Riley et al v. University of Alabama Health Services Foundation, P.C. et al

Filing 49

MEMORANDUM OPINION-re: Motions to Strike 29 & 33 ; Motion for Summary Judgment 19 . Signed by Judge Virginia Emerson Hopkins on 1/8/2014. (AVC)

FILED
2014 Jan-08 AM 10:59
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
JOHN RILEY and GENEVIEVE
HARRIS,
Plaintiffs,
v.
UNIVERSITY OF ALABAMA
HEALTH SERVICES
FOUNDATION, P.C.,
Defendant.

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) Case No.: 2:12-CV-346-VEH
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MEMORANDUM OPINION
This employment discrimination action was filed on February 1, 2012, by the
plaintiffs, John Riley and Genevieve Harris, against the University of Alabama Health
Services Foundation, P.C. (“UAHSF”).1 As against UAHSF, Count One of the
complaint alleges race discrimination in violation of: Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”); 42 U.S.C. § 1981, and 42 U.S.C. §
1983. Count Two alleges race discrimination in violation of the Equal Protection
Clause of the Fourteenth Amendment to the United States Constitution and 42 U.S.C.
§ 1983. Finally, Count Three alleges retaliation in violation of Title VII, 42 U.S.C.
1

The complaint also asserted claims against Demonsthenes Lalisan. Lalisan was
dismissed from this action on January 29, 2013. (Doc. 17).

§ 1981, and 42 U.S.C. § 1983.
On March 1, 2013, the defendant filed its motion for summary judgment. (Doc.
19). In support of its motion, the defendant submitted, among other evidence, the
affidavit of Demosthenes Lalisan.

(Doc. 20-20). The plaintiff responded to the

motion for summary judgment on March 29, 2013. (Doc. 23). In support of its
response, the plaintiff submitted the declarations of John Riley, Genevieve Harris,
and Joe Captain. (Docs. 24-1, 24-2, 26-5). On April 12, 2013, the defendant moved
to strike portions of the declarations of John Riley, Genevieve Harris, and Joe
Captain. (Doc. 29). On May 17, 2013, the plaintiffs moved to strike portions of the
affidavit of Demosthenes Lalisan. (Doc. 33). On December 19, 2013, the court held
a hearing on the motions. All three motions are now under submission and before the
court for disposition.
For the reasons stated herein, the motions to strike will be GRANTED in part
and DENIED in part as noted herein. In addition, the motion for summary judgment
will be GRANTED as to the section 1983 and retaliation claims, and DENIED in all
other respects.
I.

APPLICABLE STANDARDS
A.

MOTIONS TO STRIKE

It has long been the law in this circuit that, when deciding a motion for
2

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). But, until 2010, Rule 56 lacked a formal procedure to challenge
such inadmissible evidence. In 2010, the advisory committee added Rule 56(c)(2),
which provides:
A party may object that the material cited to support or dispute a fact
cannot be presented in a form that would be admissible in evidence.
Fed. R. Civ. P. 56(c)(2). Although the defendant has styled the Motion as a motion
to strike, the Motion is, in substance, a challenge to the admissibility of the plaintiffs’
evidence. Therefore, the court will treat the Motion as an objection under Rule
56(c)(2).
B.

MOTIONS FOR SUMMARY JUDGMENT

Under Federal Rule of Civil Procedure 56, summary judgment is proper if there
is no genuine dispute as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986) (“[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”) (internal quotation

3

marks and citation omitted). The party requesting summary judgment always bears
the initial responsibility of informing the court of the basis for its motion and
identifying those portions of the pleadings or filings that 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, Rule 56(e) requires the non-moving party to go
beyond the pleadings in answering the movant. Id. at 324. By its own affidavits – or
by the depositions, answers to interrogatories, and admissions on file – it must
designate specific facts showing that there is a genuine issue for trial. Id.
The underlying substantive law identifies which facts are material and which
are irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All
reasonable doubts about the facts and all justifiable inferences are resolved in favor
of the non-movant. Chapman, 229 F.3d at 1023. Only disputes over facts that might
affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment. Anderson, 477 U.S. at 248. A dispute is genuine “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. If the evidence presented by the non-movant to rebut the moving party’s
evidence is merely colorable, or is not significantly probative, summary judgment
may still be granted. Id. at 249.
How the movant may satisfy its initial evidentiary burden depends on whether
4

that party bears the burden of proof on the given legal issues at trial. Fitzpatrick v.
City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant bears the burden
of proof on the given issue or issues at trial, then it can only meet its burden on
summary judgment by presenting affirmative evidence showing the absence of a
genuine issue of material fact – that is, facts that would entitle it to a directed verdict
if not controverted at trial. Id. (citation omitted). Once the moving party makes such
an affirmative showing, the burden shifts to the non-moving party to produce
“significant, probative evidence demonstrating the existence of a triable issue of fact.”
Id. (citation omitted) (emphasis added).
For issues on which the movant does not bear the burden of proof at trial, it can
satisfy its initial burden on summary judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of evidence to support the
non-movant’s case on the particular issue at hand. Id. at 1116. In such an instance,
the non-movant must rebut by either (1) showing that the record in fact contains
supporting evidence sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed verdict motion at trial based on
the alleged evidentiary deficiency. Id. at 1116-17. When responding, the non-movant
may no longer rest on mere allegations; instead, it must set forth evidence of specific
facts. Lewis v. Casey, 518 U.S. 343, 358 (1996). The second method a movant in this
5

position may use to discharge its burden is to provide affirmative evidence
demonstrating that the non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the non-movant must rebut by offering
evidence sufficient to withstand a directed verdict at trial on the material fact sought
to be negated. Id.
II.

THE DEFENDANT’S MOTION TO STRIKE PORTIONS OF THE
DECLARATIONS OF JOHN RILEY, GENEVIEVE HARRIS, AND JOE
CAPTAIN (DOC. 29)
The defendant challenges the admissibility of the evidence the plaintiffs have

submitted in opposition to the motion for summary judgment. Of course, evidence
submitted in support of, or in opposition to, a motion for summary judgment does not
have to be admissible under the Federal Rules of Evidence, as long as it could be
reduced to an admissible form at trial. McMillian v. Johnson, 88 F.3d 1573, 1584
(11th Cir. 1996) aff'd sub nom. McMillian v. Monroe Cnty., Ala., 520 U.S. 781, 117
S. Ct. 1734, 138 L. Ed. 2d 1 (1997)(“We read this statement as simply allowing
otherwise admissible evidence to be submitted in inadmissible form at the summary
judgment stage, though at trial it must be submitted in admissible form.”). Still, “an
objection [under Rule 56(c)(2)] functions much as an objection at trial . . . . The
burden is on the proponent to show that the material is admissible as presented or
to explain the admissible form that is anticipated.” FED. R. CIV. P. 56 advisory
6

committee’s note to 2010 amendments (emphasis added).
A.

Declaration of John Riley (Doc. 24-1)2
1.

“Joe Captain’s job description was changed in an obvious effort
to disqualify Genevieve and I. The education requirements were
also changed in order to justify giving the job to Montgomery,
who was only a high school graduate.” (Doc. 24-1 at 6).

The defendant argues that this section of the affidavit is “[s]peculation, lay
witness opinion evidence[,] and not based on personal knowledge.” (Doc. 29 at 2).
Rule 56(c)(4) provides
An affidavit or declaration used to support or oppose a motion must be
made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify
on the matters stated.
FED. R. CIV. P. 56(c)(4). Further, a lay witness may only offer an opinion if it is:
“rationally based on the witness’s perception.” FED. R. EVID. 701.
“Rule 701's requirement that the opinion be ‘rationally based on the
perception of the witness' demands more than that the witness have
perceived something firsthand; rather, it requires that the witness's
perception provide a truly rational basis for his or her opinion.”
Asplundh Mfg. Div. v. Benton Harbor Eng'g, 57 F.3d 1190, 1201 (3d
Cir.1995). “The nature and extent of the contacts and the observations
of the witness should be as detailed as possible, but it must be
recognized that an adequate foundation for opinion testimony by a
layman is established when the testimony discloses that the witness
through contacts with the subject had a reasonable opportunity to form

2

In addressing these motions the court will set out, as separate subheadings, the evidence
that is at issue, and analyze the arguments regarding same.
7

an opinion.” United States v. Pickett, 470 F.2d 1255, 1258
(D.C.Cir.1972).
An opinion is admissible only if the court determines that an
adequate foundation has been established. See 29 Wright & Gold, supra,
§ 6254 at 145 (collecting cases). The district court determines, under
Rule 104(b), whether an adequate foundation has been established to
support a finding of rational perception. The court also determines,
under Rule 104(a), whether the proffered opinion is based on personal
knowledge and will be helpful to the jury. See United States v. Rea, 958
F.2d 1206, 1216-17 (11th Cir.1992) (discussing FED. R. EVID. 104).
KW Plastics v. U.S. Can Co., 131 F. Supp. 2d 1265, 1273-74 (M.D. Ala. 2001). A
party’s mere “belief” and/or speculation is not based on personal knowledge and is
not competent summary judgment evidence.

Gen. Longshore Workers, Int'l

Longshoremen Ass'n, Local 1988 v. Pate Stevedore Co., No. 91-30292-RV, 1993 WL
603297 at *8 (N.D. Fla. Dec. 30, 1993) aff'd sub nom. Gen. Longshore v. Pate
Stevedore, 41 F.3d 668 (11th Cir. 1994) (holding that a party’s belief does not satisfy
the personal knowledge requirement because “[b]elief, no matter how sincere, is not
equivalent to knowledge”) (citing Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir.
1949)).
The affidavit does not show how Riley is competent to say either that the
changes3 were “an obvious effort to disqualify Genevieve and I,” or that they were

3

As will be shown in more detail in the ruling on the motion for summary judgment,
when Captain left his position, another employee was given his responsibilities, and a new
position was created. Part of the responsibilities of the new position were the same as those in
8

done “in order to justify giving the job to Montgomery, who was only a high school
graduate.” It also does not specify by whom this “effort” was made. These
statements are pure speculation.
The plaintiffs argue that the paragraph should be allowed because these
statements “are Riley’s belief based on his own personal experience and knowledge
of the relevant circumstances.” (Doc. 43 at 7).4 The court is not persuaded.
According to FED.R.EVID. 602, “[a] witness may testify to a matter only if evidence
is introduced sufficient to support a finding that the witness has personal knowledge
of the matter.” For a matter to be considered within a witness's personal knowledge,
it must be “derived from the exercise of his own senses, not from the reports of
others—in other words, [it] must be founded on personal observation” U.S. v. Evans,
484 F.2d 1178, 1181 (2nd Cir.1973) (quoting 2 Wigmore, Evidence, 3d ed. 1940, §
657); see, e.g., United States v. Meling, 47 F.3d 1546 (9th Cir. 1995) (no error in a
murder-for-hire prosecution to permit a 911 operator and a paramedic to testify that
the defendant had feigned agitation and grief over finding his wife's body, because
both witnesses had ample opportunity to assess his behavior and were better able than
Captain’s former position, with some additional responsibilities added. In addition, the
educational requirements of the new position were not as stringent as in Captain’s old position.
4

Indeed, the plaintiffs, in their “general responses,” argue that it is enough that “[e]ach of
the challenged declarations is preceded by the statement that the content is based on the
declarant’s personal knowledge.” (Doc. 43 at 4) (emphasis in original); see also doc. 43 at 5.
9

the jury to determine whether it appeared abnormal under the circumstances). The
statements that the changes were “an obvious effort to disqualify Genevieve and I,”
and that they were done “in order to justify giving the job to Montgomery, who was
only a high school graduate,” will be STRICKEN. In all other respects, the
paragraph will be considered.
2.

“Since Montgomery has been in the manager position, UNOS
gave us a warning for having ongoing UNOS violations by our
organ procurement personnel. They recommended doing root
cause analysis. They found our excuses unacceptable.” (Doc.
24-1 at 9).

The defendant argues that this statement is “hearsay, speculation, and lay
opinion testimony.” (Doc. 29 at 3).
Hearsay “is a statement, other than one made by the declarant while testifying
at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”
FED.R.EVID. 801(c). “Hearsay is inadmissible unless the statement is not hearsay as
provided by Rule 801(d), or falls into one of the hearsay exceptions enumerated in
Rules 803, 804, and 807.” United States v. Baker, 432 F.3d 1189, 1203 (11th Cir.
2005).
The general rule is that inadmissible hearsay cannot defeat a
motion for summary judgment where there is no indication that it is
reducible to a form that would be admissible at trial. See Pritchard v.
Southern Co. Services, 92 F.3d 1130, 1135, amended in part on
rehearing, 102 F.3d 1118 (11th Cir.1996), cert. denied, 520 U.S. 1274,
10

117 S.Ct. 2453, 138 L.Ed.2d 211 (1997). An affidavit submitted in
connection with a motion for summary judgment may contain hearsay
statements that would be admissible at the trial under exceptions to the
hearsay rule. H. Sand & Co. v. Airtemp Corp., 934 F.2d 450, 454-55
(2nd Cir.1991).
Wyant v. Burlington N. Santa Fe R.R., 210 F. Supp. 2d 1263, 1275-76 (N.D. Ala.
2002) (Ott, J.).
The plaintiffs argue that the statement is not hearsay because it is not offered
to prove the truth of the matter asserted, but to show that the defendant’s proffered
reason for hiring Montgomery into the new position was pretext.
In its reply brief to the motion for summary judgment, the defendant states:
UAHSF’s reasons for selecting Montgomery are
undisputed—after interviewing the candidates, Meeks and Lalisan
thought he was the best candidate. Specifically, Meeks felt Montgomery
demonstrated in the interview the most comprehensive understanding of
the QA/QI process of all the candidates. Given the fact that the AOC’s
AOPO accreditation depended on its successful incorporation of QI
functions, it was important to select a candidate who understood the role
of QI component of the QA/QI Manager position. In this case, Lalisan
thought Montgomery’s responses during the interview demonstrated an
understanding of the quality improvement process and of the AOC
organization as a whole. Ultimately, they chose Montgomery because
of his breadth of knowledge of AOC operations, his track record in the
AOC, and his performance in the interview.
Although Plaintiffs brought skills and ideas to the table,
ultimately the decision makers felt Montgomery brought more.
(Doc. 21 at 24-25). It is unclear how Montgomery’s performance after he was placed

11

into the position is evidence that the defendant’s above reasons for placing him into
the position in the first place is pretextual. Nothing about the statement in the
affidavit, which vaguely discusses a “warning” for “violations,” without more
specifics, establishes pretext.
Even if the warning were admissible to show pretext, the actual warning itself
should have been produced. The plaintiff has failed to show how his statement as to
the contents of the warning, which is clearly offered to prove the truth of the matter
asserted (that a warning was issued) is admissible.

The statement will be

STRICKEN.
3.

“The AOPO found all departments lacking, so they made
recommendations for each department to develop processes to
deal with complaints and errors before the AOC can obtain
AOPO certification. Montgomery lacks the expertise to
implement such a program.” (Doc. 24-1 at 9).

The defendant argues that the first sentence is hearsay. (Doc. 29 at 3). In
response, the plaintiffs only refer to their response to the hearsay argument regarding
the previous statement. This statement will be STRICKEN for the same reason as
the previous statement.
The defendant argues that the second sentence is speculation and an
impermissible opinion of a lay witness. “An opinion is admissible only if the court
determines that an adequate foundation has been established.” KW Plastics, 131 F.
12

Supp. 2d at 1273-74. The plaintiffs respond to this argument only by saying that his
opinion “is based on his own personal perception and knowledge of Montgomery’s
lack of experience, qualifications and skill to perform the job.” (Doc. 43 at 10). They
point to no portion of the declaration which establishes the foundation for this
opinion. They neither cite nor discuss Rule 701 of the Federal Rules of Evidence as
it applies to this statement in particular.5 The plaintiffs have failed to carry their
burden of showing that this statement is admissible. It will be STRICKEN.
4.

“Thus, the FDA recognized that Walt Montgomery did not
possess the training or education, coming from the IT
department, to perform the core responsibilities for his
position.” (Doc. 24-1 at 11).

This statement is the last sentence of paragraph 33 of Riley’s affidavit. It is
Riley’s conclusion based upon the contents of a July 22, 2011, letter the defendant
received from the Food and Drug Administration.

The defendant objects to the

statement as “speculation and lay opinion testimony.” (Doc. 29 at 3). The plaintiffs
state that the statement is not speculation because “Riley has stated the findings of the
FDA.” (Doc. 43 at 10). They also state that this is not Riley’s opinion but instead are
“opinions of the FDA.” (Doc. 43 at 11).

5

It is insufficient for the plaintiffs to include a “general” discussion of Rule 701 at the
beginning of the brief, and then, as they have done repeatedly, incorporate that discussion by
reference. As to each statement which is attacked, the plaintiffs must show how the requirements
of Rule 701 are satisfied.
13

Riley’s statement is either his impermissible lay opinion as to what the letter
means, or it is a hearsay statement of the contents of the letter. Either way, it is
inadmissible. The letter should speak for itself. The statement will be STRICKEN.
5.

“The procurement team did not know that a new form was
created to help them document the usage of instrument trays
during procurement. The first thing the auditor looks for is
proof that the OPO has executed the corrective actions.” (Doc.
24-1 at 11).

The defendant argues that this is “[h]earsay, speculation, and lay opinion
testimony.” (Doc. 29 at 3).
The first sentence is speculation. The declaration lays no foundation for how
Riley would have personal knowledge about what the procurement team would or
would not know. The plaintiffs argue that “[t]he statements are based on Riley’s
personal knowledge that the existence of the form had not been passed on to the
procurement team by Montgomery, because the procurement team members did not
use the form in their day-to-day activities.” (Doc. 43 at 12 (citing doc. 20-1 at 4041)). The record citation they give is to a section of Riley’s deposition, which does
not discuss the form at all.
The first sentence will be STRICKEN. Although the defendant seeks to strike
the remainder of this statement, it offers no basis for doing so. The remainder of the
statement will be considered.
14

6.

“Montgomery’s lack of QA experience has resulted in problems
with the FDA.” (Doc. 24-1 at 12).

The defendant argues that this statement is “[s]peculation and lay opinion
testimony.” (Doc. 29 at 4). The plaintiff insists that Riley has first hand knowledge
of the problems created by Montgomery. If that is so, statements regarding the
specific problems Riley has knowledge of might be admissible, but this conclusory
statement will be STRICKEN. See Benton-Volvo-Metairie, Inc. v. Volvo Southwest,
Inc., 479 F.2d 135, 139 (5th Cir.1973)6; see also Johnson v. Scotty's, Inc., 119
F.Supp.2d 1276, 1281 (M.D.Fla.2000) (“[a]n affidavit must be stricken if it is a
conclusory argument rather than a statement of fact[.]”).
7.

“Lalisan and Hicks had given the position to Montgomery
before they interviewed me. Montgomery did not do a good job
supervising other employees as data manager.” (Doc. 24-1 at
13).

The defendant argues that this statement is “speculation and lay opinion
testimony,” and that Riley “lack[s] personal knowledge” to make this statement. It
is undisputed that, on November 8, 2010, Lalisan and Hicks told Riley that
“Montgomery was being placed in the QA Manager’s position.” (Doc. 24-1 at 6).
Of course, the defendant states that this was done on an interim basis, and that the

6

The Eleventh Circuit, in Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.
1981) (en banc), adopted as precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
15

actual position for which the plaintiffs applied was a new position. No foundation
has been laid to explain how Riley could have personal knowledge as to whether
Montgomery was given the new position before the plaintiffs were interviewed.
Riley is going beyond recounting facts within his personal knowledge, and is merely
telling the finder of fact what conclusion to reach. As such it is a “meaningless
assertion[] which amount[s] to little more than choosing up sides.” Fed. R. Evid. 701
(advisory committee notes).
The second sentence is Riley’s conclusory opinion. The plaintiffs argue that
this “was common at the AOC of which Riley was aware.” (Doc. 43 at 14) (citing 202 at 2(179) (Riley deposition)). The cited section of Riley’s deposition does not lay
a foundation to explain how Riley could make such a statement. In the cited portion
of his deposition, Riley only makes the additional conclusory statements that
Montgomery was “reliant on his staff to guide him through management,” and he “has
to be taught quality assurance.” (Doc. 20-2 at 2(179)).
These statements will be STRICKEN.
B.

Declaration of Genevieve Harris (Doc. 24-2)
1.

“In November 2010, Walt Montgomery (white) was promoted to
QA Manager, after the departure of Joe Captain, the previous
manager. According to Linda Sojourner, the AOC did not post
the position before announcing the promotion of Walt
Montgomery.” (Doc. 24-2 at 3-4).
16

The defendant objects to the second sentence as hearsay, to which the plaintiff
responds:
Linda Sojourner is Meeks’[s] Administrative Assistant with
responsibility for job posting and in management at the AOC. (Doc.
20-7, p. 23; Doc. 20-4, p. 108; Doc. 24-3, p. 54:23; Doc. 20-7, pp.
23:23-24:2). As such, Sojourner is an agent of the Defendant.
Consequently, her statement is not hearsay under Fed.R.Evid.801(d)(2).
(Doc. 43 at 15). Rule 801 of the Federal Rules of Evidence provides that a statement
is not hearsay if it is “offered against an opposing party and . . . was made by the
party’s agent or employee on a matter within the scope of that relationship and while
it existed.” FED. R. EVID. 801(d)(2)(D).7 The AOC is a division of UAHSF. The
cited evidence establishes that Sojourner is Meek’s administrative assistant (doc. 20-7
at 23), that she sent an email on January 4, 2011 “showing that the position . . . was
posted after Walt’s promotion,” (doc. 20-4 at 108) that someone named Crystal
“answered to Linda Sojourner,” (doc. 24-3 at 14(54)) and that Sojourner is the
“administrative assistant” or “administrative, uh, manager” (doc. 20-7 at 6(23-24)).
None of this evidence establishes that Sojourner “had responsibility for job posting
and management.” Thus, plaintiffs have not established that the statement concerned
“a matter within the scope of Sojourner’s relationship” with the defendant. The
statement will be STRICKEN.

7

In a footnote, the plaintiff specifies this subsection of the rule. (Doc. 43 at 15, n. 24).
17

2.

“Walt Montgomery is less qualified than both John Riley and
I. Montgomery worked in the IT department and did not have
any QA experience . . ..” (Doc. 24-2 at 4).

The defendant argues that this is “[s]peculation, lay opinion testimony and not
based on personal knowledge.” (Doc. 29 at 5). The plaintiffs argue that Harris’s
deposition lays the foundation because she “has personal knowledge regarding
Montgomery’s lack of experience.”
(Harris deposition)).

(Doc. 43 at 16) (citing doc. 20-5 at 5(132)

The cited portion of the deposition does not discuss

Montgomery’s qualifications, or Harris’s knowledge thereof. Similarly, the plaintiffs
cite to Harris’s statement (in her deposition) that Montgomery would ask Harris and
Riley for “help.” (Doc. 43 at 16) (citing doc. 20-4 at 17(63-64)). That statement also
does not establish a foundation for Harris to state in her declaration that Montgomery
was “less qualified,” or that he “lacked QA experience.”
However, the plaintiffs also argue that Montgomery admitted to Harris that he
was less qualified than Harris and Riley. (Doc. 43 at 16) (citing 20-4 at 17(63)
(Harris deposition)). That statement is not hearsay because it was “made by a party’s
. . . employee (Montgomery) on a matter within the scope of [his employment] and
while it existed.” FED. R. EVID. 801 (d)(2)(D). Montgomery’s statement to Harris
does lay a foundation for Harris to say that Montgomery was less qualified than she
and Riley. That statement will be considered. The remainder of the paragraph will
18

be STRICKEN.
3.

“After Montgomery was promoted in November 2010, I learned
that the only white colleague in my department, Virginia
Guindon, had been offered the position in January of 2010,
before Joe Captain left on disability. Attached as Exhibit B is an
excerpt of the transcript of a recorded conversation I had with
Guindon when she confirmed that she had been asked if she
was interested in Joe Captain’s position. Guindon stated that,
although they did not specifically offer her Captain’s job, they
asked her if she “would be interested” in the position. (Exhibit
B).” (Doc. 24-2 at 5).

The defendant argues that this is “[h]earsay and incomplete.” (Doc, 29 at 5).
It is unclear what Harris means when she says “I learned.” Clearly she is referring to
being told by someone that “Guindon, had been offered the position in January of
2010.” What is unclear is whether she is referring to the conversation with Guindon
that she recorded, or if she is referring to a different conversation with Guindon, or
a different conversation with a third party. Because the plaintiffs refer in their
response only to Guindon’s statement, the court will assume that the entire statement
refers to what Guindon told her.
Guindon’s statement is an out of court statement, offered for the truth of the
matter asserted. The plaintiffs argue that “this evidence can be made admissible at
trial,” but do not explain how. Since they cite to Guindon’s testimony in her
deposition, they may be arguing that Guindon herself could testify to these facts at
trial. While that is so, it misses the point. It is Harris’s statement, in her declaration,
19

as to what Guindon said, that the plaintiffs must show could be made admissible at
trial. The plaintiffs have shown no basis for allowing Harris to testify at trial as to
what Guindon said in their conversation. Similarly, the plaintiffs have shown no
basis for allowing the tape recording (or a transcript thereof), which the court would
not allow to be played at trial (other than for impeachment), to prove what Guindon
said. It is all hearsay, subject to no exceptions. The only proper evidence of what
Guindon said would be a declaration by Guindon, or deposition testimony by
Guindon herself.
These statements, the tape, and the transcript of the tape, will be STRICKEN.
4.

“After we complained about discrimination, the position was
posted so that we could apply. However, the QA Manager job
description was changed in an attempt to add criteria that would
exclude John Riley and I from consideration.” (Doc. 24-2 at 5).

The defendant only attacks the second sentence, which is pure speculation.
There is no foundation to show that Harris could have personal knowledge as to why
the additional criteria was added. The plaintiffs insist that the statement should be
allowed because Harris has seen both descriptions and is familiar with the changes.
However, that would only allow her to testify as to the changes, not the reasons
behind them. The Eleventh Circuit has cautioned that, in the context of employment
discrimination suits, “a discharged employee’s mere suspicion of ... discrimination,
unsupported by personal knowledge of discrimination, will not constitute [proof of]
20

pretext.” Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1026 (11th Cir.1994)
(alteration supplied) (citing Slaughter v. Allstate Insurance Co., 803 F.2d 857, 860
(5th Cir.1986)). The challenged sentence will be STRICKEN.
5.

“When I complained about being overlooked for the QA
Manager position, I did not complain to Dem Lalisan because
I did not believe he was trustworthy. Lalisan had an
inappropriate relationship with Paulette DiBenedetto, a QA
Coordinator with absolutely no QA or organ procurement
experience, whom he had hired. Lalisan had also instructed an
employee to manipulate a consent form involving an infant
donor. This was discovered upon review of the telephone
conversation, which was routinely recorded by the AOC.” (Doc.
24-2 at 6).

The defendant attacks only the last two sentences. Harris testifies to what was
said during a conversation between Lalisan and an unidentified employee, which was
recorded by a third party. In other words, she is aware of the conversation, and what
was said, because she listened to a recording of it. This is a non-hearsay, out of court
statement (the instruction by Lalisan to manipulate a consent form)8 within hearsay
(the recording of the instruction). The plaintiffs insist that the recording falls under
the “records of a regularly conducted business activity” exception to the hearsay rule.
See Fed. R. Evid. 803(6). The defendant has not challenged the authenticity of the
recording. Thus, it appears that the defendant is not challenging that the tape
8

Lalisan’s statement is not hearsay. He is an employee of the defendant and the statement
was made by him on a matter within the scope of his employment and while it lasted. See FED.
R. EVID. 801(d)(2)(D).
21

recording could be made admissible at trial. The statement will be considered.
6.

“There are several other examples of job postings that were
manipulated to exclude or qualify certain employees.” (Doc.
24-2 at 6).

This vague and conclusory statement will be STRICKEN.
7.

“The Certified Procurement Transplant Coordinator (CPTC)
certification was added to the job description as a requirement
in order to disqualify black employees who had Certified Tissue
Banking Specialist (CTBS) certifications, which were more
closely aligned with the responsibilities of the training
manager.” (Doc. 24-2 at 6).

Again, this is a conclusion. The declaration lays no foundation for how Harris
could know for what purpose the certification was added. The statement will be
STRICKEN.
8.

“The job description for the tissue recovery manager position
was changed to require a CPTC certification, which excluded
Renarkus Miller, a black AOC employee who had a CTBS
certification. This change was not logical, as tissue recovery is
heavily FDA regulated and it would not make sense to have a
non-CTBS person managing the tissue area. After Alan Hicks
was terminated, the job description was changed back to require
CTBS certification.” (Doc. 24-2 at 7).

The defendant challenges the second sentence as speculation and lay opinion
testimony. It also argues that Harris lacked personal knowledge to make such a
statement. Since Harris has not been qualified as an expert, she can only give her
opinion if it is comports with the requirements of Rule 701 of the Federal Rules of
22

Evidence. Again, as to this specific statement, the plaintiff makes no attempt to
explain how Rule 701 is satisfied, stating only that her statement “is based on [her]
own perception regarding requirements for successful tissue recovery, which in turn
is based on her many years of experience in the tissue procurement industry.” (Doc.
43 at 21). Since the plaintiff has not carried her burden, the statement will be
STRICKEN.
9.

“There was also a position that dealt with donor families, for
which a black employee, Marshae Crum, expressed an interest
to Dem Lalisan. The donor family position job description was
changed to add a requirement for a Master's Degree in a
particular field, such as social work. Only one employee at the
AOC had that specific degree, Carrie Peter, who is white.”
(Doc. 24-2 at 7).

The declaration provides no foundation for how Harris would have personal
knowledge that it was a position “for which a black employee, Marshae Crum,
expressed an interest to Dem Lalisan.” That portion of the statement is STRICKEN.
The remainder of the statement is allowed.
10.

“Montgomery’s position was announced as a ‘promotion’ in a
staff meeting on November 9, 2010. The AOC staff meetings
were routinely recorded. An excerpt from the court reporter’s
transcript of the recording is attached as Exhibit A. Dem
Lalisan, the AOC Director at the time, led the meeting. I have
listened to the recording of the meeting and can positively
identify the voice of “Speaker 1" as Dem Lalisan.” (Doc. 24-2
at 4).

The defendant argues that the first sentence is hearsay, and that Harris could
23

have no knowledge as to what was actually said at the meeting because she did not
attend. Indeed, there is no foundation in the declaration for how Harris could have
personal knowledge of what was said in the meeting, except, that she listened to what
she says was a recording of the meeting.
This situation appears to present one out of court statement (Lalisan’s
statement at the meeting) within another out of court statement (the recording of the
statement). It is not hearsay within hearsay, however. Lalisan’s statement at the
meeting is not hearsay because it is a statement, made by an employee (Lalisan) of a
party (UAHSF)9 “on a matter within the scope of that relationship and while it
existed.” FED. R. EVID. 801(d)(2)(D).
Still, the plaintiffs must show how the recording would be admissible. They
argue that the statement is admissible under Fed. R. Evid. 807 which provides:
(a) In General. Under the following circumstances, a hearsay statement
is not excluded by the rule against hearsay even if the statement is not
specifically covered by a hearsay exception in Rule 803 or 804:
(1)

the statement has equivalent circumstantial guarantees of
trustworthiness;

(2)

it is offered as evidence of a material fact;

(3)

it is more probative on the point for which it is offered than any

9

Lalisan was the AOC’s director from 2006 to 2011. (Doc. 20-20 at 1). The AOC is a
division of UAHSF.
24

other evidence that the proponent can obtain through reasonable
efforts; and
(4)

admitting it will best serve the purposes of these rules and the
interests of justice.

(b) Notice. The statement is admissible only if, before the trial or
hearing, the proponent gives an adverse party reasonable notice of the
intent to offer the statement and its particulars, including the declarant's
name and address, so that the party has a fair opportunity to meet it.
FED. R. EVID. 807 (emphasis added).
The defendant notes that “Harris did not attend the November 9, 2010, staff
meeting or record the meeting. Accordingly, she cannot authenticate the content of
the recording or verify the accuracy of the transcript.” (Doc. 29 at 8). In response,
the plaintiffs write: “Harris has produced a properly authenticated transcript of the
recording of Lalisan’s statement to this effect, and identified Lalisan’s voice as the
speaker on the recording. Therefore, Harris’[s] statement is admissible under Fed. R.
Evid. 807.” (Doc. 43 at 22) (citing (Doc. 24-2, ¶¶16-17 (“The AOC staff meetings
were routinely recorded. An excerpt from the court reporter's transcript of the
recording is attached as Exhibit A. Dem Lalisan, the AOC Director at the time, led
the meeting. I have listened to the recording of the meeting and can positively identify
the voice of ‘Speaker 1' as Dem Lalisan.”); doc. 24-2 at 13-15). The plaintiffs also
note that: “This fact is material in that it shows the decision maker’s state of mind. A
highly disputed issue in this case is whether Montgomery was promoted in
25

November, or merely placed in an interim position, as the Defendant asserts.” (Doc.
43 at 22).
Based on the plaintiffs’ showing, the transcript will be considered.
11.

“It was also announced at the meeting that Montgomery would
no longer be handling IT issues. Dem specifically stated, “Walt
is not going to have time to spend doing the computer
troubleshooting that he’s done in the past.” (Ex. A). From that
point on, IT issues would be handled by two employees from the
Department of Surgery.” (Doc. 24-2 at 4).

This statement will be considered for the same reasons as the previous
statement.
C.

Declaration of Joe Captain (Doc. 27)
1.

“Riley is a highly competent employee with superior
qualifications and experience in quality assurance and quality
improvement functions. During my absences in 2009 and 2010,
John filled in for me and took over many of my responsibilities.
For example, he worked with the donor charts and reviewed
them for accuracy and completeness. He conducted internal
audits of the AOC procurement facilities and sat in for me
during the last AATB audit, which we passed.” (Doc. 27 at 1-2).

The defendant argues that Captain could not possibly have personal knowledge
about what Riley did when Captain was away. In response, the plaintiffs state that
“[t]his testimony is corroborated by Riley’s own testimony[.]” (Doc. 43 at 23). That
fact does not help Captain’s statement in his declaration, which lacks any foundation
for his personal knowledge.

26

The plaintiffs cite Zaben v. Air Prods. & Chems., 129 F.3d 1453, 1457 (11th
Cir. 1997), for the proposition that “where the person relating the statement to the
declarant independently testifies, those statements may be permissible.” (Doc. 43 at
23). It is unclear the point that the plaintiffs are trying to make. They seem to imply
(but do not say) that Captain has personal knowledge about what Riley did, because
Riley told him so. It would seem that they are arguing that, because Riley also
testified to what Riley did for Captain, Captain’s statement is valid. Zaben does not
stand for that.
In Zaben, the declarant, an employee of the defendant, testified to what two
other employees told him about what “others” in the company told them. Zaben, 129
F.3d at 1456. The court held that that testimony was “double hearsay” and was not
admissible. It continued that
If [the two other employees] had been deposed-or had furnished sworn
affidavits-and had testified with respect to age-biased statements made
by specifically identified, senior managers at the plant, their statements
. . . might have been relevant and, therefore, permissible.
Id. at 1457 (emphasis supplied). That is not the same situation that is present in the
instant case. Zaben is not helpful as to Captain’s (as opposed to Riley’s) statement.
The statement will be STRICKEN.
2.

“Montgomery had no quality assurance or quality improvement
experience that was documented. Nor did he perform any
quality assurance duties in that position, to my knowledge.
27

Montgomery’s basic duties involved data entry and computer
and technology related tasks. I was shocked to learn that
Montgomery was placed in the QA Manager position in 2010.
He was not qualified.” (Doc. 27 at 3).
The defendant correctly points out that the declaration lays no foundation for
how Captain could have personal knowledge of Montgomery’s qualifications.
Captain merely states that he is “familiar with Walter Montgomery who worked in the
IT department at the AOC during my tenure.” (Doc. 27 at 3). It does not state how
he would know what Montgomery’s duties were in IT, or what he did while there.
Further, the statement, “he was not qualified,” is an impermissible lay witness
conclusion. These statements will be STRICKEN.
3.

“I was aware of the conflict in 2007 between Montgomery and
another IT worker, Fran Lewis, who is black. According to
Fran Lewis, Montgomery screamed at her and harassed her
until she left in January of 2003. Lewis filed an EEOC charge
alleging discrimination. Subsequently, Lalisan decided that
Montgomery could never work in a supervisory position with
the AOC in the future because of his lack of interpersonal and
leadership skills. This fact was told to me by Dem Lalisan and
widely discussed within the AOC management team. The above
mentioned outbursts continued long after this encounter.”
(Doc. 27 at 3).

The plaintiffs state that these statements can be “reduced to admissible form
by either presenting . . . Lewis as a witness or by offering the EEOC documents as
evidence.” (Doc. 43 at 25). However, what is offered in opposition to the motion for
summary judgment is not Lewis’s declaration stating that “Montgomery screamed at
28

her and harassed her until she left in January of 2003,” and thereafter “filed an EEOC
charge alleging discrimination.” Her declaration could be made admissible because
she could testify at trial. However, here, the problem is that Captain is testifying to
what Lewis told him about what happened. That is hearsay. That statement will be
STRICKEN.
The declaration states that Lalisan told Captain that Lalisan “decided” that
“Montgomery could never work in a supervisory position with the AOC in the future
because of his lack of interpersonal and leadership skills.” As shown in more detail
in the ruling on the motion for summary judgment below, Lalisan was Captain’s and
Montgomery’s superior who was responsible for promoting both into the position of
QA Manager. Accordingly, his statement is not hearsay because it is a statement
“made by the party’s agent or employee on a matter within the scope of that
relationship and while it existed.” FED. R. EVID. 801(d)(2)(D). That statement is
allowed.
4.

“Montgomery lacked any qualifications or experience to
perform competently in that position.” (Doc. 27 at 3).

The declaration lays no foundation for this statement. It will be STRICKEN.
III.

THE PLAINTIFFS’ MOTION TO STRIKE PORTIONS OF THE
AFFIDAVIT OF DEMOSTHENES LALISAN (DOC. 33)
A.

“One of the reasons the AOC received such poor scores was because
29

it entirely lacked a quality improvement (‘QI’ program or
department.” (Doc. 20-20 at 2).
Lalisan made this statement after he noted that “the AOC was scoring poorly
on its periodic audits by various outside agencies.” (Doc. 20-20 at 2). To the extent
that Lalisan is repeating the contents of the reports, this is hearsay. The reports will
speak for themselves. However, the defendant states that this is “lay witness
testimony based on his perceptions as the head of AOC.” (Doc. 42 at 2). Actually,
it is his opinion as to one of the reasons for the poor score. He may only give that
opinion if it is:

“(a) rationally based on [his] perception; (b) helpful to clearly

understanding [his] testimony or to determining a fact in issue; and (c) not based on
scientific, technical, or other specialized knowledge within the scope of Rule 702.”
FED. R. EVID. 701. The defendant does not even cite this rule in defending this
statement. Accordingly, it has not carried its burden to show that the statement is
admissible. The statement will be STRICKEN.
B.

“The auditing agencies strongly suggested to the AOC that it needed
a quality improvement focus rather than just a quality assurance
focus. In fact, AOPO and UNOS mandated the incorporation of
quality improvement at the AOC and AOPO would not accredit the
AOC until it implemented a quality improvement program.” (Doc.
20-20 at 2-3).

Here, too, Lalisan appears to merely restate his recollection of the contents of
the reports. The defendant states that the statement is not hearsay because it is not
30

offered for the truth of the matter asserted, but instead to show that Lalisan “heeded
the advice of the auditing agencies and decided to reclassify the Quality Assurance
Manager position to include a quality improvement component.” (Doc. 42 at 5). The
court is not persuaded. The purpose of the testimony is clearly to show the truth of
the matter asserted–the mandates of the auditing agencies–as a justification for
Lalisan’s actions. The statement will be STRICKEN.
C.

“Because of the various audit results and the other issues in the QA
department, Mr. Meeks, Mr. Hicks, and I decided to consider
reclassifying the QA manager position to include both QA and QI
components.” (Doc. 20-20 at 3).

Here, Lalisan impermissibly testifies, without laying an evidentiary foundation,
to the mental impressions (“[b]ecause of”) of Meeks and Hicks. To the extent it
includes Mr. Meeks’s and Mr. Hicks’s reasons, it will be STRICKEN.
D.

“Mr. Montgomery was the best fit for the interim position for many
reasons. He had been with the AOC for more than 20 years, had
created databases and managed the data that the QA department
produced, and had been performing quality assurance for the AOC
through its call center, the financial record of the AOC, and records
memorializing the disposition of all organs and tissues sent and
received by the AOC. He had also participated in the structuring of
the QA chart review process and created many of the forms and
databases utilized during the QA department’s chart reviews.”
(Doc. 20-20 at 4).

This statement will be allowed. Lalisan is competent to testify as to why he
hired Montgomery for the position. Although the plaintiffs argue that the paragraph
31

“appears to reference a conglomeration of documentary evidence and tangible sources
in an effort to provide support for Lalisan’s subjective opinion of Montgomery’s
‘fitness,’” there is no indication of that in the statement. Lalisan was Montgomery’s
direct superior. He would have been in the position to have personal knowledge of
everything he states.
IV.

THE DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
A.

Facts10
1.

The Alabama Organ Center (“AOC”)

The AOC, a division of UAHSF, is involved in both organ and tissue
procurement for implantation. It provides families with opportunities to donate
organs and tissue, supports families regardless of whether they decide to donate, and
promotes the equitable utilization of these gifts to others. Neither the AOC nor
UAHSF is an agent of the state of Alabama and neither operates under color of law.
The operations of the AOC are routinely subject to audits from many different

10

The “facts” herein, if not disputed, have been set out exactly as they were offered by the
party who offered them, without citation to the record, unless quoted material is included. In the
case where a party offered a fact, and that fact was disputed, the court first checked to see if that
fact was accompanied by a proper, and specific, citation to evidence in the record which supports
the fact. If not, the fact was not included. In many such cases a footnote in this opinion indicates
the omission. If the evidence cited supported the fact as stated, the court then checked to see if
the party disputing the evidence offered a specific citation to evidence in the record which
disputed the fact. If not, the fact was included as stated by the party offering it. If, however,
there was evidence supporting the dispute, the fact was cast, as this court must, in the light most
favorable to the non-movant.
32

sources, including the Centers for Medicare and Medicaid Services (CMS). The
United Network for Organ Sharing (UNOS) is the private, non-profit organization
that manages the nation’s organ transplant system under contract with the federal
government. The American Association of Tissue Banks (AATB) is a professional,
non-profit, scientific and educational organization. The Association of Organ
Procurement Organizations (AOPO) is the non-profit organization that has developed
organizational and ethical standards for OPOs.

AOPO conducts a voluntary

accreditation program involving a peer review process, conducted at the OPO, to help
assure compliance with federal regulations as well as AOPO standards.
The principal auditing body is the Food and Drug Administration (FDA). The
FDA has ultimate regulatory control over the AOC’s organ/tissue donation programs
and is the only agency with the authority to completely shut down the AOC’s
operations if it determines that the public health is sufficiently jeopardized. Along
with the CMS, the FDA can discontinue the AOC’s funding. The AOC has a “Quality
Assurance” or “QA” Department. The primary function of the QA Department is to
make sure that the donor chart documentation is complete and verified to the
specification of the various auditing agencies, including the Food and Drug

33

Administration.11
In 2010, the AOC had three QA “Coordinators.” They were John Riley
(African American), Genevieve Harris (African American) and Virginia Guindon
(Caucasian). QA Coordinators are responsible for reviewing organ and tissue charts
and acquiring missing information, ensuring completeness and accuracy of donor
files, reviewing daily referrals for accuracy, providing follow-up to regulatory
agencies, and participating in audits.
2.

John Riley

Riley has worked in the organ and tissue procurement field for approximately
22 years. Riley has a B.S. in Biology with a minor in Chemistry. In August of 1987,
he began working at UAB as a research assistant in the Department of Physiology and
Biophysics. In 1991, Riley began working at the Alabama Tissue Center (ATC)
performing tissue procurement and cryo-preservation. (Doc. 24-1 at 2). He was
involved in procuring tissue from cadavers for implantation. At the ATC, Riley also
performed quality assurance and quality improvement functions. During his tenure,
Riley became certified as a Certified Tissue Bank Specialist (CTBS) with the

11

The defendant disputes this fact, stating that Riley “does not possess the requisite
personal knowledge to offer testimony regarding the primary function of the entire QA
department.” (Doc. 28 at 2). Riley states that he “was hired by the AOC as a Quality Assurance
Coordinator, working on performing quality assurance responsibilities for the AOC’s organ
donor program.” (Doc. 24-1 at 4). That foundation is sufficient to support the statement.
34

American Association of Tissue Banks (AATB).
In approximately September of 2000, the ATC was purchased by a private
company, Regeneration Technologies, Inc. (“RTI”). Riley continued working for RTI
in the same capacity. While at ATB and subsequently RTI, Riley had supervisory
duties on the weekend shift. In December 2006, RTI closed its tissue processing
operation at UAB and moved the function to its main plant in Florida.12
On May 25, 2006, Riley began working for the UAHSF as a QA Coordinator
at the AOC. Riley was “working on performing quality assurance responsibilities for
the AOC’s organ donor program.” (Doc. 24-1 at 4). However, because Riley had
extensive experience in tissue procurement and processing, he frequently helped out
with the tissue program as well. Tissue donation is more heavily regulated by the
FDA since tissue procurement and implantation involves extensive handling and
processing. (Doc. 24-1 at 4). Riley was the only QA Coordinator who had both
experience in organ donation and tissue donation. (Doc. 24-1 at 4). Riley also has
extensive computer training and certifications.
Riley worked on revising Standard Operating Procedures (“SOPs”) and
investigated non-conformance in order to create audit compliance.

12

Riley

Tissue processing is not a part of the operations of AOC. When tissue is procured by
the AOC, it is immediately sent to any one of several outside tissue processing companies, of
which RTI is one, for storage and processing.
35

implemented corrective action when necessary, as part of the AOC quality
improvement objectives. Riley attended AOC-wide quality improvement meetings
and suggested ways for other departments to prevent recurring errors. (Doc. 27 at
2). He reviewed deficient charts with the other AOC staff members so that corrections
could be made. (Doc. 27 at 2). He handled requests from the processing partners and
participated in training sessions offered by those partners. (Doc. 27 at 2). Riley
maintained the training records that were requested by auditors during routine site
visits. (Doc. 27 at 2). According to Joe Captain, who was the manager over Riley’s
department at one time, Riley handled “all of these responsibilities, and more, and
performed these tasks flawlessly.” (Doc. 27 at 2).
3.

Genevieve Harris

Genevieve Harris has a B.S. in biochemistry and is currently a doctoral student,
at the University of Florida, in the area of clinical audiology. Harris worked as
Laboratory Instructor and tutor at Oakwood College in Huntsville, Alabama. Harris
also worked as a Research Assistant in Neurobiology at Oakwood College. While
attending the University of Virginia, Harris instructed college chemistry lab sessions
and taught basic concepts of college level chemistry. She also worked as a Research
Assistant and conducted various research training courses.
Beginning in February 2003, Harris worked at the Southern Research Institute.
36

Her duties there included assisting in the development and implementation of Quality
Control for the Robotics Systems. In December of 2003, Harris began working at the
ATC at UAB (which was later purchased by RTI), where she processed
cardiovascular tissue for human implantation, developed SOPs to facilitate
compliance, and performed Quality Control and QA functions. At RTI, Harris was
required to ensure compliance with the FDA and the AATB. That position ended in
July 2005.
In August 2005, Harris began working at the UAB Atherosclerosis Research
Unit as a Research Technician. She began working at the AOC as a Quality
Assurance Coordinator on July 2, 2007.
4.

Riley’s and Harris’s Most Recent Performance Evaluations at
the AOC.

At the AOC, scores on the performance evaluations are rated on a scale of 1 to
3. A score of “1" means “below standard,” a score of “2" means “meets standards”
and a score of "3" means “exceeds standards.”

Riley and Harris both received

perfect scores on their most recent performance evaluations (2009) for all
responsibilities listed on their job description. (Doc. 20-7 at 29(113-115)).
5.

Management Structure of AOC

When Riley was hired in 2006, Joe Captain was the QA Manager.

Until

September 2010, Riley and Harris reported to Captain. Guindon, who worked
37

part-time, was a former procurement coordinator. Her work has been almost
exclusively in organ donation.
Captain reported to Dem Lalisan. Lalisan was the AOC’s Director from 2006
to August 2011. (Doc 20-20 at 1).13 Lalisan reported to Chris Meeks, Executive
Administrator for the Department of Surgery. Since August 2011, Meeks has also
served as the AOC’s Executive Director. Alan Hicks was the AOC’s Associate
Director from August 2006 to August 2011. It is unclear to whom he reported.
6.

The Performance of the QA Department

By 2010, Meeks and Lalisan were concerned with the performance of the QA
department. (Doc. 20-22 at 2-3; doc. 20-20 at 2). The QA department was behind on
their chart reviews, which resulted in a backlog.
The defendant insists that Meeks and Lalisan wanted to include a “Quality
Improvement” aspect to the department.14 In his deposition, Meeks testified that
Captain’s position was “QA,” or quality assurance, manager. (Doc. 20-7 at 15(60)).
13

The last two sentences are facts proffered by the defendant. As proffered, they were
combined as: “Captain reported to Dem Lalisan . . . the AOC’s Director, from 2006 to August
2011.” (Doc. 21 at 3). When written that way, it appears to state that Captain reported to Lalisan
from 2006 to August of 2011. However, it is undisputed that Captain left in 2010. Because the
plaintiffs disputed this fact as offered, it has been changed to comport with the undisputed
evidence.
14

In support of this argument, the defendant has attempted to cite evidence of
recommendations by auditing agencies. The recommendations themselves were not submitted.
Instead, the defendant has attempted to use Lalisan’s statements as to the contents of those
recommendations. Those statements will be stricken as noted above in subsections III.A.-B.
38

Exactly how much quality “improvement” authority/function he had is disputed. By
the time Montgomery took over the position, the title had been changed to “Manager
QA/QI,” or Manager Quality Assurance/Quality Improvement. (Doc. 20-7 at 15(60)).
Still, Meeks agreed that even before this change, if the “QA” manager saw errors, he
could make a recommendation for change or improvement. (Doc. 20-7 at 16(62)).
In his declaration, Riley stated that
Quality Improvement functions were already present in the QA
department. While Captain was still manager, they were instituting the
QI SOP that was in place and conducting regular AOC-wide QI
meetings, where the department heads met monthly to discuss QI issues.
(Doc. 24-1 at 8). In his deposition, Lalisan stated:
Q. Wasn’t there a period of time where you had actually instituted QA
-- I'm sorry -- QI SOP and you started having QI meetings? Do you
remember that?
A. Yes.
Q. Well, that was all during the time that Mr. Captain was there, wasn't
he?
A. Yes. We were trying to develop, uh, at least aspects of a quality
improvement which obviously didn't suffice to what needed to –
(Doc. 24-3 at 23(92)).
7.

Captain’s Departure and Discussions about Reclassifying the
QA Manager Position

In March 2010, Captain began taking intermittent leave that eventually became
39

a continuous leave of absence in June 2010. In September 2010, UAHSF was
notified that Captain was approved for long term disability benefits and would not be
returning to work.15
With Captain’s departure, UAHSF had to decide whether to fill the QA
Manager position or to change the nature of the position. (Doc. 20-20 at 3; doc. 20-22
at 3). Given the poor scores that the AOC had received on various quality control
audit reports, Meeks, Hicks, and Lalisan decided to reclassify the position to
encompass both QA and QI (quality improvement). (Doc. 20-20 at 3; doc. 20-22 at
3).16
On or about September 9, 2010, Lalisan, Hicks, and Meeks met with Jeannie
Singer and Julie Makosky from Human Resources to discuss their options regarding
15

Before Captain officially left the AOC, when it seemed that he would not be returning,
Riley mentioned to Lalisan that he was interested in Captain’s position.
16

The evidence supporting this fact has not been attacked. However, the plaintiffs dispute
this fact by citing to their own facts. (Doc. 23 at 4). They write: “Disputed. See Pla. Facts Nos.
56-58.” (Doc. 23 at 4). The plaintiffs’ cited facts in turn read:
56.
There was an existing job description for the QA Manager position
Joe Captain held, which had just recently been revised in April of that year.
(DX7, pp. 59-60; PX20).
57.
Hicks and Lalisan decided to significantly revise Joe Captain's job
description. (DX6, p. 106).
58.
Hicks and Lalisan were aware of Plaintiffs’ complaints of
discrimination. (DX5, p. 20; DX6, pp. 145-146; DX7, p. 49; PX19).
(Doc. 23 at 14). None of these facts disputes the defendant’s proffered fact.
40

the QA Manager position.17 (Doc. 20-20 at 30.) The plaintiffs insist that the purpose
of the meeting was to fill the position. Makosky testified, at different times, both that
the purpose of the meeting was to reorganize the position left open by Captain (doc.
20-16 at 17(67)), and to fill the position left open by Captain (doc. 20-16 at 14(56)).
However, she also testified that they discussed that they wanted to change the
responsibilities of the position to add “process improvement” to the position. (Doc.
20-16 at 16(61-62)). She defined “process improvement” as “needing to find a way
to look at not just the actual chart review but the entire process of looking more at
trends and things like that.” (Doc. 20-16 at 16(62)). In any event, it is clear that
Lalisan, Hicks, and Meeks told Singer and Makosky that, while they assessed the
future of the role, they needed someone to manage the QA department on an interim
basis to address the immediate issues facing the department, including the backlog.18
(Doc. 20-20 at 3; doc. 20-22 at 3).
Meeks, Lalisan, and Hicks told Singer and Makosky that they thought Walt
Montgomery would be a good person to fill the QA Manager role on an interim basis
17

The plaintiffs dispute this fact, stating that the purpose of the meeting was to “fill”
Captain’s position. They cite to a portion of Singer’s deposition which does not support their
dispute, and to a portion of Makosky’s deposition (doc. 20-16 at 14(56)) which does. (The court
discusses Makosky’s statements later in this opinion.) They also cite to plaintiffs’ facts 56-58 in
disputing this fact. The court does not see how any of the facts cited by the plaintiffs controvert
the defendant’s proffered fact.
18

Disputed by the plaintiffs with only a reference to plaintiffs’ facts 56-58. Again, these
facts do not dispute the defendant’s proffered fact.
41

while they created a new job description.19 (Doc. 20-20 at 3-4; doc. 20-16 at 18(6970)). Singer raised the issue of Montgomery’s interpersonal problems. (Doc. 20-14
at 26(103-1-4)). Singer stated:
My -- my recollection is that his approach is gruff. Uh, he's, uh -- the
former military comes up a lot when -- when referencing Walt and his
interactions with others, that he's formerly from the military. Uh, harsh
is sometimes a word that's been described, gruff. Uh, those types of
descriptions of Walt's interpersonal interactions have come up.
(Doc. 20-14 at 11(44)). Harris testified that Montgomery could not communicate
with people effectively. (Doc. 20-5 at 6(133)). Harris stated that Montgomery “has
rubbed a lot of people the wrong way.” (Doc. 20-5 at 5(132)).20 Although Lalisan
and Montgomery had some difficult working relations in 2007, Lalisan felt they had
19

At some point, Lalisan and Hicks had asked Guindon if she would be interested in
taking on more responsibility in the department. (Doc. 20-19 at 6(23)). In her deposition
Guindon testified that in response she “told them that [she] did not feel that [she] was prepared
for that position.” (Doc. 20-19 at 7(28)). She stated that she did not have enough experience in
“training.” (Doc. 20-19 at 6(728)).
20

For the reasons stated in subsection II.C.3. supra, the court has not included the
following fact, offered by the plaintiff, the support for which is entirely hearsay statements:
111. Fran Lewis (black), another IT employee, complained that Montgomery
screamed at her and harassed her, and she ultimately filed an EEOC charge.
(DX6, p. 32; DX8, p. 21; PX26, ¶8).
(Doc. 28 at 5). Also, the following fact, which is not supported by its evidentiary citation, has
not been included:
112. Lalisan wanted to subordinate Montgomery and bring John Riley into the
IT department in order to integrate the QA/QI functions with IT. (PX11, p. 3).
(Doc. 23 at 21).
42

worked beyond their differences and Montgomery would be a good interim manager.
(Doc. 20-20 at 3-4).
Singer stated that “[Lalisan, Hicks, and Meeks] felt that Walt could be, uh, an
interim to start working on that backlog and putting some processes in place.” (Doc.
20-14 at 28(110)). Singer testified:
Q. So as you attended that meeting, uh, tell me in your own words
what you recall the topic or topics were that were being discussed.
A. Okay. We, uh, went in and sat at Chris' table. Uh, just the topic,
uh, the conversation began that they were looking at an AOC
reorganization. Uh, they had had some recent audits. Uh, we were
already aware that Joe Captain had been out of the office, was pending
a long-term disability decision, and would soon be formally exiting the
position. Uh, they talked about the – a backlog. They talked about the
audit results, the pressures that they were under to get that backlog
addressed and to respond to these audit findings. Uh, I believe there was
a monetary amount talked about. I don't know the specifics on -- on that.
Uh, they -- they talked about evaluating their options with addressing
the backlog, and, uh, they mentioned the, uh, thought behind combining
the QA and QI function that had previously been separate, uh, that they
felt that that would be a better approach to more comprehensively, uh -more -- have a more comprehensive QA process. Uh, said, We evaluated
internal options or something to those words; we feel that, uh, Walt has
some capabilities to –
(Doc. 20-14 at 23 (91-92)). She continued:
I remember that [Lalisan] said after the initial discussion of here
is where we are, so to speak, with the backlog, the audit results, the
pressures that are on us, the -- the urgency of -- of working through this
issue. And then -- then the discussion went to we've got a vacancy.
We're gonna look at reclassifying it, combining these two functions, uh,
reclassify the vacancy. Uh, we have an internal option who’s had prior
43

issues we feel is worth with the investment. Uh, he said, Kind of
surprised that I’m saying it, but he’s really, uh, been a success. And, uh,
you know, they thought he had the talents to help address this backlog
and to put a -- a process in place that could address it going forward.
(Doc. 20-14 at 25(98)).

Makosky stated: “We weren’t talking about making

[Montgomery] the manager. We were talking about giving him interim oversight
over the area.” (Doc. 20-16 at 19(75)). In her deposition, Makosky agreed that “the
other existing staff members had really relevant and direct experience with quality
assurance in the AOC.” (Doc. 20-16 at 21(82)). However, Meeks testified that Riley
and Harris were not considered for the QA Manager position in November 2010.
(Doc. 20-7 at 11(41)).
Makosky and Singer told Lalisan, Hicks, and Meeks that it was permissible to
fill the QA Manager job on an interim basis.21 (Doc. 20-23 at 2). Accordingly, in
November 2010, UAHSF asked Montgomery, and Montgomery agreed, to take on the
management of the QA department on an interim basis.22 (Doc. 20-18 at 7(26), doc.
20-7 at 9(36)). On November 8, 2010, Hicks and Lalisan called Riley and Guindon

21

Disputed by the plaintiffs with a citation to plaintiffs’ facts 56-58. (Doc. 23 at 5). How
these facts dispute the defendant’s proffered fact is unclear. At the hearing on these motions, the
court asked plaintiff’s counsel if he could clarify how these facts dispute the defendant’s
proffered fact and he stated that he could not.
22

Disputed by the plaintiffs with a citation to plaintiffs’ facts 56-58. (Doc. 23 at 5). How
these facts dispute the defendant’s proffered fact is unclear. At the hearing on these motions, the
court asked plaintiff’s counsel if he could clarify how these facts dispute the defendant’s
proffered fact and he stated that he could not.
44

into a meeting and told them that Montgomery was being placed in the QA Manager’s
position. Lalisan announced at a staff meeting the next day that Montgomery was
being “promoted” to the manager role. (Doc. 24-2 at 4). It is the defendant’s general
practice to post positions. (Doc. 20-14 at 40(157)). However, the interim position
was not posted before it was given to Montgomery. (Doc. 20-4 at 18(65)).
Makosky and Meeks both testified that Montgomery did not receive any
additional pay or benefits as interim manager. (Doc. 20-16 at 19(74); doc. 20-8 at
8(146)). However, it is undisputed that he received a 5% pay increase, effective
December 1, 2010.
8.

Walt Montgomery

Montgomery, the Information Systems Specialist II or Data Manager, had been
with the AOC for more than 20 years, had built the AOC’s databases, and managed
the data that the AOC produced.23 (Doc. 20-18 at 3(11)). He did not supervise any
subordinate employees in that position. (Doc. 20-18 at 3(11)). He had been involved
in the audits of the AOC operations. (Doc. 20-20 at 4). Additionally, Lalisan and
Meeks noted that Montgomery had a long track record with the AOC as a hard
23

This and several other of the defendant’s proffered facts regarding Montgomery’s
experience and qualifications were disputed by the plaintiffs with a reference to their own facts
on the subject. (Doc. 23 at 4, citing plaintiffs’ facts 39-46 and 56-58). The court has included all
of the defendant’s and the plaintiffs’ facts on this subject to the extent that they were supported
by the evidence and do not contradict each other. To the extent that a contradiction arose, the
court cast these facts, as it must, in the light most favorable to the non-movants.
45

worker and they felt confident he would dedicate the time and effort required to
address the backlog. (Doc. 20-20 at 4; doc. 20-22 at 4).
Both Lalisan and Meeks stated that Montgomery had performed some quality
assurance functions as well. (Doc. 20-22 at 4; doc. 20-20 at 4). These included
QA on incoming referrals that came to the AOC through its call center,
the financial records of the AOC, and records memorializing the
disposition of all organs and tissues sent and received by the AOC. He
had also participated in the structuring of the QA chart review process
and created many of the forms and databases utilized during the QA
department’s chart reviews.
(Doc. 20-20 at 4). He had also participated in structuring the QA chart review
process and created many of the forms and databases utilized during the QA
department’s chart reviews. (Doc. 20-20 at 4). While at the AOC, Montgomery
never worked with tissue donors.24 (Doc. 20-19 at 9(33).
Prior to Montgomery working for the AOC, his previous jobs were all with the
military. (Doc. 20-7 at 18(69); doc. 20-14 at 42(167)). A letter of recommendation
from Major Thomas M. Coit reflects experience during that time in supervision,
“personnel management, guiding and leading maintenance technicians.” (Doc. 24-5
at 2). Another letter from CMSgt Charles Woodhead states that Montgomery had
“unparalleled” leadership, management, and organizational skills. (Doc. 24-5 at 3).
24

The original fact, as proffered by the plaintiffs, continued “and did not have experience
in the QA processing of donor charts.” (Doc. 23 at 12). None of the plaintiffs’ evidentiary
citations support this portion of the plaintiffs’ proffered fact.
46

Neither letter discusses QA functions. Montgomery did not mention any QA related
qualifications or experience in his cover letter when he applied for the AOC in 1991.
According to his resume, Montgomery’s experience was primarily in aircraft
maintenance. (Doc. 24-7 at 1).25
In his last performance evaluation before he took over interim responsibilities,
Montgomery was assessed in a number of different categories and assigned points on
the basis of whether he was below standards (score of “1"), met standards (score of
“2"), or exceeded standards (score of “3"). (Doc. 24-4 at 2). He scored no “3s” in
any category and received an average score of 2.76. (Doc. 24-4 at 2-3).
Although Montgomery had over 10 years of management experience (doc. 2022 at 6-8), it is undisputed that he had not supervised any employees since 2000.
Montgomery admitted to Harris that he was not as qualified as Harris and Riley for
the manager position. (20-4 at 17(63)).26
Singer stated that, to her knowledge, Montgomery had not worked in QA at the
AOC. (Doc 20-14 at 29(116)).

25

The plaintiffs also proffer: “The only mention of QA in his resume was his assignment
to the Quality Assurance Division from November 1988-June 1990 (less than 2 years).” (Doc.
23 at 12 (citing doc. 24-7). The evidence cited does not support this fact. It will not be included.
26

The plaintiffs also proffer: “Montgomery often asked Riley and Harris for assistance in
his management duties, and referred to them as ‘subject matter experts.’” (Doc. 23 at 23) (citing
doc. 20-1 at 18(63-64)). The citation does not support this statement, and it will not be included.
47

9.

Plaintiffs’ Complaints to UAHSF

On December 8, 2010, Harris met with Singer in Human Resources and said
she thought it was unfair that Montgomery was made the QA Manager without the
job being posted and she thought the decision was racially discriminatory. Harris also
mentioned to Singer that Riley had the same complaints. Singer said she would
investigate and get back with Harris. Singer was clear in her deposition that she did
not tell Harris at that time that the position was only temporary. (Doc. 20-14 at
33(131)).
On December 9, 2010, Riley met with Makosky and also complained that he
was being discriminated against because he was not considered or allowed to apply
for the manager position. (Doc. 24-1 at 6). Makosky did not mention to Riley at the
December 8, 2010 meeting that Montgomery’s position was only “interim.” (Doc.
24-1 at 6).
Singer and Makosky then met with Meeks and Lalisan on December 14, 2010.
Lalisan told them that he thought that, when he announced the change, he had said
that Montgomery’s position was interim. He said that if he did not, it was a mistake,
and that Montgomery understood it was interim. (Doc. 20-20 at 5; 20-4 at 16(58)).
Lalisan confirmed that they were creating a new job description and planned to post
the new position. (Doc. 20-20 at 5).
48

On or about December 16, 2010, the plaintiffs met with Lalisan and Meeks to
discuss the position.27 Harris asked Lalisan “if he recalled promoting [Montgomery],
and [Lalisan] said if [he] used the word[] promote [he] was wrong.” (Doc. 20-4 at
16(58)). Riley asked why he was not being considered for the position. (Doc. 20-1
at 35(134)). Lalisan and Meeks made it clear at the meeting that they endorsed
Montgomery 100% , and let the plaintiffs know that a new position would be posted
and they would be able to apply for it. (Doc. 20-4 at 16(57-60); doc. 20-1 at 35(135);
doc. 20-20 at 5).
10.

The Transformation From Quality Assurance to Quality
Assurance/Quality Improvement

When Captain left, he held the position of “Quality Assurance Manager.”
(Doc. 25-9 at 1). As revised in April of 2010, his written “Job Description” contained
the following “Job Summary:”
The Quality Assurance Manager is responsible for developing and
administering Alabama Organ Center’s (AOC)’s quality management
system. The manager continuously assesses the quality processes
throughout the organization through benchmarking, process
improvement, surveys, Continuing Quality Improvement (CQI) teams,
and data analysis, establishment of risk management policies and
practices, and problem-solving projects. Is responsible for enhancing
the operational effectiveness of quality system functions by
recommending solutions to reduce system complexities and/or
27

The plaintiffs proffered fact states that they were meeting “to discuss their complaints of
discrimination.” (Doc. 23 at 14) (citing doc. 20-1 at 35(133), doc. 20-4 at 15(56), doc. 20-16 at
29(115-116)). None of the cited evidence supports this characterization.
49

inefficiencies. The Quality Assurance Manager actively fosters an
organizational culture that is based on collaboration, support and
constructive feedback. In collaboration with the organization’s
management team, monitors, promotes and implements quality as it
relates to organizational goals and objectives, services and work
processes. Identifies and coordinates implementation of local, state, and
federal organ/tissue procurement regulations thereby ensuring
compliance with regulatory, accreditation, and legislative standards.
This includes Center for Disease Control (CDC) safety guidelines and
Food and Drug Administration (FDA) current good tissue practices.
Directs quality audits of all operations assuring corrective actions are
implemented as needed.
(Doc. 25-9 at 1; doc. 20-16 at 15(60)-16(61)). The position required: “Bachelor’s
degree or professional degree, i.e. RN, LPN, PA, etc. Experience in healthcare field
in ancillary capacity. Four years quality assurance or quality control experience.”
(Doc. 25-10 at 1).
Meeks, Lalisan, and Hicks decided that the QA department needed a Quality
Improvement (“QI”) component.28 (Doc. 20-20 at 3; doc. 20-22 at 3). In his
declaration, Riley states:
Quality Improvement and Quality Assurance are complementary means
of attaining continual improvement in quality of processes. While
Quality Improvement, which is obviously aimed at improving existing
processes, measures where you are and figures out ways to make things
better.
(Doc. 24-1 at 7). Lalisan, in his affidavit, states:
28

The plaintiffs dispute this fact, stating that “QI functions were already present in the QA
department.” (Doc. 23 at 14). The evidence cited for that fact has been considered and included
elsewhere in this opinion.
50

A QA/QI department, unlike a QA department, is a systems-based
organization that continuously measures quality by retrieving,
compiling, organizing, and analyzing performance data.
(Doc. 20-20 at 3). A QA/QI Manager, unlike a QA Manager, not only manages the
QA team’s chart review, but also retrieves data on the review process, analyzes that
data, and devises ways to improve productivity. (Doc. 20-20 at 5-6). With these
changes in mind, Lalisan assigned Hicks the responsibility of preparing the initial
draft of the new management job description.
Hicks developed the first draft of the new position on December 27, 2010.
(Doc. 2013 at 16; doc. 20-12 at 9(35)). In that draft, the position name was: “Program
Manager of Quality Assurance/Quality Improvement/Information Technology.”
(Doc. 20-13 at 16). Hicks made that change. (Doc. 20-12 at 10(37)). The job
summary for that position was:
The Quality Assurance Manager is responsible for developing and
administering Alabama Organ Center’s (AOC)’s quality management
system. The manager continuously assesses the quality processes
throughout the organization through benchmarking, process
improvement, surveys, Continuing Quality Improvement (CQI) teams,
and data analysis, establishment of risk management policies and
practices, and problem-solving projects. Is responsible for enhancing
the operational effectiveness of quality system functions by
recommending solutions to reduce system complexities and/or
inefficiencies. The Quality Assurance Manager actively fosters an
organizational culture that is based on collaboration, support and
constructive feedback. In collaboration with the organization’s
management team, monitors, promotes and implements quality as it
relates to organizational goals and objectives, services and work
51

processes. Identifies and coordinates implementation of local, state, and
federal organ/tissue procurement regulations thereby ensuring
compliance with regulatory, accreditation, and legislative standards.
This includes Center for Disease Control (CDC) safety guidelines and
Food and Drug Administration (FDA) Current Good Tissue Practices.
Directs quality audits of all operations assuring corrective actions are
implemented as needed. Collects and performs quality assurance
analyses on all referral, donor, and organ offer data in order to ensure
data integrity. Serves to develop, maintain, and modify databases,
queries, and reports to facilitate the output of information. Provides
input, guidance, and obtains computer software and hardware to ensure
the Alabama Organ Center functions efficiently and effectively. Liaises
is with UNOS and serves as DonorNet advisor to facilitate access and
input of donor related information.
(Doc. 20-13 at 16). The written “Education and Experience” for this position were:
Required: Experience in healthcare field in ancillary capacity. Five
years experience in an Organ Procurement Organization (OPO). Four
years quality assurance or quality control experience. Three years in
middle to upper management.
Preferred: Bachelor’s degree or professional degree, i.e. RN, LPN, PA,
etc.
(Doc. 20-13 at 16). This new job description combines, word for word, Captain’s old
job description with Montgomery’s old job description.29 Hick’s next draft, dated
29

Everything in the new description, from the first word, down to “assuring corrective
actions are implemented as needed” is Captain’s complete job description. The remainder is
Montgomery’s complete job description from his Information System’s Special II position which
read:
Collects and performs quality assurance analyses on all referral, donor, and organ
offer data in order to ensure data integrity. Serves to develop, maintain, and
modify databases, queries, and reports to facilitate the output of information.
Provides input, guidance, and obtains computer software and hardware to ensure
the Alabama Organ Center functions efficiently and effectively. Liaises with
52

December 28, 2010, appears to have the exact same title, summary, and education and
experience requirements. (Doc. 20-13 at 22).
Captain’s job description had required a “Bachelor’s degree or professional
degree, i.e., RN, LPN, PA, etc.”

and did not allow for any alternatives of

substitutions for the educational requirement. Hick’s drafts did not include the same
requirement. It is undisputed that, when Hicks was revising the job description, he
knew that Montgomery did not have a college degree. Despite the fact that Lalisan
had announced in November 2010 that Montgomery would not continue performing
any IT functions, Hicks added to the job summary IT responsibilities which were
taken directly from Montgomery's prior IT job description.
After Hicks completed the drafts, he sent them to Lalisan and then to Kristi
Eatmon so that UAHSF’s HR department could review it. Lalisan reviewed and
approved all of Hicks’s revisions. Singer testified that Lalisan and Hicks were aware
of the plaintiffs’ complaints of discrimination.30 (Doc. 20-14 at 37(145-146)).
Julia Embry is the HR Manager for Compliance. In her deposition, Embry

UNOS and serves as a DonorNet advisor to facilitate access and input of donor
related information.
(Doc. 24-4 at 1).
30

The defendant only objects to this fact, offered by the plaintiffs, as not being supported
by the evidence cited. The court finds that the evidence does support it.
53

testified that she does “job analyses.” (Doc. 20-10 at 8(30)). She testified that when
the department wants to set up a “new” position, one that is like no other in the
company, she
look[s] at the responsibilities of that position. I look at the job summary,
at the individual responsibilities of that position. . . . I also would look
for within the company do we have anything similar to that in another
department that I could use for comparison. There have been times that
I will go out – –, if it's a position that requires a special certification, that
I'll go out to that credentialing agencies website to see – you know, to
determine if they have any information about what's required for that
position. But it is the department managers responsibility to write the
job description.
(Doc. 20-10 at 8(31)). It is also her responsibility to approve the job description that
is submitted. (Doc. 20-10 at 8(31)). When asked in her deposition what standards
she uses for that, she stated:
Depending on the responsibilities, if they’re responsibilities that require
special certification, I – I approve against those. I also prove within our
own internal standards in regard to the level of the position. . . . [W]e
have compensation standards that outline for us what different levels of
positions are, . . . and I review it based on those in terms of the scope of
responsibility.
(Doc. 20-10 at 8(32)). She is looking to make sure:
that the job description matches what the summary is, that all of the
requirements of the job description in terms of educational and
experience requirements are valid… based on the responsibilities and
that they are in the correct – you know, the correct formatting. And then
I'm also looking to make sure that we, that there [sic] placed
appropriately on our compensation grades.
54

(Doc. 20-10 at 8(32)-9(33)). When asked what she meant by “valid,” she stated:
[t]hat is the department has proposed a – a title or something and then they’ve put a
responsibility in there that doesn’t necessarily match . . . what would be standard for
something at that level.” (Doc. 20-10 at 9(33)). Her reference materials include her
experience, and “compensation guidelines” to which she refers. (Doc. 20-10 at
9(33)). The compensation guidelines basically suggest, based on the position level,
within which compensation category the position should fall. The compensation
guidelines do not provide the job selection criteria that should be used for any
particular position. Embry has never been involved in “a formal validation study.”
(Doc. 20-10 at 9(35)).
In reviewing the revised job description, Embry referred to the QA Manager
description created in 2004, instead of the current April 2010 version. Embry looked
at the responsibilities in the revised job summary to see if there were similar positions
within the company that she could use for comparison.
Embry added the following to the requirements for the new position:
“Bachelor's or professional degree required, however directly related experience may
be considered in lieu of degree requirement.” She also added the following
requirement: “Three years in middle to upper management.” (Doc. 20-11 at 1). The
final version read:
55

Required: Bachelor’s or professional degree required, however directly
related experience may be considered in lieu of degree requirement.
Experience in healthcare field in ancillary capacity. Five years
experience in an Organ Procurement Organization (OPO) including four
years in quality assurance or quality control. Three years in supervisory
or management position.
Preferred: Bachelor’s degree or professional degree, i.e. RN, LPN, PA,
etc.
(Doc. 25-11 at 1). When Embry included the educational requirements, she did not
consider whether an IT person, with no QA experience, would be qualified. (Doc.
20-10 at 18(69)). Captain’s most current job description, dated April 2010, did not
require management or supervisory experience.
The revised job description was posted on January 4, 2011. (PX22). After
Montgomery was given the position, Lalisan could remember nothing specific that
happened “to make this or to implement this QI program.” (Doc. 24-3 at 22(86)).
11.

Filling the QA/QI Manager Position

Riley, Harris, and Montgomery applied and interviewed for the QA/QI
Manager position. However, according to Makosky, Riley and Harris were not
qualified because they did not meet the minimum requirements for the position.
(Doc. 20-16 at 27(105-106)). She testified that the plaintiffs were allowed to
interview because they had expressed interest in the position. (Doc. 20-16 at 27(105106)). In Captain’s opinion, Harris was well-qualified to be promoted to the QA/QI
56

Manager position. (Doc. 27 at 3).
Meeks and Lalisan reviewed each applicant’s resumé and conducted the
interviews. During the interview process, Meeks recalls that he asked each candidate
to come forward with a plan on how to reorganize the QA department to get better
results. In his deposition, he states that each candidate’s response to Meeks’s
question regarding his or her plan for obtaining better results in the QA department
was most indicative to Meeks as to who should fill the QA/QI Manager position.
(Doc. 20-7 at 12(48)-13(49)). However, at his deposition, Meeks testified that he
could not recall specifically all of the answers from all of the candidates. (Doc. 20-7
at 13(49)).
Lalisan asked each candidate about his or her work experience, supervisory
experience, and goals each wanted to achieve should he or she be selected to fill the
QA/QI Manager position. (Doc. 20-20 at 6).
At the time of his deposition, Meeks did not recall anything specific about
Riley’s response to the request for a plan. (Doc. 20-7 at 13(49)). Meeks recalls that
Harris proposed that the department facilitate better training, which would impact the
QA process. Harris responded that a solid training program was needed to minimize

57

the error rate which would speed up productivity for the organization as a whole.31
She also responded that she would help implement a system of accountability within
the organization. Harris’s proposal regarding better training was impressive to
Meeks. She also mentioned “root cause analysis.” (Doc. 20-20 at 7). Lalisan
believed that Harris’s answers demonstrated a focus on the quantitative aspects of
QA, without regard to a QI component. (Doc. 20-20 at 7). Lalisan recalls that Harris
mentioned that she did not know anything about organ regulations and that her only
supervisory experience was her leadership in her church choir. (Doc. 20-20 at 7).
Riley responded by discussing the need for training, which was lacking in the
department. He also discussed the need to develop a program for tracking errors.
Riley stated in his interview that “root cause analysis” should be used as a method of
problem solving. In his declaration, Riley stated:
During the interview, I described my work history prior to the AOC and
my job duties and responsibilities as QA Coordinator at the AOC. I was
asked [to] discuss my plan on how to improve the department. I
discussed the need for training, which was lacking in the department. I
also discussed the need to develop a program for tracking errors.
I also responded that root cause analysis should be used as a
method of problem solving that tries to identify the faults or problems
that cause operating events. Using this method, we solve problems by
attempting to identify and correct the root causes of events, as opposed

31

Lalisan recalls that Harris said she wanted to implement a training program to promote
increased chart flow, consistency, and accountability in the QA department. (Doc. 20-20 at 7).
58

to simply addressing their consequences. By focusing correction on root
causes, you can prevent the problem from recurring.32
(Doc. 24-1 at 7).33 In his affidavit, Lalisan agrees that Riley mentioned root cause
analysis, “but [he] did not explain how such analysis might improve the QA
department.” (Doc. 20-20 at 7).
Meeks recalls that Montgomery came forward with an organizational approach
on how he would assign work duties and tasks within the department. (Doc. 20-7 at
14(53)). Montgomery also presented proposals on how the department could better
define its SOPs. (Doc. 20-7 at 14(53)). In Meeks’s opinion, Montgomery’s response
demonstrated the most comprehensive understanding of the QA/QI process. (Doc.
20-7 at 14(53-54)). Montgomery was never asked for the specifics of his plan and
Meeks did not ask if Montgomery actually had any experience in the tasks and areas
he mentioned.
Lalisan recalls that Riley discussed his vast experience in the tissue processing
and distribution industry when asked about his prior work experience. (Doc. 20-20
at 7). When asked about his goals, Riley said he wanted to perform internal audits

32

There is no evidence that Riley “explained” root cause analysis to Lalisan, as plaintiffs

claim.
33

Riley testified at one point that Meeks told him during the interview that Montgomery
would remain in the position. (Doc. 20-1 at 22(83-84)). Later, he admitted that he did not know
when he was told this. (Doc. 20-1 at 37(144)-38(145)).
59

and establish a central control center. (Doc. 20-20 at 7).
Montgomery discussed his QA/QI experience in the Air Force and the AOC.
(Doc. 20-20 at 6). He also discussed his experience supervising employees in his
role as the AOC’s Data Manager. (Doc. 20-20 at 6). When asked about his goals,
Montgomery talked about implementing programs and processes that would provide
opportunities for improvement throughout the QA department and the other
departments in the AOC. (Doc. 20-20 at 6). In Lalisan’s opinion, Montgomery’s
responses during the interview demonstrated an understanding of the quality
improvement process and of the AOC organization as a whole. (Doc. 20-20 at 6).
After interviewing the candidates, Meeks and Lalisan, in consultation with
Hicks and Dr. Devin Eckoff (Medical Director), made the decision to promote
Montgomery to the QA/QI Manager position.

They based the decision on

Montgomery’s breadth of knowledge of AOC operations, his track record in the
AOC, and his performance in the interview. (Doc. 20-20 at 7; doc. 20-22 at 5).
Harris remembers being called in to the conference room and being told by
Lalisan and Meeks that “they were keeping . . . Montgomery in that position.” (Doc.
20-4 at 20(75-76)) (emphasis added). When Harris asked why, she recalls them
saying that she “lacked management experience.” (Doc. 20-4 at 20(76)). When
asked in his deposition for the reasons why Montgomery was chosen, Meeks testified
60

that “it appeared that the [department] was getting caught up on their work and that
things were working well and that we had impacted the change that we needed to.”
(Doc. 20-7 at 11(43)).
12.

Riley’s Charge of Discrimination and Plaintiffs’ Complaint.

On or about May 5, 2011, Riley filed a charge of discrimination with the EEOC
alleging he had been discriminated against on the basis of his race. The EEOC issued
a Dismissal and Notice of Rights dated October 4, 2011. On February 1, 2012,
Plaintiffs filed a Complaint alleging race discrimination and retaliation.
13.

No Direct Evidence

Plaintiffs have never heard Meeks, Lalisan, or Hicks use any racially
derogatory or other language suggesting they are biased against black employees.
(Doc. 20-2 at 3(180)-4(185); doc. 20-5 at 8(141-142)). Plaintiffs have never heard
Meeks, Lalisan, or Hicks say they should not get the QA/QI Manager position
because they complained to Human Resources.
14.

Jobs

Becky Smith was transferred into QA from another department and was
promoted to Manager of Professional Training and Process Improvement. (Doc. 24-2
at 7). The job description for the tissue recovery manager position was also changed
to require a CPTC certification, which excluded Renarkus Miller, a black employee
61

who had CTBS certifications. (Doc. 24-2 at 7). After Alan Hicks was terminated, the
job description was changed back to require CTBS certification. (Doc. 24-2 at 7;
doc., 20-5 at 4(125)).
There was also a position that dealt with donor families. The donor family
position job description was changed to add a requirement for a Master’s Degree in
a particular field, such as social work.34 (Doc. 24-2 at 7).35
15.

Montgomery’s Performance In The Position

When Montgomery initially took the manager position in November 2010,
there was a backlog of approximately 160 charts. (Doc. 20-18 at 15(60)). Lalisan
approved Hicks’s decision to ship most of the backlogged charts directly to RTI, the
tissue processing plant, without the donor records having gone through the required
QA process. (Doc. 20-18 at 16(63-64)); doc. 20-12 at 15(57-58)).
When asked during his deposition to rate Montgomery’s performance as a
manager, Riley responded: “It’s hard to say. When an individual takes a position that
34

The defendant objects to this fact, stating that Harris “lacks the personal knowledge to
testify regarding the drafting of job descriptions and the motives of those who develop job
descriptions. Additionally, Harris lacks any expertise or experience in drafting job descriptions.”
(Doc. 28 at 4). Harris is not testifying to any motive or purpose, only that the description was
changed to require the degree. The objection is OVERRULED.
35

The plaintiff offers the following fact: “Only one employee at the AOC had that specific
degree, Carrie Peter, who is white.” (Doc. 23 at 18). The defendant objects to this statement,
saying that Harris “lacks the personal knowledge to testify regarding the education background of
every AOC employee.” (Doc. 28 at 4). The objection is SUSTAINED, as Harris has not
established a foundation to testify as to this fact.
62

basically he’s reliant on his staff to guide him through management. . . . He has to be
taught quality assurance.” (Doc. 20-2 at 2(179)). Likewise, Harris testified that she
cannot rate Montgomery as a manager because “we all trained him to do his job, and
the training is ongoing, so I am unable to rate him at this time.” (Doc. 20-5 at
5(132)). Montgomery admitted to Harris that he was not as qualified for the manager
position as either Harris or Riley. (Doc. 20-4 (Harris’s deposition) at 17(63)).36

36

The plaintiffs proffer:

133. On July 22, 2011, the FDA issued a 483 deficiency letter which stated as
follows: Employee WM [Walt Montgomery] transferred from information
technology to quality in April 2011. Training records for both employees do not
contain adequate documentation that they have been trained or educated in quality
program activities. (PX 29).
134. Thus, the FDA recognized that Walt Montgomery did not possess the
training or education, coming from the IT department, to perform the core
responsibilities for his position.
(Doc. 23 at 24). The first fact is supported by an exhibit which does not appear in the record.
The second is a conclusion, not a fact. Neither fact will be included. The plaintiffs also proffer:
135. According to UAHSF records, Montgomery began his training on the
quality functions for the department on April 1, 2011. (DX3, p. 132). On
September 14, 2011, Guindon trained Montgomery for the first time on the
necessary steps to review an organ donor chart in order to complete the donor
feedback on the UNOS system. (DX3, pp. 134-135).
(Doc. 23 at 25) (citing 20-8 at 5(132, 134-135)). The record citations to Meeks’s deposition do
not support this fact. Meeks discusses the records at page 132, but the records have not been
cited. The plaintiffs are merely citing to counsel’s recitation of Guindon’s statement that the
training began that date. Similarly, the second sentence is not supported by the citation given.
This fact will not be included.
The plaintiffs proffer: “136. Montgomery does not have any relevant certifications.
(DX3, p. 138).” (Doc. 23 at 25) (citing 20-8 (Meeks’s deposition) at 6(138)). Meeks actually
63

At the time of his deposition, Montgomery had not been trained to perform the
final chart review, which had previously been done by the QA Manager. (Doc. 20-18
at 20(78)).
The AOC Standard Operating Procedure for quality assurance audit of donor
records requires the manager to conduct “a final review of the Master Donor chart”
and sign off when the chart is complete. Harris testified that “part of the job of a QA
manager . . . is to officially sign off on charts. So, a backlog remains because
[Montgomery] has never officially signed off on a chart.” (Doc. 20-5 at 8(143)).
Harris testified that, because Montgomery is unable to complete this task, “that’s
creating a backlog of charts that are out of compliance.” (Doc. 20-5 at 10(151)).
Riley states that this backlog is now over 1,500 charts.

(Doc. 24-1 at 12.)

Montgomery testified that the fact that he cannot perform this function is considered
a “deviation” from “local policies.” (Doc. 20-18 at 20(79-79)). Such deviations are
allowed at the discretion of the director. (Doc. 20-18 at 20(79)).37
testified that he did not know whether Montgomery had any certifications. He then stated that
“he does not” in response to being asked whether, to his knowledge, Montgomery had any
certifications. The fact will not be included.
37

The plaintiffs proffer: “Hicks made an exception for him and allowed this deviation to
continue. (DX8, p. 79).” (Doc. 23 at 26)(citing 20-18 (Montgomery deposition) at 20(79)). The
citation does not support the fact. It will not be included.
The plaintiffs proffer: “144. The backlog of charts was not the reason for the poor audit
scores from the FDA, UNOS, and AOPO. (PX1, ¶36). The problems were organization-wide.
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An outside consultant reviewed the tissue SOPs and made recommendations
on updating them. (Doc. 20-7 at 14(55)).The process of updating the SOPs is still
ongoing, two years after Montgomery took the position. (Doc. 20-7 at 14(55)).
Since Montgomery was promoted, the QA department has been issued three
separate 483 deficiency letters from the FDA on March 24, 2011, July 22, 2011 and
March 5, 2013.38
V.

ANALYSIS
A.

Section 1983 Claims

The plaintiffs make claims under 42 U.S.C. § 1983 in all three counts of the

(PX1, ¶36).” (Doc. 23 at 26)(citing doc. 24-1 (Riley’s declaration) at 11). Riley’s declaration
establishes no foundation for these statements. They will not be included.
38

The plaintiffs proffer:

149. Since Montgomery has been in the manager position, UNOS gave
us a warning for having ongoing UNOS violations by our organ procurement
personnel. (PX1, ¶29). They recommended doing root cause analysis. (PX1, ¶29).
150. The AOPO found all departments lacking, so they made
recommendations for each department to develop processes to deal with
complaints and errors before the AOC can obtain AOPO certification. (PX1,
¶30). Montgomery lacks the expertise to implement such a program. (PX1, ¶30).
(Doc. 23 at 26-27) (citing doc. 24-1 at 9). As noted in the court’s rulings on the motions to strike
(section II. A. 2.-3.), the evidence supporting these facts will be stricken. The facts will not be
included. Also, the plaintiffs cite a number of facts concerning an incident with Montgomery in
2007. They do not discuss this incident in their argument. Accordingly, these facts are not
relevant and have not been included.
65

complaint.39 “To state a claim under § 1983, a plaintiff must allege the violation of
a right secured by the Constitution and laws of the United States, and must show that
the alleged deprivation was committed by a person acting under color of state law.”
W. v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40 (1988)
(emphasis supplied). It is undisputed that “[n]either the AOC nor UAHSF is an agent
of the state of Alabama and neither operates under color of law.” (Doc. 21 at 3; doc,
23 at 4). Further, the plaintiffs acknowledged at the hearing on this matter that they
have abandoned the Section 1983 claims. Summary Judgment is appropriate on the
Section 1983 claims.
B.

Failure to Promote Because of Race

The plaintiffs claim that the defendant violated Title VII and 42 U.S.C. § 1981
when it failed to promote them to the QA Manager position in November of 2010,
and the QA/QI Manager position in January 2011. (Doc. 23 at 28). The court will
address each position in turn.
1.

The Failure to Promote to the QA Manager Position in
November of 2010.

The Eleventh Circuit has explained:
39

Count One alleges race discrimination in violation of: Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”); 42 U.S.C. § 1981, and 42 U.S.C. § 1983.
Count Two alleges race discrimination in violation of the Equal Protection Clause of the
Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. Count Three
alleges retaliation in violation of Title VII, 42 U.S.C. § 1981, and 42 U.S.C. § 1983.
66

Title VII prohibits employers from discriminating against any
individual with respect to the terms of employment on the basis of race
or sex. 42 U.S.C. § 2000e-2(a)(1). Section 1981 also prohibits
discrimination in the making and enforcing of contracts based on a
person's race. 42 U.S.C. § 1981(a). . . . The same analysis applies to
claims for employment discrimination brought under Title VII as to
those brought under § 1981.
Phillips v. Aaron Rents, Inc., 262 Fed.Appx. 202, 207 (11th Cir. 2008).
For claims based on circumstantial evidence, the plaintiff bears the
initial burden of establishing a prima facie case of discrimination. Id. If
the plaintiff is successful, the defendant must “articulate some
legitimate, nondiscriminatory reason for the [adverse employment
action].” Id. The plaintiff then may attempt to demonstrate that the
proffered reason was, in fact, merely pretext for the defendant's acts. Id.9
“The ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with
the plaintiff.” Id.
“A plaintiff establishes a prima facie case of discriminatory
failure to promote by showing that (1) he is a member of a protected
class; (2) he was qualified and applied for the promotion, (3) he was
rejected despite his qualifications, and (4) other equally or less qualified
employees who were not members of the protected class were
promoted”. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th
Cir.2004). Under the second prong-the only one at issue here-a Title VII
plaintiff need only show that he satisfied the employer's objective
qualifications. Vessels v. Atlanta Independent School System, 408 F.3d
763, 769 (11th Cir.2005). Moreover, where an employer does not
formally announce a position, but rather uses informal and subjective
procedures to identify a candidate, such as in the instant case, a plaintiff
“need not show under the second prong that he applied for the positiononly that the employer had some reason to consider him for the post.” Id.
at 768.
Price v. M & H Valve Co., 177 F. App'x 1, 11-12 (11th Cir. 2006).
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The defendant first states that the plaintiffs
were not damaged by not receiving this position. It was interim and
brought no monetary or other tangible increase with it. It was a stop gap
measure until the new QA/QI Manager position could be created and
filled. Montgomery, who took on that role in addition to his existing
duties, received no monetary increase.
(Doc. 21 at 17). Essentially, the defendant is arguing that there was no “promotion”
at all. Several facts, when viewed in the light most favorable to the plaintiffs, are
inconsistent with that view.
First, on November 8, 2010, Hicks and Lalisan called Riley and Guindon into
a meeting and told them that Montgomery “was being put into Joe Captain’s old
position.” (Doc. 20-1 at 18(66); doc. 24-1 at 6). At a staff meeting the next day, the
move was announced as a “promotion.” When Riley first complained to Makosky,
and Harris first complained to Singer, neither Riley nor Harris were told that the
position was only interim. Also, in December 2010, before beginning as the QA/QI
Manager, but after he was supposedly only an uncompensated “interim” manager,
Montgomery received a 5% raise. Further, when Montgomery was named as the new
QA/QI Manager, Lalisan and Meeks told Harris that “they were keeping . . .
Montgomery in that position.” (Doc. 20-4 at 20(75-76)) (emphasis supplied).
The evidence also undercuts the defendant’s argument that Montgomery
received no benefit from the position. In addition to the evidence that Montgomery
68

received a raise, when asked in his deposition for the reasons why Montgomery was
chosen for the new QA/QI manager position, Meeks testified that “it appeared that
the [department] was getting caught up on their work and that things were working
well and that we had impacted the change that we needed to.” (Doc. 20-7 at 11(43)).
Clearly, at least as far as Meeks was concerned, Montgomery’s having been in charge
of the department gave him an advantage when he was considered for the new
position. A reasonable jury could infer from this evidence that the “interim” position
was an actual promotion.
Next, the defendant argues that the plaintiffs cannot show that the defendant’s
stated reasons for giving Montgomery the position in November of 2010 were a mere
pretext for discrimination. The defendant states:
In 2010, the QA department was behind—there was a backlog of files
on both the organ and tissue side. (Riley Dep., 148:7-12; Meeks Aff., ¶
8; Montgomery Dep. 58:6-23). The AOC managers decided they needed
an interim manager who would devote the time and energy needed to
address the backlog (and other issues) and Montgomery had a good
track record with the AOC as a hard worker who would do whatever a
job required. (Lalisan Aff., ¶¶ 8, 11; Meeks Aff., ¶ 12). Additionally,
they felt having someone who was not so entrenched with the current
QA process, who could provide a fresh look at the problem, would be
beneficial. (Lalisan Aff., ¶ 12; Meeks Aff., ¶ 12).
Montgomery had been providing QA functions in other areas of
the AOC (although he was not involved in hands on file review) and
they felt he could bring that fresh perspective. (Lalisan Aff., ¶¶ 10, 12;
Meeks Aff., ¶ 12). Finally, given that reduction of the backlog was a
priority, they did not think it would have best served their goals to
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remove a QA Coordinator from file review to manage the process on an
interim basis. (Lalisan Aff., ¶ 13). Montgomery taking on this interim
role in addition to his existing duties, seemed their best option. (Lalisan
Aff., ¶ 10; Meeks Aff., ¶¶ 11-12). All of those reasons are legitimate,
business judgments that have nothing to do with race.
(Doc. 21 at 17-18). At the hearing, the defendant referred to these reasons as “staff
allocation of resources,” the need for a “fresh look,” and that Montgomery was a
“hard worker.”
Once the defendant articulated these reasons the burden shifts to the plaintiff
to show that each of the proffered reasons is pretextual. As the Eleventh Circuit has
noted:
In order to show pretext, the plaintiff must “demonstrate that the
proffered reason was not the true reason for the employment decision ....
[The plaintiff] may succeed in this 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.” Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S.
248, 256, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207 (1981). “[A] plaintiff
withstands summary adjudication by producing sufficient evidence to
allow a reasonable finder of fact to conclude that the defendant's
articulated reasons for its decision are not believable.” Howard v. BP Oil
Co., 32 F.3d 520, 526 (11th Cir.1994) (citing St. Mary's Honor Ctr. v.
Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). In
evaluating a summary judgment motion, “[t]he district court must
evaluate whether the plaintiff has demonstrated such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer's proffered legitimate reasons for its action that a reasonable
factfinder could find them unworthy of credence.” Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir.1997) (internal quotations and
citations omitted).
70

Jackson v. State of Alabama State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir.
2005).
The plaintiffs’ response is confusing, because it seems to combines this failure
to promote claim, with the failure to promote to the new QA/QI position. As to the
“fresh look at the problem” reasoning, the plaintiffs argue that “Montgomery did not
possess any of the qualifications or experience necessary to succeed as a QA Manager
at the AOC. Montgomery had not worked with tissue donors before and had no direct
contact with them.” (Doc. 23 at 30). “[Q]ualifications evidence may suffice, at least
in some circumstances, to show pretext.” Ash v. Tyson Foods, Inc., 546 U.S. 454,
457, 126 S. Ct. 1195, 1197, 163 L. Ed. 2d 1053 (2006). However, as the Eleventh
Circuit has noted
“a plaintiff cannot prove pretext by simply arguing or even by showing
that [s]he was better qualified than the person who received the position
[s]he coveted.” Springer v. Convergys Customer Mgmt. Grp., 509 F.3d
1344, 1349 (11th Cir.2007) (per curiam) (internal brackets & quotation
marks omitted). The plaintiff “must show that the disparities between
the successful applicant's and [her] own qualifications were of such
weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the
plaintiff.” Id. (internal quotation marks omitted).
Kidd, 731 F.3d at 1206. Here, a reasonable jury could find that the defendant’s
proffered reasons were a pretext for discrimination for at least one important reason-Captain’s position, in which Montgomery was placed, required a bachelor’s degree,
71

something Montgomery did not have, but which both plaintiffs did. As plaintiffs’
counsel noted at the hearing, a fresh look is fine, “but the eyes have to be able to see.”
Hiring a person who does not meet the basic qualifications of a position is evidence
of pretext.
Taking the brief as a whole, and in conjunction with representations made at
oral argument, the court determines that the plaintiff has rebutted the remaining
reasons proffered by the defendant. The defendant argues that it needed “an interim
manager who would devote time and energy needed to address the backlog.” A
reasonable jury could determine that this was a mere pretext for discrimination since
Montgomery had not supervised any employees since 2000 and the additional
undisputed evidence that: 1) he was not in the QA department when he was promoted
to the Manager of that position; 2) he was promoted over experienced and qualified
QA coordinators who had been there for years; 3) Montgomery had not worked with
tissue donors before and had no direct contact with them; and 4) Montgomery
admitted to Harris that he was less qualified for the position than the plaintiffs. The
hiring officials also stated that they “did not think it would have best served their goal
to remove a QA Coordinator from file review to manage the process on an interim
basis.” Again, a jury could determine that it is unlikely that a person who had never
worked in the department, or even the field, could be an effective manager. When all
72

of that evidence is taken together with the evidence that, contrary to UAHSF
procedures, the position was not posted and opened for applications, a reasonable jury
could find that the remaining proferred reasons were a mere pretext for
discrimination.
“[I]n enacting Title VII Congress did not intend to transform federal courts into
a “super-personnel department that reexamines an entity's business decisions.” Kidd,
731 F. 3d at 1203. (internal quotations and citations omitted). However, in this case,
the disparity in qualifications, along with the other circumstances, are enough that a
reasonable person could find the defendant’s proferred reasons pretextual. The
failure to promote claims based on the November 2010 position will survive.
2.

Failure to Promote to the New QA/QI Manager Position

The defendant argues both that the plaintiffs were unqualified for this new
position, and that they cannot show pretext. The court rejects both of these
arguments.
First, a reasonable jury could determine that, once Montgomery held the
position, Hicks, Lalisan, and others manipulated the job description to make sure that,
when it was posted, only Montgomery would fit the description. It is undisputed that
the new job description merely combined Captain’s old job description (for the
position which Montgomery was given in 2010) with Montgomery’s old IT position
73

job description. Further, Hicks, who knew that Montgomery did not have the
education requirements that were in Captain’s old description, removed them.
Although they were later added back, a new experience substitute option was also
added, with the result that Montgomery did not need to have the degree. Finally, a
management/ supervisory experience requirement (something Montgomery had and
the plaintiffs did not have) was added which had not existed before. A reasonable
jury could find that these changes were made in order to preference Montgomery over
the plaintiffs. For the same reasons, a jury could determine that the defendant’s
proffered reason for selecting Montgomery for the new position (that he was the best
candidate) is a mere pretext for discrimination.
The failure to promote claims based on the new QA/QI position will also
survive.
C.

Retaliation Based Upon Race

The plaintiffs’ retaliation claim is that the defendant refused to hire them for
the new QA/QI Manager position after they complained about not being given
Captain’s old job in November of 2010.
To establish a prima facie case of retaliation under Title VII, “the plaintiff must
show (1) that she engaged in statutorily protected expression; (2) that she suffered an
adverse employment action; and (3) that there is some causal relation between the two
74

events.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007).
The defendant claims that it is entitled to summary judgment on Riley’s claim
because he did not engage in a protected expression. In addition, the defendant
argues that neither plaintiff can show a causal connection between any alleged
protected activity and the denial of the promotion.
1.

Riley Engaged in Protected Expression

The defendant first argues that Riley did not engage in protected expression.
The evidence, when viewed in the light most favorable to Riley, shows that, on
December 9, 2010, Riley complained to Makosky that he was being discriminated
against because he was not considered or allowed to interview for Captain’s old
position. (Doc. 24-1 at 6). A complaint of discrimination is protected activity. See,
Brown v. City of Opelika, 211 F. App'x 862, 864 (11th Cir. 2006) (failure to find
prima facie case where no evidence of a complaint of discrimination).
2.

The Plaintiffs Cannot Establish a Casual Connection Between
Their Complaints of Discrimination and the Failure to
Promotion Them.

As the Eleventh Circuit has noted:
“To establish a causal connection, a plaintiff must show that the
decision-makers were aware of the protected conduct, and that the
protected activity and the adverse action were not wholly unrelated.”
Gupta, 212 F.3d at 590 (internal citation omitted). “Discrimination is
about actual knowledge, and real intent, not constructive knowledge and
assumed intent. When evaluating a charge of employment
75

discrimination, then, we must focus on the actual knowledge and actions
of the decision-maker.” Walker v. Prudential Prop. & Cas. Ins. Co., 286
F.3d 1270, 1274 (11th Cir.2002) (internal citations omitted).
Brown, 211 F. App'x at 863-64. In this case, it is undisputed that Meeks and Lalisan
interviewed the candidates, consulted with Dr. Eckoff, and then made the decision to
hire Montgomery. They each testified that, at the time that they made their decision,
although they knew the plaintiffs had complained about the November 2010 decision,
they did not know that the plaintiffs’ complaints were about discrimination. (Doc.
20-20 at 8; doc. 20-22 at 5).
In response, in a footnote, the plaintiffs cite to: a page of Hicks’s deposition
which does not discuss knowledge of the complaints in any way (Doc. 23 at 32, n. 12)
(citing 20-12 at 5(20)); a page of Makosky’s deposition which does not discuss
knowledge of the complaints in any way (Doc. 23 at 32, n. 12) (citing 20-16 at
13(49)); and generally to Captain’s May 10, 2010 job description and performance
evaluation (Doc. 23 at 32, n. 12) (citing 25-9 at 1).
In the same footnote, they cite to a section of Singer’s deposition where she
stated that Meeks and Lalisan were aware of the plaintiffs’ complaints of
discrimination. (Doc. 23 at 32, n. 12) (citing 20-14 at 36(144-145)). However, the
context of that discussion makes it clear that Singer was most likely referring to their
knowledge at the time of a January 28, 2011, meeting with the plaintiffs. (Doc. 20-14
76

at 36(142)). At best, Singer’s statement, which references no date, fails to satisfy the
plaintiff’s burden to show Meeks’s and Lalisan’s knowledge at the time of the
decision to promote.
The failure to show knowledge of the complaints on the part of the
decisionmakers is fatal to the plaintiffs’ case. Summary judgment is appropriate on
the retaliation claims.
VI.

CONCLUSION
Based on the foregoing, the motions to strike will be GRANTED in part and

DENIED in part as noted in Sections II and III. The motion for Summary Judgment
will be GRANTED as to the plaintiffs’ Section 1983 and Retaliation Claims, and
DENIED in all other respects.
DONE and ORDERED this 8th day of January, 2014.

VIRGINIA EMERSON HOPKINS
United States District Judge

77