Gaines v. Cooper et al
Filing
42
MEMORANDUM OPINION. Signed by Judge Abdul K Kallon on 6/18/2019. (AFS)
FILED
2019 Jun-18 AM 11:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
TIMOTHY GAINES,
Plaintiff,
vs.
JOHN R. COOPER, et al.,
Defendants.
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Civil Action Number
2:17-cv-01406-AKK
MEMORANDUM OPINION
Timothy Gaines files this lawsuit under 42 U.S.C. § 1983 against John R.
Cooper, the Director of the Alabama Department of Transportation (ALDOT), and
Gary Smith, the manager of ALDOT’s Oneonta District, where Gaines worked as a
Transportation Maintenance Technician.
Doc. 1.
Gaines asserts that the
Defendants violated the Fourteenth Amendment’s equal protection clause and 42
U.S.C. § 1981 by discriminating against him on the basis of race and retaliating
against him when they discharged him before the end of his probationary period.
Id. The Defendants move for summary judgment on all claims, arguing that the
claims are barred by the statute of limitations, the Defendants’ Eleventh
Amendment immunity, and that Gaines failed to establish the required elements of
his discrimination and retaliation claims. Docs. 29 and 32. For the reasons
discussed below, in particular, Gaines’ failure to establish a prima facie case or to
show pretext, the Defendants’ motion is due to be granted.
I.
STANDARD OF REVIEW
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.” Fed. R. Civ. P. 56(a). “Rule 56(c) 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 informing the court of the basis of the motion and proving the
absence of a genuine dispute of material fact. Id. at 323. If the moving party
meets that burden, the burden then shifts to the non-moving party, who is required
to go “beyond the pleadings” to establish that there is a “genuine issue for trial.”
Id. at 324 (internal citations and 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-movant. Adickes v. S.H. Kress & Co.,
2
398 U.S. 144, 157 (1970). 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) (citing Bald Mountain Park, Ltd. v.
Oliver, 863 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 a 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).
II.
FACTUAL AND PROCEDURAL BACKGROUND
A.
ALDOT’s Job Classifications and Policies
ALDOT created the Transportation Maintenance Technician (“TMT”)
position to replace the Highway Maintenance Technician (“HMT”) position
sometime before Gaines’s employment. Doc. 31-31 at 6. TMTs perform a variety
of services on ALDOT roads, and because of the vehicles they use, ALDOT
requires TMTs to have a commercial driver’s license (“CDL”). Docs. 31-7; 31-17;
31-33 at 1. After ALDOT created the TMT position, it reclassified HMTs who had
a CDL as TMTs, and those who did not have a CDL as Transportation Workers
(“TW”). Doc. 31-31 at 6-7. TWs perform unskilled labor, and are not required to
have a CDL. Docs. 31-33 at 1; 39-1 at 5; 39-2 at 4.
ALDOT allows individuals hired as TMTs a six-month probationary period
to obtain a CDL if they do not already have one. Doc. 31-3 at 19. In March 2010,
3
ALDOT adopted a policy to give employees one three-month extension if they did
not obtain a CDL within their first six months of probationary employment. Docs.
31-1 at 35; 31-3 at 19-21; 31-4 at 20-21; 39-1 at 2-3. ALDOT’s general policy is
to discharge TMTs who do not earn a CDL before the end of their probationary
period. Doc. 31-32 at 3. However, if ALDOT had originally hired an individual
for a position that did not require a CDL, such as a TW, and promoted the
individual to a TMT position, then that employee may have reversion rights, which
would allow the employee to take a demotion to her previous position. See doc.
31-33 at 3; 31-7. See also Ala. Admin. Code 670-X-10-.01.
B.
Gaines’ employment with ALDOT and attempts to earn his CDL
ALDOT hired Gaines, an African-American man, on a conditional basis as a
TMT, effective December 2, 2013. Docs. 31-1 at 6, 8-10; 31-4; 31-6; 31-18 at 1.
Gaines worked in the Oneonta District, and at all relevant times, Smith served as
the manager of the District. Doc. 31-29 at 2-3; Doc. 31-30 at 2. By all accounts,
Gaines was a good employee, and never received any disciplinary actions. Docs.
31-29 at 4, 24; 31-19; 39-1 at 3; 39-2 at 3; 31-29 at 4. As a conditional employee,
Gaines understood that to achieve full merit, or permanent status, he had to earn
his CDL within a six-month probationary period. Docs. 31-1 at 9-11, 31; 31-7 at
1; 39-1 at 2. In other words, Gaines knew that he had to have a CDL to maintain
his employment. See doc. 31-1 at 20.
4
Consistent with policy, before his six-month probationary period ended,
Gaines requested more time to prepare for and pass the CDL exam. Doc. 31-20.
Smith recommended that ALDOT grant Gaines’s request, and Steve Dukes,
ALDOT’s personnel director, also recommended the extension. Docs. 31-21; 3129 at 4-5. ALDOT approved the extension for ninety days, docs. 31-1 at 32; 31-3
at 21; 31-22; 31-29 at 5, and informed Gaines that “[a]ccording to Departmental
guidelines, [his] six-month probationary period may be extended by three
additional months only once” and that he “must obtain a [CDL] by the end of [his]
probationary period to obtain permanent status.” Doc. 31-22.
Thereafter, Gaines took the written CDL exam at least two times, but did not
pass. Docs. 31-1 at 20-21; 31-4 at 6, 15; 39-1 at 3; 39-2 at 3. Gaines talked with
Mathis Jones, his supervisor, about his attempts to earn a CDL, but Gaines did not
inform Smith that he had taken the written exam, and he did not request
reimbursement from ALDOT for the fees he paid to take the exam. Docs. 31-1 at
22, 45; 31-30 at 3; 39-2 at 3. However, ALDOT did not require TMTs to apprise
their district managers about their efforts to obtain a CDL. Doc. 31-1 at 23, 45; 391 at 3; 39-2 at 3.
C.
Gaines’s shift-change and transfer requests
Before Gaines began working for ALDOT, employees in the Oneonta
District asked to change their work shift from a standard five-day work week to a
5
four-day, ten hours per day work week, which Smith denied. See doc. 31-1 at 23.
After ALDOT hired Gaines, at the urging of a co-worker, Gaines wrote a letter on
behalf of the TMTs in the District to Smith and Smith’s supervisors, asking for the
ten-hour work day:
We feel that we are not being treated with equality and fairness! We
are under the Guntersville, Alabama Division and District. There
maintenance employees, as well as other divisions are working the
[]4-day 10-hour work week[]. Because of the repeated rejection of
our request for this (4-day, 10-hour work week), the morale among
our maintenance workers is not well. . . . Inclusively, Mr. Smith, we
the maintenance workers . . . are requesting that after careful review,
you will grant us our request.
Doc. 31-4 at 18-19. See also docs. 31-1 at 23-24; 31-3 at 22; 39-1 at 3. Although
he did not sign the letter, Gaines attached a petition he and twenty-two other TMTs
signed in favor of a four-day work week. Docs. 31-1 at 23-24, 29; 31-4 at 18-19;
31-30 at 3-4; 39-1 at 3.
When Smith inquired, Gaines admitted that he wrote the letter. Docs. 31-at
25, 30; 31-4 at 4; 31-29 at 10; 39-1 at 4. In response, Smith threatened Gaines,
telling him that he would regret writing the letter. Docs. 31-1 at 25; 39-1 at 4.
According to Gaines, Smith’s demeanor was hostile, and left Gaines intimidated
and afraid of retaliation. Docs. 31-1 at 25-26; 39-1 at 4. Smith also told Gaines
that the TMTs would continue to work the standard schedule, purportedly based on
difficulties other district managers had after switching to a four-day work week.
Doc. 31-30 at 5.
6
Roughly two months after the letter, ALDOT placed a TW in the Oneonta
District on mandatory leave, 1 and reassigned his duties to Gaines and the other
TMTs. Docs. 31-29 at 3; 31-30 at 12; 39-1 at 4-5; 39-2 at 3-4. When Gaines
asked to transfer to the TW position, Smith denied the request without explanation.
Docs. 31-1 at 37, 40-42; 31-3 at 16; 39-1 at 5; 39-1 at 5; 39-2 at 4. According to
Gaines, ALDOT transferred at least three Caucasian employees (Evelyn Davis,
Tim Whatley, and John Till) to TW positions when they failed to earn a CDL
during their probationary periods. Docs. 31-1 at 38-40; 31-4 at 6; 39-2 at 4-5. See
also docs. 39-3; 39-4; 39-5. ALDOT denies these contentions. See docs. 31-30 at
5-6; 31-33 at 1-3; 31-35 at 2.
D.
Gaines’s termination
At the direction of Dukes, Smith sent a letter to Johnny Harris, ALDOT’s
First Division Engineer, dated July 30, 2014 stating as follows:
As of today’s date, Mr. Gaines has not yet received his CDL. His
extended probationary period will end on August 31, 2014. 2 I
recommend that his employment with [ALDOT] be terminated on
August 31, 2014, for failure to meet his conditions of employment.
Docs. 31-23; 31-29 at 5-6. See also 31-31 at 3; 39-1 at 5. Smith testified that,
before writing the letter, he contacted Jones, who informed him that Gaines had not
1
ALDOT placed the employee on leave due to criminal charges, but did not discharge
the employee until November 25, 2014. Doc. 31-30 at 6, 12-13.
2
Gaines’ probationary period actually ended on September 2, 2014; Smith could not
explain the two-day discrepancy. See doc. 31-20 at 5
7
yet begun the process of obtaining his CDL, which, according to Smith and Dukes,
is a month-long process. Docs. 31-29 at 6-7, 12; 31-30 at 3; 31-31 at 4. Smith did
not ask Gaines or Jones what steps Gaines had taken to try to obtain a CDL before
writing the letter, and Smith was not aware that Gaines had attempted the written
portion of the CDL exam. Docs. 39-2 at 5; 31-29 at 6.
After receiving the letter, Harris wrote to Cooper, recommending that
ALDOT discharge Gaines “as soon as possible.” Docs. 39-1 at 4-5. Based on that
recommendation, ALDOT discharged Gaines thirty-one days before the end of his
probation. Docs. 31-3 at 26; 31-25; 31-26. This action followed.
III.
ANALYSIS
Based on an earlier ruling dismissing some of Gaines’s claims, 3 only the
following claims remain:
(1) § 1983 claims for discriminatory discharge in
violation of the Fourteenth Amendment, (2) § 1981 claims for discriminatory
discharge; (3) § 1981 claims for retaliatory discharge, and (3) § 1981 claims
against Smith for retaliatory denial of transfer and shift change requests. See doc.
1. 4 In support of their motion for summary judgment, the Defendants argue,
3
The court previously dismissed (1) claims for discriminatory denial of Gaines’s shift
change and transfer requests, (2) retaliation claims based on violations of the Fourteenth
Amendment, (3) claims against Cooper for retaliatory denial of Gaines’s shift change and
transfer requests, and (4) claims for monetary damages against the Defendants in their official
capacities. Doc. 17 at 17-18.
4
Gaines asserts his § 1981 claims against the Defendants pursuant to § 1983, see docs. 1;
38 at 13, in light of the fact that “[s]ection 1981 does not provide a cause of action against state
8
among other things, that the § 1983 discriminatory discharge claims are timebarred, and that Gaines did not establish required elements of his § 1981 claims.
The court addresses these contentions in turn.
A.
Whether the § 1983 discriminatory discharge based on alleged
violations of the Fourteenth Amendment claims are time-barred
The Defendants argue that Gaines’s § 1983 claims based on his allegations
that ALDOT discharged him on the basis of his race in violation of the Fourteenth
Amendment are time-barred. Doc. 32 at 15-16. Gaines did not respond to these
arguments, see doc. 38, and has thus waived these claims. See Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (“[G]rounds alleged in
the complaint but not relied upon in summary judgment are deemed abandoned.”)
(citations omitted). Alternatively, the claim fails on the merits. Because § 1983
does not provide a statute of limitations, “federal courts are to borrow the ‘general’
or ‘residual’ statute of limitations for personal injuries provided under the law of
the state where the court hearing the case sits.” Lufkin v. McCallum, 956 F.2d
1104, 1106 (11th Cir. 1992) (citing Owens v. Okure, 488 U.S. 235, 249-50 (1989)).
In Alabama, the residual statute of limitations for personal injury actions is two
years. Ala. Code § 6-2-38(l); Baker, 531 F.3d at 1337 (applying a two-year statute
actors; instead, [and] claims against state actors or allegations of § 1981 violations must be
brought pursuant to § 1983.” Baker v. Birmingham Bd. of Educ., 531 F.3d 1336, 1337 (11th Cir.
2008) (citations omitted). To avoid confusion with the § 1983 claims based on alleged violations
of the Fourteenth Amendment, the court refers to the claims based on alleged violations of
§ 1981 as the “§ 1981 claims.”
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of limitations to § 1983 claims) (citations omitted). Because ALDOT discharged
Gaines on August 1, 2014, the statute of limitations for the § 1983 discriminatory
discharge claims based on alleged violations of the Fourteenth Amendment expired
more than one year before Gaines filed this lawsuit. As a result, the claims are
time-barred.
B.
Whether Gaines Established a Question of Material Fact
Regarding his § 1981 Discriminatory Discharge Claims
Gaines asserts § 1981 discriminatory discharge claims against the
Defendants based on his allegations that ALDOT terminated him before the end of
his probationary period on account of his race. Doc. 1. 5 Where, as here, a plaintiff
relies on circumstantial evidence to prove a discrimination claim, the court applies
the burden-shifting framework established in McDonnell Douglas Corporation v.
Green, 411 U.S. 792 (1973), and Texas Dep’t. of Community Affairs v.
Burdine, 450 U.S. 248 (1981). See Standard v. A.B.E.L. Servs., Inc., 161 F.3d
1318, 1330-31 (11th Cir. 1998). Under that familiar framework, the plaintiff bears
the initial burden of establishing a prima facie case. E.g., Lewis v. City of Union
City, Georgia, 918 F.3d 1213, 1217 (11th Cir. 2019) (en banc). If the plaintiff
satisfies this burden, the burden shifts to the employer to produce a legitimate, non5
Although Gaines asserts his § 1981 discriminatory discharge claims pursuant to § 1983,
a four-year statute of limitations applies to the claims because they were made possible by the
1991 amendment to § 1981. See Baker, 531 F.3d at 1338 (applying the federal four-year statute
of limitations to a plaintiffs’ claims asserted pursuant to § 1983 and based on allegations that the
defendant discharged him and retaliated against him in violation of § 1981) (citing Jones v. R.R.
Donnelley & Sons Co., 541 U.S. 369, 382 (2004)).
10
discriminatory reason for the challenged action. Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1264 (11th Cir. 2010) (citation omitted). Then, the burden
shifts to the plaintiff to prove that the employer’s proffered reason is pretext for its
actual, discriminatory purposes. Id.
1.
Gaines’s prima facie case of discrimination
A plaintiff may establish a prima facie case by showing that he was a
“qualified member of a protected class and was subjected to an adverse
employment action in contrast to similarly situated employees outside the
protected class.” Id. The parties do not dispute that Gaines is a member of a
protected class and that he suffered an adverse employment action. See doc. 32 at
21. ALDOT contends, however, that Gaines was not qualified for his job and
cannot show that ALDOT treated him differently than similarly-situated employees
outside of his class.
a.
whether Gaines is qualified
As mentioned above, Gaines was a good employee, who received positive
reviews during his employment. Docs. 31-19; 31-20 at 4. Even so, the Defendants
contend that Gaines was not qualified for his TMT position because he did not
have a CDL. Doc. 32 at 21. Gaines, however, was not required to have a CDL
during his probationary period. See doc. 31-22. Moreover, Smith testified that
ALDOT would have retained Gaines beyond his probationary period if he had
11
earned a CDL.
See doc. 31-29 at 4.
This testimony and Gaines’s positive
employment review create at least a question of fact regarding whether Gaines was
qualified for the job at the time of his discharge. Therefore, the court turns to
whether Gaines has shown that ALDOT treated him less favorably than similarlysituated employees outside his protected class.
b.
whether ALDOT treated Gaines
similarly-situated employees
differently
than
Gaines claims that ALDOT treated similarly-situated Caucasian employees
(Timothy Whatley, John Till, and Evelyn Davis) more favorably by allowing them
to transfer to TW positions, which do not require a CDL, when they failed to
obtain a CDL within their probationary period. Docs. 1 at 5; 38 at 18-24. The
Eleventh Circuit recently addressed the standard district courts must apply to
determine whether a plaintiff and his comparators are, in fact, similarly situated,
holding that “a plaintiff must show that []he and [his] comparators are ‘similarly
situated in all material respects.’” Lewis, 918 F.3d at 1224. Courts must apply this
standard “on a case-by-case basis, in the context of the individual circumstances”
of the case, considering, among other things, whether the plaintiff and comparators
“engaged in the same basic conduct,” “have been subject to the same employment
policy, guideline, or rule,” and share similar employment or disciplinary histories.
Id. at 1227-28 (citations omitted).
12
Consistent with Lewis, the court turns now to the alleged comparators to
ascertain whether they are indeed similarly situated to Gaines. ALDOT hired
Whatley as a Highway Maintenance Technician (“HMT”). Docs. 31-33 at 2; 3134 at 22; 39-4. ALDOT phased out the HMT position when it created the TMT
position, and it reclassified HMTs who did not have a CDL as TWs. Doc. 31-31 at
6-7. Because Whatley did not have a CDL, ALDOT reclassified him as a TW in
March 2007, a position he held for over three years until he resigned. Docs. 31-33
at 2; 31-34 at 22-25. ALDOT subsequently rehired Whatley as a TW, and then
promoted him to a TW Senior position, which he held until he resigned again in
2018. Docs. 31-33 at 2; 31-34 at 26-28. As for Till, ALDOT hired him as a
laborer, and promoted him to a HMT position one year later. Docs. 31-33 at 1; 3134 at 15-16. After his resignation, ALDOT subsequently rehired Till as a TW, and
he is still in this position. Docs. 31-33 at 2; 31-34 at 17-18. Finally, ALDOT hired
Davis as a Laborer, and promoted her to an HMT position a year later. Docs. 3133 at 2; 31-34 at 19-20. Thereafter, once ALDOT created the TMT position, it
reclassified Davis as a TW, a position she still holds today. Docs. 31-33 at 2; 3134 at 21.
Noticeably absent from these work histories is any entry showing that these
individuals transferred to a TW position after they failed to obtain a CDL during
their probationary periods. In fact, the record establishes that, unlike Gaines,
13
Whatley, Till, and Davis were never TMTs. But job titles alone are not
determinative regarding whether employees are similarly situated, Lewis, 918 F.3d
at 1227, and Gaines introduced evidence that the “job duties between an HMT and
TMT are very similar . . . .” Doc. 39-2 at 4. Even so, Whatley, Till, and Davis
held HMT positions before ALDOT implemented its policy of allowing an
employee only one three-month extension of his probationary period. See doc. 313 at 19-20. Thus, these three individuals were not subject to the same policy as
Gaines, which weighs against them being similarly-situated comparators:
“Ordinarily [] a similarly situated comparator . . . will have been subject to the
same employment policy, guideline, or rule as the plaintiff . . . .” Lewis, 918 at
1227 (citation omitted). Moreover, ALDOT offered evidence that it reclassified all
HMTs who did not hold a CDL, including Davis and Whatley, as TWs after the
creation of the TMT position, and Gaines does not challenge that evidence. See
docs. 31-31 at 6-7; 38. In other words, the record belies Gaines’s contention that
ALDOT allowed these three to transfer to a TW position during their probationary
periods.
Next, after Whatley and Till resigned, ALDOT re-hired them as TWs, which
does not require a CDL. Docs. 31-33 at 1-2; 31-34 at 18, 26; 39-1 at 5; 39-2 at 4.
In contrast, ALDOT hired Gaines as a TMT, and he knew he could only continue
his employment if he obtained his CDL. Docs. 31-1 at 9-11, 20, 31; 31-7 at 1; 3914
2 at 2. Put differently, Whatley and Till have materially different employment
histories from Gaines, and they had different work requirements than Gaines.
Those differences show that Whatley and Till are not similarly situated to Gaines.
See Lewis, 918 F.3d at 1228 (noting that similarly-situated comparators will
generally “share the plaintiff’s employment or disciplinary history”).
Finally, Davis’s employment history is also materially different because
ALDOT originally hired Davis for a position that did not require a CDL. Doc. 3134 at 19. Therefore, unlike Gaines, Davis had rights to revert to her laborer
position when she did not earn a CDL during her probationary period. See doc. 3133 at 3; 31-7; Ala. Admin. Code 670-X-10-.01. And, Davis held the HMT position
before ALDOT reclassified it and created the TMT position. As a result of this
reclassification, she became a TW. Docs. 31-33 at 2; 31-34 at 21. Because she
was subject to a different work rule based on her employment history, Davis is not
similarly situated to Gaines in all material respects. See Lewis, 918 F.3d at 122728.
To summarize, Whatley, Till, and Davis were not subject to the same
ALDOT policies and rules as Gaines, and had materially different job requirements
and work histories than Gaines. As such, they are not “similarly situated in all
material respects,” and are, therefore, not valid comparators. See Lewis, 918 F.3d
15
at 1227-28. Consequently, Gaines has not established a prima facie case of
discrimination.6
2.
ALDOT’s proffered reason and pretext
Alternatively, even if Gaines had established a prima facie case, to survive
summary judgement, he still must show at least a question of fact regarding
whether ALDOT’s proffered reason for its action—i.e., that ALDOT discharged
Gaines because he failed to obtain his CDL during his probationary period, doc. 32
at 23, is pretextual. To show pretext, Gaines cites (1) ALDOT’s purported failure
to discharge Caucasian employees Whatley, Till, and Davis for failing to obtain a
CDL during their probationary periods; and (2) the decision to discharge him
thirty-one days before his probationary period ended. Doc. 38 at 25-28. Neither of
these arguments is sufficient to show pretext.
First, as discussed above, Whatley, Till, and Davis are not similarly-situated
comparators. See, pp. 12-15, supra. As such, ALDOT’s treatment of them does
not indicate that racial animus motivated its decision to discharge Gaines, or that
ALDOT’s stated reason for discharging Gaines is pretext for unlawful
discrimination. Second, both Smith and Dukes testified that obtaining a CDL is a
6
The “plaintiff’s failure to produce a comparator does not necessarily doom [his] case,”
as long as he can present a “triable issue of fact” through “a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination.” Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). But, in this case, Gaines has not introduced
evidence of any race-based conduct by ALDOT, apart from his contention that ALDOT treated
the three purported comparators more favorably. See doc. 38.
16
lengthy process and that “it would be very difficult, if not impossible, to get a CDL
[] within four weeks.” Docs. 31-29 at 6-7, 12; 31-30 at 3; 31-31 at 4. Gaines
attempts to cast doubt on that testimony by arguing that this contention is just their
personal opinion. Doc. 38 at 28. But, Gaines does not offer any evidence of his
own to rebut Smith and Dukes, or to show that they knew it would have been
possible for him to obtain a CDL in thirty days. See id. Based on Smith’s and
Dukes’ unrebutted testimony, ALDOT could have reasonably believed that Gaines
would not be able to obtain his CDL before the end of his probationary period.
Thus, the fact that ALDOT discharged Gaines thirty-one days before the end of his
probationary period does not suggest that ALDOT’s proffered reason for doing so
was pretextual. While the decision is certainly unfair in that, at a minimum, it
deprived Gaines of a month’s pay, the circuit has made clear that “it is not [the
court’s] role to second-guess the wisdom of an employer’s business decisions—
indeed the wisdom of them is irrelevant—as long as those decisions were not made
with a discriminatory motive.” Alvarez, 610 F.3d at 1266 (citation omitted).
Therefore, Gaines’s failure to show that ALDOT’s proffered reason for its action is
pretext for a discriminatory purpose also dooms the § 1981 discriminatory
discharge claims.
17
C.
Whether Gaines Establish a Question of Material Fact Regarding
his § 1981 Retaliation Claims
Gaines asserts § 1981 retaliatory discharge claims against both Defendants
and a claim against Smith for retaliatory denial of transfer and shift change
requests. Doc. 1. To prevail on his retaliation claims, Gaines must first establish a
prima facie case by showing “that he engaged in statutorily protected activity, he
suffered a materially adverse action, and there was some causal relation between
the two events.” Butler v. Alabama Dep’t of Transp., 536 F.3d 1209, 1213 (11th
Cir. 2008) (quotation omitted). At issue here is whether Gaines engaged in a
statutorily protected activity. An employee engages in statutorily protected activity
for purposes of § 1981 when he opposes “race discrimination, whether or not he
personally is the victim of that race discrimination.” Tucker v. Talladega City
Sch., 171 F. App’x 289, 295 (11th Cir. 2006) (citing Jackson v. Motel 6
Multipurpose, Inc., 130 F.3d 999, 1007 (11th Cir. 1997) and Pinkard v. PullmanStandard, 678 F.2d 1211, 1229 (5th Cir. 1982)). To establish protected activity, an
employee does not need to show that the employer actually engaged in race
discrimination, but that he “‘had a good faith, reasonable belief that the employer
was engaged in [race discrimination].’” Butler, 536 F.3d at 1213 (quoting Little v.
United Tech., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)). To
make that showing, the employee “‘must not only show that he subjectively . . .
believed that his employer was engaged in [race discrimination], but also that his
18
belief was objectively reasonable in light of the facts and record presented.’” Id.
(quoting Little, 103 F.3d at 960) (emphasis in original omitted).
Here, Gaines alleges that he engaged in protected activity by writing the
May 2014 letter to Smith requesting a shift change for TMTs, and that the
Defendants denied him a transfer and discharged him in retaliation. Docs. 1 at 3-5;
38 at 31-32. Gaines has certainly presented evidence that Smith threatened him
after Smith received the letter, and there is a temporal closeness between the letter
and the adverse actions. But, the letter complains only that the maintenance
employees in the Oneonta District “are not being treated with equality and
fairness,” and does not mention race or suggest that ALDOT treats the employees
unfairly on account of race. See doc. 31-4 at 18. Moreover, Gaines wrote the
letter on behalf of African-American and Caucasian employees in the Oneonta
District. Docs. 31-4 at 18-19; 39-1 at 3. Based on this evidence, Gaines could not
have reasonably believed that he was opposing race discrimination when he
complained about the employees’ shift and asked ALDOT to implement a four-day
work week. In addition, Gaines offers no evidence to suggest that he subjectively
believed that racial animus motivated the decision concerning the five-day work
week for employees in the Oneonta District. See doc. 39-1. As a result, no
material question of fact exists regarding whether Gaines engaged in statutorily
protected activity when he wrote the letter to Smith, and since § 1981 only covers
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actions related to race, it does not cover the alleged retaliation here. Therefore,
Gaines’s retaliation claims fail.
IV.
CONCLUSION
In light of Gaines’s failure to establish a prima facie case for his
discriminatory discharge claims or, as to his retaliation claims, to show that he
engaged in statutorily protected activity, the Defendants’ motion for summary
judgment is due to be granted. A separate order will be entered.
DONE the 18th day of June, 2019.
_________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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