Burton v. Miles College
Filing
48
MEMORANDUM OPINION. Signed by Judge Madeline Hughes Haikala on 12/12/2017. (KEK)
FILED
2017 Dec-12 AM 09:26
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
ABRAHAM BURTON,
Plaintiff,
v.
MILES COLLEGE,
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Case No. 2:14-CV-02471-MHH
Defendant.
MEMORANDUM OPINION
This case is before the Court on defendant Miles College’s motion for
summary judgment. (Doc. 39). The college argues that plaintiff Abraham Burton
cannot prove the elements of his age and sex discrimination claims and cannot
establish that the college’s legitimate, non-discriminatory reasons for its
employment actions were mere pretext. For the reasons stated below, the Court
finds that Mr. Burton cannot establish a prima facie case of discrimination.
Therefore, the Court will grant the college’s motion for summary judgment.
STANDARD OF REVIEW
“The court shall grant summary judgment if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.” Fed. R. Civ. P. 56(a). To demonstrate that there is a genuine
1
dispute as to a material fact that precludes summary judgment, a party opposing a
motion for summary judgment must cite “to particular parts of materials in the
record, including depositions, documents, electronically stored information,
affidavits or declarations, stipulations (including those made for purposes of the
motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ.
P. 56(c)(1)(A). When considering a summary judgment motion, the Court must
view the evidence in the record and draw reasonable inferences in the light most
favorable to the non-moving party. White v. Beltram Edge Tool Supply, Inc., 789
F.3d 1188, 1191 (11th Cir. 2015).
“The court need consider only the cited
materials, but it may consider other materials in the record.” Fed. R. Civ. P.
56(c)(3).
BACKGROUND
Mr. Burton is a 58-year-old man. (Doc. 30-1, p. 2). He works for Miles
College as an assistant dormitory director. (Doc. 38-4, p. 2).1 The following chart
details the age, gender, and pay rate of the college’s assistant dormitory
supervisors, including Mr. Burton, sorted by pay rate, as of the date the college
produced this information during discovery in this case (Doc. 34-2, p. 10):
1
Some parts of the record refer to Mr. Burton’s title as “assistant dormitory supervisor.” (See,
e.g., Doc. 29-1, p. 27). For clarity, with respect to all employees, the Court uses the titles Miles
College provided in discovery. (See Doc. 38-4, p. 2; Doc. 38-5, p. 2).
2
Employee
Date of Hire
Gender
Age
Pay Rate
Marcia Holloway
4/5/2008
F
50
$7.25
Shirley Lewis
11/2/2007
F
68
$7.92
Saundra Thompson
9/15/2007
F
51
$7.92
Gwen Roger
7/31/2006
F
65
$8.16
Darren Young
10/9/2013
M
56
$8.40
Plaintiff Abe Burton
8/11/2009
M
56
$8.74
James Moore
1/13/2003
M
55
$8.78
Brenda Peoples
1/7/2013
F
58
$9.00
Ebonie Batie
8/4/2015
F
39
$9.27
Kenneth Sellers
9/23/2010
M
31
$9.55
Joseph Dotson
8/31/1992
M
58
$10.19
(See Doc. 38-4, p. 2).2
2
The list of assistant dormitory directors that Miles College provided also includes Brandon
Walker, but it is undisputed that Mr. Walker was promoted to Dormitory Director, that he was
Mr. Burton’s direct supervisor, and that the pay rate Miles College provided was the rate that Mr.
Walker received as a dormitory director, not as an assistant dormitory director. (Doc. 29-1, pp.
10–11; Doc. 34-2, p. 10; Doc. 38-4, p. 2; Doc. 38-5, p. 2). Thus, the Court does not include Mr.
Walker in this list of assistant dormitory directors.
Miles College argues that Gertrude Bitten and Maria Finley are not similarly situated
comparators because they were employed as a Housing Services Coordinator and Dorm Service
Coordinator, respectively, not as assistant dormitory directors. (Doc. 40, pp. 11–12, 17). Mr.
Burton does not identify Ms. Bitten or Ms. Finley as potential comparators, and the Court has not
considered either as a comparator.
Mr. Burton disputes the information in this chart but does not specify what information he
believes is incorrect and does not provide evidence that would contradict the information in the
chart. (Doc. 44, p. 3). Absent evidentiary support, Mr. Burton’s bare denial does not create a
3
Mr. Burton filed an EEOC charge of discrimination against the college on
January 2, 2014. (Doc. 29-1, p. 12; Doc. 30-1, p. 2). He filed this action on
December 24, 2014. (Doc. 1). Mr. Burton alleges that Miles College pays him
less per hour than it pays similarly situated younger employees and similarly
situated female employees. (Doc. 1, p. 1).
Miles College asks the Court to grant its motion for summary judgment
because it asserts that Mr. Burton has not presented sufficient evidence to make a
prima facie case of discrimination under either Title VII of the Civil Rights Act of
1964 (Title VII) or the Age Discrimination in Employment Act of 1967 (ADEA). 3
ANALYSIS
Under Title VII, an employer may not “fail or refuse to hire” or “discharge
any individual, or otherwise to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-
genuine dispute of fact. See Fed. R. Civ. P. 56(c)(1)(A).
3
Miles College also argues that (1) the claims in Mr. Burton’s complaint exceed the scope of
the allegations in his EEOC charge; (2) Mr. Burton cannot demonstrate that he suffered an
adverse employment action; (3) Mr. Burton has failed to allege age was the only motivating
factor for the college’s decision to pay him less than other employees; and (4) the college has
proffered a legitimate, non-discriminatory explanation for its decision to pay Mr. Burton less that
other employees. (Doc. 40, pp. 10, 13–17). Because the Court agrees with Miles College that
Mr. Burton cannot establish a prima facie case of discrimination, the Court does not address
these additional arguments for summary judgment.
4
2(a)(1). Similarly, under the ADEA, an employer may not “fail or refuse to hire”
or “discharge any individual or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1); Kentucky Ret. Sys. v.
E.E.O.C., 554 U.S. 135, 141 (2008).
A plaintiff who alleges employment
discrimination, whether under Title VII or the ADEA, must prove that the
defendant intentionally discriminated against him.
Trask v. Sec’y, Dep’t of
Veterans Affairs, 822 F.3d 1179, 1191 (11th Cir. 2016), cert. denied, __ U.S. __,
137 S. Ct. 1133 (2017).
Mr. Burton relies on circumstantial evidence of discrimination.4 “When, as
here, a Title VII or ADEA plaintiff’s employment discrimination claim is based on
circumstantial evidence, courts apply the burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792[] (1973).” Trask, 822 F.3d at
1191. “Under the McDonnell Douglas framework, a plaintiff must first create an
inference of discrimination through [his or] her prima facie case.” Id. “Once the
plaintiff has made a prima facie case, a rebuttable presumption arises that the
4
In his opposition to the college’s motion for summary judgment, Mr. Burton cites no direct
evidence of discrimination, and he argues only that he has submitted sufficient circumstantial
evidence to raise an inference of discrimination. (See Doc. 44). Further, in his deposition, Mr.
Burton admitted that he could not name any decisionmaker who had said anything to him that
made him think his pay was lower because of discriminatory intent. (Doc. 29-1, pp. 9–10).
5
employer has acted illegally.” Id. (quoting Alvarez v. Royal Atl. Developers, Inc.,
610 F.3d 1253, 1264 (11th Cir. 2010)). “The employer can rebut that presumption
by articulating one or more legitimate non-discriminatory reasons for its action.”
Id. (quoting Alvarez, 610 F.3d at 1264). If the employer does so, then “the burden
shifts back to the plaintiff to produce evidence that the employer’s proffered
reasons are a pretext for discrimination.” Id. (quoting Alvarez, 610 F.3d at 1264).
“Although intermediate evidentiary burdens shift back and forth under this
framework, ‘[t]he ultimate burden of persuading the trier of fact that the defendant
intentionally discriminated against the plaintiff remains at all times with the
plaintiff.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000)
(quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)).
To make a prima facie case of discrimination, Mr. Burton must show that he
was treated less favorably “under circumstances which give rise to an inference of
unlawful discrimination.” Burdine, 450 U.S. at 253. “[T]he prima facie case
‘raises an inference of discrimination only because we presume these acts, if
otherwise unexplained, are more likely than not based on the consideration of
impermissible factors.’” Id. at 254 (quoting Furnco Constr. Corp. v. Waters, 438
U.S. 567, 577 (1978)).
A plaintiff may establish a prima facie case of sex or age discrimination by
6
the use of comparator evidence—that is, by showing that he was treated less
favorably than a similarly-situated individual of the opposite sex or than a
similarly-situated individual who is substantially younger. See Chapter 7 Tr. v.
Gate Gourmet, Inc., 683 F.3d 1249, 1255 (11th Cir. 2012) (Title VII); Reeves, 530
U.S. at 142 (quoting 29 U.S.C. § 631(a)) (ADEA); Liebman v. Metro. Life Ins. Co.,
808 F.3d 1294, 1298 (11th Cir. 2015) (ADEA). To establish a prima facie case of
discrimination by the use of comparator evidence, a plaintiff must show that the
comparators he identifies are “similarly situated in all relevant respects.” Brown v.
Alabama Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010) (quoting
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). A plaintiff may not pick
from a valid set of comparators only those who allegedly were treated more
favorably, “and completely ignore a significant group of comparators who were
treated equally or less favorably than [he].” Simpson v. Kay Jewelers, Div. of
Sterling, Inc., 142 F.3d 639, 646–47 (3d Cir. 1998); see also English v. Colorado
Dep’t of Corr., 248 F.3d 1002, 1012 (10th Cir. 2001) (quoting Simpson, 142 F.3d
at 646–47).
Mr. Burton asserts that the following three employees are similarly situated
younger or female employees who the college pays more than him without
7
justification: Kenneth Sellers, Corey Batie, and Brenda Peoples. (Doc. 44, p. 1). 5
Mr. Batie is not similarly situated to Mr. Burton. Mr. Batie is not an
assistant dormitory director; he is a weekend assistant dormitory director. Miles
College pays weekend assistant dormitory directors more than it pays assistant
dormitory directors. (See Doc. 38-5, p. 2 (indicating that, on average, Miles
College pays assistant dormitory directors $8.60/hour and pays weekend assistant
dormitory directors $9.70/hour); Doc. 44, p. 4 (Mr. Burton not disputing that Miles
College paid weekend employees a higher hourly rate)). Because Mr. Batie is not
similarly situated to Mr. Burton, he is not an appropriate comparator.
That leaves Mr. Sellers and Ms. Peoples as the comparators Mr. Burton
prefers, but he may not identify these two assistant dormitory directors as
comparators and ignore the other eight. See Simpson, 142 F.3d at 646–47. It is
true that Miles College pays Ms. Peoples more than it pays Mr. Burton—
$9.00/hour as compared to $8.74/hour (Doc. 38-4, p. 2)—but Miles College also
employs Ms. Batie, Ms. Holloway, Ms. Lewis, Ms. Roger, and Ms. Thompson as
assistant dormitory directors (Doc. 38-4, p. 2). Miles College pays each of these
5
Mr. Burton also asserts that Brandon Walker is a similarly situated individual who the college
treated more favorably than him (Mr. Burton). (Doc. 44, p. 1). As the Court has explained, Mr.
Walker is not an assistant dormitory director; he is a dormitory director and Mr. Burton’s direct
supervisor. See n.2, supra; Doc. 34-2, p. 10; Doc. 38-5, p. 2 (indicating that, on average, Miles
College pays assistant dormitory directors $8.60/hour and pays dormitory directors $10.28/hour).
Therefore, Mr. Walker is not a valid comparator.
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women the same as or less than the college pays Mr. Burton—$8.74/hour,
$7.25/hour, $7.92/hour, $8.16/hour, and $7.92/hour respectively. (Doc. 38-4, p. 2).
On average, Miles College pays its male assistant dormitory directors $9.13/hour
and its female assistant dormitory directors $8.12/hour. (See Doc. 38-4, p. 2).
Thus, the evidence indicates that Miles College pays Mr. Burton more because of
his gender, not less.
It is also true that Miles College pays Mr. Sellers, age thirty-one, more than
it pays Mr. Burton, age fifty-six—$9.55/hour as compared to $8.74/hour (Doc. 384, p. 2)—but Miles College also employs Ms. Batie, Ms. Holloway, and Ms.
Thompson, each of whom is substantially younger than Mr. Burton. (Doc. 38-4, p.
2). 6 Miles College pays each the same as or less than it pays Mr. Burton—
$8.74/hour, $7.25/hour, and $7.92/hour respectively.
(Doc. 38-4, p. 2).
On
average, Miles College pays individuals substantially younger than Mr. Burton
$8.45/hour, which is less than the $8.74/hour it paid Mr. Burton. (See Doc. 38-4,
6
Miles College argues that certain individuals cannot be age comparators because these
individuals, like Mr. Burton, are at least forty years of age. (Doc. 40, p. 16). The Supreme Court
has held that, under the ADEA, a plaintiff must show that he was treated less favorably than a
comparator who was “substantially younger,” but need not show that the comparator was less
than forty years of age. O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 312–13
(1996); Liebman, 808 F.3d at 1298–99 (“The proper inquiry under McDonnell Douglas is
whether Weiss was substantially younger than Liebman.”). Age differences of as little as three
years may qualify as “substantially younger.” Liebman, 808 F.3d at 1299 (collecting cases).
9
p. 2).7 In addition, the college’s highest paid assistant dormitory director is two
years older than Mr. Burton. (Doc. 38-4, p. 2). These circumstances do not give
rise to an inference of discrimination based on Mr. Burton’s age.
CONCLUSION
Mr. Burton has not met his burden to make a prima facie case of age or
gender discrimination because the circumstantial evidence he submits does not
give rise to an inference of discrimination. Accordingly, the Court GRANTS
Miles College’s motion for summary judgment (Doc. 39). The Court will enter a
separate final judgment.
DONE and ORDERED this December 11, 2017.
_________________________________
MADELINE HUGHES HAIKALA
UNITED STATES DISTRICT JUDGE
7
The Court considers Mr. Sellers, Ms. Batie, Ms. Holloway, and Ms. Thompson to be
“substantially younger” than Mr. Burton. See Liebman, 808 F.3d at 1299.
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