Smith v. Southern Union Community College

Filing 31

MEMORANDUM OPINION AND ORDER that Southern Union Community College's 20 Motion for Summary Judgment is DENIED. Signed by Honorable William Keith Watkins on 7/23/2009. (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 R A Q U E L SMITH, P l a in tif f , v. S O U T H E R N UNION COMMUNITY COLLEGE, D e f e n d a n t. ) ) ) ) ) CASE NO. 3:08-CV-414-WKW[WO] ) ) ) ) )

M E M O R A N D U M OPINON AND ORDER I . INTRODUCTION P la in tif f Raquel Smith ("Smith"), who is African-American, brings this race d is c rim in a tio n and retaliation action against her former employer, Southern Union C o m m u n ity College ("Southern Union"), pursuant to Title VII of the Civil Rights Act of 1 9 6 4 , 42 U.S.C. §§ 2000e-2000e-17 ("Title VII").1 Ms. Smith asserts that she was

te rm in a te d from her temporary appointment as a Recruiter/Academic Advisor based upon h e r race, and that she applied for a permanent appointment to the same job title, but was d e n ie d the appointment based upon her race and in retaliation for having filed a charge of d is c rim in a tio n with the Equal Employment Opportunity Commission ("EEOC"). Before the court is Southern Union's Motion for Summary Judgment (Doc. # 20), w h i c h is accompanied by a brief (Doc. # 21) and an evidentiary submission (Doc. # 20). Ms.

Contrary to Ms. Smith's statement in her brief (Pl. Resp. 23 (Doc. # 25)), a violation of 42 U.S.C. § 1981 is not alleged in the Complaint.

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S m ith filed a response (Doc. # 25) and an evidentiary submission (Doc. # 24). Based upon a careful consideration of the arguments of counsel, the relevant law and the record as a w h o le , the court finds that the motion for summary judgment is due to be denied. I I . JURISDICTION AND VENUE T h e court properly exercises subject matter jurisdiction over this action, pursuant to 2 8 U.S.C. § 1331 (federal question jurisdiction) and 28 U.S.C. § 1343 (civil rights ju ris d ic tio n ). Personal jurisdiction and venue are adequately pleaded and are not contested. I I I . STANDARD OF REVIEW S u m m a r y 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 t h 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 i n favor of the party opposing summary judgment." Haves v. City of Miami, 52 F.3d 918, 9 2 1 (11th Cir. 1995).

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O n c e 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." R u le 56(e)(2). To avoid summary judgment, the non-moving party "must do more than s im p ly 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 rm a r k e ts of Fla., Inc., 196 F.3d 1354, 1358 (11th Cir. 1999) (internal quotation marks an d citation omitted). I V . FACTS 2 M s. Smith formerly was employed by Southern Union, a community college with c a m p u s e s located in Wadley, Opelika and Valley, Alabama. Ms. Smith was hired pursuant t o a temporary appointment as a Recruiter/Academic Advisor at the Opelika campus, e f f e c tiv e February 10, 2006. Although Ms. Smith's Letter of Appointment does not indicate th e duration of her appointment (Def. Ex. 25 (Doc. # 24-26)), the pertinent policies dictate th a t a temporary appointment may not exceed one year, unless an extension is obtained from the chancellor (Ex. C to Salatto Aff. (Doc. # 20-11, at 10)). Ms. Smith's temporary a p p o in tm e n t was extended until August 31, 2007, at the request of then-President Susan S alatto ("President Salatto"). (Pl. Decl. ¶ 3 (Doc. # 24-2).)
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The material facts are presented in the light most favorable to Ms. Smith, but it is recognized that many of those facts are in dispute. Facts which are immaterial to the pivotal issues are omitted.

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T h e re is evidence that a Southern Union employee is considered "tenured" after three ye a rs of employment (Salatto Dep. 27-28, 36, 45 (Ex. to Doc. # 20)), but Ms. Smith did not re a ch the three-year mark. Another extension of Ms. Smith's temporary appointment was n o t sought. (Salatto Dep. 61.) Instead, on August 14, 2007, President Salatto hand-delivered to Ms. Smith a letter stating that her "employment with Southern Union . . . is terminated e f f e c t iv e August 31, 2007." (Pl. Ex. 35 (Doc. # 24).) This came as a "surprise[]" to Ms. S m ith .3 (Pl. Decl. ¶ 13.) A c c o rd in g to President Salatto, Ms. Smith was terminated because August 31, 2007 w a s the end of the extension of her temporary appointment and Southern Union intended to a d v e rtise and fill the position as a permanent appointment. (Def. Br. 6-7 (Doc. # 21); Salatto A f f . 2 (Doc. # 20-11).) In fact, a permanent position for a Recruiter/Academic Advisor p o s itio n had been advertised for several weeks prior to Ms. Smith receiving her termination le tte r (Advertisement (Doc. # 24-35)), and Ms. Smith had applied for that position the day p rio r to receiving her termination letter (Pl. Dep. 123).4

Ms. Smith was under the impression that if she performed her job satisfactorily, she would remain in her present position for a three-year period at which time she would become a tenured employee. (Pl. Decl. ¶ 3.) Ms. Smith's belief, even if proved wrong, is not inconsistent with a finding made when an onsite review of Southern Union's human resources practices was conducted in 2007 at the request of Chancellor Bradley Byrne. Namely, that finding was that, "from a review of random temporary jobs and reorganization[,] it is more likely that if an employee takes a temporary position[,] in a few years the position becomes permanent for that employee, without being advertised." (Southern Union Cmty. College Review, Executive Summary, at 24 (Pl. Ex. 2 to Doc. # 24).)
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Ms. Smith did not know that she would receive a letter of termination the next day.

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A ro u n d the same time that Ms. Smith was notified of her termination, President S alatto effected a one-person "reorganization" (Salatto Dep. 69), and appointed Carol Howell (" H o w e ll"), a Caucasian employee, into a permanent position as a Recruiter/Academic A d v is o r at the Opelika campus where Ms. Smith also worked.5 (Salatto Dep. 15, 50.) The re o rg a n iz a tio n resulted in a 25 percent pay increase for Ms. Howell. (Salatto Dep. 67.) B e c au s e that appointment was made based upon a "reorganization," the applicable policies d id not require President Salatto to advertise the position or to accept applications. (Salatto D e p . 51, 68, 71-72.) Believing that her termination was discriminatory and that she was tre a te d unfavorably as compared to Ms. Howell, Ms. Smith filed an EEOC charge on S ep tem b er 7, 2007. (Pl. EEOC Charge (Ex. 38 to Doc. # 24).) As to the advertised position for which Ms. Smith had applied, a memorandum dated S e p te m b e r 18, 2007, reflects that the committee chose ten applicants, including Ms. Smith, f o r an interview. The interviews were conducted by the committee which narrowed the ap p lica n ts to three. Ms. Smith did not make the cut. As reflected in the committee's m e m o r a n d u m dated October 4, 2007, the three finalists were recommended to President S a la tto for a final interview. (Ex. 26 to Salatto Dep. (Doc. # 20-7, at 25).) It is undisputed th a t an African-American female was selected for the position. (Salatto Aff. 2.) M s. Smith filed this lawsuit on June 2, 2008, asserting claims pursuant to Title VII. A f te r a period of discovery, the present motion for summary judgment was filed.
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Ms. Howell's contract for the promotional appointment to Recruiter/Academic Advisor is dated August 13, 2007. (Howell's Contract of Employment (Pl. Ex. 20 to Doc. # 24).)

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V . DISCUSSION M s. Smith seeks to prove discriminatory and retaliatory intent on the part of Southern U n io n based upon circumstantial evidence. The analysis, therefore, is governed by the b u rd e n -s h if tin g framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1 9 7 3 ). "Under the McDonnell Douglas framework, a plaintiff first must show an inference o f discriminatory intent, and thus carries the initial burden of establishing a prima facie case o f discrimination." Brooks v. County Comm'n, 446 F.3d 1160, 1162 (11th Cir. 2006). Once a plaintiff establishes a prima facie case, the burden shifts to the employer "to `articulate s o m e legitimate, nondiscriminatory reason' for the adverse employment action." 6 Crawford v . Carroll, 529 F.3d 961, 976 (11th Cir. 2008) (quoting McDonnell Douglas, 411 U.S. a t 802). If the employer meets its burden, the burden shifts back to the plaintiff to show that th e employer's stated reason for the adverse employment action was a "pretext" for d is c rim in a tio n . Id. The pretext inquiry requires a determination, based upon the totality of th e evidence,7 as to whether the plaintiff "`has cast sufficient doubt on the defendant's p ro f f ere d nondiscriminatory reason[] to permit a reasonable factfinder to conclude that the em p loyer's proffered legitimate reason[] [was] not what actually motivated its conduct.'"

The principles in Brooks and Crawford apply equally to retaliation claims. See Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999) ("[T]he same analytical framework applies to retaliation claims as applies to other employment discrimination claims, including the availability of the McDonnell Douglas presumption."). The entire record must be considered, and it must be considered in the light most favorable to the non-movant. See, e.g., Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).
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Id . (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997) (brackets ad d ed )). A. T e r m in a tio n Claim 1. P r im a Facie Case

S o u th e rn Union says that Ms. Smith cannot establish a prima facie case on her racial te rm in a tio n claim because she has not demonstrated that she was treated differently than a sim ilarly-situ a ted Caucasian employee. Ms. Smith, however, can bypass the "similarly s itu a te d " prong of the prima facie case by demonstrating instead that she was replaced by s o m e o n e outside her protected class.8 See Maynard v. Bd. of Regents, 342 F.3d 1281, 1289 (1 1 th Cir. 2003). And, here, Ms. Smith claims that she was "replaced" by Ms. Howell, who is Caucasian. (Pl. Resp. 15 (Doc. # 25).). Construed favorably to Ms. Smith, the following evidence weighs in her favor. First, M s . Howell was appointed to a position with the same job title and duties as the position b e in g vacated by Ms. Smith's termination. (Salatto Dep. at 15-17, 50-51.) Second, there is a temporal link between Ms. Howell's appointment to the position of Recruiter/Academic A d v is o r and Ms. Smith's termination. Namely, Ms. Howell's contract of employment, which is dated August 13, 2007, precedes the date Ms. Smith received notification of her

Southern Union's argument focuses only on the fourth prima facie element. The other three elements are not at issue, i.e., that Ms. Smith is a member of a protected class, that she was qualified to work as a Recruiter/Academic Advisor and that she suffered an adverse employment action when she was terminated. See Maynard, 342 F.3d at 1289. These three elements are presumed established for purposes of this opinion, and the analysis is confined to the fourth element.

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ter m in a tio n by merely one day. Third, Ms. Howell was moved from the Wadley campus to th e Opelika campus when appointed to the position of Recruiter/Academic Advisor (Salatto D e p . 47, 49); hence, Ms. Howell was relocated to the same campus where Ms. Smith worked. F o u r th , the employee whose resignation allegedly created the opening that permitted Ms. H o w e ll to move into a Recruiter/Academic Advisor position did not bear the same title or h a v e the same job duties. (Salatto Dep. 20-21, 49.) Fifth, the decisionmaker who

o rc h e stra ted the reorganization for Ms. Howell and terminated Ms. Smith's employment is th e same (President Salatto). As argued by Southern Union, there also is evidence that weighs in its favor. First, there were two positions for Recruiter/Academic Advisor, not one, and Ms. Smith's te rm in a tio n did not result in the elimination of one of those two positions. Second, but w e a k er, Ms. Howell was reorganized into her position prior to the date of Ms. Smith's te rm in a tio n . According to Southern Union, it should be inferred from the two-week overlap in employment that Ms. Howell did not replace Ms. Smith. (Salatto Dep. 16, 17, 51.) Third, th e re is evidence that the then-chancellor extended Ms. Smith's temporary appointment, but w ith the caveat that a "search [would] be conducted to fill th[at] position on a permanent b a sis ." (Corts Letter (Ex. 8 to Salatto Dep.); Salatto Dep. 62.) The letter's inference urged b y Southern Union is that the African-American applicant who was selected as a result of the a d v e rtis e d Recruiter/Academic Advisor position is the one who replaced Ms. Smith.

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B a se d on the foregoing, the court finds that the evidence contains opposing facts and re a so n a b le but competing inferences as to who replaced Ms. Smith, creating the requisite g e n u in e issue of material fact and making summary judgment in favor of Southern Union in a p p ro p ria te . In other words, drawing all reasonable inferences in Ms. Smith's favor, the c o u r t finds that, although disputed by Southern Union, there is enough evidence to establish th e fourth element of the prima facie case. No other element being challenged, Ms. Smith h as sustained her prima facie burden. 2. L e g itim a te , Non-Discriminatory Reason

S o u th ern Union has presented competent evidence of a legitimate, non-discriminatory re a s o n for terminating Ms. Smith, and no argument to the contrary has been made. Namely, P r e sid e n t Salatto has testified that Ms. Smith was terminated because the extension of her a p p o in tm e n t had ended and the Recruiter/Academic Advisor position was going to be filled a s a permanent position based upon a competitive application process. (Salatto Aff. 2; S a la tto Dep. 62.) The analysis, thus, turns to pretext. 3. P r e te x t

M s. Smith's evidence of pretext focuses on Southern Union's alleged failure to apply its written policies in an "even-handed [sic] . . . manner." (Pl. Resp.; see also Pl. Resp. 19 (S o u th e rn Union "selectively applied its policies and procedures.").) In the Eleventh Circuit, " [ d ]e p a rtu re s from normal procedures may be suggestive of discrimination." Morrison v. B o o th , 763 F.2d 1366, 1374 (11th Cir. 1985). Deviations from employer policies are even

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m o re "suspicious" where there is evidence that "established rules were bent or broken to give a non-minority applicant an edge[.]" Carter v. Three Springs Residential Treatment, 132 F .3 d 635, 644 (11th Cir. 1998). T h e court agrees with Ms. Smith that there is sufficient circumstantial evidence, when c o m b in e d with the prima facie case, from which a reasonable jury could side with Ms. Smith o n the issue of pretext. As to Southern Union's overall practices, there is evidence that w ritte n policies for posting vacancies were not consistently followed. The onsite reviews c o n d u c te d in the fall of 2007 revealed that Southern Union failed to ensure that "all open p o s itio n s " were "posted" and "advertised as required[.]" (Southern Union Cmty. College R e v ie w , Executive Summary, at 24 (Pl. Ex. 2 (Doc. # 24); see also Pl. Resp. 6.) The s u s p ic io n of policy deviation in this case is heightened based upon the evidence that P r e sid e n t Salatto created a new Recruiter/Academic Advisor position at the Opelika campus, b u t rather than handling the new position as a vacancy subject to the advertising and c o m p e titiv e selection policies (Pl. Ex. 12, at 3; Salatto Dep. 109), she appointed Ms. Howell to that position, thereby foreclosing a competitive application process for that position (S a la tto Dep. 15, 17, 72-73, 78, 96; Pl. Ex. 12, at 4) and at the same time effectuating a 25 p erc en t increase in Ms. Howell's salary (Salatto Dep. 67).9

The position at the Wadley campus that was vacated by Ms. Howell when she was moved into the position of Recruiter/Academic Advisor was advertised, in accordance with governing written procedures. (Salatto Dep. 69.)

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M o re o v e r, the onsite review also resulted in a finding that after reviewing "random tem p o rary jobs and reorganizations," . . . it was "likely that if an employee t[ook] a temporary p o s itio n [ ,] in a few years the position [would] become[] permanent for that employee, w ith o u t being advertised.'" (Southern Union Cmty. College Review, Executive Summary, at 24.) This finding from the onsite review again bears on Southern Union's failure to adhere to its written policies for competitive recruitment for filling open positions. Taking it one s te p further, Ms. Smith says that in her case, when her appointment was not renewed and/or d id not result in a permanent position, Southern Union failed to follow even its unwritten (a lb e it improper) custom of allowing an employee's temporary position to transform into a p e rm a n e n t position. T h e court need not decide whether any or all of Southern Union's alleged policy d e p a rtu re s , in combination with the prima facie case, give rise to Title VII liability. It is s u f f ic ie n t that the court finds that the totality of the evidence amply brings into question the leg itim a c y of Southern Union's only proffered non-discriminatory reason such that a re a so n a b le jury could deduce that the asserted reason was not the true motivator for the ter m in a tio n . The question of liability will be for the jury; therefore, this claim proceeds to trial. B. F a ilu r e -to -H ire Claim Ms. Smith also contends that she was rejected for the advertised permanent position f o r a Recruiter/Academic Advisor on the basis of race and in retaliation for having filed an

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E E O C charge. With respect to these claims, the prima facie cases are analyzed separately b e lo w , followed by an integrated discussion of whether Ms. Smith has raised a jury issue on the question of whether Southern Union's proffered non-discriminatory and non-retaliatory re a so n for her non-selection is pretext.1 0 1. P r im a Facie Case: Race Discrimination

S o u th e rn Union has argued that the undisputed fact that an African-American a p p lic a n t was selected for the position for which Ms. Smith applied prevents her from e sta b lis h in g a prima facie case. (Def. Br. 10.) It, however, has not cited any authority in s u p p o rt of that contention. In Jefferies v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir. 1 9 8 0 ),11 the former Fifth Circuit held that the plaintiff failed to prove at trial that a denied p ro m o tio n was racially discriminatory. See id. at 1030. The Jefferies court relied upon a p r io r decision in which it was concluded that "[w]here both the person seeking to be prom oted and the person achieving that promotion were women, `because the person selected w a s a woman, we cannot accept sex discrimination as a plausible explanation for (the p ro m o tio n ) decision." Id. (quoting Adams v. Reed, 567 F.2d 1283, 1287 (5th Cir. 1978)). In Howard v. Roadway Express, Inc., 726 F.2d 1529 (11th Cir. 1984), rejecting Jefferies as

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The parties' arguments merge at the second and third stages of the McDonnell Douglas

analysis. See Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc) (adopting as binding precedent all decisions of the former Fifth Circuit issued prior to October 1, 1981).
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a "per se rule," the Eleventh Circuit held that the district court misinterpreted the law by c o n c lu d in g that "there can be no racial discrimination against a black person who is not s e le c te d for a job when the person who is selected for the job is black." Id. at 1534 (internal q u o ta tio n marks omitted). The court in Howard, which was an appeal from the entry of s u m m a ry judgment in the employer's favor, focused on what is required to establish a prima fa c ie case of race discrimination. The Howard court found Jefferies factually

d is tin g u is h a b le , see Howard, 726 F.2d at 1534 & n.4, and found more on point a Fifth Circuit d ec isio n where the court "rejected the proposition that under McDonnell Douglas . . . , an a b so lu te requirement for a prima facie case is a showing that after the plaintiff's discharge th e defendant hired a person who was not in the plaintiff's protected class," id. at 1534 (c itin g Jones v. W. Geophysical Co. of Am., 669 F.2d 280 (5th Cir. 1982)). In Jones, it was s a id that "[t]he underlying purpose of the fourth element in the McDonnell Douglas f o rm u la tio n is precisely to establish this unlawful inference of discrimination. But proof that th e employer replaced the fired minority employee with a nonminority employee is not the o n ly way to create such an inference." 669 F.2d at 284; see also Murray v. Gilmore, 406 F .3 d 708, 715 (D.C. Cir. 2005) (A hiring selection within the same protected class as the p la in tiff "cut[] strongly against any inference of discrimination," but does not prevent a p la in tif f from establishing a prima facie case of discrimination.). In Howard, the Eleventh Circuit concluded that the fact that an African-American was h ire d after the employer had rejected the African-American plaintiff's application was not

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th e deciding summary judgment factor. Howard, 726 F.2d at 1535. There was an elevenm o n th time lapse between the plaintiff's rejection and the hiring of another AfricanA m e ric a n , thereby "significantly diminish[ing] the reliability of the subsequent hiring as an in d ic a to r of [the employer's] intent at the time it rejected [the plaintiff's] application." Id. A d d itio n a lly, during that eleven-month interim, the plaintiff had filed an EEOC charge, " su g g e st[ in g ] that the hiring might have been motivated by the filing." Id. "The hiring, then, w o u ld scarcely rule out the inference of discrimination in connection with the earlier denial o f [the plaintiff's] application." Id. Also, the plaintiff urged that regardless of the race of the individual hired, he had been "denied employment as a result of a racially discriminatory p ra c tic e , i.e., the requirement that black applicants, unlike their white counterparts, undergo p o lyg ra p h examination." Id. The grant of summary judgment in the employer's favor was re v e rs e d . See id. at 1536. W ith those authorities cited, it admittedly is a close call whether on this record the fact th a t an African-American was hired for the position for which Ms. Smith applied is a death k n ell to the establishment of her prima facie case, but it is not a call that the court is inclined to make in favor of Southern Union on the basis of its undeveloped argument. Here, a lth o u g h it appears settled, unlike in Howard, that Ms. Smith and the chosen applicant were i n the same pool of applicants being considered for the advertised vacancy for the R e c ru ite r/A c a d em ic Advisor position,1 2 this case is like Howard in that Ms. Smith filed an
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As to the ultimate issue of discrimination, footnote 4 in Howard would appear to weigh heavily against Ms. Smith. See 726 F.2d at 1534 n.4.

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E E O C charge during the selection process for the position, but before the hiring decision was m a d e . Hence, as in Howard, the fact that Southern Union hired an African-American a p p lic a n t "only after [Ms. Smith] had filed a charge with the EEOC suggests that the hiring m ig h t have been motivated by the filing." 726 F.2d at 1535. There also are, as has been d is c u ss e d , allegations that Southern Union failed to follow its written policies for filling v a c a n t positions. Additionally, in further keeping with Jones's admonition that the prima facie case is e la stic , 669 F.2d at 284, the court has not overlooked Ms. Smith's argument that she has estab lish ed the fourth element of her prima facie case because Ms. Howell is a similarlys itu a te d comparator who was treated more favorably. 1 3 Southern Union is correct that the p r o p o s e d comparator "must be similarly situated `in all relevant respects'" or, in other words, m u s t be "nearly identical to the plaintiff[.]" Corbitt v. Home Depot U.S.A., Inc., ___ F.3d _ _ _ , 2009 WL 1981383, at *20 (11th Cir. July 10, 2009) (quoting Wilson v. B/E Aerospace, In c ., 376 F.3d 1079, 1091 (11th Cir. 2004)). Here, Southern Union argues that Ms. Howell is not a valid comparator, principally because she was a tenured employee, having been

"In a traditional failure-to-hire case, the plaintiff establishes a prima facie case by showing that: (1) [s]he was a member of a protected class; (2) [s]he applied and was qualified for a position for which the defendant was accepting applications; (3) despite h[er] qualifications, [s]he was not hired; and (4) after h[er] rejection the position remained open or was filled by a person outside h[er] protected class." Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999) (brackets added). Here, only the fourth element is in contention, and it is subject to variation from the traditional model. See id. at 1268 (The prima facie case is not "rigid or inflexible."). It is notable also that while a plaintiff can establish the fourth element of her prima facie case by showing that the position was filled by a person outside her protected class, as discussed herein, the inverse is not necessarily true, i.e., that a showing that the position was filled by a person of the same protected class precludes the demonstration of a prima facie case.

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e m p lo ye d by Southern Union since 1999. (Def. Br. 11.) There is a different angle from w h i c h to view Ms. Howell's tenure, however, one that is more appropriate on this record. It is the fact that Ms. Howell's initial temporary appointment turned into a permanent a p p o in tm e n t after roughly seven months (Pls. Exs. 21-22), and that from there she was able to obtain tenure and ultimately a promotional appointment to a permanent position as a R e c ru ite r/A c a d em ic Advisor. These progressions arguably demonstrate that Ms. Howell has b ee n treated more favorably than Ms. Smith. In other words, it is arguable that Ms. Howell's te n u re d status does not render her dissimilarly situated to Ms. Smith, but rather shows that M s . Howell was accorded more favorable treatment. Southern Union's sole emphasis on Ms. H o w e ll's tenured status as a factor that makes Ms. Howell dissimilarly situated, thus, is not p e rs u a siv e . In sum, based upon careful consideration of the arguments and the totality of the e v id e n c e, Ms. Smith's race-based failure-to-hire claim will be permitted to proceed past the p rim a facie case. 2. P r im a Facie Case: Retaliation

" T o make a prima facie case of retaliation under Title VII, a plaintiff must show that: ( 1 ) [s]he engaged in an activity protected under Title VII; (2) [s]he suffered an adverse e m p lo ym e n t action; and (3) there was a causal connection between the protected activity and th e adverse employment action." Corbitt, ___ F.3d at ___, 2009 WL 1981383, at *13. Only the third element is challenged by Southern Union. (Def. Br. 12.) A causal connection can be established through evidence "`that the protected activity an d the adverse action were not wholly unrelated.'" Brungart v. BellSouth Telecomms., Inc., 16

2 3 1 F.3d 791, 799 (11th Cir. 2000) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1 3 5 4 (11th Cir. 1999)). "[T]o show the two things were not entirely unrelated, the plaintiff m u s t generally show that the decision maker was aware of the protected conduct at the time o f the adverse employment action," id., and that there is a "`close temporal proximity' b etw ee n the protected expression and [the] adverse . . . action,'" Higdon v. Jackson, 393 F.3d 1 2 1 1 , 1220 (11th Cir. 2004) (quoting Shotz v. City of Plantation, Fla., 344 F.3d 1161, 1180 n .3 0 (11th Cir. 2003)). As to temporal proximity, the Eleventh Circuit in Higdon recognized th a t it previously "ha[d] held that a period as much as one month between the protected e x p re ss io n and the adverse action is not too protracted." Id. S o u th e rn Union says that because the "hiring process" for the Recruiter/Academic A d v is o r position "had begun well before" Ms. Smith filed her EEOC charge on September 7 , 2007, there is no causal connection between her non-selection and the protected activity. (D e f . Br. 12.) But, this argument is perfunctory, and ignores the timeline of the hiring p ro c e ss . It is true that Ms. Smith filed her EEOC charge after she submitted her application f o r the open Recruiter/Academic Advisor position on August 13, 2007; however, a m e m o r a n d u m from the committee chair to President Salatto, dated September 18, 2007, re v e als that Ms. Smith's interview occurred after Ms. Smith filed her September 7 EEOC ch arg e. As to when Ms. Smith was rejected, there is evidence that the three finalists were re c o m m e n d e d to President Salatto for a final interview on October 4, 2007. (Ex. 26 to S a la tto Dep. (Doc. # 20-7, at 25).) Because Ms. Smith was not one of the three finalists, her re je c tio n occurred at the latest on October 4. Given this timeline, at the outer limit, less than 17

o n e month transpired between Ms. Smith's filing of her EEOC charge (September 7) and her re je c tio n for the Recruiter/Academic Advisor position (October 4). There, thus, is temporal p ro x im ity between the protected activity and the adverse employment action. See Higdon, 3 9 3 F.3d at 1220. F o c u s in g on the committee as the decisionmaker, given that it is the entity that w h ittled down the applicant pool to three and eliminated Ms. Smith in that process, Southern U n io n also has argued that "there is no evidence that the committee . . . was even aware of th e fact that Ms. Smith had filed an EEOC charge." (Def. Br. 12.) In her response, Ms. S m ith has not mentioned the knowledge component, instead focusing solely on temporal p rox im ity to establish the required causal connection. (Pl. Resp. 16.) In Brungart, the Eleventh Circuit explained that "[t]he general rule is that close te m p o r a l proximity between the employee's protected conduct and the adverse employment a c tio n is sufficient circumstantial evidence to create a genuine issue of material fact of a c a u sa l connection." 231 F.3d at 799 (emphasis added); see also Higdon, 393 F.3d at 1220. B r u n g a r t, however, recognized that "there is this exception" to that general rule: " [ T ]e m p o r a l proximity alone is insufficient to create a genuine issue of fact as to causal c o n n e c t io n where there is unrebutted evidence that the decision maker did not have k n o w led g e that the employee engaged in protected conduct." 231 F.3d at 799 (emphasis a d d e d ); see also Corbitt, ___ F.3d at ___, 2009 WL 1981383, at *14 (citing Brungart with a p p ro v a l) .

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I n Brungart, the summary judgment record contained express testimony from the d e c is io n m a k e r that when he terminated the plaintiff, he was not aware that the plaintiff had e n g a g e d in statutorily-protected conduct, and there was no evidence contradicting his te stim o n y. 231 F.3d at 794. Similarly, in Hudson v. Southern Ductile Casting Corp., 849 F .2 d 1372 (11th Cir. 1988), also on appeal from a summary judgment ruling, there was "u n co n trad icted " evidence that when the plaintiff was fired, the decisionmaker was unaware th a t several years earlier the plaintiff had threatened to file an EEOC charge of discrimination c o n c e rn in g a denied promotion. Id. at 1376; see also McCollum v. Bolger, 794 F.2d 602, 610 (1 1 th Cir. 1986) (affirmative evidence of the absence of knowledge by the decisionmaker of p ro te c te d activity defeated the retaliation prima facie causation element). The facts in this case are distinguishable from those in Brungart, Hudson, and M c C o llu m . In each of those cases, the employer offered affirmative evidence from the d e c is io n m a k e r that he had no knowledge of the protected conduct. Southern Union has not p o in te d to any evidence in the record that affirmatively demonstrates that, during the s e le c tio n process, no member of the committee or President Salatto had knowledge that Ms. S m ith had filed an EEOC charge on September 7, 2007. For instance, no affidavit or d e p o sitio n testimony from any of the committee members has been submitted, and President S a la tto 's testimony is silent on this point. There is no evidence at all on the issue of k n o w l e d g e and, thus, no evidence that stands "unrebutted." Brungart, 231 F.3d at 799. H e n c e, the Brungart exception that exists when there is unrebutted or uncontradicted e v id e n c e of an absence of knowledge is not applicable in this case, and therefore, the general 19

ru le remains in play. The causal connection, thus, is established for summary judgment p u rp o s e s on the evidence of temporal proximity. 3. L e g itim a te , Non-Discriminatory and Non-Retaliatory Reason

S o u th ern Union has demonstrated a legitimate non-discriminatory and non-retaliatory re a so n for not selecting Ms. Smith for the advertised position of Recruiter/Academic A d v is o r. It has submitted competent evidence that it advertised for the position, accepted a p p lic a tio n s , and established a five-person committee in accordance with governing policies. T h a t evidence also demonstrates that Ms. Smith, although selected from the applicant pool f o r an interview, was not one of the three finalists submitted to President Salatto for final selec tio n . (Def. Br. 7-8; Salatto Aff. 2.) 4. P r e te x t

A s a demonstration of pretext, Ms. Smith relies again on her evidence of Southern U n io n 's alleged departures of established policies in its hiring practices. Admittedly, the q u e s tio n of whether Southern Union's proffered reason for Ms. Smith's non-selection is p retex tual is a close call. This is so, in part, based upon the strength of Southern Union's e v id e n c e that the procedures for filling the vacant position for the Recruiter/Academic A d v is o r were followed,1 4 and the uphill battle Ms. Smith faces, at least as to her d i sc r im in a t io n claim, in that an African-American was selected for the position. Regardless,

There is no contention that Southern Union violated the procedural requirements for advertising the permanent Recruiter/Academic Advisor position for which Ms. Smith applied on August 13, 2007. There also is no contention that the policies for forming the five-member hiring committee were not followed. (See generally Mary Jean White Aff. (explaining the selection process used to fill the advertised Recruiter/Academic Advisor position for which Ms. Smith applied) (Doc. # 20-8).)

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th e court has the discretion, which it will exercise here, to permit these claims to proceed to tria l. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Neither do we suggest th a t the . . . trial court may not deny summary judgment in a case where there is reason to b eliev e that the better course would be to proceed to a full trial."). In short, summary ju d g m e n t will be denied. VI. CONCLUSION A c c o rd in g ly, it is ORDERED that Southern Union Community College's Motion for S u m m a ry Judgment (Doc. # 20) is DENIED. D O N E this 23rd day of July, 2009. /s/ W. Keith Watkins UNITED STATES DISTRICT JUDGE

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