Wells-Marshall v. Auburn University et al

Filing 58

MEMORANDUM OPINION AND ORDER: it is ORDERED that Dfts' 43 Motion for Summary Judgment is GRANTED. A separate Final Judgment will be entered. Signed by Honorable Judge R. Austin Huffaker, Jr on 6/6/2024. (BES)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
EASTERN DIVISION
JENNIFER WELLS-MARSHALL,

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Plaintiff,
v.
AUBURN UNIVERSITY, et al.,
Defendants.

Case No. 3:22-cv-00086-RAH
[WO]

MEMORANDUM OPINION AND ORDER
I.

INTRODUCTION

Plaintiff Dr. Jennifer Wells-Marshall was reprimanded, had her duties
removed, and later had her employment contract non-renewed. Wells-Marshall now
sues Auburn University and Dr. Angela Wiley, Wells-Marshall’s supervisor,
alleging violations of Title VII and 42 U.S.C. § 1981, respectively. Before the Court
is the Defendants’ Motion for Summary Judgment. The motion is ripe for resolution.
For the following reasons, the motion is due to be GRANTED.
II.

JURISDICTION AND VENUE

The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331.
Personal jurisdiction and venue are uncontested, and venue properly lies in the
Middle District of Alabama. See 28 U.S.C. § 1391.
III.

STANDARD OF REVIEW

Summary judgment is proper if there is “no genuine issue as to any material
fact and . . . the moving party is entitled to a judgment as a matter of law.” Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citation omitted). See also Fed. R. Civ.
P. 56(a). The moving party “always bears the initial responsibility of informing the
1

district court of the basis for its motion,” and should rely on submissions “which it
believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477
U.S. at 323. Once the moving party has met its burden, the nonmoving party must
“go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324.
Both the party “asserting that a fact cannot be,” and a party asserting that a fact is
genuinely disputed, must support their assertions by “citing to particular parts of
materials in the record,” or by “showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(A), (B).
To avoid summary judgment, the nonmoving party “must do more than
simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On
the other hand, the evidence of the nonmovant must be believed and all justifiable
inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242,
255 (1986).
IV.

BACKGROUND

Wells-Marshall is a black female who served as executive director of the
Family Child Care Partnerships (FCCP) at Auburn University. The FCCP program
is administered through the College of Human Sciences’ Human Development and
Family Science Department (HDFS), of which Defendant Dr. Angela Wiley is the
head. The FCCP program is funded through grants from the Alabama Department
of Human Resources (DHR), a state agency unaffiliated with Auburn. (Doc. 46-8 at
14:20–15:19.)1 The program also includes the Early Head Start-Family Child Care
Partnership (EHS) program.
1

Documents generally will be referenced by their CM/ECF page number and not internal
document page numbers. But for the sake of clarity, the Court will cite to internal page numbers
for deposition citations.

2

Pertinent to this case, as department head, Wiley supervised tenure-track and
non-tenure-track faculty, including the FCCP director. (Id. at 11:17–20, 14:12–19.)
She served as Wells-Marshall’s direct supervisor during her stint as executive
director of the FCCP program. Wiley, in turn, reported to Dean Susan Hubbard. (Id.
at 19:12–20.)
At the time pertinent to this lawsuit, the FCCP director was “tasked with the
direction and administrative oversight of two multifaceted, multimillion dollar
efforts to increase the quality of early childhood care: the [FCCP] program and the
Early Head Start-Family Child Care Partnership program.” (Doc. 43-1 at 127.)
This included “maintaining healthy working relationships with the program
funder[]”—DHR. (Id.)
A. The FCCP Program Prior to Wells-Marshall’s Leadership
When Wiley became department head in 2017, the FCCP director was Elaine
Miller, a white female. (Doc. 46-8 at 16:9–23, 21:1–5.) Miller was never counseled
or otherwise formally disciplined during her time as FCCP director. (Id. at 19:21–
20:1.)

Likewise, DHR never indicated to Wiley that Miller’s leadership or

communication skills were lacking or problematic, nor did DHR express any
concerns about the FCCP program or the program’s contract compliance while the
program was under Miller’s direction. (Id. at 20:2–23, 39:20–40:4; Doc. 46-7 at ¶¶
7–8.) Miller voluntarily resigned from her position on December 31, 2018 following
an investigation into a potential conflict-of-interest violation involving her daughter
but before any disciplinary action was taken. (Doc. 46-7 at ¶ 9.) Following the
resignation, Wiley served as interim FCCP director while Auburn conducted a
search for a new director. (Id. at ¶ 11.)
B. Wells-Marshall’s Leadership
In May 2019, Wells-Marshall was selected as the next FCCP director. At the
time Wells-Marshall was hired, Auburn previously had lost the education
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component of the Early Head Start contract for noncompliance reasons. (Doc. 47-3
at ¶¶ 6(B)(a), 6(D)(b).) Wells-Marshall contends that HDFS under Wiley had lost
funding from DHR and “was plagued with financial, employee, and programmatic
issues.” (Doc. 47-3 at ¶ 6(A)(e); Doc. 43-1 at 147:9–17.)
1. Wells-Marshall’s Communication Problems with FCCP Staff and
DHR
After a year in the new position, Wiley provided Wells-Marshall with a
written performance evaluation for her first year as executive director. (Doc. 46-2
at 139:14–140:17.) In it, Wiley praised Wells-Marshall for several achievements,
including improving contract compliance and working with Central Auburn HR to
adjust FCCP staff compensation to the current market rate. (Doc. 43-1 at 173–74.)
Wiley however cautioned that Wells-Marshall needed to adjust her “brusque and
blunt” leadership style to better communicate with FCCP staff and DHR leadership.
(Id. at 174–75.) This caution came from feedback from FCCP employees and DHR.
(Doc. 46-8 at 77:17–78:18.) Still, Wells-Marshall received a performance rating of
“exceeds expectations.” (Doc. 43-1 at 175.)
Issues involving Wells-Marshall’s communication style nevertheless
continued. Six to eight FCCP staff complained to Wiley or Human Resources
Liaison (HRL) Leanne Marshall about Wells-Marshall’s communication style and
lack of responsiveness to emails and other work-related communications. (Doc. 468 at 86:8–87:17; Doc. 46-7 at ¶ 17; see also Doc. 43-3 at ¶¶ 17–21; Id. at 24–54
(email correspondence between HRL Marshall and various FCCP staff).) FCCP
staff also reported that Wells-Marshall had a pattern of non-responsiveness to their
emails, made “rude and abrupt comments, [was] speaking over people, [and] not
allowing [FCCP staff] to say what they needed to say.” (Doc. 46-8 at 90:19–91:1.)
Of the complainants, two-thirds were white and one-third were black. (Id. at
127:16–129:18; Doc. 43-3 at ¶¶ 17–22.)
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a. The June 2020 Meeting with DHR Leadership
In early June 2020, Wells-Marshall and Wiley met and discussed how WellsMarshall could continue to grow the FCCP program, focusing on staffing issues
under the EHS grant. (Doc. 43-1 at 213:10–215:5; Id. at 181.) Wiley also reminded
Wells-Marshall to “commit to respond[] to emails for approvals, directions or
support in a timely way” to FCCP staff and to “work to temper your feedback and
communication to be constructive while still being appropriately professional as
needed.” (Id. at 182.) Wells-Marshall acknowledged in an email after the meeting
that her leadership style was not working with her staff. (Id. at 181.)
Sometime after the meeting, Bernard Houston, a DHR administrator, called
Wiley to discuss “major concerns” with Wells-Marshall’s leadership and asked for
Wiley, Wells-Marshall, himself, and other DHR Leadership2 to meet to discuss these
issues. According to Wiley, Houston was concerned about how Wells-Marshall’s
“communication patterns were becoming untenable from DHR’s perspective for
working with them as an agency and leading the contract.” (Doc. 43-2 at 81:21–
85:3.) According to Myra Davis, a member of the DHR Leadership team, WellsMarshall’s behavior was unacceptable and she was “not responsive in a timely way
and was unprofessional and rude.” (Id. at 85:4–15.)
On June 26, 2020, Wiley, Wells-Marshall, and DHR Leadership met and
discussed Wells-Marshall’s communication issues from DHR’s standpoint. (Doc.
43-2 at 97:4–11.) DHR Leadership also criticized Wells-Marshall for “asking too
many questions and not just doing as [she was] told.” (Doc. 43-1 at 230:20–23.)
From Wells-Marshall’s perspective, the meeting was less about her communication

2

DHR Leadership included Houston, a black male, who served as an administrator of the Child
Care Services & Workplace Development division; Jennifer Connell, a white female, who served
as the Division Director for the Child Care Services Division; and Myra Davis, a black female,
who served as the EHS manager. (Doc. 43-1 at 229:1–22.)

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style and leadership of the FCCP program, and more about the on-going
noncompliance issues. (Id. at 230:12–231:19.)
DHR Leadership gave Wiley and Wells-Marshall thirty days to correct the
non-compliance issues and to make significant improvements in communications
between “Auburn EHS-CCP leadership,” which included Wells-Marshall, and DHR.
(Id. at 236:2–237:9; Id. at 186–187; Doc. 43-2 at 102:8–18.) DHR Leadership also
stated that if these issues were not satisfactorily addressed, DHR would issue a notice
of intent to cure, which could lead to the cancellation of the FCCP grants to Auburn.
(Doc. 43-1 at 247:3–14; Doc. 43-2 at 98:6–100:20, 153:18–155:1; Doc. 43-3 at ¶
36.)
b. DHR Leadership’s Continuing Concerns with Wells-Marshall
According to Wells-Marshall, she felt that her task was to correct
noncompliance issues and that she was hampered in doing so because the FCCP staff
had been “coddled” and had not been held accountable for their performance issues.
(Doc. 43-1 at 143:15–144:13, 153:15–155:9.) While Wells-Marshall did address
some of DHR Leadership’s concerns, she did not, from DHR Leadership’s
perspective, significantly improve her communication or professionalism. (Doc. 432 at 103:10–104:19, 125:18–127:11.)
After the thirty-day deadline passed, DHR Leadership asked Wiley to meet
with them again, this time without Wells-Marshall. (Id. at 105:3–16.) In this
meeting, DHR Leadership expressed that they were not “satisfied” with WellsMarshall’s progress and reiterated that their largest concern—communication,
attitude, and responsivity—had not significantly improved. (Id. at 103:10–104:5.)
On August 5, 2020, DHR’s Connell contacted Wells-Marshall and Wiley “to
address a concern with [Wells-Marshall] regarding following directives from DHR
and collaboration with partners.” (Doc. 43-1 at 269:23–270:23; Id. at 208–09.)
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From DHR Leadership’s perspective, Wells-Marshall had again continued her
pattern of not following DHR directives. (Id. at 208–09.)
A week later, Wiley provided Wells-Marshall with a corrective action plan to
improve her performance. (Id. at 273:13–274:20; Id. at 210–11.) In this plan, WellsMarshall was given various directives, including timely submitting receipts to the
funder, meeting the objectives that DHR set, and improving her communication
style. As stated by Wiley, “Every communication . . . must be courteous. I have had
multiple reports of phone and ZOOM conversations that have featured angry
responses, talking over people and refusing to allow the other party to finish their
sentences. . . . I have heard from multiple [DHR] staff that your manner is at least as
important as the actual tasks that need to be done. The contract is at stake; other
contracts are at stake; Auburn’s reputation is at risk.” (Id. at 210; see also Doc. 432 at 119:12–14, 120:16–122:4; Doc. 43-3 at ¶¶ 38–39; Doc. 43-4 at 83–86.) This
was the third occasion since April 2020 that Wiley had directed Wells-Marshall to
improve her communications with DHR and FCCP staff. (Doc. 43-1 at 286:12–
287:19; Doc. 43-1 at 212–14; Doc. 43-3 at ¶ 40.)
2. Wells-Marshall’s Reassignment and Non-Renewal
In late September, following a weekly call by Wells-Marshall with DHR,
Connell again told Wiley that Wells-Marshall’s conduct was unprofessional, stating
that her “tone was uncourteous and unprofessional.” (Doc. 43-1 at 215.) Wiley and
HRL Leanne Marshall then met with Wells-Marshall again to “document[] [Wiley’s]
serious concerns regarding [Wells-Marshall’s] performance.” (Doc. 46-2 at 300:22–
301:23; Doc. 43-1 at 218; Doc. 43-2 at 130:20–140:11; Doc. 43-3 at ¶ 42; Doc. 434 at 93–96.)

This meeting constituted a formal reprimand under Auburn’s

progressive discipline policy. (Doc. 43-3 at ¶ 42; Doc. 43-4 at 93–96.)
Before this meeting, Wiley and HRL Marshall contacted the Provost’s Office
to inquire about non-renewing Wells-Marshall’s employment contract. (Doc. 43-3
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at ¶¶ 38–41; Doc. 43-4 at 88–91.) After consultation with then-Associate Provost
for Faculty Affairs Dr. Emmett Winn, Wiley and Dean Susan Hubbard
recommended that Wells-Marshall’s duties be reassigned for the remainder of her
contract and that her contract not be renewed. (Doc. 43-3 at ¶ 41; Doc. 43-4 at 88–
91; Doc. 43-2 at 149:6–151:14.)
On October 22, 2020, Dean Hubbard sent Wells-Marshall a memorandum
informing her that, effective immediately, her duties were being reassigned, that she
would no longer serve as the FCCP director, and that her contract would not be
renewed. (Doc. 46-2 at 310:11–312:20; Doc 43-1 at 232.) The next day, Wiley
emailed Wells-Marshall to inform her that she would also transition to teaching four
courses in the College during the Spring 2021 term. (Doc. 46-2 at 319:17–321:15;
Doc 43-1 at 234; Doc. 43-3 at ¶ 43.) Despite these changes, Wells-Marshall
continued to receive the same pay and benefits through the end of her contract.
Wells-Marshall filed a charge of discrimination with the EEOC on April 20,
2021, shortly before her contract ended on May 31, 2021.
V.

DISCUSSION

Title VII prohibits employers from discharging an employee, or otherwise
discriminating against that employee with respect to the employee’s terms,
conditions or privileges of employment “because of” that person’s race. 42 U.S.C. §
2000e-2(a)(1). Section 1981 likewise forbids employers from intentionally
discriminating against employees based on their race. See Webster v. Fulton Cnty.,
283 F.3d 1254, 1256 (11th Cir. 2002). A plaintiff may present either direct evidence,
circumstantial evidence, or both, to support a race discrimination claim. Tynes v.
Fla. Dep’t of Juv. Just., 88 F.4th 939, 944 (11th Cir. 2023). The Defendants have
moved for summary on Wells-Marshall’s claims brought under Title VII and § 1981.

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A. Count I: Title VII violation by Auburn
Auburn argues that Wells-Marshall’s Title VII claim fails as a matter of law
under both the convincing mosaic analysis and the McDonnell Douglas framework
because: (1) certain adverse acts are time-barred; (2) Wells-Marshall has not shown
a convincing mosaic of discrimination; and (3) Wells-Marshall cannot show that her
duty reassignment and contract non-renewal were pretextual. Each claim will be
examined in turn.
1. Adverse Acts Prior to October 22, 2020
Defendants argue in their motion that Wells-Marshall complains of many
adverse actions that are time barred. (Doc. 46-1 at 24–25.) In addressing this, WellsMarshall argues that she has identified many discriminatory practices in her EEOC
charge (such as her 2019 performance evaluation, the August 11, 2021 disciplinary
writeup, and the October 21, 2020 disciplinary writeup), and therefore, the Court
should examine more than just the decision to remove her as executive director,
reassign her duties, and non-renew her contract, which the Defendants acknowledge
as timely filed claims. (Doc. 47 at 15–16.) Yet, Wells-Marshall effectively concedes
this argument on the next page of her response brief by only addressing the single
decision on October 22, 2020 on her removal, reassignment, and non-renewal. (Doc.
47 at 16–17.) Therefore, the only adverse action properly before the Court is this
decision. See GolTV, Inc. v. Fox Sports Latin Am. Ltd., 277 F. Supp. 3d 1301, 1311
n.7 (S.D. Fla. 2017) (“When a party fails to respond to an argument or address a
claim in a responsive brief, such argument or claim can be deemed abandoned.”);
Cardwell v. Auburn Univ. Montgomery, 941 F. Supp. 2d 1322, 1329 (M.D. Ala.
2013) (granting in part motion to dismiss for lack of subject matter jurisdiction after
the plaintiff effectively conceded an argument by failing to respond to it in the
responsive brief).
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2. Convincing Mosaic
A plaintiff-employee can survive summary judgment on a Title VII or § 1981
claim by presenting “circumstantial evidence that creates a triable issue concerning
the employer’s discriminatory intent.” Smith v. Lockheed-Martin Corp., 644 F.3d
1321, 1328 (11th Cir. 2011).3 See also Tynes, 88 F.4th at 946 (discussing the
multiple methods of analyzing employment discrimination claims). “A triable issue
of fact exists if the record, viewed in a light most favorable to the plaintiff, presents
a convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Smith, 644 F.3d at 1328 (internal
quotation marks, footnote, and citation omitted).
A plaintiff may establish a convincing mosaic by pointing to evidence that
demonstrates, among other things, (1) suspicious timing, ambiguous statements, or
other information from which discriminatory intent may be inferred, (2)
“systematically better treatment of similarly situated employees,” and (3) pretext.
Lewis v. City of Union City, 934 F.3d 1169, 1185 (11th Cir. 2019) (Lewis II). An
inference of racial discrimination “is not a suspicion or a guess. It is a reasoned,
Wells-Marshall argues, in two throwaway paragraphs, that Defendant Wiley violated 42 U.S.C.
§ 1981 under a cat’s paw theory of liability. (Doc. 47 at 18, 27.) Under a cat’s paw theory,
causation may be established if the plaintiff “shows that the decisionmaker followed the biased
recommendation [of a recommender] without independently investigating the complaint against
the employee.” Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). “In such
a case, the recommender is using the decisionmaker as a mere conduit, or ‘cat’s paw' to give effect
to the recommender’s discriminatory animus.” Id. Wells-Marshall argues that “Auburn’s removal
of Wells-Marshall from the position of Executive Director of the FCCP was caused by the racial
bias, actions, and recommendation by Def. Wiley.” (Doc. 47 at 27.) But much like the rest of her
response brief, Wells-Marshall is heavy on conclusory allegations and light on evidence. She cites
to no evidence that supports her assertion, nor case law aside from the Stimpson case, which is
used only to show what a cat’s paw theory entails. And the Court will not comb through the record
for such evidence. See Chavez v. Sec’y Fla. Dep’t of Corr., 647 F.3d 1057, 1061 (11th Cir. 2011)
(“Making district courts dig through volumes of documents and transcripts would shift the burden
of sifting from petitioners to the courts. . . . [A] district court cannot be expected to do a petitioner’s
work for [her].”).
3

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logical decision to conclude that a disputed fact exists on the basis of another fact.”
Smith, 644 F.3d at 1328 n.25 (internal quotation marks and citation omitted).
a. Suspicious Timing, Ambiguous Statements, and Other Information
From Which Discriminatory Intent May Be Inferred
Auburn first argues that there is no evidence of suspicious timing, ambiguous
statements, or other information from which discriminatory intent may be inferred.
Wells-Marshall does not respond to this contention, perhaps because there is no
evidence of any suspicious timing or ambiguous statements.
As the record reveals, DHR repeatedly complained about Wells-Marshall’s
communication style and professionalism over the course of approximately a year
and notified Wiley that the contract was in jeopardy, and that Wiley repeatedly
counseled Wells-Marshall on her communication and professionalism issues during
that same period and even put her on an improvement plan. Then, when there
appeared to be no improvement, and with continued complaints from DHR, WellsMarshall’s job duties were reassigned, and she was notified that her contract as the
executive director would not be renewed. None of this timing is suspicious. And
Wells-Marshall does not appear to attack it.
Wells-Marshall does argue that Wiley “disciplined employees differently
based upon their race[.]” (Doc. 47 at 20.) She broadly argues that black employees
in the FCCP program were not disciplined the same way as white employees.
Specifically, “instead of holding white employees accountable for doing the work
that needs to be done to . . . keep the contract in compliance, it was [WellsMarshall’s] leadership style that was the problem and not that employees weren’t
doing the things necessary for us to keep the contract in compliance.” (Doc. 43-1 at
160:12–162:18 (discussing the 2019 performance evaluation).) But Wells-Marshall
does not identify in her brief which employees were treated differently on account

11

of their race.4 (See doc. 47 at 9–10, 18.) And the Court is not “expected to do a
petitioner’s work for [her]” by digging through the record. Chavez, 647 F.3d at
1061.
Wells-Marshall also points to her own experience as evidence of racial
discrimination. She argues that she was held to a different standard than other white
employees when it came to her communication issues. Specifically, she cites to an
email she received from Wiley following an email Wells-Marshall sent to FCCP
staff after the June 29, 2020 meeting with DHR, in which Wells-Marshall stated that
“[f]ailure to meet performance expectations will result in disciplinary action through
[Auburn] HR.” (Doc. 46-2 at 249:15–250:12; Doc. 43-1 at 190.) In response and
because of the tone and message of the email, Wiley emailed Wells-Marshall asking
her to “please pay special attention to written communication with your staff.
Overtly negative and threatening emails are unlikely to encourage the kind of
teamwork we desperately need to get us through this [30-day cure] crisis.” (Doc.
43-1 at 195.)
According to Wells-Marshall, Wiley’s comment was discriminatory and was
an effort to create a paper trial to support Wells-Marshall’s termination or contract
non-renewal. But her perception of Wiley’s email is just that—a perception.
Nothing in this email is overtly racial in nature. And while Wells-Marshall may
perceive this as discriminatory, she provides nothing more than this belief. See
Smith, 644 F.3d at 1328 n.25 (An inference of racial discrimination “is not a

In her response brief, Wells-Marshall spends fourteen pages applying case law to the facts of this
case. Yet, she only cites to the record twice. It is a common trend in her briefing to merely provide
a statement with no evidentiary support. The Court specifically warned against this in its
Scheduling Order. (Doc. 31 at 2.) “In all briefs filed by any party relating to the [dispositive]
motion, the discussion of the evidence in the brief must be accompanied by a specific reference,
by page and line, to where the evidence can be found in a supporting deposition or document.
Failure to make such specific reference may result in the evidence not being considered by the
Court.” (Id.)
4

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suspicion or a guess. It is a reasoned, logical decision to conclude that a disputed
fact exists on the basis of another fact.” (internal quotation and citations omitted)).
Simply put, this is not evidence of discriminatory intent.
This analysis leads to one conclusion: Wells-Marshall has not provided
evidence related to suspicious timing, ambiguous statements, or other information
from which discriminatory intent may be inferred. See Lewis II, 934 F.3d at 1185.
b. Comparators
If Wells-Marshall could provide comparators—that is, similarly situated
individuals of other races that were treated more favorably—that could evidence
disparate treatment. She identifies three potential comparators by name in her
response brief—Wiley, Miller, and Dr. Akande, a black female faculty member in
the Department of Human Development and Family Services. (Doc. 47 at 6, 10,
21.) But these are not valid comparators.
To be similarly situated to the plaintiff, the employee must have engaged in
similar conduct or misconduct, be subject to the same employment policies or
guidelines, will ordinarily have been under the jurisdiction of the same supervisor,
and will share the plaintiff’s employment or disciplinary history. Lewis v. City of
Union City, 918 F.3d 1213, 1227–28 (11th Cir. 2019) (Lewis I) (en banc). “[A] valid
comparison will turn not on formal labels, but rather on substantive likenesses.” Id.
at 1228.
Wiley and Miller have no history of similar conduct or complaints.
Regardless of whether Wiley and Miller were responsible for the problems the FCCP
program was facing when Wells-Marshall was hired, Wells-Marshall presents no
evidence that Auburn had received complaints about their communication or
professionalism from other employees at Auburn, or from outside organizations such
as DHR, or that Auburn’s grant status was in jeopardy because of them. And the
same is true for Dr. Akande, who did not even work in the FCCP program let alone
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oversee any large, multi-grant program like the FCCP. (Doc. 48-2 at ¶ 4.) Moreover,
Dr. Akande is a black female, meaning she is placed in the same protected class as
Wells-Marshall, and cannot be a valid comparator. (Doc. 48-2 at ¶ 1.) In short,
Wiley, Miller, and Dr. Akande are not valid comparators and, as a result, WellsMarshall has not provided a convincing mosaic tile of systematically better treatment
of similarly situated employees. See Lewis II, 934 F.3d at 1185.
c. Pretext
Another consideration in the mosaic analysis is pretext. See Lewis II, 934
F.3d at 1185. To show pretext, Wells-Marshall must “(i) cast[] sufficient doubt on
the defendant’s proffered nondiscriminatory reasons to permit a reasonable fact
finder to conclude that the employer’s proffered reasons were not what actually
motivated its conduct, (ii) show[] that the employer’s articulated reason is false and
that the false reason hid discrimination, or (iii) establish[] that the employer has
failed to clearly articulate and follow its formal policies.” Id. at 1186.
Auburn has provided a valid nondiscriminatory reason for why WellsMarshall’s duties were reassigned and her contract non-renewed—DHR repeatedly
complained about Wells-Marshall over a several month period and notified Auburn
that it was considering cancelling both grants due to Wells-Marshall. (See Doc. 432 at 76:13–78:18, 86:16–97:3, 99:1–100:7, 119:12–122:4; Doc. 43-3 at ¶¶ 36–44.)
Wells-Marshall concedes that these are valid, non-discriminatory reasons for
reassigning her duties and nonrenewing her contract.
Nevertheless, she argues that “[t]here are factual disputes about Auburn’s
reasons[.]” (Doc. 47 at 20.) She again argues, without evidentiary support, that she
was made to “accept the blame” for the failures of previous directors. But such a
statement is conclusory and fails to “meet . . . head on and rebut” the legitimate,
nondiscriminatory reason for reassignment and non-renewal.

Chapman v. AI

Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc); Carlisle v. Rhodes &
14

Rhodes Fam. Dentistry, No. 22-13901, 2024 WL 621421, at *5 (11th Cir. Feb. 14,
2024) (“The plaintiff cannot merely make conclusory allegations and assertions” and
survive summary judgment) (citing to Bryant v. Jones, 575 F.3d 1281, 1308 (11th
Cir. 2009)). And even if Wells-Marshall’s treatment was overly harsh or unfair, as
she argues, this does not constitute sufficient evidence of pretext. See Thomas v.
Auburn Univ., No. 3:21-cv-192-RAH, 2023 WL 7190506, at *10 (M.D. Ala. Nov.
1, 2023). An employer may reassign an employee for “a good reason, a bad reason,
a reason based on erroneous facts, or for no reason at all,” so long as that “action is
not for a discriminatory reason.” Flowers v. Troup Cnty. Sch. Dist., 803 F.3d 1327,
1338 (11th Cir. 2015) (internal quotation marks and citation removed).
Wells-Marshall further argues that she has shown pretext because she can
show that she did not violate any Auburn rules. But she does not explain which rules
she did not break, nor does she point to any evidence to support her argument. Even
assuming, in the light most favorable to Wells-Marshall, that she did not violate any
specific Auburn rule or policy, she still has not presented sufficient evidence
showing a question of fact on the issue of pretext. Indeed, it is clear that Wiley,
HRL Leanne Marshall, Dean Hubbard, and then-Associate Provost Winn believed
that Wells-Marshall’s poor communications and failures to comply with DHR
directives were jeopardizing the FCCP grants, that she had been repeatedly
counseled about her communication and professionalism issues, and that DHR had
notified Auburn that the grant program was in jeopardy because of Wells-Marshall.
(Doc. 43-3 at ¶¶ 35–44.)
And Wells-Marshall even acknowledges that DHR believed she was
“combative.” (See Doc. 46-2 at 231:13–19.) While Wells-Marshall, from her
perspective, disputes that she was combative, this assertion does not “refute that
[Defendants] held an honest belief that she engaged in . . . hostile behavior.”
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Carlisle, 2024 WL 621421 at *6. As such, she has not shown a question of fact on
the issue of pretext.
3. McDonnell Douglas
The convincing mosaic is only one method used when analyzing a Title VII
or § 1981 claim. An employee may also, and usually does, use the traditional
McDonnell Douglas burden-shifting framework. Auburn argues its entitlement to
summary judgment under this framework too.
To make a prima facie case under the McDonnell Douglas framework, a
plaintiff asserting a race discrimination claim under either statute must show that:
(1) she belongs to a protected class; (2) she was qualified to do the job; (3) she was
subjected to adverse employment action; and (4) her employer treated similarlysituated employees outside of her class more favorably. McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802 (1973); Lewis I, 918 F.3d at 1220–21. If the plaintiff
succeeds in making out a prima facie case, the burden shifts to the employer to
articulate a legitimate, non-discriminatory reason for its actions. Tex. Dep’t of Cmty.
Affs. v. Burdine, 450 U.S. 248, 253 (1981); Lewis I, 918 F.3d at 1221. If an employer
meets its burden of articulating a non-discriminatory reason for any purportedly
adverse action, “to avoid summary judgment[, the plaintiff] must introduce
significantly probative evidence showing that the asserted reason is merely a pretext
for discrimination.” Clark v. Coats & Clerk, Inc., 990 F.2d 1217, 1228 (11th Cir.
1993). A reason is not pretext for discrimination “unless it is shown both that the
reason was false, and that discrimination was the real reason.” St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (emphasis in original).
It is apparent that Wells-Marshall cannot make a prima facie case under
McDonnell Douglas because she cannot show that Auburn treated similarly situated
employees outside of her class—Wiley and Miller—more favorably. As stated
above, Wiley and Miller do not have the same allegations of conduct as Wells16

Marshall despite serving in the same role as her. This is fatal to Wells-Marshall’s
claim under the McDonnell Douglas framework. See Lewis I, 918 F.3d at 1227 (A
similarly situated comparator “will have engaged in the same basic conduct (or
misconduct) as the plaintiff[.]”).
It is likewise apparent that even if Wells-Marshall made a prima facie case
under McDonnell Douglas, she cannot rebut the legitimate, non-discriminatory
reason Auburn has provided for removing her as executive director, reassigning her
duties, and non-renewing her contract. As stated above, Wells-Marshall does not
provide any evidence-backed argument that Auburn acted with pretext. (See doc.
47 at 21–23.) And to rebut Auburn’s legitimate, non-discriminatory reason, WellsMarshall must “address it head on[.]” Berry v. Crestwood Healthcare LP, 84 F.4th
1300, 1308 (11th Cir. 2023) (internal quotation marks and citation omitted). She
“cannot rebut a reason by simply quarreling with the wisdom of it.” Id. at 1308
(internal quotation marks and citation omitted). Instead, Wells-Marshall “must point
to the weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions
in the justification.” Id. (internal quotation marks and citation omitted). And here,
Wells-Marshall simply quarrels with the rationale for her removal and reassignment,
failing to point to the record where the Court can find evidence of pretext. In other
words, she has not carried her burden.
B. Wells-Marshall’s § 1981 Claim against Wiley
Title 42 U.S.C. § 1981 prohibits racial discrimination in the making,
performance, modification, and termination of contracts, and the enjoyment of all
benefits, privileges, terms, and conditions of the contractual relationship. Both Title
VII and § 1981 have the same burden of proof and use an identical analytical
framework. Berry, 84 F.4th at 1307. And, in addition to the Title VII framework
requirements, to prevail on a § 1981 claim, Wells-Marshall must “bear[] the burden
17

of showing that race was a but-for cause of [her] injury.” Comcast Corp. v. Nat’l
Ass’n of Afr. Am.-Owned Media, 589 U.S. 327, 333 (2020).
Wells-Marshall’s § 1981 claim against Wiley is based on the same
reassignment and contract non-renewal decisions made the basis of WellsMarshall’s Title VII claim against Auburn. As discussed above, Wells-Marshall is
unable to establish a Title VII claim under either the McDonnell Douglas framework
or by showing a convincing mosaic of discrimination. And even if she had proven
a Title VII claim, she still is unable to show that race is the but-for cause of her
reassignment and non-renewal. To prevail, Wells-Marshall must show that had she
been white, she would still be executive director. See Ossmann v. Meredith Corp.,
82 F.4th 1007, 1014 (11th Cir. 2023). The record is devoid of evidence that race
played any role, much less a determinative role, in Wiley’s recommendation to
reassign her duties and not renew her contract. Wells-Marshall’s belief that Wiley
discriminated against her on the basis of race will not prevail absent evidence. Id.
at 1018 (“[T]o infer . . . without any other evidence is nothing but speculation. . . .
[A] reasonable jury could not . . . conclude that [Wells-Marshall’s] race was a butfor cause of [her] termination.”).
Therefore, Wiley is due to be granted summary judgment in her favor on the
§ 1981 claim against her.
VI.

CONCLUSION

For the reasons stated, it is ORDERED that Defendants’ Motion for
Summary Judgment (doc. 43) is GRANTED. A separate Final Judgment will be
entered.
DONE on this the 6th day of June, 2024.
R. AUSTIN HUFFAKER, JR.
UNITED STATES DISTRICT JUDGE
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