Davis v. Infinity Insurance Co

Filing 112

MEMORANDUM OPINION. Signed by Magistrate Judge John H England, III on 03/31/2021. (AKD)

FILED
2021 Mar-31 PM 02:15
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STEPHANIE DAVIS,
Plaintiff,
v.
INFINITY INSURANCE CO., et al.,
Defendants.

)
)
)
)
)
)
)
)
)

Case No.: 2:15-cv-01111-JHE

MEMORANDUM OPINION1
Through her Third Amended Complaint, (doc. 51), Plaintiff Stephanie Davis (“Davis” or
“Plaintiff”) brings this employment discrimination and Employee Retirement Income Security Act
(“ERISA”) action against Defendant Infinity Insurance Company (Davis’s former employer),
Infinity Property and Casualty Corp. (together with Infinity Insurance Company, “Infinity” or
“Defendants”), and Robin Adams, the administrator of Infinity’s ERISA plan (“Adams”). All
three Defendants have moved for summary judgment on Davis’s claims. (Doc. 94). That motion
is fully briefed and ripe for review. (Docs. 95, 106 & 111). Additionally, Davis has moved to
strike some evidentiary material. (Doc. 104). Defendants oppose that motion. (Doc. 110). For
the reasons stated more fully below, the motion to strike, construed as an evidentiary objection, is
GRANTED IN PART AND DENIED IN PART, and the motion for summary judgment is
GRANTED.

1

In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 12.)

1

Standard of Review
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Rule 56 “mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient
competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco,
283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the nonmoving party’s favor when that party’s version of the events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual allegations are legally insufficient to defeat
a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam)

2

(citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[a] mere
‘scintilla’ of evidence supporting the opposing party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911
F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Evidentiary Objections
Both sides challenge evidence submitted by the other, Davis through a motion to strike,
(doc. 104), and Defendants through a request to strike in their reply, (doc. 111 at 16 n.15).
With the December 1, 2010 rules change to Rule 56 of the Federal Rules of Civil Procedure,
motions to strike submitted on summary judgment are no longer appropriate. Revised Rule
56(c)(2) provides that “[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.” The Advisory Committee
Notes specify as follows:
Subdivision (c)(2) provides that a party may object that material cited to support or
dispute a fact cannot be presented in a form that would be admissible in evidence.
The objection functions much as an objection at trial, adjusted for the pretrial
setting. The burden is on the proponent to show that the material is admissible as
presented or to explain the admissible form that is anticipated. There is no need to
make a separate motion to strike. If the case goes to trial, failure to challenge
admissibility at the summary-judgment stage does not forfeit the right to challenge
admissibility at trial.
FED. R. CIV. P. 56, Adv. Comm. Notes, “Subdivision (c)” (2010 Amendments). “Before this
amendment, parties properly challenged evidence used in a summary judgment motion by filing a
motion to strike. The plain meaning of these provisions show that objecting to the admissibility of
evidence supporting a summary judgment motion is now a part of summary judgment procedure,
rather than a separate motion to be handled preliminarily.” Campbell v. Shinseki, 546 F. App’x

3

874, 879 (11th Cir. 2013). Accordingly, the undersigned treats both Davis’s motion to strike and
Infinity’s request as evidentiary objections.
Both objections invoke the “sham affidavit” doctrine. Under that doctrine, “[w]hen a party
has given clear answers to unambiguous questions which negate the existence of any genuine issue
of material fact, that party cannot thereafter create such an issue with an affidavit that merely
contradicts, without explanation, previously given clear testimony.” Strickland v. Norfolk S. Ry.
Co., 692 F.3d 1151, 1161 (11th Cir. 2012) (quoting Van T. Junkins & Assocs., Inc. v. U.S. Indus.,
Inc., 736 F.2d 656, 658 (11th Cir. 1984)). When determining whether to apply the sham affidavit
doctrine, “a court must distinguish ‘between discrepancies which create transparent shams and
discrepancies which create an issue of credibility or go to the weight of the evidence[,]’ and an
affidavit may be disregarded as a sham only when it creates a clear contradiction. Tippens v.
Celotex, Corp., 805 F.2d 949, 953–54 (11th Cir.1986) (quoting Junkins, 736 F.2d at 657)
(alterations in Tippens).
A. Davis’s Motion to Strike
In her motion to strike, Davis challenges the admissibility of portions of the Declaration of
James “Jim” Raley (“Raley”), (doc. 96-5 (“Raley Decl.”)), a former Infinity Vice President for
Customer Service, filed in support of Defendants’ motion for summary judgment. (Doc. 104).
Discussed further below, Raley’s testimony relates to Davis’s claim she was terminated on the
basis of her national origin by Infinity’s alleged effort to hire more bilingual workers.
Davis’s objection to Raley’s affidavit is that it contradicts his previous, sworn deposition
testimony. (Doc. 104 at 1). Specifically, Davis states Raley’s deposition testimony admits (1) that
Infinity sought to increase the number of employees in its Customer Service Department with

4

bilingual Spanish/English skills, (id. at 1-2) (citing doc. 96-14 (“Raley Dep.”) at 8 (22:17-23:12),
20 (73:10-73:19), 25-26 (93:23-95:23) & 36 (134:2-135:2)).2

Davis states this testimony

represents a repeated admission “that the defendant sought applicants with bilingual
Spanish/English skills and required those skills for the Customer Service Consultant (“CSC”)
position and sought applicants with bilingual Spanish/English skills and preferred those skills for
the Policy Services Specialist (“PSS”) position,” which Raley’s affidavit arguably contradicts. (Id.
at 2). On this basis, Davis requests that the court disregard paragraphs 13, 14, 15, 16, and portions
of paragraph 19 of Raley’s affidavit. (Id. at 2). In response, Infinity argues Raley’s affidavit does
not actually contradict, but serves to clarify, his prior deposition testimony, specifically to point
out that he was not involved in hiring decisions. (Doc. 110).
1. Paragraph 13
Paragraph 13 of Raley’s declaration reads:
I delegated to Director of I-Care Operations David Richardson the responsibility
for implementing Infinity’s PSS hiring goals in McAllen and Tucson. While he
consulted with me about the reorganization in general, I was not directly involved
in the hiring process. Specifically, I was not consulted and did not provide input
into determining the qualifications or skills Infinity should seek for the PSS
position. Further, I did not interview any PSS applicants or make any PSS hiring
recommendations or determinations. Finally, I was not consulted about any PSS
hiring decisions.
(Raley Decl. at 6). Although Davis highlights portions of Raley’s testimony regarding Infinity’s
advertised hiring practices, (doc. 104 at 5-6), nothing in those excerpts contradicts anything in
Paragraph 13 of Raley’s declaration regarding his involvement in the hiring process or his input

2

Davis and Defendants each cite their own submission of Raley’s deposition. For clarity,
this section of the memorandum opinion cites exclusively to Defendant’s version, (doc. 96-14).

5

into desired qualifications. Instead, Davis’s only objection to this paragraph seems to be that other
record evidence concerning Infinity’s hiring practices contradicts Raley’s claim. (Doc. 104 at 1213). This is not a contradiction between the declaration and the affidavit; it is simply conflicting
evidence. As such, it is not addressed by or subject to the sham affidavit doctrine. Davis’s
objection to Paragraph 13 is OVERRULED.
2. Paragraph 14
In this paragraph, Raley stated:
The decision to staff PSS teams on-site in the McAllen and Tuscon offices was not
made with the goal of increasing bilingual staff in Policy Services. To the best of
my knowledge, Spanish/English bilingual ability played no role in the hiring of
PSSs in McAllen and Tucson. Indeed, PSS Spanish/English bilingual ability was
never even mentioned to me, let along discussed as a factor to be considered, in the
reorganization process.
(Raley Decl. at 6-7). Davis contrasts this with the following portion of Raley’s deposition:
Q. But the first bullet point of this Italics in the introduction says, I-Care is
undergoing a two-phase reorganization that involves staff reduction to better align
our services as Infinity continues to increase focus on the Hispanic market. Do you
see that?
A. Yes.
Q. And so the two-phase organization, what does that mean or what do you
understand that to mean?
MR. METHENY: Object to the form.
A. Two-phase organization would mean that we’re going to have two
reorganization situations that are going to follow.
Q. Is that the June and October layoffs?
A. Yes.
Q. And then the next sentence says, As we move in this direction, we are
minimizing our customer-facing positions in the Birmingham office. What does the

6

term customer-facing positions mean to you based on your experience as an
employee of Infinity?
A. My definition of customer-facing positions would be individuals that are
employed that are working directly with our customers.
Q. Well, the next sentences continues, This means the elimination of some call
center and policy operations positions in the Birmingham location. Are the call
center and the policy operations the customer-facing positions?
A. Within the customer service department, yes.
Q. And then skip down. It says, and we will be increasing our bilingual staff in
Miami and Tucson (McAllen offices at capacity). That was part of your mandate
from Glen Godwin?
A. Correct.
Q. And do you understand any of this terminology, the customer-facing positions,
the reorganization, or the focus on increasing bilingual staff to be -- all of this
applies to both call center and the policy services positions, right?
MR. METHENY: Object to the form.
A. Correct.
(Doc. 104 at 6-7) (citing Raley Dep. at 25-26 (93:23-95:23)).
Unlike Paragraph 13, Paragraph 14 does present conflicting evidence. Rather than meet
this head on, Defendants argue there is no tension between Paragraph 14 and a different part of
Raley’s deposition, in which Raley testified extensively about the CSC position and stated that
“[t]he requirement for bilingual skills only applied to call center staff.” (Doc. 110 at 4-6)
(discussing Raley Dep. at 36 (134:18-135:2)). However, the portion of Raley’s testimony cited
above shows that, in Raley’s understanding, he agreed that the “focus on increasing bilingual
staff . . . applies to both call center and the policy services positions . . . .” Regardless of what other
portions of Raley’s deposition indicate regarding the CSC position, this directly contradicts

7

Raley’s claims regarding the goal of reorganization and that “Spanish/English bilingual ability
played no role in the hiring of PSSs in McAllen and Tucson.” Whether there was a requirement
or merely a preference for bilingual PSSs, Raley’s testimony clearly indicates that bilingual ability
played some role in the reorganization process and in the hiring of PSSs. Therefore, the objection
is SUSTAINED to this paragraph, and it will not be considered.
3. Paragraph 15
Paragraph 15 reads:
In my deposition, I stated that Infinity would have “preferred” that the PSSs hired
have Spanish/English bilingual ability. I said “preferred” because, all things being
equal with two applicants, I would have preferred an applicant with a broader skill
set, such as being bilingual. In my opinion, an applicant with more qualifications
(e.g., education, experience, language ability) is, generally, a preferred applicant
over someone with less qualifications. More specifically, a PSS would, on
occasion, receive or have communications in Spanish. If the PSS was
Spanish/English bilingual, instead of sending the communications to a Spanish
queue to be handled by an in-house translator or by an outside vendor, he or she
could handle the communication directly. In my opinion, this could have removed
a processing step, which could improve the customer experience. Thus, I felt that,
all things being equal with two PSS applicants, I would have preferred a bilingual
applicant.
(Raley Decl. at 7).
Davis seeks to exclude Raley’s interpretation of what he meant by “preferred,” as stated in
his declaration, in favor of what he now contends he meant. To support this should be excluded,
Davis points to Bell v. City of Auburn, Alabama, 722 F. App’x 898, 900 (11th Cir. 2018), which
she cites for the proposition that “a party may not redefine terminology used in a deposition
through a declaration.” (Doc. 104 at 10-11). But the cases are not analogous. In Bell, the plaintiff
testified at deposition that he did not believe his supervisor was “being racial” by making certain
comments. 772 F. App’x at 900. However, the plaintiff’s subsequent declaration stated that “he

8

understood [the supervisor’s] comment to be racially discriminatory . . . .” Id. The plaintiff
attempted to characterize his declaration testimony as defining discrimination, but the plaintiff had
explicitly “defined what he meant by discrimination in his deposition testimony.” Id. Here, by
contrast, Davis does not point to a section of Raley’s deposition testimony where he provided his
own definition of “preferred” that his declaration now contradicts. In other words, there is no clear
testimony that Raley’s declaration opposes.3 Instead, Raley has attempted to clarify what he meant
by an arguably ambiguous term, which he is permitted to do. See Sturdivant v. City of Atlanta,
2014 WL 11444087, at *8 (N.D. Ga. 2014) (permitting, absent clear contradiction, a deponent to
subsequently clarify her view of an ambiguous term); Spencer v. U.S., 2003 WL 23484640, at *9
(D. Kan. 2003) (affidavit not a sham when it explained intended meaning of a term).
Consequently, the sham affidavit doctrine does not bar consideration of Paragraph 15, and Davis’s
objection to it is OVERRULED.
4. Paragraph 16
In Paragraph 16, Raley states:
Any time I discussed “preference” or “preferred” in my deposition it was in the
context of my opinion and was not an articulation of Infinity’s policy or practice or
hiring goal. Indeed, I never discussed my opinion with any hiring decision maker
and it was never discussed or mentioned to me that a person’s Spanish/English
bilingual ability was considered, let alone played a role, in any PSS hiring or firing
decision. I was also not involved in the hiring decision of any PSS hired in McAllen

Davis states “Raley introduced the term ‘preferred’ and used it to mean the primary skill
set sought by the defendant.” (Doc. 104 at 14). She points to no portion of Raley’s testimony that
supports this definition, and the undersigned has found none in the four instances in which the
term was discussed, (see Raley Dep. at 59). The closest Raley comes to defining the term appears
to be, after stating that Infinity “preferred someone with a customer service management
background,” confirming Davis’s counsel’s statement that “management background would be
considered.” (Raley Dep. at 9 (27:7-12)). This is inconsistent with Davis’s characterization.
3

9

or Tucson and, clearly, I never gave preference to any PSS applicant based on
Spanish/English ability (and am not aware of anyone doing so). Also, as I testified
in my deposition, Spanish/English bilingual ability was not [a] requirement of the
PSS positions being hired in McAllen or Tucson.
(Raley Decl. at 7-8).
Davis does not specifically indicate what is objectionable about this portion of Raley’s
declaration, but it follows the broad themes of (1) describing Raley’s involvement in the hiring
process (i.e., the same thing indicated in Paragraph 13) and (2) indicating whether Spanish/English
bilingual ability was required. To the extent Davis objects on the same basis she objects to
Paragraph 13, her objection is OVERRULED because she has not pointed to a contradiction
between Raley’s deposition testimony regarding his involvement in the hiring process and his
declaration. To the extent Davis’s objection relates to whether bilingual ability was required, she
also points to nothing in Raley’s deposition that contradicts that claim. Therefore, her objection
is OVERRULED on that basis as well.
5. Paragraph 19
In full, Paragraph 19 reads:
During my deposition, I was shown Attachment C to this declaration (marked as
Exhibit 26 to my deposition) a memorandum titled “Upcoming Staffing Changes.”
The primary purpose of the memorandum was to inform employees they had been
selected for lay-off, the factors considered (e.g., performance, seniority, and
relevant skill sets) and the severance package available. The memorandum also
simply repeated a previous announcement that Infinity would be “transitioning
some positions from the call center and policy services in Birmingham to McAllen,
Tucson and/or Miami to increase the number of employees with bilingual
Spanish/English skills to better service our customers as the company continues to
grow.” While the memo references the Call Center and Policy Services, the memo
was not intended to imply that these two independent divisions of the Customer
Service Department were being reorganized in the exact same manner or for the
same reasons. It was easier to have one communication for all affected employees
that generally explained the upcoming staff changes. As I stated in my deposition,

10

the reference to Infinity’s goal of increasing employees with bilingual
Spanish/English skills made in the memorandum only applied to the Call Center
staff. The memo accurately reflected Infinity’s goal of having 100% bilingual
Spanish/English Call Center CSCs in McAllen, Texas and Miami in order to better
serve its Hispanic clientele. Accordingly, Spanish/English bilingual ability was a
requirement for CSCs hired in McAllen, Tucson and Miami.
(Doc. 96-5 at 9). Davis objects to the portions underlined above.
The portions Davis objects to are Raley’s explanation of the intention of the letter. Her
rationale is that this explanation contradicts the contents of the letter and Raley’s testimony that
the terminology in the letter “applies to both call center and the policy services positions,” (Raley
Dep. at 25-26 (93:23-95:23)). However, Raley’s declaration does not directly contradict his
testimony on this point, and the declaration’s arguable inconsistency with the letter creates at most
an evidentiary conflict. Accordingly, this objection is OVERRULED.
B. Infinity’s Evidentiary Objections
In its reply, Infinity challenges a portion of the declaration Davis has submitted in
opposition to summary judgment, (Declaration of Stephanie Davis, doc. 103-9 (“Davis Decl.”),
also under the sham affidavit doctrine.

Specifically, Infinity says Davis’s prior testimony

concerning incorrect statements and an omission from her job application with Infinity conflict
with the reasons she now offers. (Doc. 111 at 16 n.15). This evidence relates to Infinity’s
argument that, even if it is not entitled to summary judgment on Davis’s claims in their entirety,
Davis’s damages are limited due to misrepresentations on her application. (See doc. 95 at 46-47).
Since Infinity is entitled to summary judgment on Davis’s claims, it is unnecessary to reach this
issue.

11

Summary Judgment Facts4
A. Infinity
Infinity Insurance Company is a property and casualty insurance company. (Deposition of
Stephanie Davis, doc. 96-1 (“Davis Dep.”) at 18 (64:8-65:1)); Declaration of Robin Adams, doc.
96-3 (“Adams Decl.”) at ¶ 4). It is a wholly-owned subsidiary of Infinity Property and Casualty
Corporation, which is a holding company with no employees. (Deposition of Robin Adams, doc.
96-9 (“Adams Dep.”) at 8-9 (28:18-29:10), 64 (248:21-249:7)).
At all times relevant to this action, Infinity had within its employee handbook an Equal
Employment Opportunity (“EEO”) Policy prohibiting unlawful discrimination and retaliation.
(Davis Dep. at 69:1-70:4; Adams Decl. at ¶¶ 5-6; doc. 96-6, Declaration of David Richardson
(“Richardson Decl.”)5 at ¶ 4; doc. 96-6 at 24-93). The EEO Policy was distributed to employees
at the time they were hired and was available for review on Infinity’s network at all times. (Davis
Dep. at 19-20 (69:1-70:4); Adams Decl. at ¶¶ 5-6; Richardson Decl. at ¶ 4; doc. 96-6 at 24-93).
In 2014, Infinity’s Customer Service Department consisted of two units: the Call Center
and Policy Services. (Deposition of Deanna Edgecomb, doc. 96-10 (“Edgecomb Dep.”) at 7
(18:10-20:5), 9 (26:5-31:14)). The units were independent, with different managers, supervisors,
physical locations, job positions, and purposes. (Deposition of David Richardson, doc. 96-15

4

These facts are undisputed or, if disputed, taken in the light most favorable to Davis.
Because Davis has abandoned her ERISA claim, as discussed below, this section omits any facts
relevant to that claim.
5
Richardson’s declaration and its attachments consist of docs. 96-6, 96-7, and 96-8. When
referring to Richard’s declaration, this memorandum opinion cites it by name. The memorandum
opinion cites each exhibit to the deposition by where it appears on the docket.

12

(“Richardson Dep.”) at 7-11 (19:8-23, 20:1-24:16, 28:22-31:6, 33:18-35:2), 29 (107:7-17)).
During the time relevant to this action, the Call Center was managed by Assistant Vice President
of Customer Service Deanna Edgecomb (“Edgecomb”), while Director of I-Care Operations David
Richardson (“Richardson”) managed Policy Services. (Edgecomb Dep. at 5 (11:23-12:1), 7-9
(21:1-5, 25:12-26:11, 28:20-29:23); Raley Dep. at 12 (39:19-40:3), 25 (92:10-16); Richardson
Dep. at 9-11 (28:22-30:1, 30:9-31:6, 33:14-34:5); Richardson Decl. at ¶ 7).
The Call Center handled “customer-facing” functions related to phone calls; for example,
taking payments and answering customer questions. (Edgecomb Dep. at 7-8 (19:16-22:19, 25:1217); Richardson Dep. at 11 (35:3-15), 32-33 (121:11-122:2)). The Call Center employed CSCs,
whose jobs required being on the phone with customers at all times. (Richardson Dep. at 7 (20:517), 11 (35:3-36:3); Edgecomb Dep. at 7-8 (19:11-21, 23:17, 25:12-17); Raley Dep. at 10 (32:1220)).
Policy Services handled “back-office” functions related to reviewing and processing policy
information. (Richardson Dep. at 8-11 (23:15-26:15, 30:2-20, 33:18-34:11, 36:4-18); Raley Dep.
at 11 (34:14-36:16); Richardson Decl. at ¶ 9). Policy Services employed PSSs, whose job
responsibilities included “processing new business uploads, and applications, renewal offers,
outstanding requests to agents or insureds known as suspense items, endorsements that come
through fax, e-mail, things along those lines, responding to customer inquiries that come through
fax or e-mail, outbound phone calls to a customer or agent if there’s a question that comes out of
one of those documents . . . . SR22s, state reporting.” (Richardson Dep. at 11 (36:4-18)). Infinity
coded some of these responsibilities as “UARS” (for “Upload Auto Release”), “SUSPENSE” (for
a policy with outstanding items), and “RENEWAL” (for a customer who needed to be contacted

13

regarding renewal). (Richardson Decl. at ¶ 10). PSSs spent less than five percent of their time on
the phone. (Richardson Dep. at 31 (116:6-17)). PSSs were not required to speak Spanish, and if
a PSS was not bilingual, any task that required Spanish-speaking ability would be sent to a Spanish
queue to be handled by a translator). (Davis Dep. at 22-23 (78:7-79:2, 80:3-82:6, 83:20-85:7);
doc. 96-1 at 90-140; doc. 96-2 at 1-23; Deposition of Amel Garcia, doc. 96-12 (“Garcia Dep.”) at
16 (54:14-25); Richardson Dep. at 33 (122:3-18), 35 (132:3-12), 46 (174:1-175:2); Raley Dep. at
15 (50:1-11); Richardson Decl. at ¶¶ 9, 13; doc. 96-6 at 95-97; Declaration of Amel Garcia, doc.
96-4 at ¶ 10). Between one and three percent of documents PSSs worked with were submitted in
Spanish. (Richardson Dep. at 33 (124:16-23), 35 (132:3-12)).
Many of the PSSs in the Birmingham location were able to work from home. (Raley Dep.
at 21 (74:5-5-10)).
B. Davis’s Employment at Infinity
Infinity hired Davis as a Cash Clerk on April 15, 2020. (Davis Dep. at 18-19 (65:2-67:7)).
Based on Davis’s performance, Infinity promoted her to Policy Services Specialist I (“PSS-I”) in
February 2006 and to Policy Services Specialist II (“PSS-II”) on March 4, 2012.6 (Doc. 103-13;
Davis Dep. at 21-22 (77:9-79:23); Adams Dep. at 25 (91:20-93:10); Richardson Dep. at 21 (75:20);
Raley Dep. at 11-12 (37:21-38:15), 34 (127:7-10)). Davis never worked at an Infinity call center
or in any location outside Alabama. (Davis Dep. at 18-19 (65:2-67:7), 21-22 (77:9-79:23)).
Davis earned “Met” or “Exceeded” marks on performance evaluations throughout her

6

PSS II is an in-grade promotion available after a PSS I has met certain ratings for
consecutive quarters. (Richardson Decl. at ¶ 12).

14

employment at Infinity. (Doc. 103-12; doc. 103-14; doc. 103-15; Adams Dep. at 23-24 (85:488:16), 26-28 (94:20-97:9, 98:21-102:14); Richardson Dep. at 20-22 (73:4-75:6, 77:4-78:19,
79:21-81:3); Deposition of John Finney, doc. 96-11 (“Finney Dep.”) at 9-11 (29:1-31:15, 32:535:3. 35:9-36:4)). Davis’s 2011 annual performance evaluation includes as an overall comment
in the space reserved for manager comments: “I can always count on Stephanie in any situation.”
(Doc. 103-12 at 2). In the same location on her 2013 evaluation, her manager stated: “Stephanie
can handle multiple tasks with ease. She handles all assignments in a highly professional and
competent manner. Stephanie is willing to do whatever it takes to get the job done and even
perform tasks or jobs that are not her own. She has become a go-to person for our team.” (Doc.
103-14 at 2). And in Davis’s 2014 evaluation, her manager commented: “Stephanie possesses
many talents and capabilities, produces solid quality and quantity of work daily and weekly.”
(Doc. 103-15 at 3). However, Davis’s 2014 review stated she needed “to work on dealing with
changes as the department moves forward. Do more diverse work in Iqueue, more UARS,
SUSPENSE, RENEWAL BUILD. Increase the amount of PFO done weekly to no less than 150.”
(Id.).
C. Customer Service Department Reorganization
Infinity’s company mission is to be “the low cost insurance provider of choice for Latino
and urban markets.” (Doc. 96-2 at 51-52; Richardson Dep. at 13 (42:3-13), 28-29 (105:21106:15); Raley Dep. at 18-19 (65:4-22, 69:2-6); Richardson Decl. at ¶ 14; Raley Decl. at ¶ 6). To
focus on these groups, Infinity developed a corporate strategy to consolidate its business operations
and physical locations in four states with large Hispanic populations—California, Florida, Texas,
and Arizona—and exit business segments not aligned with its focus markets. (Davis Dep. at Def.

15

Exh. 20; Richardson Dep. at 47 (180:2-14), 51-52 (197:14-198:9); Richardson Decl. at ¶ 14; Raley
Decl. at ¶ 6). Raley was responsible for implementing this initiative. (Raley Dep. at 18 (64:2065:22)).
In particular, owing to an increase in Spanish or bilingual call volume in the Call Center,
Infinity focused its efforts on the customer contact centers in McAllen, Texas, and Tucson,
Arizona, aiming to achieve 100% bilingual CSC capability in those locations.7 (Richardson Dep.
at 32-33 (121:2-124:7); Richardson Decl. at ¶¶ 17, 19; Raley Decl. at ¶ 9). As part of the
reorganization, Infinity decided to hire only local Spanish/English bilingual CSCs at the McAllen
and Tucson centers, as well as in Miami, Florida (where CSCs worked remotely); in its view, this
would help it handle increased Spanish-language call volume, improve customers’ experiences,
and lower costs. (Richardson Dep. at 32-33 (121:2-124:7); Edgecomb Dep. at 15 (50:5-19);
Richardson Decl. at ¶¶ 19, 50; Raley Decl. at ¶ 9). Infinity also decided to staff one PSS team
onsite at each of these locations to support the local call centers, deal with local management, and
eliminate issues arising from all PSSs being based in Alabama. (Richardson Dep. at 15 (50:2252:15), 47 (179:16-180:14); Richardson Decl. at ¶¶ 20, 21; Raley Decl. at ¶ 10). In addition,
Infinity determined that this staffing arrangement would provide cost savings and reduce overhead.
(Richardson Dep. at 51-52 (197:14-198:9); Richardson Decl. at ¶ 23; Raley Dep. at 19 (66:7-67:3);
Raley Decl. at ¶ 10). Raley testified that Infinity sought “to make our operations more efficient

7

Infinity had operated the McAllen office from 2008 to 2014 with no on-site PSSs, relying
on PSSs in Birmingham for support. (Edgecomb Dep. at 9-10 (28:8-31:14); Raley Dep. at 7-9
(20:16-24:11, 27:13-20)). The Tucson office opened in June 2013 with no on-site PSSs, also
relying on Birmingham PSSs. (Id.).

16

and to be able to take advantage of less expensive rent and labor in other locations, and researched
“to determine from an economic standpoint where we thought we could operate most efficiently,
that we could hire employees, and was going to have a good labor market at salaries that would be
less than Birmingham.” (Raley Dep. at 19 (66:18-67:9)).
Infinity did not require PSSs at the Tucson and McAllen locations to be Spanish/English
bilingual. (Garcia Dep. at 9 (27:10-16); Richardson Decl. at ¶¶ 24, 49-50; Raley Dep. at 8-10
(24:1-6, 29:2-7, 31:1-5); Garcia Decl. at ¶¶ 10-11, 20; Raley Decl. at ¶¶ 8, 16).8 Although the goal
of the transition was not to have 100% Spanish-English bilingual PSS staff, Infinity’s expectation
was that they would see an increase in bilingual PSSs. (Richardson Dep. at 29 (109:6-18)).
Amel Garcia (“Garcia,” who is Hispanic), whom Infinity hired in July 2014 as a PSS
Supervisor, made the PSS hiring decisions in McAllen and Tucson. (Garcia Dep. at 7-9 (19:4-16,

Davis states “Infinity hired new employees into PSS positions using the applicant pool
for positions which were advertised as requiring bilingual Spanish/English skills.” (Doc. 106 at
13-14). To support this, she points to two main pieces of evidence, as well as testimony discussing
these pieces of evidence. The first is a web article from Tucson News Now advertising a “Bilingual
hiring fair for insurance call center.” (Doc. 103-58). The article was posted on May 7, 2014 and
updated on May 21, 2014. (Id.). It indicates that “[t]he job fair will be from 8 a.m. to 8 p.m. this
evening at the Infinity Insurance Office.” (Id.). It also indicates that Infinity is “opening the doors
to their call center, and are looking to recruit 150 bilingual customer service representatives.” (Id.).
The second is an email dated August 7, 2014, sent by customer service manager Ana Ramos to
Richardson. (Doc. 103-17; Richardson Dep. at 31 (115:5-8)). In it, Ramos asks: “In preparation
of the job fair, the team here wanted to find out if there is something specifically you are looking
for PSS’s that may be different for CSC’s given that it is a different position . . . . These are
questions we get [sic] we interview and want to make sure we give potential candidates accurate
information.” (Doc. 103-17 at 2). Davis does not indicate why it is reasonable to infer that the
job fair Ramos was preparing for in an email that postdates the advertised job fair by several
months would have been promoted in the same way, particularly since the advertised job fair
specifically contemplates hiring “customer service representatives” for the call center (i.e., the
position it is undisputed Infinity required to be Spanish-English bilingual).
8

17

22:8-14, 23:3-8, 24:10-26:21, 29:12-15, 27:2-28:5, 29:12-23), 15 (51:2-11); Garcia Decl. at ¶¶ 911; Richardson Dep. at 26 (96:22-97:1), 45 (170:16-23); Richardson Decl. at ¶ 47). Garcia
testified he considered the applicants’ job history, resume and quality of interview, and bilingual
ability was not a factor in any PSS hiring decision. (Garcia Dep. at 10 (31:6-32:3), 12 (39:11-18),
23-24 (85:16-89:18); Garcia Decl. at ¶¶ 9-11). Garcia testified bilingual ability was not preferred.
(Garcia Dep. at 9 (27:10-16)). Garcia did not inquire or otherwise attempt to determine whether a
PSS applicant was bilingual and told applicants “no” when asked if bilingualism was a requirement
for the PSS position.9 (Garcia Dep. at 10 (30:25-31:7); Garcia Decl. at ¶¶ 12-14). Garcia did not
participate in terminating employees in other locations. (Garcia Decl. at ¶ 19).
In contrast to some of Garcia’s testimony, Raley testified that bilingual ability was
preferred in a PSS applicant. (Raley Dep. at 10 (31:1-6), 20 (73:15-19)). By this, Raley later
stated in his declaration that he meant he would prefer a bilingual applicant over a non-bilingual
applicant, all things being otherwise equal. (Raley Decl. at ¶ 15). Raley stated this was his
personal opinion only rather than Infinity’s hiring policy, and that he was not involved in hiring
decisions and had never discussed his preferences with decisionmakers. (Id. at ¶¶ 13, 16).
However, Infinity’s records reflect that Raley interviewed PSS candidate Steven Martinez
(Hispanic) and made the recommendation: “Proceed with Policy Services. Not fully bilingual.
Advised that promotional opportunities would be limited.” (Doc. 103-110 at 15; doc. 96-8 at 7).

Davis includes as a fact that “Infinity routinely determined applicant’s [sic] fluency in
Spanish and English during interviews.” (Doc. 106 at 15). However, the citation for this is
Edgecomb’s deposition, in which she specifically discusses interviews for CSCs. (Edgecomb Dep.
at 24-25 (88:3-90:12)).
9

18

Raley also interviewed Melba Corona (Hispanic, bilingual) for a “Policy Services or Call Center”
position in Tucson, (doc. 103-105 at 30-36), and Lasette Smith (Hispanic, bilingual) for a PSS
position in Tucson, (doc. 103-107 at 15). All three of these candidates were hired. (Doc. 96-8 at
6-7).
Regardless, the job description used to hire PSSs in McAllen and Tucson did not include
bilingual ability as a requirement. (Doc. 96-6 at 95-97). Nevertheless, many of the PSSs hired or
promoted in the August/September 2014 time frame had bilingual Spanish/English skills; nine of
eleven PSSs hired or promoted in McAllen, and eight of ten PSSs hired in Tucson.10 (Doc. 10389; doc. At least eight PSSs hired or promoted in McAllen and Tucson between July 2014 and
October 2016 were not bilingual: Ihab Atouf (white), Susan Castillo (Hispanic), Manuella
Comeaux (white), Steven Hernandez (Hispanic), and Doree Thornton (white) in Tucson and
Kathleen Deleon (Hispanic),11 Deborah Maldonado (white),12 and Douglas Marrel (white)13 in
McAllen. (Garcia Decl. at ¶¶ 12-13; Richardson Decl. at ¶¶ 49, 55; doc. 96-7 at 6-7).

10

Davis counts Steven Martinez (Hispanic) as a bilingual employee, (doc. 106 at 15), while
Defendants count him as a non-bilingual employee. As noted above, Martinez was not fully
bilingual. (Doc. 103-110 at 15). Since the parties have not defined what it means to be “bilingual,”
and since neither party relies on Martinez for anything more than his Spanish-speaking ability,
Martinez counts as a bilingual for summary judgment purposes.
11
Deleon was initially hired by Infinity on January 20, 2014, but was promoted to PSS I
on September 28, 2014. (Doc. 103-114 at 47).
12
Like Deleon, Maldonado was initially hired prior to the reorganization, but was promoted
to PSS I on September 28, 2014. (Doc. 103-113 at 53).
13
Marrel’s name does not appear on the list of employees produced by Infinity in
discovery, but Richardson’s declaration indicates Infinity supplemented this list with Marrel’s
name and personnel file. (Richardson Decl. at ¶ 52). Richardson states Marrel is “a White
employee, which I know based on my personal knowledge, who moved into the PSS position on
July 17, 2016” in McAllen. (Id.).

19

D. 2014 Reduction in Force
In June 2014, as part of the reorganization, Infinity began a two-phase reduction in force
(“RIF”) that impacted some Call Center and Policy Services employees in Birmingham. (Davis
Dep. at 24 (86:7-87:7)); Edgecomb Dep. at 14-15 (46:4-7, 49:2-50:19), 18 (62:1-64:16), 20 (71:1572:3); Richardson Dep. at 30 (110:2-113:9), 44 (166:6-11); Raley Dep. at 26 (94:1-95:15, 96:197:16); Richardson Decl. at ¶¶ 26-27). It announced this policy to Birmingham staff on June 2,
2014. (Davis Dep. at 26 (94:21-95:22), 30 (130:18-131:23), 44 (134:10-21); Doc. 103-18).
Memorialized in an email from Edgecomb to Raley, Edgecomb’s conversation outline for that
meeting stated:
I have some important news to share with you. To ensure the information is shared
effectively for everyone on the call, all will have an opportunity to express concerns
or comments before I close the session towards the end.
* Icare is undergoing a 2 phase reorganization that involves staff reduction to better
align our service as Infinity continues to increase focus on the Hispanic market
* As we move in this direction, we are minimizing our customer facing positions
in the Birmingham office
-This means:
-The elimination of some call center and policy operations positions in the
Birmingham location
-Most Birmingham positions will be home based -And we will be increasing
our Bilingual staff in Miami and Tucson. (McAllen office is at capacity)
*I mentioned this is a 2 phase process of staff reduction.
-phase 1 staffing changed [sic] will be completed on 6/27/14
*We reviewed:
-Performance, Disciplinary Actions and Hire Dates to make our go forward
staffing decisions

20

*Meetings / conference sessions will be held with all those impacted by this 1st
phase as quickly as possible
*Phase 2 is planned for late 3q or early 4Q based on workloads and volumes
*All affected employees will be offered severance of
-1 week pay for every full year of service plus 1 week for partial year
-based on latest hire date and scheduled hour
(Doc. 103-18).
Only PSSs in Infinity’s Birmingham office were considered for the 2014 RIF; Infinity had
no Policy Services employees at all in McAllen or Tucson prior to Phase I of the RIF. (Richardson
Decl. at ¶ 27). Richardson and the Policy Services management team were responsible for the
staff reduction for Policy Services, while Edgecomb and the Call Center management team were
responsible for the RIF as it pertained the Call Center. (Davis Dep. at 25-26 (91:6-93:7, 94:1596:6); Edgecomb Dep. at 19-20 (68:22-69:5, 69:16-70:13), 25-26 (93:12-94:15); Richardson Dep.
at 32 (118:14-119:9), 37 (141:4-14), 44 (166:12-167:2); Richardson Decl. at ¶ 28). Call Center
employees were selected for the RIF based on discipline, call handling performance, and years of
service (“YOS”). (Edgecomb Dep. at 25-26 (93:12-20, 94:16-97:14)). PSSs were selected for the
RIF as set out below. No distinction was made between PSS I and PSS II in the RIF. (Richardson
Decl. at ¶ 38). Spanish/English bilingual ability was not considered and played no role in which
employees were selected for the RIF. (Davis Dep. at 25-27 (91:6-94:20, 100:6-10), 32 (118:1220), 36-37 (134:16-135:3, 138:19-22); Richardson Dep. at 141:4-14; Richardson Decl. at ¶ 37).
No PSS considered for the 2014 RIF was Hispanic. (Expert Report of Carole M. Amidon
(“Amidon Report I”) at 3-7; Supplemental Expert Report of Carole M. Amidon (“Amidon Report

21

II”) at 3-6).14
Phase I of the RIF was completed on June 27, 2014. (Richardson Decl. at ¶ 26). This
portion of the RIF took into account disciplinary history, and four PSSs were eliminated based on
having a written warning or more serious discipline in the preceding twelve months.15 (Richardson
Decl. at ¶ 29; Davis Dep. at 26-27 (94:15-98:19)). Disciplinary actions below a written warning
and/or older than the preceding twelve months were not considered as a factor in the layoff criteria.
(Richardson Decl. at ¶¶ 44, 45).
Phase II of the RIF was completed on October 31, 2014. (Richardson Decl. at ¶ 26). It
used a more complicated metric to select Policy Services employees for elimination. Specifically,
employees were ranked based on three components: Year to Date (“YTD”) Raw Score, YOS
Score, and Impact Factor. (Richardson Dep. at 37 (140:12-141:14); Richardson Decl. at ¶ 30).
YTD Raw Score took into account an employee’s performance from January 2014 through July
2014, measuring productivity and quality for that period.16 (Richardson Decl. at ¶ 31). YOS Score
consisted of a PSS’s total years of service divided by 10. (Id. at ¶ 33). Impact Factor measured
input from the four PSS supervisors, who assigned each PSS a score between 0 and 4. (Id. at ¶ 34).

14

Dr. Amidon’s report and its supplement are both contained in doc. 96-17, with the report
comprising pages 1-16 and the supplement comprising pages 17-35. The citations to the reports
refer to their internal page numbers, not where they appear on the docket.
15
An additional PSS, Tracy Price, voluntarily resigned prior to the October 2014 layoff.
(Richardson Decl. at ¶ 35).
16
At the time of the RIF, Infinity had recently eliminated a hybrid Policy Services
Consultant (“PSC”) position and integrated some PSCs into PSS roles. (Richardson Decl. at ¶ 31).
PSCs spend approximately half the time handling calls and half the time performing processing
functions. (Id.). Since PSC annual evaluations measured different criteria than PSS annual
evaluations, Infinity determined that the best apples-to-apples performance metric would be the
2014 YTD Score: a processing-only productivity and quality assessment. (Id.).

22

Richardson testified Impact Factor “was a number generated for us to assess the ability of people
to handle change, the complexities that were in common as we looked to adapt across the
organization and grow operations at other sites, and the people that we were going to need at the
table to help us do that, change being the largest component.” (Richardson Dep. at 39 (149:7-13)).
E. Davis’s Termination
On September 17, 2014, Davis received a written memo informing her she had been
selected to be laid off on October 31, 2014. (Davis Dep. at 24-25 (87:2-90:19); doc. 96-2 at 25).
This memo, which had been written and approved by Raley, largely mirrored Edgecomb’s talking
points from the June 2, 2014 meeting. (Raley Dep. at 4 (9:10-19), 35-36 (133:5-134:22); doc. 10318; doc. 103-19). In relevant part, the memo stated:
As previously announced we will be transitioning some positions from the call
center and policy services in Birmingham to McAllen, Tucson and/or Miami to
increase the number of employees with bilingual Spanish/English skills to better
service our customers as the company continues to grow.
The decisions to lay -off employees were extremely difficult due to the high quality
of work and dedication of the employees in Infinity’s workforce. We regret to
inform you that you have been selected as one of the people who will be laid off on
October 31, 2014. Criteria for lay-off was based on a combination of factors,
including performance, seniority, disciplines and relevant skill sets. We sincerely
thank you for your service to Infinity and hope to make this transition as easy as
possible.
[ . . . ]
We encourage you to watch for positions posted on the Employee Career site which
may be accessed through Employee Self Service and to apply for positions for
which you qualify.
(Doc. 103-19). The memorandum made no distinction between call center and policy services
employees as far as being affected by the transition. (Raley Dep. at 35-36 (133:5-134:17)).
In total, fifteen PSSs were terminated at this stage of the RIF. (Doc. 96-7 at 5). Davis’s

23

cumulative score was near the bottom of the PSSs in the Birmingham location during the October
2014 portion of the RIF, ranking 29th out of 37. (Richardson Dep. at 37 (140:12-141:14);
Richardson Decl. at ¶ 30; Doc. 96-7 at 5). Davis had a YTD Raw Score of 2.90 and a YOS Score
of 1.60. (Doc. 96-7 at 5). Davis’s Impact Factor was rated at 0. (Id.). Davis’s YTD Raw Score
was good for 15th out of the 37 PSSs. (Richardson Dep. at 38-39 (142:3-146:8); Richardson Decl.
at ¶¶ 31-32; doc. 96-6 at 102; doc. 96-7 at 2-3). Davis’s YOS Score was 24th out of 37.
(Richardson Dep. at 39 (146:17-149:41); Richardson Decl. at ¶¶ 33, 39; doc. 96-7 at 5). The only
PSS ranked lower than Davis who was not terminated, Tekisha Kennedy (black), applied for and
was selected for another position. (Richardson Decl. at ¶ 40).
Although Davis’s annual evaluation scores from prior years had resulted in overall scores
of “Met,” “Exceeded,” and “Exceeded,” those scores were not considered in the Impact Factor.
(Richardson Decl. at ¶ 41). Indeed, PSS Mary Fowler (white) had received higher overall annual
evaluations than Davis and had also received a 0 Impact Factor score. (Richardson Decl. at ¶ 41;
doc. 96-7 at 5, 14-23). Like Davis, Fowler was also selected for layoff.17 (Doc. 96-7 at 5).
Some PSSs who were retained had disciplinary history, but none of it had occurred in the
twelve months prior to the RIF. Specifically, Margaret Burchfield (white) had been placed on
probation for productivity in 1999 and had received counseling and several written warnings, with
the most recent one dated May 21, 2004, (doc. 96-7 at 25-31); Susan Anderton (white) had received
counseling for various issues and had been written up for productivity, harassment, and attendance,
most recently in 2006, (id. at 45-54); and Sherry Abrams (white) had received discipline for

17

Fowler also had more years of service than Davis. (Doc. 96-7 at 5).

24

attendance and productivity prior to 2003, (id. at 35-44).

(Richardson Decl. at ¶¶ 45-46).

Additionally, Joan Greer (white) had made a lateral move from PSS II to PSS I in 2008.
(Richardson Decl. at ¶ 43-44; doc. 96-7 at 33).
PSSs who were laid off pursuant to the RIF were not offered the opportunity to transfer to
the McAllen or Tucson locations.

(Richardson Dep. at 43 (163:19-165:9)).

Davis asked

Richardson if she could transfer to one of the new positions, but her request was denied. (Davis
Dep. at 28 (103:23-104:8); Richardson Dep. at 43 (163:19-165:9)). Davis did not apply for any
available open positions with Infinity. (Richardson Decl. at ¶ 46).
F. Post-RIF
At least twenty-two PSSs remained in the Birmingham office after the RIF. (Richardson
Dep. at 47 (179:16-180:21), 51-53 (197:8-201:6, 202:2-16, 203:15-205:1)). None of these retained
PSSs spoke Spanish. (Richardson Decl. at ¶ 37). Other PSSs continued to be supervised from
Birmingham, rather than from the areas in which they worked.
Infinity conducted an additional layoff in 2016 as a continuation of the transition.
(Richardson Dep. at 52 (199:16-200:6)). As a result, there are no longer any PSSs working in
Birmingham. (Richardson Dep. at 52 (200:7-17)). However, some of the employees who were
originally PSSs were allowed to apply for (and were retained in) new positions that involved some
of the same duties, albeit with a different job title. (Richardson Dep. at 53 (202:13-205:19)).
Analysis
The operative complaint in this action is Davis’s third amended complaint, (doc. 51). One
count of that complaint was dismissed at the motion to dismiss stage. (See doc. 56) (dismissing
Count II of Davis’s complaint). Davis has voluntary abandoned three other counts: her retaliation

25

count (Count IV), asserted against Infinity, and her ERISA counts (Counts V and VII), asserted
against Infinity and Adams. (See doc. 106 at 45). Those counts are DISMISSED. What remains
are the following counts, all of which relate to Davis’s termination: Count I, a Title VII disparate
impact claim based on national origin, asserted against Infinity, (doc. 51 at ¶¶ 49-53); and Count
III, a Title VII and 42 U.S.C. § 1981 disparate treatment claim based on race, asserted against
Infinity, (id. at ¶¶ 60-63). Neither remaining claim is asserted against Adams, so to the extent this
memorandum opinion refers to “Defendants,” it refers only to the two Infinity defendants.
A. Disparate Impact Claim
To establish a prima facie case of disparate impact discrimination under Title VII, a
plaintiff must: (1) “identify the specific employment practice that allegedly has a disproportionate
impact”; and (2) “establish causation by offering statistical evidence sufficient to show that the
practice in question has resulted in prohibited discrimination.” Armstrong v. Flowers Hosp., Inc.,
33 F.3d 1308, 1314 (11th Cir. 1994); Pouyeh v. Bascom Palmer Eye Inst., 613 F. App’x 802, 810
(11th Cir. 2015).18 As to the first element, a plaintiff is “responsible for isolating and identifying
the specific employment practices that are allegedly responsible for any observed statistical
disparities.” Wards Cove Packing Co. v. Atonio, 490 U.S. 642, 656 (1989) (quoting Watson v.

18

Some courts separate this two-step process into three steps by pulling out causation as a
distinct element from statistical evidence. See, e.g., Lee v. Fla., Dep’t of Children & Family Servs.,
135 F. App’x 202, 204 (11th Cir. 2005) (“To establish a prima facie case of disparate impact
discrimination, a plaintiff must demonstrate 1) a specific, facially-neutral employment practice, 2)
a significant statistical disparity in the racial composition of employees benefitting from the
practice and those qualified to benefit from the practice; and 3) a causal nexus between the practice
identified and the statistical disparity”). There is no functional difference between the two tests.

26

Fort Worth Bank & Tr., 487 U.S. 977, 994 (1988)). Once a plaintiff establishes a prima facie case,
“[t]he burden of production then shifts to the defendant to establish that the challenged
employment practice serves a legitimate, non-discriminatory business objective.” E.E.O.C. v.
Joe’s Stone Crab, Inc., 220 F.3d 1263, 1275 (11th Cir. 2000) (citation omitted). A plaintiff may
then defeat a showing of a legitimate business practice by establishing that “an alternative, nondiscriminatory practice would have served the defendant’s stated objective equally as well.” Id.
1. Specific Employment Practice
The first point of contention between the parties is what exactly the specific employment
practice at issue is in this case. In its motion for summary judgment, Infinity contends the only
practice identified in the complaint is “a practice to fire and hire PSSs based on English/Spanish
bilingual ability,” which it says has been proven false. (Doc. 95 at 27). Conversely, Davis says
that relevant employment practice is what she terms Infinity’s “bilingual transition plan,” which
includes both the terminations in Birmingham and the hires in Tucson and McAllen, and which
Davis argues incorporates a preference for Spanish-speaking employees. (Doc. 106 at 21-26, 36).
Since “a party may not raise a new theory for the first time in response to a summary
judgment motion,” Cruz v. Advance Stores Co., 842 F. Supp. 2d 1356, 1360 (S.D. Fla. 2012)
(citation omitted), the starting point is what Davis has alleged in her complaint. See Cacciamani
v. Target Corp., 622 F. App’x 800, 804 (11th Cir. 2015) (citing Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)) (“It is the complaint that must give the defendant notice of what the plaintiff
complains.”). In her third amended complaint, Davis states the following in support of her
disparate impact claim regarding Infinity’s employment practices:
•

“In June 2014, Infinity announced that it was implementing a termination and hiring

27

plan based on a new policy that conditioned hiring and continued employment on being
fluent in Spanish. Based on such policy, Infinity began to terminate employees not
fluent in Spanish and replace them with new hires who were fluent in Spanish.” (Doc.
51 at ¶ 12).
•

“In September 2014, Infinity delivered a letter to Stephanie Davis stating that she and
other employees who were not fluent in Spanish were being terminated. Two days
later, Infinity’s Vice President, Jim Raley (Caucasian, non-Hispanic), and Director of
Benefits and Compensation, Ronald Ostenfield (Caucasian, non-Hispanic), met with
Stephanie Davis and told her that she was being terminated because she was not fluent
in Spanish.” (Id. at ¶ 13).

•

“Infinity’s policy of conditioning continued employment and employment
opportunities on fluency in Spanish has disparate impact on persons like Stephanie
Davis who do not have a Spanish-speaking or Hispanic national origin.” (Id. at ¶ 29)

•

“In the alternative, Infinity used its bilingual policy as a pretext for disparate treatment
of persons of non-Hispanic national origin, such as Stephanie Davis. Infinity’s policy
of favoring persons fluent in Spanish is a proxy or pretext for disparate treatment based
on national origin for jobs that incumbents like Stephanie Davis [sic]. Infinity took the
jobs held by non-Hispanic employees and gave them to Hispanic employees and new
hires in a manner which adversely affected Stephanie Davis because of her nonHispanic national origin.” (Id. at ¶ 30).

•

“Infinity violated Title VII . . . by adopting and using the bilingual policy set forth
above . . . [and] discriminated against Stephanie Davis on the basis of national origin
when it terminated her pursuant to such policy which had disparate impact on nonHispanic persons.” (Id. at ¶¶ 50-51)

First, even construing the evidence favorably to Davis, the alleged employment practice in
Davis’s complaint— “a termination and hiring plan based on a new policy that conditioned hiring
and continued employment on being fluent in Spanish,” which resulted in her termination—is
unsupported in the record. Davis collapses the overarching goal of the reorganization—to increase
bilingual staff—into a requirement that PSSs be bilingual. However, it is undisputed that the direct
cause of Davis’s termination was the 2014 RIF, which did not incorporate a Spanish-language
fluency requirement. Twenty PSSs were retained at the Birmingham location, none of whom

28

spoke Spanish.19 This directly refutes that Infinity “conditioned . . . continued employment” on
bilingualism. And, although she alleged in the complaint that she was terminated for lack of
Spanish fluency, Davis’s testimony regarding the meeting with Raley and Ostenfield was that she
was not verbally told that she was being terminated for her lack of Spanish fluency and could not
otherwise recall what was said. (Davis Dep. at 36-37 (135:15-138:18)). Furthermore, while Davis
points to Raley’s testimony that bilingual PSS applicants were preferred—and the court accepts
that fact as true for summary judgment purposes—this is a far cry from a policy that “conditioned
hiring . . . on being fluent in Spanish.” The existence of this policy is also belied by the fact that
at least eight non-bilingual PSSs were hired during the transition. Put simply, there is no
evidentiary support for the disparate impact theory alleged in the complaint.20

19

Davis contends the retention of non-bilingual PSSs is not relevant to her disparate impact
claim, arguing that such a claim “does not require that every PSS employee be terminated as part
of the challenged policy.” (Doc. 106 at 32) (emphasis in original). However, the fact that nonbilingual PSSs were retained is relevant as to whether the policy, as identified by Davis, existed in
the first place.
20
Davis states she has “not asserted any claim that is not part of the bilingual transition
plan challenged throughout the Third Amended Complaint.” (Doc. 106 at 37). Notably, while
there has been some confusion about the precise nature of Davis’s claims through several rounds
of briefing on motions to dismiss and three memorandum opinions on those motions to dismiss,
there has never been any confusion about the underlying policy Davis alleged resulted in disparate
impact. (Doc. 40 at 4 (“This case arises out of Infinity’s implementation of a Spanish/Englishbilingualism requirement applicable to employees and potential hires.”), 13 (“[Davis] has clearly
and specifically alleged the existence of a facially neutral employment practice”)); (doc. 50 at 3
(“This case arises out of the Infinity Defendants’ implementation of a Spanish/Englishbilingualism requirement applicable to employees and potential hires (referred to as the “bilingual
requirement”)); (doc. 56 at 3 (“In September 2014, Infinity announced a termination and hiring
plan that required current employees and new hires to be fluent in Spanish (the “bilingual policy”)).
Davis cannot plausibly argue the court should now construe her complaint to assert a different
theory than the one she has argued all along, and which the court has taken at face value up until
this point. Nor has she moved for leave to amend her complaint to assert the new theory.

29

Second, even if the court accepted Davis’s new argument that the entire transition from
Birmingham to other locations is the specific employment practice she identifies, that theory is too
broad to support her disparate impact claim.

Title VII permits a challenge to an entire

decisionmaking scheme as a single employment practice only where the plaintiff “can demonstrate
to the court” that its components “are not capable of separation for analysis . . . .” 42 U.S.C. §
2000e-2(k)(1)(B)(i). Davis cannot make that showing. Some polices clearly applied to CSCs
only; others clearly applied to PSSs only. Davis’s theory sweeps all of those policies together.
Her logic goes like this: Infinity decided to move some jobs away from Birmingham and into new
locations in McAllen and Tucson, aiming to achieve 100% bilingual CSC capacity and expecting
to benefit from additional bilingual PSSs (although bilingualism was not required of PSSs) at the
new locations. Because of this, she says, decisions concerning CSCs should be a part of the court’s
analysis. To fold these in, Davis mostly relies on the memorandum indicating Infinity was
“transitioning some positions from the call center and policy services in Birmingham to McAllen,
Tucson and/or Miami to increase the number of employees with bilingual Spanish/English skills
to better service our customers.” She then connects this to Raley’s testimony that the policy of
transitioning employees applied to both call center and policy services positions and that the
memorandum made no distinction between the two. (Doc. 106 at 11-12) (citing Raley Dep. at 3536 (133:5-134:17)).

But Davis cannot make Raley’s testimony out to be more than it is—a

statement that the reorganization as a whole involved both PSSs and CSCs—when it is undisputed
that the CSC bilingualism requirement did not apply to PSSs (even though there was a bilingualism
preference for PSSs), the CSCs in Birmingham were RIF-ed according to different criteria than
the PSSs in Birmingham and hired according to different criteria in Tucson and McAllen, and the

30

decisions concerning CSCs were made by different decisionmakers than those that made decisions
regarding PSSs. Under these circumstances, a reasonable jury could not find that Infinity’s
policies concerning CSCs, including a bilingualism requirement, were part of an inseparable
specific employment practice that applied to Davis.21
Instead, the only arguably specific employment practice that could apply to Davis would
be to pair the RIF of PSSs in Birmingham with the hiring of PSSs in Tucson and McAllen—a
discrete event separable from anything concerning CSCs. But this is considerably narrower than
Davis’s framing of a “bilingual transition plan” in the abstract. Because most of Davis’s evidence
and argument is geared towards showing that the overall reorganization created a disparate impact,

Davis states “[t]he Court has already determined on at least two occasions that ‘Davis
has plausibly alleged the employment practice she challenges in her disparate impact claim is the
decision, supported (at this point) by Infinity’s letter to her, to “transition[] some positions from
the call center and policy services in Birmingham to [other locations] to increase the number of
employees with bilingual Spanish/English skills.”‘“ (Doc. 106 at 21-22) (quoting doc. 85 at 5).
This comes from two sources: an order granting in part Davis’s motion to compel and a
memorandum opinion denying in part Defendants’ motion to dismiss. Neither helps Davis here.
The language from the undersigned’s previous order on Davis’s motion to compel
indicated that “the letter substantiates that the specific neutral employment practice — the
bilingualism policy alleged in the complaint, notwithstanding Defendants’ repeated contentions it
does not exist — applied to both call center employees and policy services employees.” (Doc. 106
at 21-22) (quoting doc. 85 at 5). Davis omits the previous portion of this paragraph, which centers
the parties’ dispute on their intent to “adjudicate the merits of Davis’s claims via discovery
motions,” including the existence of any bilingualism policy, and states “the undersigned declines
to probe the merits” of the claims at issue in the context of a discovery motion. (Doc. 85 at 5).
Instead, the undersigned noted that “for the purposes of discovery,” the assumption that the alleged
policy exists controlled. (Id.). And, of course, the undersigned was required to accept as true that
the policy existed as described in Davis’s complaint in ruling on a motion to dismiss—a standard
that does not apply here. Furthermore, the footnote Davis cites relied on the reasonable inference
that the reference to “relevant skill sets” in the letter “includes Spanish language facility and was
thus a factor in Davis’s termination.” (Doc. 56 at 6 n.6). As discussed above, the evidence refutes
that Spanish-speaking ability was a factor in the RIF. Davis cannot simply rely on the inference
that saved her complaint from dismissal to oppose summary judgment.
21

31

Davis fails to plausibly support this. Regarding whether a RIF can be a specific employment
policy, the D.C. Circuit recently noted:
Courts that have applied Title VII in the context of RIFs have shown how to analyze
the layoffs involved as a “particular employment practice.” They go beyond the
general concept of a “RIF” to identify actionable practices of “selecting only certain
(predominantly female) departments,” Shollenbarger v. Planes Moving & Storage,
297 Fed. App’x 483, 486 (6th Cir. 2008), or of focusing cuts on offices where
“black employees are concentrated,” Council 31, Am. Fed’n of State, Cty. & Mun.
Emps. v. Ward, 978 F.2d 373, 375, 377-78 (7th Cir. 1992); see also Sengupta v.
Morrison-Knudsen Co., 804 F.2d 1072, 1073-74, 1076-77 (9th Cir. 1986)
(analyzing a reduction in force for disparate impact). When an employer cuts back
on its workforce by “targeting” demographically disproportionate departments for
layoffs, that practice means that “the likelihood of selecting a[n individual in a
protected class] increase[s].” Shollenbarger, 297 Fed. App’x at 486. Such a practice
is what plaintiffs here identify, and is the kind of practice the disparate impact
theory of discrimination exists to scrutinize. It is consistent with precedent, and
neither unwieldy nor unfair, to treat the processes by which the Agency identified
plaintiffs’ jobs for elimination as “particular employment practice[s]” under section
2000e-2(k)(1)(A)(i).
Davis v. D.C., 925 F.3d 1240, 1250–51 (D.C. Cir. 2019). Notably, Davis does not challenge the
method Infinity used to select the Birmingham office for a RIF. Put another way, Davis does not
allege Infinity’s reorganization pinpointed an office disproportionately composed of nonHispanics for a RIF (for good reason, as discussed further below).
2. Statistical Evidence
Even if Davis had identified an actionable specific employment practice, her disparate
impact claim would fail because her statistical evidence is insufficient to show a causal link
between that practice and the disparate impact she alleges.
As a preliminary matter, Davis argues that her expert and Infinity’s expert “used the same
statistical test to determine if an outcome is significant,” so what is left is a disagreement based
“only on certain defined variables or assumptions in structuring the analysis.” (Doc. 106 at 28-

32

29). Davis contends this experts’ duel cannot be resolved by the court at summary judgment. (Id.
at 29). Davis points the court to Tyson Foods, Inc. v. Bouaphakeo, in which the Supreme Court
observed that “[o]nce a district court finds evidence to be admissible, its persuasiveness is, in
general, a matter for the jury.” 136 S. Ct. 1036, 1049 (2016). However, the court is not required
to simply grant that Davis’s statistical evidence, once produced, automatically suffices for her
prima facie case. Instead, Davis has the burden of producing statistical evidence, and persuading
the court that it says what she claims. See Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994–
95 (1988) (“[T]he plaintiff must offer statistical evidence of a kind and degree sufficient to show
that the practice in question has caused the exclusion of applicants for jobs or promotions because
of their membership in a protected group.”). When statistical evidence is fundamentally flawed
based on, e.g., the selection of the incorrect pool of employees or applicants, it is not probative of
disparate impact. See Wards Cove, 490 U.S. at 651 (1989).
To support her allegations of disparate impact, Davis has offered the report of Dr. Liesl M.
Fox (“Dr. Fox”), (doc. 103-93 (“Fox Report”), and a supplement to that report, (doc. 103-94 (“Fox
Report II”). As modified by her supplement, Dr. Fox reached the following conclusions regarding
national origin disparate impact,22 based on her analysis of the data:
•

“A statistically significantly disproportionate number of non-Hispanic employees were
targeted for RIF termination from the PSS position at Infinity,” (Fox Report II at 3);

•

“The apparent requirement that employees working in the Policy Services Specialist

22

Dr. Fox also reached a conclusion that the criteria used to rank PSSs in Birmingham for
the RIF “had an adverse impact on the African-American PSS employees in Alabama.” (Fox
Report II at 2). However, there is no race-based disparate impact claim in this action, and Davis
does not rely on Dr. Fox’s report in support of her race-based disparate treatment claim. (See
generally doc. 106 at 37-44).

33

position be fluent in Spanish resulted in the disproportionate number of Hispanics hired
into PSS positions at Infinity,” (id.);
•

“A statistically significantly disproportionate number of Hispanic employees were
hired into PSS positions at Infinity,” (id.);

•

“The requirement that employees working in Customer Service Positions be fluent in
Spanish resulted in the disproportionate number of Hispanics hired into the Customer
Service Positions at Infinity,” (id.).

There are significant problems with the way Dr. Fox arrived at the first, second, and fourth
of these conclusions, some of which have been discussed above and none of which require the
court to weigh the persuasiveness of the experts’ opinions against each other. As to the first
conclusion, Dr. Fox “identified 73 individuals who were employed in PSS positions at Infinity in
Alabama, Texas, and Arizona,” of which “62 were employed prior to October 31, 2014”—the date
of the final step of the RIF in the Birmingham office. (Fox Report at 3). Dr. Fox declined to
separately analyze each location on the basis that “all employees, regardless of location, working
in the PSS position were eligible for RIF termination if the goal of Infinity was merely to reduce
their workforce.” (Fox Report II at 5). There are two intertwined problems with this. First, Infinity
has never maintained that its goal was to reduce its workforce; instead, its stated goal was to
consolidate its business operations and physical locations in states other than Alabama, with the
intention of reducing overhead and saving money. This leads into the second issue, which is that
only PSSs in Alabama were eligible for the RIF because of that stated goal. In fact, Dr. Fox
includes in her calculations numerous PSSs who were hired well after the decision to select the
Birmingham office for a RIF was made (i.e., prior to June 2, 2014). Dr. Fox takes as the relevant
population group the entire group of PSSs employed in McAllen, Birmingham, and Tucson prior
to October 31, 2014. (See doc. 103-93 at 3; doc. 103-94 at 4). As Infinity notes, no PSSs were

34

hired in either McAllen or Tucson prior to at least Phase I of the Birmingham RIF. (Doc. 95 at
19) (citing Richardson Decl. at ¶¶ 24-27, 48). Specifically, no PSSs were hired in McAllen until
August 2014, and no PSSs were hired in Tucson until September 8, 2014. (Richardson Decl. at
¶ 48). Of course, it would have been temporally impossible to have selected PSSs hired after the
institution of the RIF for termination, notwithstanding that the actual mechanism of the RIF
occurred after some PSSs were hired in McAllen and Tucson. Nor, for that matter, is it plausible
Infinity would hire employees only to immediately select them for a RIF. To the extent Dr. Fox
draws the conclusion from her analysis that non-Hispanic PSSs were overrepresented in
termination, (Fox Report at 4), it is not a meaningful one for disparate impact purposes and is not
probative of Davis’s prima facie case.
Dr. Fox’s second conclusion also starts from a faulty premise: the “apparent requirement”
that newly-hired PSSs were to speak Spanish. As discussed above, there is no evidence to support
a bilingualism requirement for PSSs.23

Davis appears to contend Infinity’s “practice of

‘preferring’ PSS employees that were bilingual” suffices, (doc. 106 at 29-30), but this does not
square with Dr. Fox’s assumption of a requirement that led to “Infinity’s policy of primarily
recruiting individuals who are Spanish-speakers to fill the PSS positions . . . .” (Fox Report at 8).
Dr. Fox compounds this error at various points in her report, incorrectly stating that “Infinity
informed the PSS employees in Alabama during the RIF process in 2014 that the ability to speak

23

Dr. Fox’s report draws from the Third Amended Complaint, so it is no surprise that she
took Davis’s theory of the case as challenging Infinity’s supposed “termination and hiring plan
based on a new policy that conditioned hiring and continued employment on being fluent in
Spanish,” rather than the theory Davis alleges now.

35

Spanish was going to be a factor used in the RIF decision.” (Fox Report at 6, n.8). Dr. Fox’s
reliance on a nonexistent “apparent requirement,” refuted by the evidence, renders this conclusion
useless to demonstrate statistical disparity.
Finally, Dr. Fox’s supplemental report contains an extended analysis of “Customer
Services Positions” that combines the CSC position with the PSS position. (Fox Report II at 714). In doing so, Dr. Fox conflates the “selection process” of positions with manifestly different
selection processes, differing criteria for layoff during the Birmingham RIF and hiring in other
locations, and which were in different departments under different management. Dr. Fox relies on
“the assumption that Infinity is using the ability to speak Spanish as a factor in the hiring process”
of all Customer Service Positions, (id. at 10), notwithstanding that the undisputed evidence is that
the CSC position truly had a bilingualism requirement, while the PSS position had a bilingualism
preference as between candidates. In other words, while Infinity may have used Spanish-speaking
ability as “a factor” in the hiring process of both CSCs and PSSs, it did so in markedly different
ways. Yet Dr. Fox drew no distinction between the two and simply analyzed them as though they
were the same. Davis cannot build a statistical case on such a foundation, and Dr. Fox’s conclusion
combining the two positions is not competent evidence to support a disparate impact claim.
What is left is Dr. Fox’s conclusion that “[a] statistically significantly disproportionate
number of Hispanic employees were hired into PSS positions at Infinity,” (Fox Report II at 3).
But, absent Dr. Fox’s other conclusions, nothing about this conclusion supports causality in this
case because it is unconnected to the RIF that impacted Davis. Instead, it is simply a “‘bottom
line’ statistical imbalance in [Infinity’s] workforce,” which is insufficient to state a prima facie
case. Joe’s Stone Crab, 220 F.3d at 1276.

36

3. Legitimate Business Justification
Finally, even assuming Davis had identified a specific employment practice and that her
statistical evidence supported causation, “not all employment practices causing a disparate impact
impose liability” under Title VII. Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities
Project, Inc., 576 U.S. 519, 531 (2015). Specifically, an employer may defeat a disparate impact
claim by “establish[ing] that the challenged employment practice serves a legitimate, nondiscriminatory business objective.” Joe’s Stone Crab, 220 F.3d at 1275 (citation omitted).24
“When considering the employer’s justification, ‘the dispositive issue is whether a challenged
practice serves, in a significant way, the legitimate employment goals of the employer.’”
MacPherson v. Univ. of Montevallo, 922 F.2d 766, 771 (11th Cir. 1991) (citing Ward’s Cove, 490
U.S. at 659). Once the employer offers such a justification, the onus is on the plaintiff to
demonstrate “an alternative, non-discriminatory practice would have served the defendant’s stated
objective equally as well.” Id. “[J]ust suggesting an alternative practice is insufficient to meet the
plaintiff’s burden: the alternative practice ‘must be equally effective as [the employer’s chosen
practice] in achieving [its] legitimate employment goals.’” MacPherson 922 F.2d at 771.

Davis contends “defendant’s burden of affirmatively proving business necessity requires
convincing affirmative proof that ‘there exist[s] an overriding legitimate business purpose such
that the practice is necessary to the safe and efficient operation of the business’, that ‘the business
purpose [is] sufficiently compelling to override any racial impact’, that ‘the challenged
practice . . . effectively carr[ies] out the business purpose it is alleged to serve’, and that there is
‘no acceptable alternative policies or practices which would better accomplish the business
purpose advanced, or accomplish it equally well with lesser differential racial impact.’” (Doc. 106
at 34 (citing Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 245 (5th Cir. 1974); Craig v.
Alabama State University, 804 F.2d 682, 686 (11th Cir. 1986)). Neither cited case states the
prevailing standard for showing business necessity.
24

37

At the outset, Infinity has provided a business justification for its transition of PSSs to
McAllen and Tucson: its desire to cut costs by transitioning workers to states with a lower rate of
pay, coupled with efficiencies in having PSSs working in the same locations as CSCs. To support
this, it offers Richardson’s and Raley’s testimony, which supports that Infinity determined that
wages and overhead would be lower in McAllen and Tucson and that having on-site PSSs would
result in better ability to interact with CSCs and with management, and fewer issues with time
zones and local weather. (See Richardson Dep. at 50:22-52:15, 179:16-180, 197:14-198:9;
Richardson Decl. at ¶¶ 20, 21, 23; Raley Decl. at ¶ 10). “Minimizing the cost of labor is a
legitimate business consideration.” Abbott v. Fed. Forge, Inc., 912 F.2d 867, 875 (6th Cir. 1990).
The reduced cost of labor is supported by Raley’s testimony that, prior to selecting the Tucson and
McAllen locations, Infinity researched locations where they could pay salaries less than those in
Birmingham.25 (Raley Dep. at 19 (66:5-67:3). The Supreme Court has also characterized “the
general objective[] . . .  [of] efficiency” as a legitimate business concern in the disparate impact
context. New York City Transit Auth. v. Beazer, 440 U.S. 568, 592 (1979). Here, the evidence
sufficiently supports that part of Infinity’s legitimate goal was to take advantage of the efficiencies
to which Richardson testified.
Davis starts her dispute with the legitimacy of Infinity’s justification by sidestepping it.

25

Davis cites Chrapliwy v. Uniroyal, Inc., 458 F. Supp. 252, 271 (N.D. Ind. 1977), in
support of the proposition that “dollar cost alone is an immaterial consideration under the business
necessity doctrine.” Chrapliwy in turn relies on the test articulated in Robinson v. Lorillard Corp.,
444 F.2d 791 (4th Cir. 1971). Id. at 269. The Robinson test, which is substantially the same one
set out in footnote 24 above, is not the prevailing test for determining business necessity.
Chrapliwy is not binding, and the undersigned does not find its reasoning persuasive in light of
authority to the contrary.

38

Instead, she focuses on a contention that “Infinity has made no effort to establish a business
necessity for ‘preferring’ bilingual PSS employees.” (Doc. 106 at 33). Davis tries to have it both
ways here, alleging that the transition is the policy at issue for the purposes of the specific
employment practice part of the analysis, but then pointing to the bilingualism preference as the
policy for which Infinity is required to provide a business justification. Since the only plausible
way Davis could get to this point in the analysis is if the court assumed she satisfied the first part
of her prima facie case—i.e., by pointing to the move of PSS jobs from Birmingham to Tucson
and McAllen—Davis’s arguments about whether Infinity has shown a business necessity for a
bilingualism preference are beside the point.26
Davis does get to the issue at hand by disputing that Infinity’s cost-savings and
convenience arguments are legitimate. (Doc. 106 at 34-35). She argues these were never part of
the plan’s announcement or contemporary documentation when the policy was adopted. (Id.). For
this, Davis points to Infinity’s EEOC position statement, (doc. 103-95), Edgecomb’s June 3, 2014
conversation outline, (doc. 103-18), and Infinity’s September 17, 2014 memorandum, (doc. 10319). First, the EEOC statement is not evidence. See Moore v. Hale, 2010 WL 11507178, *12 n.13
(N.D. Ala. 2010) (citing See Bowden v. Wal-Mart Stores, Inc., 124 F. Supp.2d 1228, 1236 (M.D.

26

Leaving aside that the bilingualism preference is not at issue here, Raley’s affidavit
supports that bilingualism was a value-add, on an individual employee basis. As Infinity notes,
(dco. 111 at 133), while PSSs did not frequently encounter Spanish-language communications,
they did so between one and three percent of the time. It is not illegitimate that Infinity might have
preferred employees who could handle these communications without shuttling them to other
employees. See Dalmau v. Vicao Aerea Rio-Grandense, S.A., 337 F. Supp. 2d 1299, 1312 (S.D.
Fla. 2004) (collecting cases for the proposition that bilingualism is a legitimate, nondiscriminatory
business purpose when used to accommodate non-English-speaking customers).

39

Ala. 2000)) (“EEOC position statement is not evidence” and “cannot be used to create an issue of
fact.”). Second, Davis offers no reason why either of the other documents, which explained the
general nature of the RIF to employees, would be expected to incorporate Infinity’s entire rationale
for the relocation of jobs from Alabama to other locations. Furthermore, these documents do not
actually contradict Raley’s or Richardson’s testimony regarding cost savings and convenience; at
no point does either say that the sole goal of the reorganization was to increase bilingual
employees. These are not the type of shifting rationales that might create credibility issues as to
Infinity’s true goals. The undersigned finds Infinity’s justifications to be plausible in light of the
evidence.
Since Infinity has provided a legitimate business justification, the burden shifts back to
Davis to show an alternative that would have accomplished the same thing. She does not do so.
First, Davis states that she requested transfer and would have relocated, if not for Infinity’s rule
barring her from doing so. (Doc. 106 at 35). Davis does not explain why Infinity would have been
expected to allow employees to transfer to a new location after they were terminated based on a
metric that (rightly or wrongly) weighed value to the company, nor does she explain how allowing
her to transfer would have accomplished Infinity’s goal of lowering its wage rates. Similarly,
Davis’s contention that Infinity could have had PSSs work from home (as it did with some
employees), (doc. 106 at 35-36), does not address either wage rates or the efficiencies Infinity said
it would achieve from having the PSSs support CSCs within the same location. In fact, Richardson
indicates “allow[ing] some PSSs to work from home in Alabama . . . was not a viable solution”
because it “would not have provided the PSS on-site support in McAllen and Tucson . . . would
not have eliminated the issue arising from having employees and customers in different time

40

zones . . . [and] Infinity would not have obtained the cost savings from lower wages and benefits
in McAllen and Tucson by making the current Alabama PSSs homeworkers.” (Richardson Decl.
at ¶ 25). Davis says Infinity has offered no evidence of cost savings because the McAllen branch
was ultimately less productive, (doc. 106 at 36), but this quarrels with the eventual results of the
move and not its initial justification.
Since Davis has not isolated a specific employment practice, lacks relevant statistical
evidence of disparate impact even giving her the benefit of the doubt that she has isolated one, and
cannot overcome Infinity’s legitimate business justification, Infinity is entitled to summary
judgment on Davis’s disparate impact claim.
B. Disparate Treatment Claim
A Title VII plaintiff asserting a disparate treatment claim must show the defendant acted
with discriminatory intent. Denny v. City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001). “In
order to show discriminatory intent, a plaintiff must demonstrate that the decisionmaker selected
or reaffirmed a particular course of action at least in part because of, not merely in spite of, its
adverse effects on an identifiable group.” Joe’s Stone Crab, Inc., 220 F.3d at 1273 (internal
quotation marks, alterations, and citation omitted). “[T]he analysis of disparate treatment claims
under § 1983 is identical to the analysis under Title VII where the facts on which the claims rely
are the same.”27 Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citations omitted).
When a plaintiff bases her disparate treatment claims on circumstantial evidence, the court

27

Section 1981 claims are actionable via 42 U.S.C. § 1983. See Jett v. Dallas Independent
School Dist., 491 U.S. 701, 735 (1989).

41

generally applies the burden-shifting framework set out in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 800 (1973). Under the McDonall Douglas framework, “the plaintiff bears the initial
burden of establishing a prima facie case of discrimination by showing (1) that she belongs to a
protected class, (2) that she was subjected to an adverse employment action, (3) that she was
qualified to perform the job in question, and (4) that her employer treated ‘similarly situated’
employees outside her class more favorably.” Lewis v. City of Union City, Georgia, 918 F.3d 1213,
1220–21 (11th Cir. 2019) (citation omitted). If the plaintiff makes this showing by a preponderance
of the evidence, the burden shifts to the defendant employer to show a legitimate,
nondiscriminatory reason for its actions. Id. at 1221 (citing Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)); Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
If the defendant makes this showing, the burden shifts back to the plaintiff to “demonstrate that
the defendant’s proffered reason was merely a pretext for unlawful discrimination, an obligation
that “merges with the [plaintiff’s] ultimate burden of persuading the [factfinder] that she has been
the victim of intentional discrimination.” Lewis, 918 F.3d at 1221 (citing Burdine, 450 U.S. at
256).
“The inquiry into pretext requires the court to determine, in view of all the evidence,
‘whether the plaintiff has cast sufficient doubt on the defendant’s proffered nondiscriminatory
reasons to permit a reasonable factfinder to conclude that the employer’s proffered legitimate
reasons were not what actually motivated its conduct.’” Crawford, 529 F.3d at 976. A pretextual
reason is not only one that is false but one that conceals an actual, discriminatory reason. Brooks
v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006).

42

1. Prima Facie Case
There is no question that Davis is part of a protected class or that she was subjected to an
adverse employment action. Further, Infinity does not argue (for prima facie case purposes) that
similarly-situated white comparator employees were not retained.28 However, the parties dispute
whether Davis was qualified for her job. Infinity says Davis was not qualified under the RIF
criteria. (Doc. 95 at 39). Davis says she was qualified for her job as a general matter. (Doc. 205
at 37). Davis has the better argument here. “Where a plaintiff has held a position for a significant
period of time, qualification for that position, sufficient to satisfy the test of a prima facie case can
be inferred.” Pace v. Southern Ry. System, 701 F.2d 1383, 1386 n.7 (11th Cir. 1983). Whether
Davis was appropriately subjected to the RIF is a question better addressed at the second and third
stages of the McDonall Douglas framework. Davis has sufficiently made out a prima facie case
to shift the burden to Infinity.
2. Nondiscriminatory Basis for Termination
As its nondiscriminatory reason for terminating Davis, Infinity points to the neutral
selection criteria in its RIF, applied to all PSSs. (Doc. 95 at 40). Davis disputes that this is a
nondiscriminatory reason, (doc. 106 at 40-41), but her arguments in support of this proposition do
not back that up. Instead, Davis seeks to show her supervisor, John Finney, could not recall why

28

In her response, Davis points in footnotes to white co-workers Anderton, Abrams, Greer,
and Burchfield. (Id. at 40 n.4, 43 n.7). Davis includes very little about these comparators except
that they received higher Impact Factor scores, despite having lower performance reviews. Still,
there is little reason to question that these comparators were “similarly situated in all material
respects,” Lewis, 918 F.3d at 1218, especially when Infinity does not challenge them as part of
Davis’s prima facie case: they were subjected to the same RIF and evaluated on the same criteria
by the same decisionmakers.

43

Davis received a low Impact Factor score, and thus that the score is suspect. (Id).
Davis’s argument does not demonstrate that the RIF’s selection criteria were facially
nondiscriminatory or illegitimate. Infinity’s burden at this stage of the inquiry is merely to show
“the reasons for plaintiff’s rejection,” which, if nondiscriminatory, narrow the inquiry to the
validity of those reasons. Burdine, 450 U.S. at 254 (1981). The employer’s burden “is satisfied if
he simply explains what he has done or produc[es] evidence of legitimate nondiscriminatory
reasons.” Holifield v. Reno, 115 F.3d, 1555, 1564 (11th Cir. 1997). “[T]he employer’s reason
need only be specific enough so that the plaintiff is afforded a full and fair opportunity to
demonstrate pretext.” Kidd v. Mando Am. Corp., 731 F.3d 1196, 1205 (11th Cir. 2013) (internal
quotation marks, alterations, and citation omitted). Infinity has carried its burden. This is perhaps
best shown by Davis’s briefing itself, which focuses on her contention the criteria used for the RIF
were inappropriate. Davis is well aware of Infinity’s specific, stated reason for terminating her;
she simply disputes it was nondiscriminatory. In other words, Davis’s arguments go to pretext,
not whether Infinity has successfully shifted the burden back to her. Davis’s pretext arguments
are addressed below.
3. Pretext
Infinity describes the Impact Factor score as “supervisor assessment of each PSS’s
anticipated fit going forward, including, but not limited to, their ability to deal with change.” (Doc.
95 at 41).

Davis characterizes the explanation of the Impact Factor as “an after-the fact

justification which was originally meant to use a single stray comment from the plaintiff’s
overwhelmingly positive performance review.” (Doc. 106 at 42). This shifting rationale, she says,
points to pretext. (Id.) (citing Keaton v. Cobb County, 545 F. Supp. 2d 1275, 1303 (N.D. Ga. 2007)

44

and Cicero v. Borg-Warner Auto., Inc., 280 F.3d 579, 592 (6th Cir. 2002)). She cites Richardson’s
testimony that Impact Factor “was a number generated for us to assess the ability of people to
handle change, assess the ability of people to handle change, the complexities that were in common
as we looked to adapt across the organization and grow operations at other sites, and the people
that we were going to need at the table to help us do that, change being the largest component.”
(Id. at 41-42) (citing Richardson Dep. at 149:5-13). Davis contrasts this with a memo describing
“employee fit” as an “important factor we must consider,” accompanied by a note from Raley
stating “amount of time it takes to manage an individual.” (Id.) (citing doc. 103-26 at 2). What
Davis does not show, however, is any evidence that any specific component was dispositive in a
PSSs Impact Factor score, or that the memo is inconsistent with a subjective manager evaluation
that included “ability to handle change.” Davis portrays the memo and accompanying note as
inconsistent with an evaluation based on “ability to handle change,” but there is no evidence that
Raley’s note, or the memo itself, contained the sole criteria used in an Impact Factor score, and
that is not a reasonable inference in light of evidence to the contrary. In short, although Davis says
there is a conflict between the memo, the handwritten note, and other evidence, she fails to show
a genuine dispute that there was an actual conflict.29
Although there is ambiguity in what went into the Impact Factor score, Davis’s attempt to
show it was incorrect by pointing to her performance reviews misses the mark. It is undisputed

29

To the extent Davis implies Raley wrote his note on the memo after Davis was fired and
in anticipation of litigation (which Infinity denies, (see doc. 111 at 15-16, n.14)), there is no
evidence to support that implication and the court may not speculate to assume its truth. See
Hammett v. Paulding County, 875 F.3d 1036, 1049 (11th Cir. 2017) (“[A]n inference based on
speculation and conjecture is not reasonable.”) (citation omitted).

45

Davis’s performance reviews were not directly considered in the RIF, nor were the performance
reviews of any other PSS. There is some tension between Richardson’s testimony that handling
change was “the largest component” of the Impact Factor score and Davis’s 2014 performance
review indicating she “Met” expectations for Dealing with Change, (see doc. 103-15 at 2). At
best, this shows that the Impact Factor score was subjective and not directly tied to previous
performance evaluations regarding Dealing with Change. But a subjective evaluation is not
evidence of pretext unless a plaintiff rebuts the employer’s “clear and reasonably specific factual
basis” for the assessment. See Chapman v. AI Transp., 229 F.3d 1012, 1033-34 (11th Cir. 2000).
Davis has not done so here, because the evidence is undisputed that her 2014 performance review
indicated that she specifically needed “to work on dealing with change as the department moves
forward” and to do more diverse work. Rather than being inconsistent with the stated aims of the
Impact Factor, Davis’s performance review tracks the score she received. Because she cannot
show the Impact Factor was inconsistent with the “clear and reasonably specific factual basis”
Infinity has provided, she cannot show her low Impact Factor score (and thus her termination) was
pretextual.
Nor, even if the Impact Factor score were pretextual, does Davis marshal any evidence to
show that her termination was race-based. In a footnote, Davis points to several white comparators
who also received “Met” Dealing with Change scores yet received 4 or 3 Impact Factor scores
(Greer, Anderton, and Burchfield), several black comparators who received “Exceeded” Dealing
with Change scores yet scored 0 or 1 on Impact Factor (LaToya Gaines, Betty Nelson, Shamika
Bry, and Chaymilla Dykes), and still other black comparators who received 2 and 3 Impact Factor
scores but also received “Exceeded” Dealing with Change assessments (LaShaunda Wilson-King,

46

Kimberly Scott, Christina Whaley, and Michelle Moffett). (Doc. 106 at 44, n.7). One obvious
problem with this comparison is that despite receiving low Impact Factor scores, Betty Nelson and
Shamika Bry were retained under the RIF. Furthermore, all of the black comparators who received
2 and 3 scores were also retained. (See doc. 96-7 at 5). And, as Infinity points out, white PSS
Mary Fowler, who also received a “Met” Dealing with Change assessment on her 2014
performance review and who also received complimentary remarks (and, unlike Davis, no specific
areas for improvement in the Overall Comments section), (doc. 96-7 at 14-15), also received a 0
Impact Factor score and was also RIF-ed, (id. at 5). Finally, the only PSS who scored lower than
Davis and retained a job with Infinity, Tekisha Kennedy, was black. (Richardson Decl. at ¶ 40).
As stated above, Davis has demonstrated that there was no tight relationship between performance
ratings and Impact Factor scores, but Infinity never claimed there was, and this shows neither
pretext in the abstract nor that the Impact Factor scores were a pretext for racial discrimination
specifically. Accordingly, Infinity is due summary judgment on Davis’s disparate treatment claim.
Conclusion
For the reasons stated above, Davis’s motion to strike, (doc. 104), is GRANTED IN PART
and DENIED IN PART. Infinity’s motion for summary judgment, (doc. 94), is GRANTED. A
separate order will be entered.
DONE this 31st day of March, 2021.

_______________________________
JOHN H. ENGLAND, III
UNITED STATES MAGISTRATE JUDGE

47