Hall v. Alabama Power Company, A Southern Company

Filing 37

MEMORANDUM OPINION Signed by Chief Judge Karon O Bowdre on 9/28/16. (SAC )

FILED
2016 Sep-28 AM 10:25
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
MICHAEL HALL,
Plaintiff,
v.
ALABAMA POWER COMPANY,
A SOUTHERN COMPANY,
Defendant.

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2:15-CV-00476-KOB

MEMORANDUM OPINION
Plaintiff Michael Hall has alleged that Alabama Power Company engaged in disparate
treatment on the basis of race in declining to hire him for several positions. This matter is before
the court on Defendant Alabama Power Company’s “Motion for Summary Judgment” (Doc. 25)
and “Motion to Strike the Declaration of Traci L. Wiggins Offered in Opposition to Defendant’s
Motion for Summary Judgment.” (Doc. 36).
For the reasons stated in this Memorandum Opinion, the court will DENY Alabama
Power’s Motion to Strike and will GRANT Alabama Power’s Motion for Summary Judgment.
I.

Standard of Review
Summary judgment allows a trial court to decide cases when no genuine issues of

material fact are present and the moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56. When a district court reviews a motion for summary judgment, it must determine
two things: (1) whether any genuine issues of material fact exist; and if not, (2) whether the
moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).
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The moving party “always bears the initial responsibility of informing the district court of
the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56).
Once the moving party meets its burden of showing the district court that no genuine
issues of material fact exist, the burden shifts to the non-moving party to produce sufficient
favorable evidence “to demonstrate that there is indeed a material issue of fact that precludes
summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “If the
evidence [on which the nonmoving party relies] is merely colorable, or is not significantly
probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
249–50 (1986) (internal citations omitted).
When ruling on a motion for summary judgment, the court should view all evidence and
inferences drawn from the underlying facts in the light most favorable to the non-moving party.
See Graham v. State Farm Mut. Ins. Co., 193 F.3d 1274, 1282 (11th Cir. 1999). The evidence of
the non-moving party “is to be believed, and all justifiable inferences are to be drawn in [its]
favor.” Anderson, 477 U.S. at 255. “If reasonable minds could differ on the inferences arising
from undisputed facts, then a court should deny summary judgment.” Allen v. Tyson Foods, Inc.,
121 F.3d 642, 646 (11th Cir. 1997) (internal quotation marks and citations omitted). This
standard exists because “the drawing of legitimate inferences from the facts are jury functions,
not those of a judge.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000)
(quoting Anderson, 477 U.S. at 255).
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After both parties have addressed the motion for summary judgment, the court must grant
the motion only if no genuine issues of material fact exist and if the moving party is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56.
II.

Procedural History
Plaintiff Michael Hall filed an EEOC charge on May 15, 2014, alleging that Defendant

Alabama Power Company had discriminated against him on the basis of his race in not hiring
him for several positions. Mr. Hall brought this lawsuit against Defendant Alabama Power
Company on March 20, 2015. Mr. Hall asserted in his Complaint several causes of action under
Title VII and § 1981 for racial discrimination in hiring. In his “Opposition to the Defendant’s
Motion for Summary Judgment,” Mr. Hall has only argued a disparate treatment theory of
discrimination.
Alabama Power Company moved for summary judgment on each of Mr. Hall’s claims on
February 4, 2016. The parties have fully briefed that Motion.
III.

Facts
Michael Hall is an African-American male. Mr. Hall alleges that he was discriminated

against on the basis of his race when he applied to and was not hired for several positions within
the Western Division of Alabama Power Company. Mr. Hall applied and was not chosen for
approximately seven positions in the Western Division of Alabama Power between 2008 and
May 15, 2014. The parties have narrowed the scope of Mr. Hall’s claims, however, and only
three positions are now at issue in this case: three Power Delivery Utility Assistant positions
within the Western Division of Alabama Power that were opened in 2011, 2012, and 2014. Mr.
Hall was hired by Alabama Power as a Utility Assistant in the Supply Chain department on July
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11, 2014.
The Power Delivery Utility Assistant position is an entry level position that assists in the
construction and maintenance of electrical distribution lines. The job description for this position
states that “[e]xperience in a physically demanding work environment, and ability to work with
all types of tools is desired.” (Doc. 27-4 at 34). The qualifications for the Power Delivery Utility
Assistant position are: (1) a high school diploma or equivalent with a two-year technical degree
preferred; (2) two years manual labor, construction, maintenance, electrical or working on heavy
equipment preferred; (3) ability to rotate locations while training; (4) ability to obtain a CDL; (5)
ability and desire to work safely and be ethical; (6) ability to work at heights up to 100 feet; (7)
ability to perform physically demanding tasks outdoors in various conditions and ability to bend,
kneel, stoop and stand for long periods of time; (8) ability to operate equipment; and (9)
availability for day shift work (along with overtime, call out, weekends and holidays as required).
Additionally applicants must be at least 18 years old, must possess a valid driver’s license, and
must be available to work overtime, call out, weekends, and holidays as required.
Michael Hall graduated from high school in 2005 and attended the University of North
Alabama from 2005 to 2008 but did not graduate. He received his bachelor’s degree in business
from Faulkner University in approximately 2012.
Between high school and being hired by Alabama Power in 2014, Mr. Hall worked at
Arby’s; as an order selector at Amerisource Bergen; as an overnight stocker at Books-A-Million;
as an order selector for Swanson Services; as an order selector, then line manager for Alabama
Crown; as an order selector at Dollar General; and as a detail specialist cleaning and washing
cars for CarMax. In his positions as an order selector at Dollar General and Alabama Crown, Mr.
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Hall drove a forklift and operated a cherry picker to move containers and pull items from the
warehouse to prepare them for shipping. Mr. Hall had no experience in construction, tree
services, any position requiring work at heights or out of a truck, or any job that required him to
be outside. Mr. Hall also had not worked in any position that required him to use tools such as
saws or hammers.
A.

Power Delivery Utility Assistant – 2011

The first position at issue in this case is the Power Delivery Utility Assistant Position for
which Mr. Hall applied in September 2011. Alabama Power informed Mr. Hall that he was not
selected for this position September 8, 2011.
More than 500 people applied for this position. Alabama Power contends that it used a
screening method for this position to screen applicants from consideration based on their
residential addresses. Alabama Power states that it screened out 163 applicants, one of whom
was Mr. Hall. Alabama Power asserts that based on Mr. Hall’s residential address at the time he
applied, he was deemed to be outside the Western Division and to be a better candidate for the
Birmingham Division Power Delivery Utility Assistant position for which he had simultaneously
applied. Of the 163 candidates who were screened out, 106 were Caucasian, 50 were AfricanAmerican, two were Hispanic/Latino, one was Asian, two were of more than one race, and two
were of unknown race. Alabama Power hired six individuals for this position: five Caucasians
and one Latino. These individuals were hired between January 27, 2012 and October 8, 2012.
Mr. Hall disputes that Alabama Power uses residential addresses as a screening tool for
applicants. Mr. Hall asserts that his father, Donald Bivins, has worked in the Western Division
for years while living in Alabaster and Montevallo, both of which are outside of the Western
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Division’s geographical range. Mr. Hall also contends that when he applied for this position, he
was told that he just had to be able to move into the Division if he was chosen.
As part of his application for the Power Delivery Utility Assistant position with the
Birmingham Division, Mr. Hall took Alabama Power’s Physical Abilities Test, which any
candidate must pass to be hired for the Power Delivery Utility Assistant position. Mr. Hall failed
this test on November 9, 2011. Candidates who failed the test could retake it after 45 days. Mr.
Hall took and passed the Physical Abilities Test on May 9, 2012.
B.

Power Delivery Utility Assistant – 2012

Mr. Hall applied for a Power Delivery Utility Assistant Position in the Western Division
again on March 5, 2012. Mr. Hall interviewed for the position. Following the interview, the
selection committee members individually wrote down their top candidates. Mr. Hall was not on
any of the selection committee members’ lists of top candidates. All five members of the
selection committee were Caucasian. Alabama Power informed Mr. Hall on May 30, 2012 that
he was not selected for the position.
Four individuals were hired for the position: Jonathan Mathis, Wade Fondren, Josh
Taylor, and Randy Burton, all of whom are white males. These individuals were hired in June or
July 2012. Jonathan Mathis had experience working with his hands and with tools during his
time working for Mercedes-Benz and Burkes Mechanical. Wade Fondren had worked as a heavy
equipment operator on line clearance and tree removal, and as a welder and pipe fitter. Josh
Taylor was a special operations intelligence analyst for the U.S. Army in Iraq, and had worked as
a loading coordinator and a survey crew roadman. Randy Burton had ten years of experience in
the construction field as a pipe fitter, shop foreman, and crew lead. The reasons Alabama Power
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gave for hiring these individuals were work experience and “fit into crew.” Alabama Power
contends that “fit into crew” meant aptitudes with the tools and practices that were used by the
crew.
C.

Power Delivery Utility Assistant – 2014

Mr. Hall also applied for a Power Delivery Utility Assistant position in the Western
Division in 2014. Mr. Hall interviewed for this position on May 1, 2014, along with eleven other
candidates. Three of the candidates who were interviewed were African-American. The selection
committee was comprised of one African-American and two Caucasians. Following the
interviews, the selection committee members individually listed their top candidates for potential
selection. Mr. Hall was not on any of the selection committee members’ lists of top candidates.
Alabama Power hired three of the candidates who interviewed that day: Wes Street, an
African-American; Justin Rigsby, a Caucasian; and Corey Choquette, a Caucasian. All three
successful candidates were on each of the committee members’ lists of top five or six candidates.
Wes Street had previous experience working with the installation, service, and troubleshooting of
video, internet, and phone service with power poles. Justin Rigsby had worked in the tree
services industry, which required him to work at heights and outside. Corey Choquette previously
worked as a tree trimmer and landscaper.
D.

Utility Assistant in Supply Chain

On July 11, 2014, Mr. Hall was hired as a Utility Assistant in the Supply Chain
department, rather than in Power Delivery, and in the Birmingham Division, rather than in the
Western Division. Mr. Hall admitted in his deposition that his prior work experience was more
related to the Supply Chain Utility Assistant position than the Power Delivery Utility Assistant
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position because the Supply Chain position was “warehouse related.” (Doc. 27-1 at 44:6-17).
E.

Open Nature of Positions at Alabama Power

Positions within Alabama Power can remain open for a long period of time. For example,
for a position that opened in May 2011, Alabama Power hired four people in September 2011,
five people in January 2012, and two people in June and July 2012.
Mr. Hall contends that Alabama Power would sometimes create a “roster” out of a
candidate pool and go back to the list from the previous announcement when other positions
became available in the division. Alabama Power disputes that it maintains rosters. Emily Dean,
the talent acquisition manager for Alabama Power Company, stated in her deposition that she had
not heard the term roster before, but indicated that if an impressive pool of candidates existed,
Alabama Power “might go back to those originally qualified individuals from a previous posting
and reconsider them when opportunities come available within that division.” (Doc. 27-2 at 77:37).
On May 6, 2014, Nancy Potts, an Alabama Power employee, emailed another applicant,
Robert Kidd, to tell him that he had not been selected for a Power Delivery Utility Assistant
position. When Mr. Kidd questioned whether he had made the roster, Ms. Potts replied that
“[t]he decision was made not to have a roster since we don’t see any positions becoming
available in the near future. If one were to become available, your application would be
reviewed.” (Doc. 27-2 at 136).
F.

Alabama Power’s Interview Process

An industrial organizational psychologist evaluated the October 31, 2012 version of the
Utility Assistant interview procedure and recommended its use in the hiring process. The
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psychologist’s report concluded that the interview questions met professional standards for
interviewing and for measuring skills and traits relevant to the Utility Assistant position. Though
the record does not include a precise implementation date, Alabama Power EEO and HR
compliance coordinator Regina Thompson testified that these questions were implemented
during the next round of interviews after October 31, 2012.
Alabama Power’s standard was to have selection committee members choose from the
approved questions and to ask the same questions of every candidate interviewed for a position.
In the report, questions were categorized by topics such as, “Adaptability to Physical Job
Demands / Adaptability to Pressure,” “Problem Solving / Mechanical Aptitude / Attention to
Detail,” and “Safety Orientation.” The departmental interview records for the positions at issue
here include corresponding “Dimension” categories for each question, i.e., “Adaptability,”
“Problem Solving,” “Mechanical Aptitude,” and “Safety.” Interviewers were required to ask each
candidate at least one question from each category.
G.

Bivins’s Diversity Initiatives

Donald Bivins is an African-American employee of Alabama Power and Michael Hall’s
father. Mr. Bivins began working for Alabama Power in 1988 and moved to the Western
Division in 1993. In 2014, Mr. Bivins and other African-American Alabama Power employees
started a Diversity Committee to address the lack of African-Americans working in Power
Delivery in the Western Division. Mr. Bivins explained in his deposition, “[C]o-workers and I
was getting together, and we was looking around, and we didn’t see why we didn’t have any
black helpers or UA’s, and we looked around also, and we noticed that the blacks ourselves were
a small number. So I started thinking, and we got a committee together.” (Doc. 32-1 at 13:189

14:2). Mr. Bivins also testified that he was concerned because his white coworkers could get
their relatives hired in the Western Division, but he and other African-American employees
could not.
In January or February 2014, Mr. Bivins created a document called “The Hiring of
Michael Hall.” (Doc. 32-1 at 40-43). In this document, Mr. Bivins explained his observations
about Mr. Hall’s attempts to be hired by Alabama Power and documented the discussions he had
with members of Alabama Power management Harry Gabriel and Greg Long. Mr. Bivins
contends that in an April 16, 2014 meeting with Harry Gabriel and Avery Pruitt, Mr. Bivins’s
supervisor, Harry Gabriel said, “I don’t think I will be interviewing Michael in this division
because of the way you reacted to those two situations.” (Doc. 32-1 at 42). The “two situations”
were Mr. Bivins going to corporate about the lack of African-Americans in the Division and the
promotion of Jim Mullinex, a Caucasian, over Terrell Walton, an African-American who Bivins
believed was more qualified than Mullinex. Mr. Bivins also testified in his deposition that in a
2014 meeting Harry Gabriel admitted that it had been years since Alabama Power had hired any
African-Americans in Power Delivery in the Western Division.
Mr. Bivins and the Diversity Committee created another document entitled
“Hiring/Promotion of African American [sic] in Western Division.” (Doc. 32-1 at 44-48).
According to this document, as of December 31, 2013, the Power Delivery department in the
Western Division had 194 total employees, 176 of which were Caucasian and 18 of which were
African-American. Mr. Bivins, however, admitted in his deposition that he and the other
committee members created this list based on their recollections of who was employed, not by
looking at any company records.
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IV.

Discussion
A.

Motion to Strike

Alabama Power Company has moved to strike the “Declaration of Traci L. Wiggins”
(Doc. 32-2), offered in support of Mr. Hall’s “Opposition to Alabama Power’s Motion for
Summary Judgment.” (Doc. 31).
Ms. Wiggins is a paralegal for the law firm of Wiggins, Childs, Pantazis, Fisher &
Goldfarb. In her Declaration, Ms. Wiggins states that she has reviewed the rosters of applicants
for the positions with Alabama Power to which Mr. Hall applied. Ms. Wiggins then provides a
breakdown of the racial composition of the applicant groups, which includes percentages
representing the number of applicants in each racial group. Ms. Wiggins also provides summaries
of the chosen applicants’ work experience and percentages representing the racial composition of
the employees in the Power Delivery Department of the Western Division of Alabama Power
Company.
Alabama Power moved to strike Ms. Wiggins’s Declaration on the basis that: (1) the
Declaration is not based on Ms. Wiggins’s personal knowledge, and (2) the statistics contained in
Ms. Wiggins’s Declaration are inaccurate. Mr. Hall did not file a response in opposition to
Alabama Power’s Motion to Strike.
The court declines to strike Ms. Wiggins’s Declaration on these grounds. Federal Rule of
Evidence 1006 provides that a party
may use a summary, chart, or calculation to prove the content of
voluminous writings, recordings, or photographs that cannot be
conveniently examined in court. The proponent must make the
originals or duplicates available for examination or copying, or both,
by other parties at a reasonable time and place. And the court may
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order the proponent to produce them in court.
See also Parrott v. PNC Bank, Nat. Ass’n, 986 F. Supp. 2d 1263 (N.D. Ala. 2013) (quoting
Guijosa–Silva v. Wendell Roberson Farms, Inc., 7:10–CV–17 HL, 2012 WL 860394 at *3 (M.D.
Ga. Mar. 13, 2012) (observing that “[s]ummaries have been found admissible on summary
judgment where ‘exhibits are voluminous and it would be inconvenient for the Court to take the
time to review, compare, and analyze each document.’”). Ms. Wiggins has merely summarized
voluminous evidence that would be inconvenient for the court to review and analyze. The
documents she has reviewed and summarized include rosters of applicants for the positions in
question, which indicate the race of each applicant; the applications and resumes of those
individuals who were chosen for the positions in question over Mr. Hall; and a list of employees
working in Power Delivery in the Western Division, along with each employee’s race.
Each of these documents was produced by Alabama Power. Alabama Power has not
moved to strike these exhibits or argued that these exhibits are in any way objectionable.
Therefore, Ms. Wiggins’s Declaration is admissible, and the court will DENY the Defendant’s
Motion to Strike Ms. Wiggins’s Declaration.
The court notes, however, that several of the statistics Ms. Wiggins offers in her
Declaration are incorrect. For example, in paragraph two of her Declaration, Ms. Wiggins
incorrectly states that 334 out of 506 applicants is 64%, when it is actually 66%. Ms. Wiggins
also states that 6 of 506 applicants is .011%, when it is really 1.1% and that 3 of 506 applicants is
.005%, when it is really 0.59%. Alabama Power has presented to the court other inaccuracies
contained in Ms. Wiggins’s Declaration. The court will consider that some of the math
calculations in Ms. Wiggins’s Declaration are inaccurate.
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B.

Motion for Summary Judgment

Alabama Power argues that it is entitled to summary judgment on Hall’s claims for three
reasons: (1) some of Mr. Hall’s claims are time-barred under the applicable statute of limitations;
(2) Mr. Hall cannot establish the elements of a prima facie case of race discrimination; and (3)
even if Mr. Hall can establish his prima facie case, he cannot show that Alabama Power’s
reasons for choosing other applicants were a pretext for discrimination.
1.

Statute of Limitations

Alabama Power contends that Mr. Hall’s claims related to the Power Delivery Utility
Assistant positions he applied for in 2011 and 2012 are barred by the applicable statute of
limitations. The court agrees.
To recover under Title VII, a plaintiff must file a charge with the EEOC “within one
hundred and eighty days after the alleged unlawful employment practice occurred.” 42 U.S.C. §
2000e-5(e)(1). “A discrete retaliatory or discriminatory act ‘occurred’ on the day that it
‘happened.’ A party, therefore, must file a charge within . . . 180 . . . days of the date of the act or
lose the ability to recover for it.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110
(2002).
As to § 1981, a two-year statute of limitations period applies to failure to hire claims. See,
e.g., Edwards v. Nat’l Vision, Inc., 946 F. Supp. 2d 1153, 1170–71 (N.D. Ala. 2013) (explaining
that claims cognizable under § 1981 prior to the 1991 amendment, such as Mr. Hall’s failure to
hire claims, are subject to a two-year limitations period in Alabama).
Alabama Power informed Mr. Hall that he had not been selected for the 2011 Power
Delivery Utility Assistant position on September 8, 2011. As to the 2012 Power Delivery Utility
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Assistant position, Alabama Power informed Mr. Hall that he had not been selected on May 30,
2012. Mr. Hall did not file his EEOC charge until May 15, 2014. Because he did not file this
charge within 180 days of the alleged discriminatory acts, namely Alabama Power’s decision not
to hire him for the Power Delivery Utility Assistant positions on September 8, 2011 and May 30,
2012, Mr. Hall’s claims for these two positions are untimely under Title VII.
Mr. Hall’s claims under § 1981 are also barred by the applicable statute of limitations.
Mr. Hall filed his Complaint on March 20, 2015, more than two years after Alabama Power
notified him that he had not been selected for both the 2011 and 2012 Power Delivery Utility
Assistant positions.
Mr. Hall argues that the doctrine of equitable tolling applies to his claims and prevents
the statute of limitations from being a bar to his claims. Mr. Hall contends that equitable tolling
applies for two reasons. First, Mr. Hall contends that the process used to fill vacancies at
Alabama Power was open-ended, so Mr. Hall did not know for certain when all positions were
filled. Second, Mr. Hall argues that he did not know who received the positions over him at the
time he was rejected, so he lacked the knowledge to prove a case for disparate treatment.
The time for filing a discrimination charge does not begin to run “until the facts that
would support a charge of discrimination under Title VII were apparent or should have been
apparent to a person with a reasonably prudent regard for his rights.” Reeb v. Economic
Opportunity Atlanta, Inc., 516 F.2d 924, 931 (5th Cir. 1975);1 see Hill v. MARTA, 841 F.2d 1533,
1545 (11th Cir. 1988) (the 180 days begins running from the date the employee knows or
1

In Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (1981) (en banc), the Eleventh
Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to October 1,
1981.
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reasonably should know that he or she has been discriminated against).
However, “[i]t is not necessary for a plaintiff to know all the facts that support his claim
in order to file a claim.” Sturniolo v. Sheaffer, Eaton, Inc., 15 F.3d 1023, 1025 (11th Cir. 1994)
(citing Blumberg v. HCA Mgmt. Co., 848 F.2d 642, 645 (5th Cir. 1988)). To apply equitable
tolling, “the facts must show that, in the period more than 180 days prior to filing [the]
complaint[] with the EEOC, [the plaintiff] had no reason to believe that [he was the] victim[] of
unlawful discrimination.” Ross v. Buckeye Cellulose Corp., 980 F.2d 648, 660 (11th Cir. 1993).
Mr. Hall first argues that equitable tolling is justified in the instant case because the
process of applying for positions with Alabama Power was fairly open-ended and candidates
could be placed into a pool “from which new hires could be selected for an undetermined and
lengthy amount of time.” (Doc. 31, at 16). The parties disagree as to whether Alabama Power
maintains “rosters” of candidates for later consideration. However, even if Alabama Power does
maintain rosters and does occasionally consider previous applicants for new positions, the court
finds that this reconsideration of applicants is insufficient to justify equitable tolling. The parties
agree that Hall was informed on September 8, 2011 and May 30, 2012 that he had not been
selected for the positions in question. Whether Alabama Power retained Mr. Hall’s information
and considered him for later openings is irrelevant to its failure to hire him for those two
positions. Mr. Hall experienced an allegedly discriminatory act on the dates that he was informed
he did not receive the positions at issue.
To hold any differently would have the effect of stating that no time bar exists when
applicants who applied to one position are considered for a subsequent opening. Employees
could simply allege that they thought they might have been on a roster and did not know that they
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had been discriminated against until much later than the date that they were rejected by the
employer. The court declines to adopt such a position.
Mr. Hall next argues that equitable tolling applies to his claims because he did not know
about the individuals who received the positions instead of him until 2014, and he did not know
about the lack of African-Americans in the Western Division until January or February 2014.
Therefore, Mr. Hall contends that he “lacked the knowledge to prove an individual case of
disparate treatment” until much later than the time he was informed he was not selected. (Doc.
31, at 17).
First, the 180-day period for filing a charge does not begin to run on the date that the
plaintiff knows all of the facts to support his claim; the 180-day period begins to run on the date
that the facts to support a claim “were apparent or should have been apparent to a person with a
reasonably prudent regard for his rights.” Reeb, 516 F.2d at 931 (emphasis added). The court
finds that the facts giving rise to Mr. Hall’s discrimination claim should have been apparent to
him as of the dates on which he was informed that he had not been selected for the positions.
Although Mr. Hall now asserts that he did not have the information necessary to prove his
claims until he knew who had been hired for the positions, Mr. Hall testified at his deposition
that his belief that he had been discriminated against was not based on whether the people who
received the positions over him were Caucasian or African-American. See (Doc. 27-1, 32:2334:1).
Mr. Hall also testified that he thought the interview for the 2012 position may have been
discriminatory because it was conducted by an all-white panel. (Doc. 27-1 at 96:5-19).
Given Mr. Hall’s awareness of the racial composition of the interview panel at the time
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he was told he had not been selected and Mr. Hall’s beliefs that Alabama Power’s hiring
practices were discriminatory, the court finds that Mr. Hall was aware, or should have been
aware, of the facts supporting his claim on the dates that he was rejected for each position. Even
if Mr. Hall did not find out precisely who was hired for each position until some time in 2014,
Mr. Hall stated that he did not rely on who was hired for his belief that he was discriminated
against. Accordingly, the court finds that equitable tolling is not warranted in this case and that
Mr. Hall’s claims for both the 2011 and 2012 Power Delivery Utility Assistant positions are
barred by the applicable statute of limitations.
2.

Hall’s Prima Facie Case as to the 2011 Position

Alternatively, the court finds that even if Mr. Hall’s claims as to these positions were not
barred by the applicable statute of limitations, Mr. Hall’s claim as to the 2011 Power Delivery
Utility Assistant position would fail because Mr. Hall cannot establish his prima facie case with
respect to this position.
Showing discrimination under Title VII and § 1981 requires proof of the same legal
elements. Stallworth v. Shuler, 777 F.2d 1431, 1433 (11th Cir. 1985). “[A]ny racial
discrimination claim based on disparate treatment requires a prima facie showing that the
employer acted with discriminatory intent.” Hill, 841 F.2d at 1538. A plaintiff may establish a
prima facie case of discriminatory intent in one of two ways. “He may present direct evidence of
discriminatory intent in the form of actions or remarks of the employer reflecting a
discriminatory attitude. Or, in the absence of direct evidence of discrimination, he may rely on
the combination of factors set forth in McDonnell-Douglas Corp. v. Green . . . .” Id. at 1539
(citations omitted).
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Because Mr. Hall has no direct evidence of discriminatory intent, the court applies the
burden-shifting framework of McDonnell Douglas to the instant case. Under the McDonnell
Douglas framework, “the plaintiff must first create an inference of discrimination through his
prima facie case.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005) (citing
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)). “Once the plaintiff has made out
the elements of the prima facie case, the burden shifts to the employer to articulate a nondiscriminatory basis for its employment action.” Id. (citing Tex. Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248, 253 (1981)). “If the employer meets this burden, the inference of
discrimination drops out of the case entirely, and the plaintiff has the opportunity to show by a
preponderance of the evidence that the proffered reasons were pretextual.” Id. (citing St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993)).
To establish his prima facie case, Mr. Hall must show: “(i) he[] belonged to a protected
class; (ii) he[] was qualified for and applied for a position that the employer was seeking to fill;
(iii) despite qualifications, he[] was rejected; and (iv) the position was filled with an individual
outside the protected class.” Vessels, 408 F.3d at 768 (citing McDonnell Douglas, 411 U.S. at
802).
Mr. Hall cannot establish his prima facie case for the 2011 Power Delivery Utility
Assistant position because he is unable to show that he was qualified for that position. At the
same time as Mr. Hall applied for this position, he applied for a different Power Delivery Utility
Assistant position within the Birmingham Division. As part of his application for the
Birmingham Division, Mr. Hall took the Physical Abilities Test. The parties agree that
candidates must pass the Physical Abilities Test to be hired for any Power Delivery Utility
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Assistant position. Mr. Hall failed the Physical Abilities Test on November 9, 2011. This failure
demonstrates that Mr. Hall was not qualified for all Power Delivery Utility Assistant positions in
all divisions at that time.
Alabama Power contends that it used a screening method to screen Hall out of
consideration for the 2011 position based on his residential address at the time. Hall disputes the
fact that Alabama Power used residential addresses as a screening address. However, the court
finds this fact immaterial. Even if Alabama Power had not screened Mr. Hall out based on his
address, he would have been unqualified for the position because he failed the Physical Abilities
Test. Because Mr. Hall was not qualified for the position, he cannot establish his prima facie
case for this position.
Mr. Hall argues that his failure of the Physical Abilities Test did not disqualify him from
consideration for this position. Mr. Hall points to the fact that employees who fail the Physical
Abilities Test could retake the test after 45 days. Mr. Hall contends that he could have been
considered for the position at that point in time. While it is true that Mr. Hall could have retaken
the Physical Abilities Test after 45 days, he did not retake and pass the test until May 9, 2012.
Further, no evidence exists to show that when a candidate fails the Physical Abilities Test, he
may be placed back into the candidate pool and reconsidered for the position once he passes the
test. The court will not engage in such speculation. Accordingly, the court finds that Mr. Hall’s
argument lacks merit and that Mr. Hall has failed to establish his prima facie case as to this
position.
3.

Hall’s Prima Facie Case as to the 2012 and 2014 Positions

As to the remaining two positions at issue, the court questions whether Mr. Hall can
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establish his prima facie case. Regarding his qualifications for the positions, Mr. Hall had no
experience in construction, tree services, any position requiring work at heights or out of a truck,
or any job that required him to be outside. Mr. Hall also had not worked in any position that
required him to use tools such as saws or hammers. Mr. Hall testified in his deposition that his
prior work experience was more related to the Supply Chain Utility Assistant position for which
he was hired in 2014 than to the Power Delivery Utility Assistant positions because the Supply
Chain position was “warehouse related.” (Doc. 27-1, 44:6-17).
These concerns aside, for purposes of this Opinion, the court assumes without deciding
that Mr. Hall was qualified for these positions and has established his prima facie case with
respect to the 2012 and 2014 Power Delivery Utility Assistant positions. However, the court
finds that, as it will set out in the following section, even if Mr. Hall has established his prima
facie case as to these positions, his claims fail because he cannot demonstrate that Alabama
Power’s reasons for hiring other candidates were pretextual.
4.

Evidence of Pretext

Under the McDonnell Douglas framework, once Mr. Hall establishes his prima facie
case, the burden shifts to Alabama Power to articulate legitimate, non-discriminatory reasons for
selecting other individuals over Mr. Hall. See Vessels, 408 F.3d at 767. Alabama Power has
given the non-discriminatory reasons of interview performance and work experience as the
reasons it selected the individuals it hired for the 2012 and 2014 Power Delivery Utility Assistant
positions. For both the 2012 and 2014 positions, Alabama Power used a selection committee
whose members interviewed candidates and then listed their top choices based on their
interviews and relevant work experience. Mr. Hall interviewed for both positions, but none of the
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committee members listed Mr. Hall as one of their top choices.
Because Alabama Power has articulated non-discriminatory reasons for its hiring
decisions, the burden shifts back to Mr. Hall to show that Alabama Power’s given reasons were a
pretext for discrimination. Mr. Hall sets forth three reasons why Alabama Power’s proffered
explanations are pretextual.
First, Mr. Hall alleges that statistical evidence showing the racial demographics of the
Western Division Power Delivery department and the racial demographics of applicants for the
three Power Delivery positions demonstrates Alabama Power’s intent to discriminate. The only
“statistical” evidence the court has before it is that derived from the applicant rosters for the 2012
and 2014 positions and from the employee roster for the Western Division Power Delivery
department. These rosters list the names and races of the applicants and employees, respectively.
Plaintiff did not employ a statistician to determine whether the racial percentages in these rosters
are statistically significant to indicate discrimination.
Under certain circumstances, statistical evidence of hiring practices may be used to show
pretext. See McDonnell Douglas, 411 U.S. at 805. However, statistics showing mere racial
distributions are meaningless without an analytical foundation. See Brown v. Am. Honda Motor
Co., Inc., 939 F.2d 946, 952 (11th Cir. 1991). Though “the (racial) composition of defendant’s
labor force [may] itself [be] reflective of restrictive or exclusionary practices[,] . . . such general
determinations, while helpful, may not be in and of themselves controlling as to an
individualized hiring decision, particularly in the presence of an otherwise justifiable reason for
refusing to hire.” McDonnell Douglas, 411 U.S. at 805 n.19 (citation and quotations omitted).
The rosters here do not provide any way to compare similarly situated individuals. Cf.
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Cooper v. Southern Co., 260 F. Supp. 2d 1258, 1270 (N.D. Ga. 2003), aff’d, 390 F.3d 695 (11th
Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006)
(finding as analytically deficient statistics comparing the promotion rate of employees within the
same pay grade who performed similar job functions, without classifying employees according to
position and location; accounting for differences in skills and experience; distinguishing between
kinds of promotions; or specifying which employees applied for promotions). That more Western
Division Power Delivery employees are Caucasian than are African-American does not account
for differences in education, experience, and other qualifications; positions; date of hire;
procedures and individuals involved in hiring; or applicant pools for each position. Similarly, the
races of applicants for the 2012 and 2014 positions are irrelevant without information about the
applicants’ qualifications and whether they were subjected to screening procedures in the course
of hiring. The court cannot infer pretext from percentages without any analysis of the
significance of those percentages, particularly since Alabama Power has proffered nondiscriminatory reasons for refusing to hire Mr. Hall.
Second, Mr. Hall contends that he “was equally or more qualified than the Caucasian
employees who received the position” over him. (Doc. 31, at 19). His own opinion, however,
does not support a conclusion that Mr. Hall was more qualified that the individuals Alabama
Power hired. Mr. Hall also admitted in his deposition that his prior work experience was more
related to the Supply Chain position for which he was ultimately chosen than to the Power
Delivery Utility Assistant positions. Further, even if Mr. Hall were equally as or more qualified
than the candidates chosen, that fact alone does not establish a discriminatory motive on the part
of Alabama Power.
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“[E]vidence showing an employer hired a less qualified applicant over the plaintiff may
be probative of whether the employer’s proffered reason for not promoting the plaintiff was
pretextual.” Lee v. GTE Fla., Inc., 226 F.3d 1249, 1253 (11th Cir. 2000) (citation omitted).
However, “a plaintiff may not establish that an employer’s proffered reason is pretextual merely
by questioning the wisdom of the employer’s reason, at least not where . . . the reason is one that
might motivate a reasonable employer.” Combs v. Plantation Patterns, 106 F.3d 1519, 1543
(11th Cir. 1997); see also Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361
(11th Cir. 1999) (Courts “are not in the business of adjudging whether employment decisions are
prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a
challenged employment decision.”).
For a plaintiff to prove pretext by showing that he was more qualified than the person
hired, the plaintiff must show that he was “substantially more qualified.” Lee, 226 F.3d at 1254;
see also Cooper, 390 F.3d at 732 (citations and quotations omitted) (“[D]isparities in
qualifications must be of such weight and significance that no reasonable person, in the exercise
of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in
question.”).
Mr. Hall has failed to show that he was substantially more qualified than the candidates
chosen for the positions in question. As to the 2012 position, the four candidates who were
chosen had experience working with tools at Mercedes-Benz and Burkes Mechanical; working as
a heavy equipment operator on line clearance and tree removal, a welder, and a pipe fitter;
working as a special operations intelligence analyst for the U.S. Army in Iraq, a loading
coordinator, and a survey crew roadman; and working in the construction field as a pipe fitter,
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shop foreman, and crew lead. As to the 2014 position, the three candidates who were chosen had
experience working with the installation, service, and troubleshooting of video, internet, and
phone service with power poles; working in the tree services industry; and working as a tree
trimmer and landscaper.
Mr. Hall, conversely, had experience working at Arby’s; as an overnight stocker; as an
order selector; as a line manager; and as a detail specialist. Hall had no experience in
construction, tree services, any position requiring work at heights or out of a truck, or any job
that required him to be outside. Mr. Hall also had never worked with tools, other than a forklift
and cherry picker. The court concludes that, based on Mr. Hall’s limited and mostly unrelated
experience, a reasonable jury could not find that Mr. Hall was substantially more qualified for the
Power Delivery Utility Assistant positions than the individuals who were chosen. A reasonable
employer could determine–and find highly significant–that Mr. Hall’s work experience made him
less qualified than the applicants who were hired.
Third, Mr. Hall states that the Alabama Power interview process was subjective, which in
and of itself evidences a discriminatory motive. However, an employer’s choice to make hiring
decisions based on subjective criteria does not, without more, indicate pretext. See Chapman v.
Ala. Transp., 229 F.3d 1012, 1033 (11th Cir. 2000) (“A subjective reason can constitute a legally
sufficient, legitimate, nondiscriminatory reason . . . . [S]ubjective evaluations of a job candidate
are often critical to the decisionmaking process . . . .”). An employer’s articulation of its
subjective reason for declining to hire an individual must be “clear and reasonably specific.”
Burdine, 450 U.S. at 258.
Although Alabama Power’s Utility Assistant interview procedure did involve subjective
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rankings of candidates by members of a selection committee, the process was otherwise
objective. An industrial organizational psychologist extensively evaluated Alabama Power’s
Utility Assistant interview procedure and recommended its use in the hiring process. The
psychologist’s report shows that the interview questions were carefully phrased and categorized
to assess factors relevant to the Utility Assistant position. The interviewers could not ask
whatever questions they wished, but were required to choose from a list of predetermined
questions and to ask at least one question from each category. The court finds that Alabama
Power has articulated a clear and reasonably specific reason for declining to hire Mr. Hall in
stating that he did not perform well in the company’s standardized interview process.2
Thus, because Hall’s three articulated indicia of pretext fail to create genuine issues of
material fact, Alabama Power is entitled to judgment as a matter of law on Hall’s claims
regarding the 2012 and 2014 positions.
IV.

Conclusion
Because the court finds that the Declaration of Traci L. Wiggins is a permissible

summary of admissible evidence, the court DENIES Defendant’s Motion to Strike Ms.
Wiggins’s Declaration.
The court finds that Plaintiff’s claims as to the 2011 and 2012 positions are barred by the
applicable statute of limitations; that alternatively Plaintiff cannot establish his prima facie case
as to the 2011 position and has not established a genuine dispute of material fact on the issue of
2

The court also notes Harry Gabriel’s alleged statement to Donald Bivins that “I don’t
think I will be interviewing Michael in this division because of the way you reacted to those two
situations.” Contrary to this assertion, Alabama Power did interview Mr. Hall for a Western
Division Power Delivery Utility Assistant position in May 2014, but Mr. Hall was not hired
because he objectively did not perform well in that interview.
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pretext as to the 2012 position; and that Plaintiff has not established a genuine dispute of material
fact on the issue of pretext as to the 2014 position. Accordingly, the court GRANTS Defendant’s
“Motion for Summary Judgment.”
The court will enter a separate final Order along with this Opinion.
DONE and ORDERED this 28th day of September, 2016.

____________________________________
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE

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