see also Summ. J. Resp. 5 ("Although the City claims this was not a promotion, it is a rank increase according to the insignia that the firefighters wear on their uniform."); Reeves Dep. 52-53.)

12

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be inferred. Accordingly, the court finds that any evidence of alleged noncompliance with th e Hammock Order is not probative of racial discrimination in this case. d. Q u a lif ic a t io n s

P la intiffs argue that they have demonstrated pretext by putting forth evidence showing th a t they had more years of service and more time-in-grade than the four individuals p ro m o te d to the position of battalion chief. At the same time, they fault the City for not ta k in g into account an employee's years of service and time-in-grade. (Ogletree Dep. 138; S te p h e n s Dep. 153; Summ. J. Resp. 10, 37.) The City does not dispute that, in the p ro m o tio n a l process for battalion chief, there was no consideration for seniority or time-ing r a d e . (Summ. J. Br. 6 (citing Reeves Dep. 71 & 93).) The City contends, however, that P l a in tif f s fail to present any evidence that its decision not to consider either factor is s o m e h o w related to race. (Summ. J. Br. 42.) In Abel v. Dubberly, 210 F.3d 1334 (11th Cir. 2000), cited by the City, the Eleventh C irc u it reiterated that an "`employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a d is c rim in a to ry reason.'" Id. at 1339 n.5 (quoting Nix v. WLCY Radio/Rahall Commc'ns, 738 F .2 d 1181, 1187 (11th Cir. 1984)). This is because a federal court should not and cannot "sit a s a super-personnel department that reexamines an entity's business decisions." Elrod v. S e a r s , Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). Against that backdrop, h o w e v e r, it is not impossible "to show pretext by asserting superior qualifications[.]" Tippie

30

v. Spacelabs Med., Inc., 180 F. App'x. 51, 55 (11th Cir. 2006); Ash v. Tyson Foods, Inc., 546 U .S . 454, 457 (2006) (per curiam) ("[Q]ualifications evidence may suffice, at least in some c irc u m s ta n c e s , to show pretext[,]" but the "`disparities in qualifications must be of such w e ig h t and significance that no reasonable person, in the exercise of impartial judgment, c o u ld have chosen the candidate selected over the plaintiff for the job in question.'" (citation o m itte d )). In general, however, qualifications must be adjudged based upon the employer's s e le c te d job criteria, as "a plaintiff may not establish that an employer's proffered reason is p re te x tu a l merely by questioning the wisdom of the employer's reasons, at least not where . . . the reason is one that might motivate a reasonable employer." Alexander v. Fulton C o u n ty , 207 F.3d 1303, 1339 (11th Cir. 2000) (quoting Combs, 106 F.3d at 1528); see also C h a p m a n , 229 F.3d at 1030 (A plaintiff is not permitted to "substitute his business judgment f o r that of the employer."). T h e salient question is not whether, on the basis of seniority and time-in-grade, P la in tif f s were so much more qualified for a battalion chief promotion than those promoted th a t the City could not have chosen those selected for the promotion over Plaintiffs. That is b e c a u s e the City did not consider either seniority or time-in-grade as to any applicant when m a k in g the promotion decisions. (Reeves Aff. ¶ 11.) Plaintiffs do not get to pick and choose th e City's criteria for awarding promotions, and to the extent that they ask this court to do so f o r the City, Plaintiffs essentially are asking for a federal court review of the City's personnel d e c is io n s .

31

Plaintiffs must instead offer evidence that the City's decision to give preliminary w e ig h t to the written examination's cutoff score, and no weight to seniority or time-in-grade, w a s for a racially discriminatory reason. Plaintiffs have presented no evidence that raises an in f e re n c e that the criterion adopted by the City is discriminatory. The City's decision not to c o n s id e r seniority or time-in-grade is not inconsistent with its past practices. Mr. Reeves a tte s ts that "[t]he Fire Division had not given points for seniority in past promotional p ro c e s s e s," and that "CWH had expressed some caution in regard to awarding points for s e n io rity and/or education."1 3 (Reeves Aff. ¶ 11.) Plaintiffs' subjective beliefs that they w e re more qualified than the Caucasian applicants who were promoted (see, e.g., Summ. J. R e sp . 15, 18; Ogletree Dep. 25-26) are unavailing. See, e.g., Barrow v. Ga. Pac. Corp., 144 F . App'x 54, 58 (11th Cir. 2005) (A Title VII plaintiff cannot establish pretext by " p re s e n t[ in g ] only his own unsubstantiated opinion that he was qualified for the position."). e. S t a t is t ic s

P la in tif f s suggest that the Fire Division's hiring and promotional practices reveal s ta tis tic a l disparities in the ratio of African-American and Caucasian firefighters and that th e s e disparities are evidence of pretext. (See Summ. J. Resp. 4-5.) Namely, Plaintiffs s u b m i t evidence for the purpose of demonstrating an estimate as to the marked disparity

Plaintiffs complain that some promotions within the Fire Division "utilized interviews," others "situational testing" and others "appointment[s]." (Summ. J. Resp. 4-5.) Plaintiffs, however, have not demonstrated the relevance or materiality of these processes to the complained-of battalion chief promotions. These processes pertained to other ranks, as well as to ranks not governed by the Hammock Order.

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between the number of African-American and Caucasian firefighters hired by the City since 1 9 9 1 . (Summ. J. Resp. 4 (citing Lamar Dep. 35-36 & Reeves Dep. 105, 107); Summ. J. R e sp . 5 (citing Ogletree Dep. 55).) Plaintiffs are correct that, in individual disparate treatment cases, "statistics may be re le v a n t to establish that an employer's articulated reason for an employment action is p re te x tu a l." Burney v. Rheem Mfg. Co., 196 F.R.D. 659, 667 (M.D. Ala. 2000) (emphasis a d d e d ) (citing McDonnell Douglas, 411 U.S. at 804-05). To be statistically meaningful on th e issue of pretext, however, there must be a way to discern whether the disparities in hiring " a re the result of legitimate or racially-discriminatory variables." Blackledge v. Ala. Dep't o f Mental Health & Mental Retardation, No. 2:06cv321, 2007 WL 3124452, at *20 (M.D. A la . Oct. 25, 2007); see also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2 0 0 4 ) ("Statistics without any analytical foundation are virtually meaningless.") (internal q u o ta tio n marks and citation omitted); accord Brown v. Am. Honda Motor Co., 939 F.2d 946, 9 5 2 (11th Cir. 1991). In Wilson, for example, analyzing an individual disparate treatment claim alleging d is c rim in a to ry failure to promote, the Eleventh Circuit rejected the plaintiff's proposed s ta ti s t i c a l evidence that, during a specified period of time, only two females had been s e le c te d to fill forty-four open positions for vice president. 376 F.3d at 1088. "This s ta tis tic a l evidence is not even probative of pretext because [the plaintiff] has not provided

33

any other relevant information, including the number of women who expressed interest in v ic e president positions." Id. at 1089. Here, Plaintiffs contend that, since 1991, the City has hired forty-eight Caucasian f ire f ig h te rs , but only five African-American firefighters, that the student firefighter program h a s resulted in the hiring of only one African-American (who happens to be Mr. Stephens), a n d that there presently are only three African-American firefighters in the City's Fire D iv is io n . (Summ. J. Resp. 4.) Similar to Wilson, however, there is an absence of evidence a s to the total number of applicants who applied for firefighter positions with the City's Fire D iv is io n and the percentage of African-Americans in that hiring pool. The portions of the re c o rd upon which Plaintiffs rely to show a racial hiring disparity either do not mention at a ll the number and race of the applicants who applied for the various positions (see Lamar D e p . 35-36), or are conclusory and/or based upon inadmissible hearsay (see Reeves Dep. 1 0 5 -0 7 ; Ogletree Dep. 55). See also Macuba v. Deboer, 193 F.3d 1316, 1325 (11th Cir. 1 9 9 9 ) (To be admissible on summary judgment, evidence "would [have to] be admissible at tria l under an exception to the hearsay rule."); Duffy v. Leading Edge Prods., Inc., 44 F.3d 3 0 8 , 312 (5th Cir. 1995) ("[C]onclusory allegations unsupported by concrete and particular f a c ts will not prevent an award of summary judgment."). Hence, there is not an adequate s ta tis tic a l foundation from which to infer that the disparity between the number of AfricanA m e ric a n s and Caucasians employed as firefighters with the City either is or is not probative

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of racial discrimination. Because the statistics are devoid of any analytical value, this e v id e n c e has no probative value on the issue of pretext. f. R a c ia l Slurs

P la in tif f s argue that they have presented evidence of racial animosity on the part of tw o of the decision-makers, Mr. Langley and Mr. Lamar, and that discrimination can be in f e rre d from that animus. (Summ. J. Resp. 43.) Specifically, they rely on an affidavit from a former City firefighter, William Felton ("Mr. Felton"), who was employed in the Fire D iv is io n from 1974 to 1999. (Felton Aff. (Ex. W to Doc. # 80).) Mr. Felton attests that Mr. L a n g le y and Mr. Lamar "regularly" used the "N-word" when referring to African-American f ire f ig h te rs .14 (Felton Aff. 1.) It is true that the "[d]isparate treatment analysis requires that none of the participants in the decision-making process be influenced by racial bias." Jones v. Gerwens, 874 F.2d 1 5 3 4 , 1541 n.13 (11th Cir. 1989). Moreover, a decision-maker's race-based derogatory re m a rk s can be used to support an inference that an employment decision was motivated by a n impermissible racial bias. In Ross v. Rhodes Furniture, Inc., 146 F.3d 1286 (11th Cir. 1 9 9 8 ), a Title VII race discrimination case cited by Plaintiffs, the employee offered evidence th a t, approximately four years prior to his termination, a supervisor involved in his
Plaintiffs also rely on an affidavit submitted by one of their colleagues as evidence of racial animosity on the part of Mr. Langley. (See Horace Clanton Aff. 3 (Ex. V to Doc. # 80); Summ. J. Resp. 11, 52.) It cannot be inferred, in the context presented, that Mr. Langley's statement that other firefighters did not want to work for Mr. Stephens is a statement about race. No reason is given or suggested as to why Mr. Langley said that other firefighters did not want to work for Mr. Stephens. It could be for a reason wholly unrelated to race. There simply is not a sufficient foundation to determine whether the statement is or is not probative of racial animosity on the part of Mr. Langley.
14

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termination, said, "`I never seen as many blacks in this building except in a Tarzan movie.'" Id. at 1291. The Eleventh Circuit explained, "Although we have repeatedly held that such c o m m e n ts are not direct evidence of discrimination because they are either too remote in tim e or too attenuated because they were not directed at the plaintiff, . . . we have not held th a t such comments can never constitute circumstantial evidence of discrimination." Id.; see a ls o Rojas v. Florida, 285 F.3d 1339, 1343 (11th Cir. 2002) (holding that, when there is other e v id e n c e of pretext, a supervisor's racially-biased remark which is not directly related to the e m p lo ym e n t decision "can contribute to a circumstantial case for pretext"). Contrary to Plaintiffs' argument (Summ. J. Resp. 52), however, the evidence is not d ire c t evidence. Mr. Felton left the Fire Division in 1999 (Felton Aff. 1), some six or seven ye a rs prior to the 2006 promotion denials at issue in this case. The racially-derogatory re m a rk s , as reported by Mr. Felton, thus, were not made close in time to the promotions at is su e , and whether the remarks were made directly to Plaintiffs is not established by Mr. F e lto n 's affidavit. (Felton Aff. 1.) The evidence can constitute circumstantial evidence of p re te x t, but absent any other evidence that implementing a cutoff score on the written test w a s a coverup for discrimination, the past racial slurs, although certainly not condoned, c a n n o t on this record serve to create a jury issue on pretext. g. C o m p a r is o n with Sledge

A s a final point, Plaintiffs' failure to raise a genuine issue of material fact as to pretext f u rth e r is illuminated when the facts are compared to those of another case where the

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Eleventh Circuit found that the employee sustained his summary judgment burden on his T itle VII claims alleging racial discrimination in promotions. In Sledge, the two applicants ­ the African-American plaintiff and another Caucasian employee ­ both failed the allegedly re q u ire d written test for a mechanic promotion, yet the Caucasian employee was promoted in s te a d of the plaintiff. See 275 F.3d at 1018. There also was evidence that, as to other p ro m o tio n s granted to Caucasian applicants, the plaintiff either was denied an interview or w a s not permitted to sit for the written test, with no articulated reason given by the employer f o r the refusals. Id. at 1019-20. In another instance in Sledge, a Caucasian employee who w a s promoted was permitted to skip certain portions of the written test, but the plaintiff was re q u ire d to take the entire written test and had to do so at the end of his twelve-hour shift, id. a t 1017 & 1020; the plaintiff failed the test, but if he had been permitted to skip the c o m p o n e n t of the test that the Caucasian employee was excused from taking, the plaintiff w o u ld have received a passing score, id. at 1017. Viewing those facts in the light most f a v o ra b le to the plaintiff, the Eleventh Circuit held that the employer's stated reason for d e n yin g the plaintiff the promotions at issue ­ i.e., that the plaintiff did not pass the written te s t ­ was a pretext for racial discrimination. Id. at 1020. H e re , contrary to Sledge, there is no evidence that any Caucasian applicant failed the w ritte n examination, but nonetheless was promoted. There also is no evidence that any C a u c a s ia n applicant who failed the written examination was permitted to continue in the p ro m o tio n a l process. Nor is there any evidence that any Caucasian applicant was not

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required to take the entire test under the identical testing conditions as Plaintiffs. Plaintiffs a ls o have not submitted any evidence that they were denied training or study materials that w e re provided to t