Smith v. Alabama Power Company
MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 8/2/2016. (JLC)
2016 Aug-02 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
GWENDOLYN A. SMITH,
ALABAMA POWER COMPANY,
) Case No.: 2:15-CV-326-VEH
This is a civil action filed on February 23, 2015, by the Plaintiff, Gwendolyn
A. Smith, against the Defendant, Alabama Power Company (“APCo”). The Complaint
alleges employment discrimination, on the basis of race, in violation of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), and 42 U.S.C.
§ 1981 (“section 1981”) (Count One). The Complaint also alleges age discrimination
in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq.
(“the ADEA”) (Count Two). All Counts arise out of the Plaintiff’s employment with
The case comes before the Court on the Defendant’s Motion for Summary
Judgment. (Doc. 39). For the reasons stated herein, the Motion will be GRANTED.
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
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
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
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.
APCo is an electric utility operating in Alabama and provides services to 1.4
million customers. APCo is a wholly-owned subsidiary of Southern Company
(“SoCo”), an electric utility holding company. APCo’s Environmental Affairs (“EA”)
department has approximately 110 full-time employees who work in either the
Compliance department or Laboratory and Field Services department (“the Lab”).
The Lab is further divided into three sections—Chemistry, Fuels, and Quality
Assurance/Quality Control (“QA/QC”). Each of those sections has its own supervisor.
The Lab provides analytical data to various internal and external customers to
ensure that quality data and field services are provided to demonstrate compliance
with state and federal environmental requirements. Among other things, the Lab
provides operational support for SoCo’s power plants as well as transmission and
distribution business units.
From approximately 1998 to 2003, Markell Heilbron (American-Indian, age
40) served in various roles in Human Resources. She received extensive training on
selection processes, including interviewing and hiring decisions, performance
management, and APCo’s Equal Employment Opportunity policy. Heilbron has been
an EA General Manager since May 28, 2011, and has responsibility for the Lab.
Heilbron manages approximately 76 regular employees and 15-20 leased employees.
The Lab section supervisors in Chemistry, Fuels, and QA/QC report to Heilbron.
The Plaintiff, Gwendolyn Smith (African-American, age 55), is currently
employed as a Staff Environmental Affairs Specialist in the Chemistry section of the
Lab. She has worked in the Chemistry section since February 2013. Prior to that, she
worked in the Fuels section.
From 2007-2012, Smith held the title of Lead Chemist for Fuels. When
Heilbron became the EA Manager, there were two other Lead Chemists in
Fuels—Garry Michael (“Mike”) Worthy (White, age 58) and Durant Maske (White,
age 48 in May 20141). In these roles, Smith, Worthy, and Maske had some team lead
responsibilities, including scheduling work to be done in the lab, drafting
performance plans, making recommendations for SPOT awards2, and drafting goals.
The Lead Chemists had no authority to hire, terminate, promote, give pay increases,
or discipline other employees.
No employees reported directly to the Lead Chemists. Instead, all employees
in the Fuels group, including Smith, reported to Donna Wilson3, the Fuels supervisor.
Although the Lead Chemists drafted the goals for the year and the performance
evaluations, Wilson decided the ultimate rating given to the employee. Also, Wilson
attended the goal setting and performance evaluation discussions led by the Lead
One of the positions which is at issue in this case was filled in May of 2014.
Smith testified in her deposition that these were monetary awards given to employees
for good performance. (Doc. 41-1 at 27(101-102)).
The parties have not stated Wilson’s race or age.
The June 3, 2011, “Concern”
On June 3, 2011, a Lab employee filed an anonymous “concern” through
APCo’s Corporate Concerns Program. The Corporate Concerns Program provides
employees with an alternative process to communicate work-related issues in
confidence to the Ethics & Corporate Concerns Department. Employee concerns are
investigated by a representative of the Concerns Program.
Heilbron reviewed the investigation report summarizing findings related to the
concern and determined that it involved a Lab employee in the Fuels group having
several altercations with other employees. Heilbron understood that the allegations
had been brought to the attention of Wilson, but that she had not addressed the issues.
Smith was interviewed regarding the concern that was filed. (Doc. 41-1 at
54(209)). Smith discussed the interview in the following exchange from her
Were you interviewed . . . about a concern filed in the Fuel
Okay. During that investigation, do you recall discussing . . . some
issues about whether or not you had reported some employee problems?
Is that correct? And were you counseled in any way about
reporting employee problems in the future?
As I understand it, you were counseled because management
reached the conclusion that you did not report to upper management
some employee problems you were aware of?
I have reported two incidents prior, and Mike [Worthy] and I took
-- it was a person that was reporting to me, the two people that was
reporting to Mike, so we got them all together. This is before, right
before Markell [Heilbron] came. They said it was squashed, it was over;
but it turned -- we didn’t really have a supervisor at the time. They said
it was over, we assumed it was over, but it wasn't.
Was this some type of harassment issue or something?
Harassment? I -- I wouldn't say harassment. But it was three guys
that were not getting along.
Was there some incident or were there some incidents that were
not reported that should have been reported?
That incident when they almost had a big fistfight was not
You didn't report it?
When I tried to report it to my supervisor, she said she was tired
of the ya-yaing; I don't want to hear it; if anybody else comes to me with
a complaint, they will be reprimanded along with the person that
Who was the supervisor who said this?
And did you explain that to Steve Johnson when he was
Yes, I did.
Were there any other incidents that you did not report?
Not that I recall, no.
Were you reporting that incident about when they nearly came to
blows with –
No, I was -- after they said it was over, one of the guys that
reported to me called me, said when he was leaving work, Matt Phillips,
I think, made a threatening gesture to him, so when I -- we had a team
meeting the next day to discuss all of this, and she just said I don't want
to hear about it. Whoever -- if this continues, whoever's doing it will be
reprimanded, whoever comes and tells me about it will be reprimanded.
I raised my hand in the meeting, she said I don't want to hear it.
Donna Wilson said this to the group?
To the group.
Had -- what had you failed to report?
The incident when they almost came – they got into a verbal
altercation in one of the labs.
They almost came to blows?
Well, I didn't witness it, just I know it was a heated argument
between three guys.
And -- okay. For that incident, why didn't you report it up and
Well, at the time, no one was there. Donna was not there. We
didn't have a [L]ab manager. Markell had been named, as a matter of
fact, the incident -- the day she came to tour the [L]ab was the day that
it happened, when this big -- as a matter of fact, I think it was during her
tour that these three got into it.
You didn't report it to HR either, though?
No, I didn't.
(Doc. 41-1 at 54(209-212)).
Based on Heilbron's review of the investigation of the concern, and in
consultation with Human Resources and outside legal counsel, Heilbron concluded
that Smith, as well as Worthy and Maske, failed to demonstrate a duty to act in
accordance with APCo's Code of Ethics when they did not report the employee issues
to management. As a result of the investigation, Wilson left the company. The three
Lead Chemists—Smith, Maske, and Worthy—had their team lead oversight
responsibilities removed and were reclassified as Staff Environmental Affairs
Specialists as of November 1, 2012 (with no loss of pay or grade level).
Heilbron, after discussions with management and Human Resources, decided
that it was necessary to bring in someone from outside the Lab to replace Wilson due
to the dysfunction identified during the investigation of the concern. Ultimately,
Heilbron selected Tracie Hill (White, age 47) to fill the Fuels supervisor position on
August 1, 2011. After Hill was placed in the Fuels supervisor position, Smith, Maske,
and Worthy began reporting to her.4
Smith's 2013 Performance Review
APCo employees periodically are evaluated using a document entitled
“Performance Plan & Summary.” This document classifies employee performance in
one of three categories: Expectations Clearly Exceeded, Expectations Fully Met,
Expectations Not Fully Met.5
At midyear in 2013 Smith was rated “3 – Fully Meets” by Charles Horn. Horn
Gwen was moved to support the Chemistry Section in complying with
new Quality Management Goals. She accepted her new role and
supported the section in many capacities in our efforts towards
accomplishing QMS goals and testing demands of our clients. Her
commitment to teamwork not in the Chemistry Section but Fuels is well
[sic] and is an example of Southern Style.
Though this position is mentioned in Smith's complaint, she testified that she is not
pursuing claims of race or age discrimination based on Hill's selection for the position. In her
brief, the Plaintiff admits that there is no claim based upon this position (doc. 44 at 3, ¶3) and she
makes no argument regarding it.
The Plaintiff proffers the following fact:
Alabama Performance Plan & Summary classifies employees performance
in one of three categories: Expectations Clearly Exceeded, Expectations Fully
Met, Expectations Not Fully Met. Doc. 41-2 pg. 061.
(Doc. 44 at 8, ¶6). The Plaintiff’s citation is incorrect, sending the Court to a random page from
the index to Heilbron’s deposition. Further, the Court assumes that the Plaintiff meant to write
“Alabama Power’s Employee Performance Plan & Summary” here. The Defendant admits “that
those were the options for the 2012 calendar year.” (Doc. 46 at 2, ¶6). Accordingly, the court
adopted this fact as it did.
(Doc. 41-1 at 160).6 Horn also stated that “Gwen understands and complies with
corporate, departmental[,] and laboratory policies. She provides analytical support to
assure samples are completed within required time limits.” (Doc. 41-1 at 163).
She received a “3-Fully Meets”from William Garrett on her 2013 “Year-end
Summary.” (Doc. 41-1 at 160). Garrett wrote:
Gwen is committed to working safely, and she achieved Target Zero in
2013. Gwen has led the efforts in improving our Laboratory Hazard
Assessment Program. Gwen provided analytical results for 6 primary
methods, some of which are moderately complex. She helped to recruit
and cross train some of our COOP’s and leased employees. She also
supported the team by providing peer reviews for additional methods
outside her primary responsibility (i.e coal quality). She helped write
some TSOPs with Dade Moeller Consultants. She demonstrated
teamwork and is to be commended for working well with the Quality
Assurance group and the chemical inventory/hazardous waste team to
address inactive chemicals. Moreover, she is a key member of the Lab
Chemistry Group and exhibits Southern Style.
(Doc. 41-1 at 160). “Southern Style” is a term of art used by the company when
reviewing employees. It means:
Model ethical, professional behavior and promote respectful teamwork
within and across the groups.
Unquestionable Trust – Honesty, respect, fairness[,] and
integrity drive our behavior. Always do the right thing.
This fact, as proffered by the Plaintiff, omitted several words from the quote, and cuts
off mid sentence at “Her commitment to teamwork not in the Chemistry Section but Fuels is well
. . ..” (Doc. 44 at 8, ¶8). Her fact, as proffered, also lacked a citation to the record. (Doc. 44 at 8,
¶8). Because this fact was admitted by the Defendant, the Court included it after scouring the
record in order to find the document quoted, and accurately quote and cite it.
Unquestionable Trust does not equal unquestioning Trust.
Superior Performance – Safety first, teamwork, diversity[,]
and continuous improvement. Strive for perfection and
Total Commitment – Be focused, fully engaged, and
accountable. Have ownership in all that you do. Be
committed to our team, our department, and our company.
(Doc. 41-6 at 49).
Observations of Smith’s Supervisors
Heilbron and other supervisors, including Tracie Hill, Bill Garrett, and Marlene
Bumpers, have noted that Smith has problems with her non-verbal communication
skills, particularly when given constructive feedback. (Doc. 41-6 at 7, ¶16). For
example, when given constructive feedback or if someone has a differing opinion,
management has observed Smith cross her arms, roll her eyes7, sigh, or become
defensive. (Doc. 41-6 at 7, ¶16). Other times, management has observed her shut
down and appear not to listen to the feedback given. (Doc. 41-6 at 7, ¶16). Smith has
been coached on these behaviors by several supervisors and in her performance
evaluations. However, management has not observed her making an effort to accept
the feedback and improve. (Doc. 41-6 at 7, ¶16).8
Smith denies that she ever rolled her eyes at any fellow employee or supervisor.
The Plaintiff disputes the facts in this paragraph with only the following: “Dispute.
Smith has been observed to have excellent leadership skills.” (Doc. 44 at 3, ¶14). This vague
Smith also has failed to report issues to her supervisor, such as communicating
to management on critical customer needs for analytical data, which on one occasion
resulted in the late submission of wear metals data without advanced notification to
the customer. (Doc. 41-6 at 8, ¶17). Smith has also demonstrated issues with time
management. (Doc. 41-6 at 8, ¶17).
Additionally, in both 2013 and 2015, when supervisors were asked to rank their
employees based on performance, skills, behaviors, and value to the EA department,
Smith was identified as an employee in the bottom 15% of the EA group by two
different supervisors, Charles Horn (White, age 62) and Marvin Burrell (African
American, age 39). (Doc. 41-6 at 8, ¶18).9
“dispute” addresses no specific portion of these facts as proffered by the Defendant, and no
portion of the record in support of her dispute is cited. This Court’s Uniform Initial Order,
entered in this case on May 13, 2015, provides that “[a]ny statements of fact that are disputed by
the non-moving party must be followed by a specific reference to those portions of the
evidentiary record upon which the dispute is based.” (Doc. 16 at 17). The facts in this
paragraph, as proffered by the Defendant, are supported by the record and have been adopted by
The Plaintiff disputes this fact, saying only “hearsay and plaintiff has been given no
ranking of employees.” (Doc. 44 at 3, ¶16). To the extent that the Plaintiff feels that the
evidence cited in support of this fact is not properly considered, she should have filed a Motion
to Strike or an objection pursuant to Rule 56(c)(2) of the Federal Rule of Civil Procedure (“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.”). Regardless, to the extent that this sentence fragment can
be considered an objection based on hearsay, it is OVERRULED because the Court does not
know for what purpose this evidence will be offered. The remainder of this “objection” is too
vague for the Court to sustain. Accordingly, it too is OVERRULED.
Smith Moves to the Chemistry Section
Both Smith and Worthy were moved to the Chemistry section in February 2013
due to shifting workload from the Fuels section to the Chemistry section. Both were
given a 3% increase in base salary for agreeing to move. At that time, Smith began
reporting to Charles Horn, then the Chemistry supervisor. Horn later retired from
APCo, and Bill Garrett (White, age 57) was appointed as interim Chemistry
supervisor until the position could be posted and filled.
Filling the Chemistry Supervisor Position in March 2014
Job Posting and Initial Candidate Screening
Heilbron worked with Human Resources recruiter Emily Anne Dean (White,
age 28) to draft a job description generally outlining the job duties and qualities
sought in applicants. The job description generally summarized the position and
included the following attributes that Heilbron was looking for: (1) minimum 24
semester hours of chemistry; (2) lab experience; (3) knowledge of chemical analyses;
(4) technical knowledge or ASTM, SM, and EPA analytical methodology; (5)
experience using ISO 17025 and NELAC Institute (TNI) Standards; (6) demonstrated
leadership skills; (7) excellent interpersonal, communication, and leadership skills;
(8) proven planning and scheduling skills; and (9) budgeting experience. Specifically,
Heilbron was looking for someone who was customer-focused with demonstrated
leadership and performance management experience to motivate the team, set goals,
manage performance, develop employees, and manage workload. (Doc. 41-6 at 9,
¶21).10 Dean posted the position to JobSource from November 6 to November 20,
2013. The position was posted both internally and externally, and 51 applications
(including the Plaintiff’s) were received.
As the recruiter, Dean was responsible for reviewing each application and
resume submitted. Because Dean knew the key requirements for the position, she was
able to screen candidates and send Heilbron the top candidates for the position. For
this posting, Dean sent Heilbron 17 candidates. Smith’s resume and application were
among those sent to Heilbron for further review.
Heilbron, along with HR Business Consultant Melissa Hyche (White, age 40),
put together a screening matrix of criteria Heilbron was looking for in a successful
applicant. Heilbron and Hyche also put together a list of “Criteria Definitions,” which
were numerical scores to use in evaluating the candidates. (Doc. 41-7 at 8). The
criteria included on the screening matrix were (i) Chemistry, Biology, or
The facts in this paragraph were proffered by the Defendant. The Plaintiff disputes
these facts and includes a citation to “Worthy pg. 53.” (Doc. 44 at 3, ¶19). The Court assumes
that the Plaintiff is referring to the deposition of Garry Worthy, at page 53. Nothing on that page
of Worthy’s deposition disputes the facts in this paragraph.
Environmental Science Degree, including 24 semester hours of Chemistry; (ii) Lab
Experience; (iii) ASTM, SM, EPA Methods; (iv) ISO/TNI Experience; (v)
Leadership/Performance Management; (vi) Budgeting; and (vii) Written
Communication. Each of these criteria was defined with subcategories (the “criteria
definitions”) assigning a numerical value corresponding to the appropriate level of
experience had by a candidate. For example, a person with “[b]asic knowledge of
budgeting” would be assigned a value of 1 for “Budgeting,” while a person with
“[b]udget responsibilities” would be assigned a 2. (Doc. 41-7 at 8).
After assembling the selection matrix, Heilbron and Hyche together reviewed
the resumes and applications of the candidates given to them by Dean. Upon
reviewing the candidates’ resumes, applications, and job experience (if known to
Heilbron), Heilbron and Hyche applied the criteria definitions to assign a numerical
score for each criterion. After totaling the numerical values for each criterion as to
each candidate, Heilbron and Hyche selected for interviews those who scored the
Typically, Heilbron prefers to interview five to six people (the number that can
be completed in one day). However, if she had narrowed this screening to five or six
candidates, it would have omitted several Lab employees, including Smith. Heilbron
wanted the internal Lab candidates to have an opportunity to compete for the position
and broadened the number of candidates selected to interview to 7, the cutoff score
Smith scored a 14 on the screening matrix. She was given a 3 for the Lab
Experience and ASTM, SM, EPA Methods categories—the highest possible score for
these two categories.11 She received a 2 (out of 4) in ISO/TNI Experience because she
met the definition of “Proficient Experience (2-4 years)” based on the fact that Smith
and other chemists in the Lab had been working towards ISO accreditation for about
two years. Smith received a 2 (out of 5) in Leadership/Performance Management
because she had some team leader responsibilities from 2007 until midway through
2011. Smith also was given a 2 (out of 3) for Budgeting because Smith indicated on
her resume that she had “[o]ver five years’ experience in planning and implementing
an annual budget of $800,000.” (Doc. 41-7 at 5).12 Finally, she was given a 2 (out of
3) for Written Communication because, based on her review of Smith’s resume,
Heilbron determined that her resume was of average quality and did not stand out in
comparison to some of the top candidates’ resumes. This gave Smith a total score of
See the criteria definitions–doc. 41-7 at 8.
This budgeting experience was as part of a committee in her church, not in her job.
(Doc. 41-1 at 31(118)-33(125)). The Plaintiff has never been involved in managing a budget for
Alabama Power. (Doc. 41-1 at 32(124)). It is unclear whether, for this first posting in which the
Plaintiff was scored a 2, Heilbron knew that the Plaintiff’s budgeting experience was not work
In contrast, Marlene Bumpers, the successful applicant, scored a 17, primarily
because she received a 4 (out of 5) for Leadership/Performance Management as she
spent four years as a lab manager and three years as a production supervisor for
another company (BASF Corporation), managing between 12-14 employees. She also
received a 3 on Budgeting because she managed a monthly budget of 7.75 to 9
million dollars at BASF as well as budgets in her role as Sr. Environmental
Compliance Specialist at APCo's Gadsden Steam Plant. She received a 3 for ISO/TNI
Experience because she managed an ISO-certified lab at BASF Corporation. Cindy
Dillard’s overall score was 16 based on similar application of the criteria.
To interview the seven candidates, Heilbron assembled a selection committee
which, in addition to herself, was comprised of: Kim Washington (African American,
age 40), Anne Ryals (White, age 58), Hill, Garrett, Mike Godfrey (White, age 60),
Heilbron drafted a list of questions and Hyche reviewed the questions. The
same questions were asked of each candidate. Each candidate also was responsible
for giving a presentation on lab accreditation. After each candidate interviewed, the
committee discussed the candidate, with Hyche taking down notes representing the
panel's discussion on the candidate’s strengths and developmental needs. Following
the conclusion of all interviews, the committee again discussed the candidates and
narrowed it down to the final two—Bumpers and Dillard.
While Smith performed adequately in her interview, the selection committee
noted, among other things, that she had “[l]imited performance management” and
“seemed to need to go deeper on more of the questions.” (Doc. 41-6 at 13, ¶32;
doc.41-7 at 26). Heilbron and the selection committee perceived that most of Smith’s
answers did not provide sufficient depth necessary to fully answer questions during
the interview. (Doc. 41-6 at 14, ¶32). The selection committee also discussed Smith’s
lack of communication skills in keeping management informed on issues, her inability
to accept constructive feedback, and past issues with meeting deadlines. (Doc. 41-6
at 14, ¶32).
In contrast to Smith, Bumpers performed well in her interview, demonstrating
a high degree of initiative, as well as good planning and organizational skills.
Bumpers also had many years of leadership experience and demonstrated
performance management as a lab manager with 12-14 direct reports13—experience
The parties do not define “direct reports.” However, from the context in which the
parties use it, “direct reports” seems to refer to employees who directly report to a person.
Smith did not have. In addition, Bumpers had recent plant experience.14
Dillard was selected as one of the final two because, unlike Smith, she had over
two years experience in supervisory roles in a lab with performance management
responsibilities. Additionally, she had impressive research experience and a strong
focus on data integrity—neither of which Smith mentioned in her interview. Dillard
also had extensive experience developing and implementing standard operating
procedures for EPA-approved methods.15
Bumpers and Dillard again interviewed with some of the selection committee
members. Heilbron followed up with both Bumpers’s and Dillard’s managers to gain
feedback on their leadership and performance. Ultimately, Heilbron decided to select
Bumpers to fill the position primarily because of her extensive lab management
experience, recent plant experience, and planning and budgeting experience. This
decision was made based upon a review of Bumpers’s resume, application,
interviews, and a discussion among the panel. It is undisputed that, even without
considering Smith’s performance issues, she would not have been selected for the
position over Bumpers because Bumpers had superior qualifications. (See, doc.
The Plaintiff “[n]either [a]dmit[s] nor [d]en[ies]” the statements in this paragraph.
(Doc. 44 at 5).
The Plaintiff responds to the facts in this paragraph with neither “disputed” nor
“admitted,” writing instead only: “Dillard was not selected when Bumpers resigned.” (Doc. 44 at
40 at 16, ¶34 (Defendant’s proffered fact); doc. 44 at 5, ¶34 (Plaintiff’s admission)).
Smith began reporting to Bumpers on March 10, 2014.
Following the interview process and announcement of the successful candidate,
Heilbron met with Smith to give her feedback on what the committee identified as her
strengths and developmental needs, including her limited performance management
experience, the need to provide more depth when answering interview questions, the
need to provide more examples of ways to develop employees, and the fact that
critical processes were missing from the presentation she gave. (Doc. 41-6 at 15, ¶37).
She also communicated that there were other candidates who had more to offer and
more lab management experience and that is what differentiated them from Smith.
(Doc. 41-6 at 15, ¶37).16
Filling the Chemistry Supervisor and Fuels Supervisor Positions in
Job Posting and Initial Candidate Screening
Not long after Bumpers started in her position as Chemistry supervisor, she
learned that she would be leaving the Birmingham area when her husband was
transferred. Around this same time, Hill, who was the Fuels supervisor, was given a
The Plaintiff disputes the facts in this paragraph with merely: “Dispute. Smith was as
qualified for the position.” (Doc. 44 at 5). This response fails to include a citation to relevant
evidence which disputes the evidence offered by the Defendant. Further, it is vague and
underdeveloped. The facts offered by the Defendant in this paragraph are deemed admitted for
the purpose of deciding the instant motion.
developmental opportunity to become Compliance & Support Manager.17 This created
the need to fill the two supervisor positions being vacated by Bumpers and Hill.
Heilbron elected to post the two EA Supervisor positions in one job posting.
She again met with Dean to draft a job description that incorporated both positions’
job qualifications. The posting stated that the positions would be open for
applications on April 24, 2014, and closed for applications on May 5, 2014. (Doc. 412 at 92). The position was actually posted from April 24, 2014-May 7, 2014. (Doc.
41-6 at 16, ¶40; doc. 41-8 at 4-5, ¶6). Sixty-two applications were received, including
Burrell’s application, which was submitted on May 7, 2014. (Doc. 41-2 at 99).18 After
review, 13 individuals were considered as potential candidates, including Smith,
Maske, and Worthy from the Lab. (Doc. 41-6 at 16, ¶40).
To be promoted at Alabama Power, an individual can apply for promotions when they
see a job opportunity or they can be selected for “developmental opportunities.” A
developmental opportunity is where jobs are not posted and the developmental candidates are
given jobs to allow the employees to obtain more knowledge and experience. Although Alabama
Power is aware that Smith is interested in promotion, the company has never considered her for a
developmental opportunity. (Doc. 41-2 at 16(57)). At least two of Smith’s white supervisors,
Heilbron and Hill, received promotions outside of the posting process through “developmental
opportunities” that advanced their career. When asked during her deposition if Smith had been
considered for Compliance & Support Manager, Heilbron stated: “Not that I know of.” (Doc. 412 at 16(57)).
Emily Dean, Talent Acquisition Manager for Alabama Power, states in her affidavit
that the position was posted until May 7, 2014. (Doc. 41-8 at 4, ¶6). She states that Burrell
could not have submitted an application after the deadline because the posting, which was online
and required online applications, would no longer have been available. (Doc. 41-8 at 5, ¶7).
Heilbron and Hyche made another screening matrix for this posting, which was
similar to the screening matrix for the previously posted Chemistry supervisor
position, with a few modifications. (Doc. 41-7 at 28). Power Generation experience
was added as a desired quality because Heilbron, after hiring Bumpers, realized that
having Power Generation plant experience was very valuable in helping Lab
employees gain a better understanding of the customer's needs at the power plants.
Additionally, the definition for Leadership/Performance Management changed in that,
for the combined posting, Heilbron did not differentiate between team leader and
supervisor experience as she had done for the first EA Supervisor-Chemistry
Smith received the same overall score (14) on the screening matrix as she did
for the first Chemistry supervisor posting. Her Lab Experience, ASTM, SM, EPA
The facts in this paragraph were proffered by the Defendant. In response, the Plaintiff
Dispute the portion concerning the definitions of leadership. Heilborn [sic] made
some type of distinction because although only a few months after the December
posting Maske received a higher leadership score than Smith. Doc 41-7 pg. 7 v.
(Doc. 44 at 5-6, ¶39). This is argument, and it does not directly dispute the facts as stated by the
Defendant. The Defendant’s proffered facts in this paragraph are deemed to be admitted as
Methods, and ISO/TNI scores, the criteria for which had not changed, remained the
same. Smith's score remained the same for the Leadership/Performance Management
category, even though the criteria changed, because she had 2-4 years of supervisory
experience. She received a 2 in Power Generation because she had less than two years
of plant experience from early in her career. Smith received a 1 for Budgeting based
on Heilbron's determination that, although Smith's resume stated she managed a
budget of $800,000.00, she had performed no budgeting duties in her current
position. (Doc. 41-6 at 17, ¶42; doc. 41-7 at 28, 29).20 Because Heilbron believed that
Smith had overstated her budgeting experience, she rated her a 1 on Written
Even if Smith had made clear that she had budgeting experience through her church,
Heilbron still would have rated her a 1 because she was part of a church committee and did not
have direct responsibility for the budget. Additionally, this experience would not have been
relevant to managing a budget in the Lab. (Doc. 41-6 at 18, ¶42).
The Plaintiff responds to the facts in this paragraph with the statement: “Admit in part,
deny in part. In the interview[,] Heilborn [sic] noted that Smith managed the 800k church budget
was relevant for the job. Doc. 41-1 pg. 187.” (Doc. 44 at 6). This vague response does not
explain what portion of this paragraph is disputed. The document referenced (doc. 41-1 at 187)
appears to be the typewritten questions asked of Smith by the committee, along with handwritten
noted from Heilbron. The first question states:
Please describe aspects of your background, leadership[,] and experience that
make you a good candidate for this position. Include any specialized laboratory
skills, knowledge[,] or expertise that is relevant to this job.
(Doc. 41-1 at 187). In the space left for notes after this question, Heilbron has written, among
other things, “$800k budget resp for church.” (Doc. 41-1 at 187). Whatever inference can be
gleaned from this note, it does not dispute whether Heilbron thought that the Plaintiff had
overstated her budgeting experience.
In contrast, Burrell and Maske, the successful candidates for these EA
Supervisor positions, received overall scores of 18 and 16 respectively. Heilbron
rated Burrell a 3 in Lab Experience because he had worked in a lab since 2002. He
also received a 3 in ASTM, SM, EPA Methods because he had experience working
with methods when performing lab tests at Plant Gorgas as a Chemical Technician.
Additionally, he also used methods to draft procedures for Kemper County’s lab that
was being developed. Heilbron rated him a 0 in ISO/TNI. Burrell received a 4 in
Leadership/Performance Management because he had current supervisory experience
within the last two years through his role as Lab Team Leader with SoCo’s Kemper
County IGCC Facility. He also received a 4 for Power Generation because he had
worked at a plant since 2002.22 Burrell received a 2 on Budgeting because he
indicated on his resume that he was the “system owner” at Plant Gorgas with
budgeting responsibilities for operations, maintenance, and capital related to the
plant’s water treatment facility and some environmental control equipment. Finally,
Burrell received a 2 for Written Communication based on Heilbron's review of his
On the matrix printout which shows the scores for all candidates, the stated scale for
that category is “1-3.” (Doc. 41-7 at 27). However, as noted previously, scores were actually
assessed using the criteria definitions, which required that Burrell be scored on a scale of 0-4 for
this category. (Doc. 41-7 at 28). The ranges noted on the matrix clearly mean nothing since
Burrell received a “0” for “ISO/INI Exp.” when, on the matrix, the range for that category is
listed as “1-4.”
resume for content and grammar.23
Maske, like Smith, had worked in the Lab for over 20 years and had a
Chemistry degree. Maske received the same scores as Smith in the Lab Experience,
ASTM, SM, EPA Methods, ISO/TNI, and Budgeting categories. However, Maske
received a 3 in Leadership because he had been a team leader for approximately seven
years. Maske received a 1 in Power Generation because he did not have recent plant
experience. Last, Maske received a 3 in Written Communication because Heilbron
found no errors on his resume and application and believed it was professionally
The Plaintiff does not dispute that these scores were actually given. She disputes “that
the matrix was properly scored.” (Doc. 44 at 6). She states: “Maske served in team lead for
barely over a year, since 11/10/2012. Doc. 41-7 pg. 53. Burrell was previously assigned the
Kemper lab, a start-up lab that was not fully operational. Worthy Dep. pg. 53, lines 15-22. Doc
41-3 pg. 15.” (Doc. 44 at 6). She provides no further explanation for her dispute.
The Plaintiff proffers the following fact which the Court reprints here formatted and
written exactly as Plaintiff’s counsel proffered it:
19. Although it was at least one of the jobs (Chemistry supervisor) was identical
to the prior posting, Heilborn [sic] (and Hyche) rescored the criteria which
resulted in Maske receiving a score of 16, rather than his previous 15. Compare
doc 41-7 pg. 7 v. doc 41-7 pg. 27.
7, pg. 27.
(Doc. 44 at 10, ¶19). This proffered fact does not accurately reflect why Maske’s scores were
different. Maske’s overall score changed from the time he was evaluated for the previous posting
because he went from a 2 to 3 in Leadership/Performance Management, was given a 1 for Power
Generation, and went down from 2 to 1 in Budgeting. (Doc. Doc. 41-7 at 7, 27). Maske received
a 3 leadership because he had been a team leader for approximately seven years. (Doc. 41-6 at
19, ¶44). Heilbron gave Maske, and all of the candidates, credit for supervisory experience prior
Six candidates were invited to interview for the positions—Cynthia Dixon,
Maske, Shane McCray, Laura Berry, Marvin Burrell, and William Smith. All scored
a 16 or above, which Heilbron and Hyche determined to be the natural break on the
screening matrix. Because Smith's score fell below this threshold, she was not invited
The selection committee for this posting consisted of Heilbron, Chad
McKnight (White, age 39), Ryals, Circe Starks (African American, age 37), Garrett,
and Godfrey, with Hyche serving as facilitator. Heilbron drafted interview questions
which Hyche reviewed. The same questions were used for each candidate.
After each candidate was interviewed, the committee discussed developmental
needs and strengths. Many of the committee members took their own notes during
this discussion, and Hyche later typed out the group’s collective thoughts. Interviews
were conducted on May 15, 2014.25 After the committee discussed the candidates,
Heilbron ultimately announced, on May 22, 2014, via email, that Burrell and Maske
were selected as the Chemistry supervisor and Fuels supervisor, respectively.
In her notes regarding Maske’s interview for the supervisor position, under a column
labeled “Dev. Needs,” Heilbron wrote: “presentation-maintain more eye contact w/ the
audience.” (Doc. 41-2 at 86). In his notes regarding the same interview, Garrett noted that Maske
“[n]eeds” “Eye contact.” (Doc. 41-2 at 83).
Burrell was selected for the Chemistry supervisor position primarily because
he was currently in a management position at Kemper County as a team leader with
approximately nine direct reports and was responsible for all aspects of hiring,
performance management, managing large budgets, and starting up the lab.
Additionally, Burrell had cross company operating experience, which was valuable
because he had performed a variety of job functions and brought customer insight
related to fossil and hydro generation.
Maske was selected for the Fuels supervisor position in large part because he
demonstrated leadership qualities and was also vocal in his interview about what he
was doing to help lead the team, including scheduling, writing methods, and
managing the methods that needed updating for the Fuels section. Additionally,
Maske provided good leadership examples in his interview, highlighting his role as
co-chair of the ASTM committee for limestone testing (which Smith did not have)
and his broad experience performing all aspects of fuels, limestone, and gypsum
testing, distinguishing him from other candidates. Smith believed that, of those who
interviewed for the Fuels supervisor job, Maske was the most qualified.
Maske’s Level 3 Discipline
For the year 2012, Maske was rated “Expectations Not Fully Met” and “not
performing up to expectations” in his annual evaluation. In his Year End Summary,
Maske’s manager explained:
Earlier this year, Durant had a lapse in judgment with regard to methods
and procedures. He avoided strict adherence to a laboratory procedure
and failed to comply with his “duty to act” with knowledge about other
employees avoidance of following the policy. For this reason, Durant
has not fully met the expectations for 2012.
(Doc. 45-1 at 4-5).26 Maske also received a Level 3 discipline on March 29, 2012, but
the parties have not been clear as to whether it was for this same incident. According
to Alabama Power’s “Non-Punitive Discipline” policy:
Third Level Notice is the most serious level of formal discipline. lt is
used when an employee does not meet a commitment to improve during
the period of a Second Level Notice, or when a single infraction is
serious enough to warrant this level of discipline.
(Doc. 45-2 at 4).
In her declaration, Hyche stated that
APCo has a non-punitive discipline policy, and once a discipline
expires, it is removed from the employee’s file and is not to be
considered in further employment decisions. Maske’s discipline expired
on September 29, 2013.
(Doc. 41-9 at 6, ¶11). Heilbron stated in her declaration that, because of this policy,
she “did not consider the Level 3 discipline Maske received in 2012 when awarding
him the [Fuel supervisor] position.” (Doc. 41-6 at 21-22, ¶49).
Maske reported inaccurate results that were sent to customers.
In her deposition, other than the fact that Marlene Bumpers and Marvin Burrell
were younger than her, Smith could offer no evidence that the decisions to select
them were based on age. (Doc. 41-1 at 62(244)-65(245); doc. 41-1 at 71(277)). In her
deposition, other than the fact that Marlene Bumpers and Durant Maske were white
and that there had been no other African-American supervisor in the Lab until Burrell
was hired, Smith could offer no evidence that the decisions to select Bumpers and
Maske were based on race. (Doc. 41-1 at 62(241-243)); doc. 41-1 at 67(264)68(265)).
The Plaintiff alleges that the first time the Defendant discriminated against her
was in March of 2014 when it gave Bumpers, and not her, the position of Chemistry
supervisor. She also alleges that the Defendant discriminated against her a second
time, in May of 2014, when it gave the Chemistry and Fuel supervisor positions to
Burrell and Maske, respectively, instead of to her.27 She alleges that both incidents
In her brief in response to the Motion for Summary Judgment, the Plaintiff, in one
Smith’s white supervisors (Heilborn and Hill) benefitted from professional
development opportunities where they were selected for job opportunities outside
of the positing process. Smith, the African-American woman, over a 29 year
career had no such opportunities.
were the result of race discrimination in violation of Title VII and section 1981. She
also alleges that both incidents were the result of age discrimination in violation of
the ADEA. Her claims are based upon circumstantial evidence.
The Eleventh Circuit has noted:
Title VII of the Civil Rights Act of 1964 makes it unlawful for an
employer to discharge or otherwise discriminate against an employee
because of his race. 42 U.S.C. § 2000e–2(a)(1). Similarly, 42 U.S.C. §
1981 prohibits race discrimination in employment by providing that all
persons shall have the same right to make and enforce contracts as white
citizens. 42 U.S.C. § 1981(a). In the employment context, the elements
of a race-discrimination claim under § 1981 are the same as those in a
Title VII disparate-treatment claim. Rice–Lamar v. City of Fort
Lauderdale, 232 F.3d 836, 843 n. 11 (11th Cir.2000).
The ADEA, in turn, makes it unlawful for an employer to
discharge or otherwise discriminate against an employee because of his
age. 29 U.S.C. § 623(a)(1). Specifically, the ADEA prohibits
employment discrimination against individuals who are at least 40 years
of age. Id. § 631(a).
Where, as here, a plaintiff puts forth only circumstantial evidence
in support of [her] discrimination claims, we generally apply the
burden-shifting framework of McDonnell Douglas Corp. v. Green, 411
U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). EEOC v. Joe's Stone
Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir.2002); see Sims v. MVM,
Inc., 704 F.3d 1327, 1332–33 (11th Cir.2013) (ADEA); Smith v.
Lockheed–Martin, 644 F.3d 1321, 1325 & n. 14 (11th Cir.2011) (Title
VII and § 1981). Under this framework, the plaintiff bears the initial
(Doc. 44 at 20). This allegation does not appear in the Plaintiff’s Complaint and “[a] plaintiff
may not amend her complaint through argument in a brief opposing summary judgment.”
Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004). Accordingly the
Court will not consider this allegation.
burden of establishing a prima facie case of discrimination. Joe's Stone
Crabs, Inc., 296 F.3d at 1272. If the plaintiff establishes a prima facie
case, he creates a rebuttable presumption that the employer unlawfully
discriminated against him. Id. The burden then shifts to the employer to
articulate a legitimate, nondiscriminatory reason for the challenged
employment action. Id. If the employer satisfies this burden of
production, the burden shifts back to the plaintiff to demonstrate that the
proffered reason is merely a pretext for unlawful discrimination. Id. at
1272–73. Although the burden of production shifts back and forth, the
ultimate burden of persuasion always remains with the plaintiff. Id. at
Benjamin v. SNF Holding Co., 602 F. App'x 758, 761–62 (11th Cir. 2015).
Under the McDonnell Douglas framework, to prevail on a claim of
failure to promote, a plaintiff may establish a prima facie case of [race]
discrimination by showing that: (1) she is a member of a protected class;
(2) she was qualified and applied for the promotion; (3) she was rejected
despite her 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).
To establish a prima facie case under the ADEA, the plaintiff bears the
burden of proving that (1) [s]he was a member of the protected class
(i.e., at least 40 years old at the time of the adverse employment action);
(2) [s]he was subject to an adverse employment decision; (3) the
position [s]he sought was filled by a substantially younger person; and
(4) [s]he was qualified for the position. See Chapman v. AI Transp., 229
F.3d 1012, 1043 (11th Cir.2000) (en banc). Age discrimination claims
also require that the plaintiff ultimately show that [her] age was the
“but-for” cause of the adverse employment decision. See Gross v. FBL
Fin. Servs., Inc., 557 U.S. 167, 177, 129 S.Ct. 2343, 174 L.Ed.2d 119
Suarez v. Sch. Bd. of Hillsborough Cty., Fla., 638 F. App'x 897, 899 (11th Cir. 2016).
Awarding Bumpers the Chemistry Supervisor Position in March
For purposes of the instant motion, the Defendant assumes that Smith can
establish a prima facie case of race and age discrimination as to the promotion of
Bumpers to the Chemistry supervisor position in March 2014. (Doc. 40 at 25).
Accordingly, the burden shifts to the Defendant to articulate a legitimate nondiscriminatory reason why Bumpers was promoted over the Plaintiff.
In this case, the Defendant states that “[t]he reason Smith was not selected to
fill the . . . position is because she was not the most qualified candidate for the
position.” (Doc. 40 at 26).
The Defendant having articulated a legitimate non-discriminatory reason for
the Plaintiff not receiving the promotion, the burden shifts back to the Plaintiff to
demonstrate that this reason is merely a pretext for race and age discrimination. She
cannot do so because it is undisputed that the Plaintiff would not have been
selected for the position over Bumpers because Bumpers had superior
qualifications. (See, doc. 40 at 16, ¶34 (Defendant’s proffered fact); doc. 44 at 5, ¶34
Summary Judgment will be granted in favor of the Defendant, and against the
Plaintiff, on Counts One and Two, to the extent that those Counts allege
discrimination regarding the March 2014 Chemistry supervisor position given to
Awarding Burrell and Maske the Chemistry and Fuels Supervisor
Positions in May of 2014
The Fuels Supervisor Position Given to Maske
The Plaintiff Fails to Establish a Prima Facie Case of
The Defendant does not assume a prima facie case of age discrimination as to
the Fuel supervisor position given to Maske. Specifically, the Defendant challenges
whether the Plaintiff can show that the Fuel supervisor position was filled by a person
“substantially younger” than the Plaintiff. (Doc. 40 at 28-29).29 The Plaintiff
The Plaintiff writes:
With respect to the first vacancy, current Alabama lab [sic] employee Mike
Worthy who has observed Smith believes that she was a victim of race
discrimination. Worthy was conscious of the fact that there had never been an
African-American supervisor. Worthy pg. 30, lines 9-12. Worthy recognized that
Smith had a done “a very good job” as team lead and was deserving of promotion.
Worthy pg. 31 line 23, pg. 32 lines 1-2. (Doc. 41-3, pg. 9). Smith did not file a
EEOC charge after being denied this vacancy.
(Doc. 44 at 16). It is unclear for what purpose (i.e. proving her prima facie case or establishing
pretext) this argument is offered. However, because this argument comes directly after the
Plaintiff notes that the prima facie case for the position Bumpers received has been assumed, the
Court assumes that this argument is aimed at showing pretext. As shown later in this opinion,
Worthy’s opinions on these matters will be stricken. Regardless, because the Plaintiff has
admitted that she would not have been hired over Bumpers, Worthy’s opinion on the subject is
In this case, at the time he was hired Maske was 48 years old, and Smith was 55 years
old. See, Suarez, 638 F. App'x at 901 (“a six-year age difference, without more, does not
acknowledges that the Defendant does not assume the prima facie case30, yet fails to
respond to this argument, and fails to otherwise set out a prima facie case of age
Because the Plaintiff makes no showing on this point, she fails to carry her
burden to establish a prima facie case. Summary Judgment is therefore due to be
granted to the Defendant, and against the Plaintiff, on the ADEA claim in Count Two,
to the extent that it is based on the Fuels supervisor position given to Maske.
The Plaintiff Cannot Establish Pretext31
Assuming the Plaintiff can make out a prima facie case of both race and age
discrimination regarding the Fuel supervisor position given to Maske, her claim still
fails because she cannot establish pretext. The Defendant states that “Smith was not
promoted to fill the [Fuels Supervisor] position because she did not make the cut for
interviews and Maske was more qualified for the position.” (Doc. 40 at 29). The
burden now shifts to the Plaintiff to show that this reason is a mere pretext for race
establish that Mr. Suarez's age was the but-for cause of the School Board's failure to hire him.”).
The Plaintiff writes: “For purposes of the defendant states that the Smith establishes a
prima facie case for the first vacancy awarded Bumpers but not the others.” (Doc. 44 at 16)
(exactly as written by Plaintiff’s counsel).
In her deposition, other than the fact that Durant Maske is white and that there had
been no other African-American supervisor in the Lab until Burrell was hired, Smith could offer
no evidence that the decision to select Maske was based on race. (Doc. 41-1 at 67(264)-68(265)).
and age discrimination.
“To prove pretext, the plaintiff must show that the employer's proffered reasons
were ‘a coverup for a ... discriminatory decision.’” Rodriguez v. Sec'y, U.S. Dep't of
Homeland Sec., 518 F. App'x 653, 655 (11th Cir. 2013) (quoting Rojas v. Florida,
285 F.3d 1339, 1342 (11th Cir.2002) (per curiam) (omissions in original) (internal
quotation marks omitted).
Pretext can be shown either by directly persuading a court that
discriminatory motive more likely motivated the employer or by
indirectly demonstrating the provided reason was unworthy of credence.
Sweat v. Miller Brewing Co., 708 F.2d 655, 656 (11th Cir.1983). See
also Harris v. Shelby County Bd. Of Educ., 99 F.3d 1078, 1083 (11th
Cir.1996) (“The focus of the case after the defendant has met the burden
of production is on the defendant's subjective intent and the motivation
behind the defendant's adverse employment actions directed at the
plaintiff.”). A plaintiff must do more than criticize the business
judgment of his employer, and he cannot simply quarrel with the
wisdom of the decision. Chapman v. AI Transport, 229 F.3d 1012, 1030
Knight v. Florida Dep't of Transp., 291 F. App'x 955, 958–59 (11th Cir. 2008).
A plaintiff can show pretext by demonstrating “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions” in the
proffered reason for the employment action so that a reasonable
factfinder could find them unworthy of credence. Springer v. Convergys
Customer Mgmt. Group, Inc., 509 F.3d 1344, 1348 (11th Cir.2007).
“However, a reason cannot be proved to be a ‘pretext for discrimination
’ unless it is shown both that the reason was false, and that
discrimination was the real reason.'' St. Mary's Honor Ctr. v. Hicks, 509
U.S. 502, 515, 113 S.Ct. 2742, 2752, 125 L.Ed.2d 407 (1993) (emphasis
in original). Accordingly, it is not enough to “disbelieve the employer;
the factfinder must believe the plaintiff's explanation of intentional
discrimination.” Id. at 519, 113 S.Ct. at 2754 (emphasis in original).
Moreover, “[w]e are not in the business of adjudging whether
employment decisions are prudent or fair. Instead, our sole concern is
whether unlawful discriminatory animus motivate[d] a challenged
employment decision.” Damon v. Fleming Supermarkets of Fla., Inc.,
196 F.3d 1354, 1361 (11th Cir.1999).
Kohser v. Protective Life Corp., No. 15-11704, 2016 WL 2587169, at *3 (11th Cir.
May 5, 2016).
The Plaintiff argues:
Worthy, a current employee with substantial experience supports Smith
was more qualified than Maske for the job.
(Doc. 44 at 18). These “opinions” as to whether Smith was more qualified than Maske
will be stricken.32 The Plaintiff fails to offer any authority for why the opinion of
Worthy should be considered. Worthy was not a decisionmaker in this case. He
admits that no one ever explained to him how candidates for the positions were
ranked based on qualifications and criteria. (Doc. 41-3 at 7(24)). No one ever
explained to him that there was a matrix used to evaluate candidates. (Doc. 41-3 at
7(24)). He offers no opinions as to how those who were competing for the Fuel
supervisor position should have been scored. Accordingly, his testimony on the
The Defendant has moved to strike these opinions. (Doc. 46 at 5, and n. 3).
comparative qualifications of the Plaintiff and the other applicants is purely
speculative, conclusory, and not based on personal knowledge. See, Matthews v.
Euronet Worldwide, Inc., 271 F. App'x 770, 777 (10th Cir. 2008) (“a coworker's mere
opinion is irrelevant”); Grady v. BellSouth, 160 F. App'x 863, 864–65 (11th Cir.
2005) (testimony of plaintiff's immediate supervisor that she felt plaintiff was more
qualified for promotion than the person who received it, and that plaintiff was
discriminated against, stricken as speculative where: supervisor admitted that she did
not know who was the decision maker for the promotion; supervisor said nothing
about the promotion process; there was no evidence that supervisor knew of the
qualifications for promotion, was involved in the selection process for promoting
candidates, or knew of the criteria for promotion).33
The Plaintiff also argues:
[I]nconsistencies in the selection process require the denial of summary
judgment. In the 29 years, Smith has been in the laboratory department
there was never an African-American supervisor until Marvin Burrell
(Doc. 44 at 15). As noted by the Eleventh Circuit:
For these same reasons, the Court will also strike Worthy’s opinions as to the
comparative qualifications of the Plaintiff as to any position at issue in this case, as well as his
opinion as to whether the Plaintiff was discriminated against.
[S]tatistical evidence is not . . . probative of pretext [where the Plaintiff]
has not provided any other relevant information, including the number
of [people in the protected class] who expressed interest in [the]
positions. See, e.g., Howard v. B.P. Oil Co., Inc., 32 F.3d 520, 524 (11th
Cir.1994). “Statistics without any analytical foundation are ‘virtually
meaningless.’ ” Evans v. McClain of Ga., Inc., 131 F.3d 957, 963 (11th
Cir.1997) (quoting Brown v. Am. Honda Motor Co., 939 F.2d 946,
952-53 (11th Cir.), cert. denied, 502 U.S. 1058, 112 S.Ct. 935 (1992)).
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004). Because the
Plaintiff provides no other relevant information (such as evidence of other qualified
African American candidates who have applied to be supervisors and were not
chosen)34, the fact that there has only been one African American supervisor is not
The Plaintiff acknowledges this in her brief. (Doc. 44 at 15, n. 2). However, she
contends that “zero does have some meaning,” and cites, without discussion, the following
language from a footnote to the Supreme Court’s decision in Int'l Bhd. of Teamsters v. United
States, 431 U.S. 324, 97 S. Ct. 1843, 52 L. Ed. 2d 396 (1977): “As the Court of Appeals
remarked, the company's inability to rebut the inference of discrimination came not from a
misuse of statistics but from ‘the inexorable zero.’” Int'l Bhd. of Teamsters, 431 U.S. at 342, n.
23 (quoting United States v. T.I.M.E.-D.C. Inc., 517 F.2d 299, 315 (5th Cir. 1975)). The socalled “inexorable zero” test refers to the situation where a Court can infer discrimination,
without statistical analysis, where an employer with a statistically large enough workforce
employs no members of a protected group. Darity v. MEGA Life & Health Ins. Co., 541 F. Supp.
2d 1360, 1373 (N.D. Ga. 2008) (citing Woodson v. Pfizer, Inc., 34 F. Appx. 490, 492–93 (7th
Cir.2002) (unpublished)). “Some context [such as size of the sample and the statistical meaning
of the zero], however, is still required.” Darity, 541 F. Supp. 2d at 1373. In the instant case, the
Plaintiff gave no such context. Further, Teamsters was a pattern and practice case, brought by
the government pursuant to 42 U.S.C. § 2000e-6. The Plaintiff fails to explain why this Court
should apply the Teamsters test to a case alleging individual, as opposed to a pattern and practice
of discrimination, brought by a private plaintiff. See, Johnson v. Gwinnett Cty. Sch. Dist., No.
1:11-CV-00471-TWT, 2012 WL 5987584, at *11 (N.D. Ga. Oct. 17, 2012), report and
recommendation approved, No. 1:11-CV-471-TWT, 2012 WL 5987581 (N.D. Ga. Nov. 28,
2012) (“where the case is, as here, one of alleged discrimination against an individual, [the
Plaintiff] must establish the size of the sample and the statistical significance of inexorable
zero”); Clark v. ALFA Ins. Co., No. CIV.A. 00-AR-3296-S, 2002 WL 32366291, at *3 (N.D.
Ala. May 28, 2002) (“All of the cases that this court has been able to find grant this exception
evidence of pretext.35
Maske’s Performance Evaluations and Discipline
The Plaintiff argues:
In 2012, Maske was rated as not performing up to expectations in his
current job; the solution to promote him in 2014 to the supervisor ahead
of Smith (who always met expectations) supports an inference of
discrimination for trial.
(Doc. 44 at 17). She continues: “Maske had a [L]evel 3 discipline and was just short
of termination in 2012. Smith has never received a [L]evel 3 discipline and could not
qualify for an interview for either vacancy.” (Doc. 44 at 18).
As noted above, the parties have been unclear as to whether Maske’s failure to
meet expectations in 2012, and the Level 3 discipline, were based upon the same
incident. Regardless, the Level 3 discipline had expired by the time Maske was
considered for the supervisor position, and it is the Defendant’s policy not to consider
such disciplines after they have expired. (Doc. 41-9 at 6, ¶11; doc. 41-6 at 21-22,
¶49). The Plaintiff has offered no evidence or argument that this policy is
discriminatory, or was applied unevenly or in a discriminatory manner. Further, even
only in pattern and practice actions, which this is not. To the extent that [the Plaintiff] is asking
the court to extend the ‘inexorable zero’ exception to individual cases of discrimination, this
Obviously, this evidence also has no bearing on whether the Plaintiff was discriminated
against based on her age.
if the discipline should have been considered, the Plaintiff fails to show how this
would have affected her score on the matrix in a way that would have given her the
position, or even allowed her to score high enough to merit an interview. Similarly,
the Plaintiff fails to show how the fact that she had always “met expectations,” and
Maske had not, should have changed how she and/or Maske were scored. Finally, the
Plaintiff fails to show how the two facts, considered together, should have changed
any score she and/or Maske received.
Maske’s Failure to Make Eye Contact in the
The Plaintiff argues:
The defendant makes much of Smith’s non-verbal behavior, rolling her
eyes which Smith denies as a disputed fact. . . . However, Maske
receives an interview and the job; in the interview he is alleged to have
difficulties or needs to improve on his eye contact.
(Doc. 44 at 18). Again, the Plaintiff fails to explain how the scores on the matrix,
which was scored before Maske’s issues in the interview, should have been different.
Further, the Plaintiff’s issues were not only “rolling her eyes.” Heilbron and
other supervisors noted that, when given constructive feedback, or if someone had a
differing opinion, the Plaintiff would also cross her arms, sigh, or become defensive.
(Doc. 41-6 at 7, ¶16). Sometimes she shut down and appeared not to listen to the
feedback given. (Doc. 41-6 at 7, ¶16). Further, the Plaintiff had not made an effort to
accept the feedback and improve. (Doc. 41-6 at 7, ¶16). None of these behaviors are
comparable to Maske failing to make eye contact in one interview. Even if they were,
the Plaintiff has not shown that any of these behaviors were considered when she was
The Scoring Changes
Finally, the Plaintiff argues:
The Chemistry supervisor vacancy is the same job filled by Bumpers yet
the matrix is scored in [a] way that Smith was excluded from the
interview process. Maske’s leadership score went up on the second
scoring so that he advanced within the process.
(Doc. 44 at 18). The plaintiff is referring to the fact that, when the Chemistry
supervisor position was posted the first time, she received a 14 and Maske received
a 15. (Doc. 41-7 at 7) However, when the position was posted the second time
(combined with the Fuels supervisor position), she still scored a 14, which was below
the cutoff for interviews, while Maske’s score went up to a 16, the cutoff for
interviews. (Doc. 41-7 at 27).
As noted above, the matrix was different the second time around in that Power
Generation experience was added as a desired quality after Heilbron’s experience
with Bumpers demonstrated that such experience was valuable. The Plaintiff makes
When making the selection, Heilbron did not consider Maske’s eye contact issue in the
interview because “it was a one-time situation, common in interviews.” (Doc. 41-6 at 21, ¶49).
no argument and offers no evidence that this category was added in an attempt to
discriminate on the basis of race or age. Indeed, the addition of this category
benefitted the Plaintiff over Maske in that the Plaintiff scored a 2 and Maske scored
a 1 in this area.
The scoring changed for Leadership/Performance Management because the
definitions for that category changed. This time around, Heilbron did not differentiate
between team leader and supervisor experience as she had done for the first posting.
Smith’s score remained the same for this, even though the definitions changed,
because she had 4 years of supervisory experience.37 However, Maske received a 3
in Leadership because he had been a team leader for approximately seven years.
Other than to point out that the scores are different now, the Plaintiff makes no
attempt to explain how changing the criteria was discriminatory. She also does not
argue that the criteria, once changed, were applied in a discriminatory manner.38
In her facts offered in opposition to the Motion for Summary Judgment, the Plaintiff
implies that Maske was given a higher score because leadership experience prior to 2011 was
counted for him and not for her. (Doc. 44 at 10 (“The scoring of Maske changed because
Heilborn [sic] was willing to give him increased credit for supervisory experience prior to
2011.”)). However, the Plaintiff was also given credit for supervisory experience obtained prior
to 2011. She was credited with 4 years of Leadership/Performance Management experience
because of her time with team leader responsibilities from 2007 to 2011. (Doc. 41-6 at 69, ¶42,
The Court notes that there were other reasons that the Plaintiff did not score higher in
the matrix. Smith received a 1 for Budgeting and a 1 on Written Communication. Smith makes
no argument that these values were improperly assessed, or that other persons with similar
qualifications received better scores.
None of the Plaintiff’s arguments, considered separately or together,
demonstrate that the Defendant’s reason for hiring Maske over her was a pretext for
discrimination. For this reason, summary judgment in favor of the Defendant and
against the Plaintiff is appropriate as to the race discrimination claim in Count One
and the age discrimination claim in Count Two, to the extent those Counts are based
upon the hiring of Maske into the Fuels supervisor position
The Chemistry Supervisor Position Given to Burrell
The Plaintiff Fails to Establish a Prima Facie Case of
Burrell is African American. Accordingly, the Plaintiff cannot establish that the
position was given to someone outside of her protected class. For that reason,
summary judgment will be granted in favor of the Defendant, and against the
Plaintiff, on the claims in Count One to the extent that they are based on race
discrimination in awarding the Chemistry supervisor position to Burrell.
Assuming that the Plaintiff has established a prima facie case of age
discrimination39, she cannot establish pretext.40
The Defendant makes this assumption in its initial brief. (Doc. 40 at 31).
In her deposition, other than the fact that Marvin Burrell was younger than her, Smith
could offer no evidence that the decision to select him was based on age discrimination. (Doc.
41-1 at 71(277)).
Scoring of the Matrix
The Plaintiff argues
There are inconsistencies in how [Burrell’s] application was scored. . .
. The screening matrix for both jobs was changed to included [sic]
power generating experience (Burrell was coming from a power
generating facility). Burrell then jumps to the top of the candidate pool
score. Burrell had just over a year of lead supervisory experience. Smith
had years of such experience.
(Doc. 44 at 19). Burrell received a 4 in Leadership/Performance Management because
he had current supervisory experience within the last two years through his role as
Lab Team Leader with SoCo's Kemper County IGCC Facility. He also received a 4
for Power Generation because he had worked at a plant since 2002. Again, Smith's
score remained a 2 for the Leadership/Performance Management category because
she had 2-4 years of supervisory experience. She received a 2 in Power Generation
because she had less than two years of plant experience from early in her career. As
with this same argument concerning Maske, the Plaintiff fails to offer any evidence
of a discriminatory motive in the addition of the new categories, or in how they were
Heilbron noted Burrell was accurately rated a 4 because he had current supervisory
experience within the last two years as Lab Team Leader at Kemper where he had approximately
nine direct reports and was responsible for all aspects of hiring and performance management
(Heilbron Decl. ¶¶43, 47). In contrast, while Smith had some team lead responsibilities from
2007-2011, she had no direct reports and no authority to hire, terminate, or discipline other
employees (Heilbron Decl. ¶7).
The Timing of Burrell’s Application
The Plaintiff also argues:
Burrell did not apply for the position until after the May 5, 2014
deadline. Doc. 41-, pg. 92. On May 7, 2014 after the deadline, Burrell
submitted his application for the vacant positions. Doc. 41-2, pg. 99.
(Doc. 44 at 19). This argument is based on the job posting itself, which stated that the
positions would be open for applications on April 24, 2014, and closed for
applications on May 5, 2014. (Doc. 41-2 at 92). As Dean noted in her declaration, the
position was actually posted until May 7, 2014. (Doc. 41-8 at 4, ¶6). She states that
Burrell could not have submitted an application after the deadline because the
posting, which was online and required online applications, would no longer have
been available. (Doc. 41-8 at 5, ¶7). Even if the Defendant did allow Burrell to post
his application after the deadline, the Plaintiff has not shown that such a decision was
made with discriminatory intent.42
The Plaintiff also argues:
Worthy in confirming Smith’s contention that she was discriminated against noted
that Burrell had the wrong degree and the lab he supervised was in start-up mode
and ordering instruments. Worthy pg. 53 lines 5-23. The lab where Smith had
spent her working career was an on-going fully functional lab. Worthy pg, 54,
(Doc. 444 at 19). Again, this Court will strike Worthy’s opinions. However, to the extent that
this portion of the Plaintiff’s brief could be considered an argument that Burrell had the wrong
degree for the position, and/or that Smith’s leadership qualifications were better because
Burrell’s lab was only in “start-up mode,” her argument fails.
Because none of the Plaintiff’s arguments, taken separate or collectively,
demonstrate that the legitimate non-discriminatory reason proffered by the Defendant
for giving Burrell the Chemistry supervisor position was a mere pretext for age
discrimination, summary judgment is appropriate for the Defendant as to this claim.
For the reasons stated herein, the opinion testimony of Garry Michael Worthy
regarding the comparative qualifications of the Plaintiff versus other applicants for
the positions at issue in this case, as well as Worthy’s opinion that the Plaintiff was
discriminated against, will be STRICKEN. Further, for the reasons stated herein, the
Defendant’s Motion for Summary Judgment will be GRANTED, and this case will
First, Heilbron testified in his deposition:
[Burrell] was currently in a management position at Kemper County as a team
leader. He had about nine direct employees. He was responsible for all aspects of
starting up the laboratory there. It’s a construction plant with a lot of deadlines
and a lot of pressures, and he was very successful in doing that. He performed all
aspects of hiring, performance management, dealing with issues, and he also
managed large budgets while he was at Kemper County.
(Doc. 41-2 at 39(151)). Smith makes no effort to explain why this experience did not warrant the
4 Burrell got in leadership, or why her score in that same category, a 2, should have been higher.
Smith also fails to offer evidence of, or explain how these factors should have helped her score
higher, or Burrell lower, on any category of the matrix.
The Plaintiff also fails to explain why Burrell’s degree (a major in Zoology and a minor
in Chemistry) should matter. The posting only required a “Biology, Engineering[,] or Sciencerelated degree with 24 semester hours of chemistry.” (Doc. 41-7 at 31). Heilbron states in her
declaration that Burrell’s education “indicated to [her] that he had a science related degree as
well as at least 24 semester hours in Chemistry.” (Doc. 41-6 at 18, ¶43).
be DISMISSED with prejudice.
DONE and ORDERED this 2nd day of August, 2016.
VIRGINIA EMERSON HOPKINS
United States District Judge
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