Bryant v. Imery's

Filing 39

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART 26 MOTION for Summary Judgment. Signed by Judge Virginia Emerson Hopkins on 2/7/2013. (JLC)

FILED
2013 Feb-07 PM 04:32
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
EASTERN DIVISION
BUFORD R. BRYANT,
Plaintiff,
v.
IMERY’S CARBONATES LLC,
Defendant.

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) Case No.: 4:11-CV-24-VEH
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MEMORANDUM OPINION AND ORDER
THIS CAUSE is before the court on the Defendant’s Motion for Summary
Judgment (the “Motion”) (Doc. 26). Plaintiff timely responded on October 15,
2012. (Doc. 34.) Defendant timely replied on November 11, 2012. (Doc. 37.)
The Motion is now ripe for disposition.
I.

FACTS
Defendant Imery’s Carbonates LLC (“Imery’s”) operates a ground calcium

carbonate processing facility in Sylacauga, Alabama. Plaintiff Buford Bryant
(“Bryant”) began working for Imery’s in 1999, when Imery’s acquired Bryant’s
former employer. In 2001, Imery’s entered into a collective bargaining agreement
with the United Steelworkers. This agreement sets the terms and conditions of
Bryant’s employment.

Bryant worked as a mechanic. The collective bargaining agreement divides
Imery’s mechanics into two classifications: Mechanic A’s and Mechanic B’s. The
dividing line between these two groups is a written test. Mechanic B’s who pass
the test become Mechanic A’s. Mechanic A’s are paid more than Mechanic B’s
and receive other benefits. Imery’s allows its Mechanic B’s to take the test more
than once. Imery’s contends that Mechanic A’s possess greater skill than
Mechanic B’s. However, it is undisputed that Mechanic A’s and Mechanic B’s
perform the same duties. (Doc. 34 at 14, ¶ 16; Doc. 34 at 15, ¶ 21; Doc. 37 at 2, ¶
16.) Additionally, it is undisputed that Imery’s does not distinguish between
Mechanic A’s and Mechanic B’s in its work assignments. (Doc. 34 at 15, ¶ 23.)
Bryant has been a Mechanic B since Imery’s negotiated the collective
bargaining agreement in 2001. Since that time, Bryant has taken Imery’s
Mechanic A test twice and failed both times. After one of these tests, Bryant’s
supervisor told him he had failed by only one point. Bryant asked the supervisor
to give him an extra point, but he declined.1
Bryant was not the only Imery’s employee who had difficulty passing the

1

The first test was designed by Shelby Halverson, an Imery’s employee. (Doc. 34 at 12,
¶ 5.) It is unclear if the second test was the test developed by the Ramsey Corporation that
Imery’s currently uses. (Doc. 32-4 at 3; Doc. 28-4 at 3, ¶ 6.)
2

Mechanic A test. (See Doc. 33-2 at 5, 7.) Perhaps for this reason, Imery’s lowered
the passing score on the Mechanic A test from a ninety-eight (98) to an eightynine (89). (See Doc. 33-4 at 9.) This change occurred in the spring of 2007.
However, even after this change, Bryant did not qualify to advance to a Mechanic
A position. (See Doc. 33-3 at 21) (showing Bryant scored a sixty-two (62) on the
Mechanic A test).
In late 2007 and early 2008, Imery’s offered an alternate route for its
Mechanic B’s to become Mechanic A’s. Mechanic B’s could take eight training
courses through the Alabama Technology Network. If a Mechanic B passed all
eight courses, he would become a Mechanic A. Bryant participated in all eight
courses and passed seven of them. (Doc. 34 at 12, ¶ 8.) He was not promoted.
Bryant contends that Imery’s test requirement prevented him from becoming
a Mechanic A. Specifically, Bryant contends Imery’s Mechanic A test has a
disparate impact on African Americans. It is unclear when Imery’s began using
the challenged test, but it is undisputed that Imery’s last administered the test on
January 12, 2010. (Doc. 34 at 13, ¶ 11; Doc. 37 at 2.)
Bryant also contends that white employees received special treatment
regarding the Mechanic A test. To support this allegation, Bryant relies on the
following evidence. First, Bryant says that Tony Abrams (a white employee) told
3

him that he was given extra points so that he could pass. (Doc. 33-1 at 13, ¶ 17.)
Additionally, Bryant says that Charles Stephenson (a white employee) told him he
never took or passed the Mechanic A test, and yet he was promoted to a Mechanic
A position.2 (Doc. 33-1 at 13, ¶ 18.)
Second, Bryant says that two white employees, Timothy Denton and Tony
Abrams, failed the Mechanic A test in 2006, but were still promoted to a Mechanic
A position in 2007. (Doc. 33 at 26.) Imery’s records do not show that these
employees took and passed the Mechanic A test in 2007. (Id.) But, it is
undisputed that both Denton and Abrams scored eighty-nine (89) or higher on
their 2006 tests. (See Doc. 32-3 at 5, 7.)
Third, Bryant says that two other white employees, Michael Black and
Leslie Buchanan, became Mechanic A’s although they never scored eighty-nine
(89) or higher on the Mechanic A test. (See Doc. 34 at 27–28; Doc. 33-3 at 21.)
But, it is undisputed that both Black and Buchanan successfully completed all
eight training courses offered through the Alabama Technology Network. (Doc.
33-3 at 21.)

2

To show white employees received special treatment, Bryant also relies on the
Declaration of Joel McCain (Doc. 32-1 at 2–7), another African-American Mechanic B.
However, because McCain’s allegations are substantially similar to Bryant’s allegations, the
court’s treatment of Bryant’s Declaration applies equally to McCain’s Declaration. (Compare
Doc. 32-1 at 7, ¶ 17–18 with Doc. 32-1 at 13, ¶ 17–18.)
4

In August 2009, Imery’s decided to reduce its work force by twenty-five
(25) per cent. Imery’s contends that a sharp decrease in demand for ground
calcium carbonate spurred this decision. At that time, Imery’s employed twentyfive (25) Mechanic A’s and seven (7) Mechanic B’s. There were only two (2)
African-American Mechanic B’s and no African-American Mechanic A’s.3 Rather
than lay off any Mechanic A’s, Imery’s elected to eliminate the Mechanic B
position. Imery’s contends its decision was consistent with Article 13 of the
collective bargaining agreement, which provides: “[a]ll cases of reduction or
changes in the work force shall first be carried out within each classification,
within each respective department.” (Doc. 28-4 at 15.) It is undisputed that
Imery’s laid off all seven (7) Mechanic B’s on September 1, 2009.
Under the collective bargaining agreement, Bryant could “bump” a less
senior employee in a lower classification. Bryant exercised this option and
became a Dust Collector Technician. In this position, Bryant is paid significantly
less than he was as a Mechanic B.
On August 25, 2009, shortly after Bryant learned about the lay-off, he filed
an EEOC charge alleging age discrimination. In December 2009, Bryant amended

3

It is undisputed that there is one African-American classified as a Mechanic A, but that
this person has different job duties and never had to take the Mechanic A test. (Doc. 34 at 11,
¶ 3.)
5

his charge to include race discrimination and retaliation claims. Finally, on
February 24, 2010, Bryant amended his charge to include a disparate impact race
discrimination claim. (Doc. 28-2 at 22.) After the EEOC issued Bryant a right-tosue letter, Bryant brought this action.
Bryant’s Amended Complaint (Doc. 7) asserts four types of claims: (1)
disparate treatment under Title VII and 42 U.S.C. § 1981, (2) disparate impact
under Title VII, (3) unlawful age discrimination under the Age Discrimination in
Employment Act (ADEA), and (4) retaliation.
II.

LEGAL STANDARD
A.

General Summary Judgment Standard

Summary judgment is proper only when there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R .Civ. P. 56(a). “All reasonable doubts about the facts” and “all justifiable
inferences” are resolved in favor of the nonmoving party. See Fitzpatrick v. City
of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).4 A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving

4

Rule 56 was amended in 2010. The Advisory Committee was careful to note, however,
that “[t]he standard for granting summary judgment remains unchanged.” Fed. R. Civ. P. 56
advisory committee’s note to 2010 amendments. Consequently, cases interpreting the previous
version of Rule 56 are equally applicable to the revised version.
6

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510
(1986). A fact is material if it “might affect the outcome of the suit under the
governing law . . . . Factual disputes that are irrelevant or unnecessary will not be
counted.” Id. The substantive law will identify which facts are material and
which are immaterial. Id.
The summary judgment analysis varies somewhat depending on which party
bears the burden of proof at trial. See Fitzpatrick, 2 F.3d at 1115–17. If the
moving party would bear the burden of proof on an issue, then it may meet its
burden on summary judgment only by presenting positive evidence demonstrating
an absence of a genuine issue of material fact—i.e., facts that would entitle the
nonmoving party to a directed verdict if not controverted at trial. Id. at 1115.
Once the moving party makes such a showing, the burden shifts to the nonmoving
party to produce significant, probative evidence demonstrating a genuine issue for
trial. Id.
If the nonmoving party would bear the burden of proof on an issue at trial,
then the moving party can satisfy its initial burden on summary judgment in either
of two ways. Id. at 1115–16. First, the moving party may produce affirmative
evidence negating a material fact, thereby demonstrating that the nonmoving party
will be unable to prove its case at trial. Id. at 1116. If the moving party produces
7

such evidence, then the nonmoving party must respond with positive evidence
sufficient to defeat a motion for a directed verdict at trial. Id.
Second, the moving party may affirmatively show the absence of evidence
in the record to support a judgment for the nonmoving party on a material element.
Id. The moving party is not required to produce evidence negating its opponent’s
claim, but it must direct the court to the hole in the nonmoving party’s case. Id. at
1115–16.
If the moving party satisfies this burden, the nonmoving party may point to
evidence in the record, or come forward with additional evidence, which would be
sufficient to sustain a judgment at trial. Id. at 1116-17. The nonmoving party
cannot simply rest on mere allegations; he must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358, 116 S. Ct. 2174, 2183 (1996) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S. Ct. 2130, 2136–37
(1992)).
B.

Relevant Substantive Law5
1.

Bryant’s Disparate Treatment Claims

Bryant alleges disparate treatment claims under Title VII and 42 U.S.C.

5

As discussed at Section III.C infra, Bryant has abandoned his age discrimination and
retaliation claims. Thus, the court will not discuss the substantive law relevant to such claims.
8

§ 1981. “Both of these statutes have the same requirements of proof and use the
same analytical framework.” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318,
1330 (11th Cir. 1998). Thus, the following statement of the law applies equally to
both claims.
Bryant does not argue that he has direct evidence of discrimination.
Therefore, the court will analyze Bryant’s claim under the burden-shifting
framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817 (1973). See Standard, 161 F.3d at 1331.
Under McDonnell Douglas, a plaintiff establishes a prima facie
case of race discrimination under Title VII by showing: (1) he belongs
to a racial minority; (2) he was subjected to [an] adverse job action; (3)
his employer treated similarly situated employees outside his
classification more favorably; and (4) he was qualified to do the job.
Demonstrating a prima facie case is not onerous; it requires only that the
plaintiff establish facts adequate to permit an inference of
discrimination.
. . . As part of the Title VII plaintiff’s prima facie case, the
plaintiff must show that his employer treated similarly situated
employees outside his classification more favorably than [himself]. To
make a comparison of the plaintiff’s treatment to that of non-minority
employees, the plaintiff must show that he and the employees are
similarly situated in all relevant respects. In determining whether
employees are similarly situated for purposes of establishing a prima
facie case, it is necessary to consider whether the employees are
involved in or accused of the same or similar conduct and are
disciplined in different ways.
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997) (internal citations
9

omitted). Once a plaintiff establishes a prima facie case, the defendant must
produce a legitimate nondiscriminatory reason for its employment decision. See
Walker v. NationsBank of Florida N.A., 53 F.3d 1548, 1556 (11th Cir. 1995). If
the defendant meets its burden of production, then the plaintiff must come forward
with evidence sufficient to support an inference that unlawful discrimination
actually motivated the defendant’s decision. Id. A plaintiff may meet his burden
“either directly by persuading the court that a discriminatory reason more likely
motivated the employer or indirectly by showing that the employer’s proffered
explanation is unworthy of credence.” Texas Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 256, 101 S. Ct. 1089, 1095 (1981).
2.

Timeliness of Title VII Disparate Treatment Claims

It is well settled that a Title VII plaintiff must file a charge of discrimination
within one hundred and eighty (180) days of the allegedly unlawful employment
practice. See 42 U.S.C. § 2000e-5(e)(1); Beavers v. Am. Cast Iron Pipe Co., 975
F.2d 792, 796 (11th Cir. 1992). However, the Eleventh Circuit distinguishes
between employment practices or decisions which are discrete acts and practices
or decisions which are continuing violations. See Beavers v. Am. Cast Iron Pipe
Co., 975 F.2d 792, 796 (11th Cir. 1992) (“Where an employee charges an
employer with continuously maintaining an illegal employment practice, he may
10

file a valid charge of discrimination based upon that illegal practice until 180 days
after the last occurrence of an instance of that practice. However, where the
employer engaged in a discrete act of discrimination more than 180 days prior to
the filing of a charge with the EEOC by the employee, allegations that the
discriminatory act continues to adversely affect the employee or that the employer
presently refuses to rectify its past violation will not satisfy the requirement of 42
U.S.C. § 2000e-5(e) . . . .”). A discrete act usually involves a single instance of
discrimination. See id. at 797. Conversely, a continuing violation usually
involves a policy or practice. See id. at 796–97.
In Beavers v. American Cast Iron Pipe Co., the Eleventh Circuit explained
this distinction. 975 F.2d 792. The defendant in Beavers maintained a policy of
denying insurance coverage to children of its employees who did not reside with
the employee. It was undisputed that the plaintiff had failed to file a charge of
discrimination within one hundred and eighty (180) days of becoming subject to
this policy. See id. at 796. Nonetheless, the Eleventh Circuit found that the
plaintiff’s claim was timely. Id. at 798. The court reasoned that, because the
defendant denied insurance coverage under an established policy, each week the
defendant continued to deny insurance coverage was a new wrong actionable
under Title VII. Id.
11

Additionally, the Beavers court applied the standard from a former Fifth
Circuit case, Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir.
1980).6 In Gonzalez, the plaintiff alleged that the defendant discriminated against
him through a testing system. In reversing the district court, the Fifth Circuit said,
“Where an employee charges an employer with continuously maintaining an
illegal employment practice, he may file a valid charge of discrimination based
upon that illegal practice until 180 days after the last occurrence of an instance of
that practice.” Id. at 249 (emphasis added). Thus, the Fifth Circuit concluded that,
if the defendant had continued to use the allegedly discriminatory testing system
within the one hundred and eighty (180) days before plaintiff had filed his charge
of discrimination, then his claim was timely. Id.
III.

ANALYSIS
A.

Bryant’s Disparate Treatment Claims

As explained earlier, Title VII and § 1981 involve the same standards of
proof and use the same analytical framework. See Standard, 161 F.3d at 1330.
Therefore, the court’s analysis of Bryant’s Title VII claim applies equally to his
§ 1981 claim with one exception noted below.

6

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh
Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
12

Bryant appears to challenge two separate and independent employment
actions. First, Bryant clearly challenges Imery’s decision to lay him off. Second,
Bryant appears to challenge Imery’s failure to promote him to a Mechanic A
position. The court will address each in turn.
For purposes of the Motion, Imery’s does not seriously contest that Bryant
has established three elements of a prima facie case regarding his lay-off: (1)
Bryant is in a protected group, (2) he suffered an adverse employment action (the
lay-off), and (3) he is qualified to work as a Mechanic B. Imery’s focuses instead
on the fourth element of Bryant’s prima facie case: whether Imery’s treated
similarly situated non-African-Americans differently than Bryant.
Bryant’s claim fails because he cannot establish this fourth element. It is
undisputed that Imery’s laid off all seven (7) Mechanic B’s in September 2009.
Because Imery’s laid off all the Mechanic B’s, it could not have treated any
Mechanic B better than any other Mechanic B.7 Thus, Bryant has failed to
establish a prima facie case of disparate treatment regarding the lay-off.
And, even if Bryant could make out a prima facie case, he has not shown
that Imery’s legitimate, nondiscriminatory reason for the lay-off was a pretext for

7

Two of the Mechanic B’s (Bryant and Joel McCain) were African-American; the other
five Mechanic B’s were not African-American.
13

discrimination. Imery’s says it instituted the lay-off because of a decrease in sales.
(Doc. 27 at 8, ¶ 12.) It is undisputed that, as part of the lay-off, Imery’s eliminated
all Mechanic B’s from its workforce. Imery’s contends it eliminated the Mechanic
B position in part because the Mechanic B’s possessed less skill than Mechanic
A’s and in part because Article 13 of the collective bargaining agreement required
the lay-off to progress through the Mechanic B classification before reaching the
Mechanic A’s. Doc. 27 at 8, ¶ 13; see also Doc. 28-4 at 15 (“All cases of
reduction or changes in the work force shall first be carried out within each
classification, within each respective department.”).
Bryant has offered no evidence or argument that Imery’s did not have a
decrease in sales. Nor has Bryant challenged Imery’s decision to reduce its work
force. Instead, Bryant challenges the way that Imery’s reduced its work force.
Specifically, he disputes whether the Mechanic A’s were in fact more skilled than
the Mechanic B’s.
Even assuming that Bryant is correct, his contention does not show that the
lay-off was a pretext for discrimination. It is undisputed that Imery’s required
Mechanic B’s to pass the Mechanic A test to become a Mechanic A. Apparently,
Imery’s views the Mechanic A test as an indicator of skill level. The court
expresses no opinion on the wisdom of Imery’s view. It notes only that Imery’s
14

view is a permissible business judgment so long as the Mechanic A test does not
unlawfully discriminate against Imery’s employees. It is undisputed that Bryant
never passed the Mechanic A test. Because Bryant never passed the test, he never
became a Mechanic A. And, because Bryant was a Mechanic B instead of a
Mechanic A, Imery’s viewed him as a lesser skilled mechanic. Imery’s says it
included Bryant in the lay-off for that reason. Bryant has produced no evidence
from which a reasonable jury could infer Imery’s reason is merely a pretext for
discrimination.8 For this alternate reason, Bryant’s disparate treatment claim
related to the lay-off fails.
Bryant also contends that several white employees were promoted to a
Mechanic A position either without having to take the Mechanic A test or despite
having failed it. These contentions are immaterial to Bryant’s lay-off claim.
Admittedly, if Imery’s had promoted Bryant to a Mechanic A position, he would
not have been included in the September 2009 lay-off. But, if that is Bryant’s

8

Furthermore, Bryant does not argue that Imery’s improperly applied Article 13 of the
collective bargaining agreement. Because this legitimate non-discriminatory reason remains
unchallenged, Imery’s is entitled to summary judgment on Bryant’s disparate treatment claims
related to the lay-off. See Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir.
2007) (“If the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff
must rebut each of the reasons to survive a motion for summary judgment.”)

15

theory, then Bryant concedes the lay-off decision was motivated by his Mechanic
B classification, not his race. Thus, it appears Bryant is actually challenging
Imery’s failure to promote him.
If Bryant is challenging Imery’s failure to promote him, his claims also fail.
Here, the Title VII and § 1981 analyses diverge. Bryant’s Title VII failure-topromote claim fails because it is untimely. It is undisputed that Bryant last tried to
become a Mechanic A through the Alabama Technology Network’s training
course in late 2007 and early 2008. Bryant failed to file an EEOC charge within
one hundred and eighty (180) days of Imery’s failure to promote him after that
course. Thus, Bryant’s Title VII failure-to-promote claim is time barred. Nat’l
R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 2073
(2002).9
Bryant’s § 1981 failure-to-promote claim fails because Bryant has no
admissible evidence showing he was treated differently than white employees. At
summary judgment, a district court may not consider evidence which could not be
reduced to an admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316,
1323 (11th Cir. 1999). Bryant alleges that Imery’s allowed two white employees,

9

The statute of limitations for a § 1981 claim is four years. See Baker v. Birmingham
Bd. of Educ., 531 F.3d 1336, 1337–38 (11th Cir. 2008). Thus, Bryant’s § 1981 failure-topromote claim is timely.
16

Charles Stephenson and Tony Abrams, to become Mechanic A’s without passing
the Mechanic A test. (See Doc. 33-1 at 13, ¶ 17–18.) Specifically, Bryant says
that Stephenson informed him that he was promoted without having to take, much
less pass, the Mechanic A test. (Doc. 33-1 at 13, ¶ 18.) Bryant also says that
Abrams said that he received extra points from Shelby Halverson, a white
supervisor, so he could pass the Mechanic A test. (Doc. 33-1 at 13, ¶ 17; Doc. 34
at 28.) Because Bryant offers Stephenson’s and Abrams’s statements for their
truth, the statements are hearsay and, therefore, inadmissible. (See Doc. 37 at
15–16) (objecting to Bryant’s Declaration). Thus, the court cannot consider these
statements in resolving Imery’s Motion.
Bryant’s other evidence, although admissible, does not show that Imery’s
gave white employees special treatment. First, Bryant contends that two white
employees, Timothy Denton and Tony Abrams, failed the Mechanic A test in
2006, but still became Mechanic A’s in 2007. (Doc. 33 at 26.) Bryant argues that
Imery’s records do not show that these employees took and passed the test in
2007. (Id.) However, Bryant overlooks the fact that, in the Spring of 2007,
Imery’s lowered the passing score on the Mechanic A test to an eighty-nine (89).
(Doc. 32-4 at 9.) Both Denton and Abrams scored eighty-nine (89) or higher
when they took the test in 2006. (Doc. 32-2 at 5, 7.) Thus, their promotions in
17

2007 are consistent with Imery’s decision to lower the passing test score. Put
simply, Imery’s lowered its standards, which made previously unqualified
individuals qualified. Conversely, Bryant did not qualify for a Mechanic A
position, even under Imery’s lower standards. (See Doc. 33-3 at 21) (showing
Bryant scored a sixty-two (62) on the Mechanic A test). That Denton and Abrams
did not retake the test in 2007 does not matter.
Second, Bryant contends that Michael Black and Leslie Buchanan became
Mechanic A’s although they never scored eighty-nine or higher on the Mechanic
A test. (See Doc. 34 at 27–28; Doc. 33-3 at 21.) But again, Bryant overlooks the
fact that both Black and Buchanan successfully completed all eight training
courses offered through the Alabama Technology Network. (Doc. 33-3 at 21.)
Therefore, these men qualified to become Mechanic A’s through an alternate route
that was also available to Bryant. Bryant, like Black and Buchanan, also
participated in the eight training courses, but Bryant only successfully completed
seven of them. Thus, Bryant did not qualify to become a Mechanic A through this
alternate route. Because Abrams, Denton, Black, and Buchanan all qualified to
become Mechanic A’s (either by passing the Mechanic A test or completing the
eight training courses), they are not similarly situated to Bryant, who never
qualified to become a Mechanic A. Thus, their promotions do not show that
18

Imery’s treated white employees better than Bryant.
Because Bryant has no admissible evidence which shows that Imery’s
treated him less favorably than a similarly situated white employee, he cannot
establish a prima facie case on his § 1981 failure-to-promote claim.10
For the foregoing reasons, Bryant has failed to establish a prima facie case
of disparate treatment under Title VII or § 1981. Additionally, regarding Bryant’s
lay-off claims under Title VII and § 1981, he has not shown pretext. Finally,
Bryant’s Title VII failure-to-promote claim is untimely. Thus, Imery’s Motion is
due to be GRANTED as to Bryant’s disparate treatment claims.
B.

Bryant’s Title VII Disparate Impact Claim

Count II of Bryant’s Amended Complaint alleges a disparate impact
violation under Title VII. (Doc. 7 at 5.) Imery’s contends that Bryant’s disparate
impact claim is untimely. (Doc. 27 at 12 n.2.) The court rejects this argument.
Gonzalez is directly on point. In Gonzalez, the former Fifth Circuit said,
“Where an employee charges an employer with continuously maintaining an
illegal employment practice, he may file a valid charge of discrimination based
upon that illegal practice until 180 days after the last occurrence of an instance of

10

Even if Bryant’s Title VII failure-to-promote claim were timely, it would fail for the
same reasons set out in the court’s analysis of Bryant’s § 1981 failure-to-promote claim.
19

that practice.” 610 F.2d at 249. In Gonzalez, the allegedly unlawful employment
practice was a written test. Id. Here, like Gonzalez, Bryant contends Imery’s
Mechanic A test prevents him and other African Americans from becoming
Mechanic A’s. It is undisputed that a white employee took and passed the
Mechanic A test on January 12, 2010. (Doc. 34 at 13, ¶ 11; Doc. 37 at 2 n.1.)
Forty-three (43) days later, on February 24, 2010, Bryant amended his EEOC
charge to include a disparate impact claim. (Doc. 34 at 13, ¶ 12; Doc. 37 at 2 n.1.)
Thus, Bryant’s disparate impact charge is timely because it came within onehundred eighty (180) days of the last use of Imery’s allegedly discriminatory test.
See Beavers, 975 F.2d at 798; Gonzalez, 610 F.2d at 249.11
In its Reply, Imery’s contends—for the first time—that Bryant’s disparate
impact claim fails on the merits. (Doc. 37 at 8–14.) The court will not consider
these arguments because Imery’s failed to raise them in their initial summary
judgment brief. Doc. 27; see, e.g., Herring v. Sec’y, Dep’t of Corr., 397 F.3d
1338, 1342 (11th Cir. 2005) (explaining that a court need not consider arguments
or issues raised for the first time in a party’s reply brief). Thus, Imery’s Motion is

11

Because the court finds that Bryant’s claim is timely under Gonzalez and Beavers, the
court does not address Bryant’s argument that his claim is timely under the Lilly Ledbetter Fair
Pay Act of 2009, Pub. L. No. 111-2, 123 Stat. 5.
20

due to be DENIED as to Bryant’s disparate impact claim.12
C.

Bryant’s Other Claims

Counts III and IV of Bryant’s Amended Complaint allege claims for
violations of the ADEA and for retaliation. (Doc. 7 at 6.) Because Bryant has
failed to present any argument on these claims, these claims are abandoned. See,
e.g., Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d
1301, 1326 (11th Cir. 2000) (“The appellants’ failure to brief and argue this issue
during the proceedings before the district court is grounds for finding that the
issue has been abandoned.”); see also McMaster v. United States, 177 F.3d 936,
940–41 (11th Cir. 1999) (claim may be considered abandoned when district court
is presented with no argument concerning a claim included in the plaintiff’s
complaint); Bute v. Schuller Int’l, Inc., 998 F. Supp. 1473, 1477 (N.D. Ga. 1998)
(finding unaddressed claim abandoned).
IV.

CONCLUSION

12

A disparate impact claim requires: (1) a statistical disparity between a protected and
non-protected class, (2) a facially neutral employment practice, and (3) a causal connection
between the disparity and the employment practice. See EEOC v. Joe’s Stone Crab, Inc., 220
F.3d 1263, 1274 (11th Cir. 2000). The third element requires “statistical evidence of a kind and
degree sufficient to show that the practice in question has caused the exclusion of applicants for
jobs or promotions because of their membership in a protected group.” Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 994, 108 S. Ct. 2777, 2789 (1988). In its Reply, Imery’s contends
that Bryant lacks any statistical evidence to support his disparate impact theory. (Doc. 37 at
9–11.) If Bryant indeed has no statistical evidence to support his disparate impact claim, as
Imery’s contends, he will be unable to prove this claim at trial.
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For these reasons, Imery’s Motion is GRANTED IN PART and DENIED
IN PART as follows:
A.

On Bryant’s Disparate Treatment Claims (Count I), the Motion is
GRANTED.

B.

On Bryant’s Disparate Impact Claim (Count II), the Motion is
DENIED.

C.

On Bryant’s ADEA Claim (Count III), the Motion is GRANTED.

D.

On Bryant’s retaliation claims (Count IV), the Motion is GRANTED.

The court will set a final pretrial conference by separate order.
DONE and ORDERED this the 7th day of February, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

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