Bailey-Potts v. Alabama Department of Public Safety
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,
ALABAMA DEPARTMENT OF
CIVIL ACTION NO.
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
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
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.
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
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
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Bailey-Potts, an African-American female, has been a
Driver License Examiner I since September 2000.
in the DPS Phenix City office.
Lieutenant Craig Ledyard,
an African-American male, was the district commander for
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.
At the time, she
was listed in “Band 1" and ranked first on the register of
Ala. Hiring List (Doc. No. 22-4) at
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
Banded scoring is a
statistical procedure for grouping test
meaningfully different from one another.
In banded scoring, bands are set
objectively and mathematically.
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.
confirming her interest in the promotion and, in late
October 2010, was informed she would be interviewed for
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.
inform her that she was not promoted.
During the call, he
told her that he was furious and that he had voted for
The apparent disagreement on the panel was over the
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
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
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.
But, as DPS
points out, Bailey-Potts’s deposition makes clear that it
was another employee, Sergeant Jessie Williams, who made
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
African/American in the Opelika office. Was there any
other reason that you didn’t give that made you think
A: Well, after I had discussed it with Sergeant
anybody what I had done-–he was just of the consensus–-he
said they just didn’t want anybody else black.
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.
to the requesting agency.”
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.
additional eligible candidate will be certified to fill
each additional vacancy.”
The State of Alabama’s
component to the Rule of Ten; rather, the rule functions
as a cap on the number of applicants that the hiring
agency may consider.
Both Title VII and § 1981 “have the same requirements
of proof and use the same analytical framework.”
v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir.
This case, therefore, is governed by the familiar
burden-shifting analysis of McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Under the McDonnell Douglas
establishing a prima-facie case of unlawful employment
discrimination by a preponderance of evidence.
If the employkee establishes a prima-facie case, the
discriminatory reason for its action.
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.
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
Chapman v. AI Transport, 229 F.3d
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
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
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.
candidate and, therefore, Bailey-Potts cannot establish
her prima-facie case.
DPS notes that two of the panel
answers to their questions; hence, the panel promoted
Bailey-Potts responds that she was ranked higher than
Wingate prior to the interview, scoring in Band 1 and
Additionally, Bailey-Potts had approximately a decade of
experience compared to Wingate’s three-and-a-half years.
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
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,
ultimate issue of discrimination.”).
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
In most cases, the real question lies in whether the
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,
plaintiff actually made out a prima facie case under
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.
It is to this question that the court
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
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
Denney v. City of Albany, 247 F.3d 1172, 1187
(11th Cir. 2001).
An employer “may not establish that an
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
remarks unrelated to the decisionmaking process itself are
not direct evidence of discrimination.”
F.3d at 1330.
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
necessarily with Wingate and Potts.”
(Doc. No. 22-10) at 12.
Second, Bailey-Potts argues that DPS deviated from
established practice in using interview panels.
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
dispute on the hiring panel was over how a supervisor
should interact with subordinates and the public.
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
aberrational or a ruse for discriminatory intent.
Bailey-Potts also argues that the Rule of Ten was not
contention; moreover, the rule is not an affirmativeaction policy.
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
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
applicant in favor of a lower-ranked white applicant.
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
applicants for this promotion.
While Bailey-Potts had
more experience and was ranked first before the interview,
the three-member panel concluded that Wingate was the more
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
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
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