Bailey-Potts v. Alabama Department of Public Safety

Filing 34

OPINION. Signed by Honorable Judge Myron H. Thompson on 2/21/12. (djy, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, EASTERN DIVISION

SHERRY ANNE BAILEY-POTTS,
Plaintiff,
v.
ALABAMA DEPARTMENT OF
PUBLIC SAFETY,
Defendant.

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CIVIL ACTION NO.
3:11cv495-MHT
(WO)

OPINION
Plaintiff Sherry Anne Bailey-Potts (“Bailey-Potts”)
brings this lawsuit against defendant Alabama Department
of Public Safety (“DPS”), claiming that DPS discriminated
against her because of her race when it failed to promote
her

to

the

position

of

Driver

License

Examiner

II.

Bailey-Potts asserts this claim pursuant to Title VII of
the Civil Rights Act of 1964, as amended (42 U.S.C.
§§ 1981a, 2000e to 2000e-17) (“Title VII”) and the Civil
Rights

Act

of

1866

(42

U.S.C.

§

1981)

(Ҥ

1981”).

Jurisdiction is proper under 28 U.S.C. §§ 1331 (federal
question) and 1343 (civil rights).

DPS moves for summary judgment.

For the reasons that

follow, the motion will be granted.

I.

SUMMARY-JUDGMENT STANDARD

Summary judgment is appropriate “if the movant shows
that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.”

Fed. R. Civ. P. 56(a).

The court must view the

evidence in the light most favorable to the non-moving
party and draw all reasonable inferences in favor of that
party.

Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986).

II.

BACKGROUND

Bailey-Potts, an African-American female, has been a
Driver License Examiner I since September 2000.
in the DPS Phenix City office.

She works

Lieutenant Craig Ledyard,

an African-American male, was the district commander for
the office.

2

In May 2010, Bailey-Potts received a notice that she
was on a list of eligible candidates for promotion to
Driver License Examiner II, a supervisory position.
confirmed her interest in this position.

She

At the time, she

was listed in “Band 1" and ranked first on the register of
eligible candidates.

Ala. Hiring List (Doc. No. 22-4) at

2.
The

Alabama

State

Personnel

Department

website

provides the following explanation for “banded scoring”:
“One important purpose of testing is to
identify the differences in test scores
that reflect real differences among
candidates.
Banded scoring is a
statistical procedure for grouping test
scores
that
statistically
are
not
meaningfully different from one another.
In banded scoring, bands are set
objectively and mathematically.
The
people in a band are similar to each
other in that statistically there is no
meaningful difference in their scores.”
Ala. Website (Doc. No. 22-5) at 7.
In

August

2010,

Bailey-Potts

received

an

email

confirming her interest in the promotion and, in late
October 2010, was informed she would be interviewed for
3

the promotion.

The only other applicant for the position

was Debra Wingate, a white female.

Wingate had served as

a Driver License Examiner I since May 2007 and was in
“Band 2" and was ranked third amongst eligible candidates.
Ala. Hiring List (Doc. No. 22-4) at 2.
Throughout 2010, DPS utilized a three-person panel for
promotions. In this case, both Bailey-Potts and Wingate
were interviewed by Terry Tate (white), Guy Rush (white),
and Ledyard (black).

Ledyard substituted for a white

panelist who was sick.

The interviews were conducted by

asking the applicants how they would respond to a series
of eight scenarios.

The panel split two to one, with Tate

and Rush voting for Wingate and Ledyard voting for BaileyPotts.
In

November

2010,

Ledyard

called

inform her that she was not promoted.

Bailey-Potts

to

During the call, he

told her that he was furious and that he had voted for
her.
way

The apparent disagreement on the panel was over the
Bailey-Potts

and

Wingate

4

approached

their

jobs.

Bailey-Potts tended to believe that the “customer could be
wrong” about his or her complaint; by contrast, Wingate
sought to appease the customer quickly and believed that
many customer-service problems stemmed from the state
employee.

DPS also contends that Wingate’s answers were

more detailed and that she was more likely to investigate
a matter before taking adverse action against a customer
or employee.
Bailey-Potts alleges that, in early 2011, a co-worker
informed her that DPS did not “want anybody else black” in
a supervisory position.
(Doc. No. 21) at 9.

Bailey-Potts’s Opposition Brief

Bailey-Potts states in her brief that

this statement was made by Ledyard, the supervisor who
dissented during the hiring panel.

Id.

But, as DPS

points out, Bailey-Potts’s deposition makes clear that it
was another employee, Sergeant Jessie Williams, who made
the comment.

Bailey-Potts Deposition (Doc. No. 22-2) at

5-6 (“Q: Sherry, you were asked about what caused you to
think that they were looking for a white instead of an

5

African/American in the Opelika office. Was there any
other reason that you didn’t give that made you think
that?

A: Well, after I had discussed it with Sergeant

Williams–-and,

of

course,

I

didn’t

say

very

much

to

anybody what I had done-–he was just of the consensus–-he
said they just didn’t want anybody else black.

There was

enough of us.”) (emphasis added).* Significantly, Williams
was not on the hiring panel, though he had recommended
Bailey-Potts for promotion.
Bailey-Potts also contends that DPS failed to abide by
an “affirmative-action” policy known as the “Rule of Ten.”
She states that the Rule of Ten prohibits DPS from passing
over a qualified minority candidate in favor of a white
applicant in a lower band.

According to the Alabama State

Personnel Department’s website, however, the “Rule of Ten”
refers to “the certification of the top ten eligible job
candidates (including the names of those with tied scores)

*In her opposition to DPS’s motion to strike,
Bailey-Potts acknowledged that Williams, not Ledyard,
made this comment.
6

to the requesting agency.”
at 7.

Ala. Website (Doc. No. 22-5)

The rule provides that:

“When a hiring agency

requests a register from the State Personnel Department,
the Rule of Ten is utilized to provide them with a list of
the most qualified (highest scoring) candidates.

If more

than

of

one

vacancy

is

being

filled,

the

name

one

additional eligible candidate will be certified to fill
each additional vacancy.”
website

makes

no

Id.

mention

of

The State of Alabama’s
an

affirmative-action

component to the Rule of Ten; rather, the rule functions
as a cap on the number of applicants that the hiring
agency may consider.

III.

DISCUSSION

Both Title VII and § 1981 “have the same requirements
of proof and use the same analytical framework.”

Standard

v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir.
1998).

This case, therefore, is governed by the familiar

burden-shifting analysis of McDonnell Douglas Corp. v.

7

Green, 411 U.S. 792 (1973).
framework,

an

employee

Under the McDonnell Douglas

has

the

initial

burden

of

establishing a prima-facie case of unlawful employment
Id. at

discrimination by a preponderance of evidence.
802.

If the employkee establishes a prima-facie case, the
burden

then

shifts

presumption

by

to

the

employer

articulating

a

to

rebut

legitimate

discriminatory reason for its action.

the
non-

The employer has a

burden of production, not of persuasion, and thus need not
convince the court that the reason advanced actually
motivated its action.
Once

the

presumption
[employee]
evidence,

of
has

Id.

employer

satisfies

discrimination
the

including

opportunity
the

is

this

burden,

eliminated

to

previously

come

and

forward

produced

“the
the
with

evidence

establishing the prima facie case, sufficient to permit a
reasonable factfinder to conclude that the reasons given
by the employer were not the real reasons for the adverse

8

Chapman v. AI Transport, 229 F.3d

employment decision.”

1012, 1024 (11th Cir. 2000).

In other words, an employee

must show that an employer's proffered explanation is a
mere pretext for discriminatory conduct.
DPS contends that Bailey-Potts has failed to meet her
burden at the first and third stages of the McDonnell
Douglas framework.
Bailey-Potts

may

establish

a

prima-facie

case

of

failure to promote by establishing that: (1) she is a
member of a protected class; (2) she was qualified and
applied for the position; (3) she suffered an adverseemployment action; and (4) an equally or less qualified
employee who was not a member of the protected class was
promoted.

Combs v. Plantation Patterns, 106 F.3d 1519,

1539 n.11 (11th Cir. 1997).

Here, it is undisputed that

Bailey-Potts satisfies the first three factors.
DPS

contends

that

Wingate

was

a

more

qualified

candidate and, therefore, Bailey-Potts cannot establish
her prima-facie case.

DPS notes that two of the panel

9

members

rated

Wingate

more

qualified

because

of

her

answers to their questions; hence, the panel promoted
Wingate.
Bailey-Potts responds that she was ranked higher than
Wingate prior to the interview, scoring in Band 1 and
placing

first

in

the

list

of

eligible

applicants.

Additionally, Bailey-Potts had approximately a decade of
experience compared to Wingate’s three-and-a-half years.
“[T]he

question

whether

the

plaintiff

in

a

disparate-treatment discrimination suit actually made out
a prima facie case is almost always irrelevant when the
district court considers an employer's motion for summary
judgment or judgment as a matter of law.”

Brady v. Office

of Sergeant at Arms, 520 F.3d 490, 492 (D.C. Cir. 2008);
see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
510–11 (1993) (“If ... the defendant has succeeded in
carrying its burden of production, the McDonnell Douglas
framework--with its presumptions and burdens--is no longer
relevant. ... The presumption, having fulfilled its role

10

of

forcing

the

defendant

to

come

forward

with

some

response, simply drops out of the picture.”); Shuford v.
Alabama State Bd. of Educ., 978 F.Supp. 1008, 1017 (M.D.
Ala. 1997) (Thompson, J.) (“However, where, as in this
case, the court has sufficient evidence to determine
whether an employee has been a victim of discrimination,
the

court

need

burden-shifting

not

go

process

through
and

the

should

ultimate issue of discrimination.”).

McDonnell
instead

Douglas

reach

the

Under the McDonnell

Douglas framework, the burden at the first two steps is
light for both the plaintiff and the defendant-employer.
See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253 (1981) (“The burden of establishing a prima facie case
of disparate treatment is not onerous.”); Perryman v.
Johnson Products Co., Inc., 698 F.2d 1138, 1143 (11th Cir.
1983) (noting that “the defendant's burden of rebuttal is
exceedingly light”).
In most cases, the real question lies in whether the
employer’s

legitimate

non-discriminatory

11

reason

is

pretextual.

Given

this

reality

in

a

“Title

VII

disparate-treatment suit where an employee has suffered an
adverse employment action and an employer has asserted a
legitimate, non-discriminatory reason for the decision,
the

district

court

need

not

...

decide

whether

the

plaintiff actually made out a prima facie case under
McDonnell Douglas.

Rather, in considering an employer's

motion for summary judgment or judgment as a matter of law
in those circumstances, the district court must resolve
one central question: Has the employee produced sufficient
evidence for a reasonable jury to find that the employer's
asserted non-discriminatory reason was not the actual
reason and that the employer intentionally discriminated
against the employee on the basis of race ... ?”
520 F.3d at 494.

Brady,

It is to this question that the court

now turns.
As discussed above, DPS submits that its legitimate
non-discriminatory reasons for promoting Wingate were her
interview answers were more complete and she displayed an

12

attitude toward customer-service and other employees that
was more in accordance with the supervisory role of a
Driver License Examiner II.

As such, DPS has satisfied

its burden of production, and the court thus turns to the
ultimate issue of race discrimination.
There must be “a strong showing of a disparity in
qualifications in order for an inference of discrimination
to arise.”

Denney v. City of Albany, 247 F.3d 1172, 1187

(11th Cir. 2001).
employer's

An employer “may not establish that an

proffered

reason

is

pretextual

merely

by

questioning the wisdom of the employer's reasons.” Combs,
106 F.3d at 1543.
Bailey-Potts contends that DPS’s rationales are a
pretext for two reasons.

First, Bailey-Potts points to

her co-worker’s comment that the DPS “didn’t want anybody
else black” as direct evidence of discrimination; but, as
explained above and contrary to Bailey-Potts’s brief, this
statement was not made by a member of the hiring committee
but rather by a co-worker who had recommended Bailey-Potts

13

for

promotion.

“[R]emarks

by

non-decisionmakers

or

remarks unrelated to the decisionmaking process itself are
not direct evidence of discrimination.”
F.3d at 1330.

Standard, 161

Bailey-Potts also implies that Ledyard

feared retaliation and, therefore, failed to condemn the
hiring panel’s decision during his deposition; but, as
Ledyard’s deposition makes clear, he felt uncomfortable
discussing hiring practices in law-enforcement positions
and

that

his

unease

in

making

necessarily with Wingate and Potts.”

comments

was

“not

Ledyard Deposition

(Doc. No. 22-10) at 12.
Second, Bailey-Potts argues that DPS deviated from
established practice in using interview panels.

Bailey-

Potts further notes that the panel split along racial
lines and that the subjective-interview process improperly
trumped her higher ranking.

But, as Chief Examiner Guy

Rush’s affidavit explains, interview panels were used for
several

promotions

in

2010.

Additionally,

the

real

dispute on the hiring panel was over how a supervisor

14

should interact with subordinates and the public.

“[T]he

fact that an employer based a hiring or promotion decision
on purely subjective criteria will rarely, if ever, prove
Denney, 247 F.3d at 1185.

pretext under Title VII.”

There is no evidence that DPS’s implementation of an
interview

panel

for

Bailey-Potts’s

hiring

was

either

aberrational or a ruse for discriminatory intent.
Bailey-Potts also argues that the Rule of Ten was not
followed.

There

is

no

evidence

to

support

this

contention; moreover, the rule is not an affirmativeaction policy.

See

Ala. Website (Doc. No. 22-5) at 7.

Once again, Bailey-Potts’s deposition cuts against her
brief by explaining that the banded-score policy replaced
an older version of the rule, which was an affirmativeaction policy. Bailey-Potts Deposition (Doc. No. 22-2) at
13-14.

Indeed, it appears that Bailey-Pott's counsel is

confusing the Rule of Ten with a court-imposed “no-bypass
rule,” dating back to 1970, which prohibited Alabama state
officials from bypassing a higher-ranked African-American

15

applicant in favor of a lower-ranked white applicant.

In

2006, this court terminated the Alabama's use of the nobypass rule.

United States v. Flowers, 444 F. Supp. 2d

1192 (M.D. Ala. 2006) (Thompson, J.).
Bailey-Potts and Wingate were both on the Alabama
Personnel

Department’s

candidates

for

the

certification

promotion

and

applicants for this promotion.

of

were

the

eligible
only

two

While Bailey-Potts had

more experience and was ranked first before the interview,
the three-member panel concluded that Wingate was the more
qualified

candidate

because

of

her

answers

to

the

interview questions. Bailey-Potts has failed to introduce
sufficient evidence to raise a genuine dispute of material
fact that DPS’s proffered explanations are a pretext for
racial discrimination.

*

*

16

*

An appropriate summary judgment in favor of DPS and
against Bailey-Potts will be entered.
DONE, this the 21st day of February, 2012.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE