Jones v. University of North Alabama, The
MEMORANDUM OPINION re 21 Motion for Summary Judgment. Signed by Judge Abdul K Kallon on 2/6/2017. (YMB)
2017 Feb-06 AM 11:47
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
ISAAC JONES, JR.,
THE UNIVERSITY OF NORTH
Civil Action Number
Isaac Jones, Jr., filed this lawsuit against the University of North Alabama
(“UNA”), alleging one count of sex discrimination under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”). Doc. 1. The court has
for consideration UNA’s motion for summary judgment, doc. 21, which is fully
briefed, docs. 22; 25; 27, and ripe for review. For the reasons stated more fully
below, the motion is due to be granted.
STANDARD OF REVIEW
Under Federal Rule of Civil Procedure 56(a), 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(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)
(alteration in original). The moving party bears the initial burden of proving the
absence of a genuine dispute of material fact. Id. at 323. 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-moving party. Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157 (1970); see also Anderson, 477 U.S. at 244 (all
justifiable inferences must be drawn in the non-moving party’s favor). Any factual
dispute will be resolved in the non-moving party’s favor when sufficient competent
evidence supports that party’s version of the disputed facts. But see Pace v.
Capobianco, 238 F.3d 1275, 1276–78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of
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) (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).
Jones, who is a male and an alumnus of UNA, see doc. 23-1 at 7–8, applied
for a position as a buyer in UNA’s procurement office, see doc. 23-1 at 47.1 The
position advertised a maximum salary of $57,388. See doc. 26-2 at 2. Jones
The “Job Posting Preview” listed the “[e]ssential job duties” as follows:
Responsible for Compliance with Alabama Bid Law; Federal Procurement laws
and University of North Alabama Policies and Procedures; Purchase order
maintenance to include: Order entry, change order activity, follow up on back
orders, expedite delivery of open orders, assist with shipping and delivery
problems, and work with departments to disposition orders to closure. Manage or
facilitate communication with the supplier regarding fulfillment of the order;
Facilitate resolution of invoice issues or discrepancies by working closely with
accounts payable personnel; Research and select vendors on a continual basis to
ensure qualified suppliers are appropriately positioned as support is needed.
Evaluate and measure vendor performance using a scorecard process. Meet with
sales representative(s) to establish terms and conditions and performance
capabilities in an equitable manner. Strategically evaluate alternate vendors or
suppliers to avoid emergency situations and to ensure competitive pricing is
achieved; Maintain reports used in completing daily work; Provide quality
customer service in the form of daily communications and assistance to faculty,
staff and suppliers to ensure equipment and service needs are fulfilled timely,
adequately, and appropriately; Provide guidance to faculty and staff in preparing
specifications and requisitions; Provide guidance and training on Banner
requisitions as well as all University policies. Attend training and workshops to
update business and commodity knowledge; Perform other duties as assigned.
Doc. 26-1 at 2.
submitted an application, resume, and cover letter, in which Jones stated that he
has a bachelor’s degree in business administration with a major in accounting, doc.
23-1 at 8, and decades of experience in various positions related to
procurement/buying for state and federal governmental agencies, see generally
doc. 23-1 at 46–62.
In his ten-page resume, see doc. 23-1 at 53–62, Jones
repeatedly described his experience in handling “multi-million” and “multi-billion”
dollar transactions, see id. at 53–56, 59, 62. Jones’s cover letter stated, in part:
My education, job experience, and qualifications greatly exceed
the “Buyer” job requirements. As a UNA alumnus, I would like to
give back to UNA, in the form of heavily discounted expert
procurement services, by processing UNA’s procurements in the most
complete, timely, and accurate manner, in full compliance with all
policies, rules, regulations, and statues [sic] (both state and federal). I
understand and acknowledge the posted position is a “Buyer” and I
would be honored to fulfill those requirements while maintaining the
highest professional standards I have clearly demonstrated over the
past 30+ years.
In addition to completing assigned acquisitions, I could be a
valuable internal resource for the most complex acquisition UNA may
be occasion [sic]. I have been a principle [sic] participant in awarding
and administering (from cradle to death) many multimillion dollar
long term complex acquisitions with all of the major State of
Alabama’s Universities and am familiar with the unique and, in some
cases, novel procurement requirements that UNA must meet.
Doc. 23-1 at 46. Jones also listed his “most recent salary” as “$100/hr.” See doc.
23-1 at 48.
The Hiring Committee, which was comprised of four females and one male,
see doc. 23-3 at 7, used a scoring system that allocated points based on the
following fifteen criteria: vendor management experience; communication skills;
attention to detail within documentation; experience working with a variety of
people and personalities as internal or external customers; organization skills;
evidence of sustainability within a task or profession; valuable commodity
knowledge; “seems like a good fit for UNA environment”; “seems like a good fit
for the Procurement Office”; evidence of innovation and creativity; evidence of
some autonomy and self-motivation; evidence of good decision-making skills and
good use of resources; evidence of good computer skills; evidence of strong
business ethics; and professionalism. Doc. 23-2 at 43. The Committee awarded
Jones a score of “4” (or “excellent”) in the categories of “vendor management
experience,” “valuable commodity knowledge of some kind,” and “evidence of
some autonomy and self-motivation.” See doc. 23-3 at 9. Jones received a score
of “0” (or “poor”) in the categories of “seems like a good fit for UNA
environment” and “seems like a good fit for the Procurement Office,” and a score
of “1” (or “not very good”) in the categories of “communication skills,”
“professionalism,” and “attention to detail within documentation.” See docs. 23-3
at 9; 23-2 at 17–19. The scores resulted in Jones being ranked twentieth out of the
forty candidates the Committee deemed minimally qualified for the position. Doc.
23-2 at 41.
Cindy Conlon, UNA’s Assistant Vice President of Business Services and
chair of the Hiring Committee, testified that the Committee “viewed [Jones’s]
cover letter as arrogant because [Jones] suggested that his qualifications ‘greatly
exceed’ the posted job requirements, he would provide UNA ‘heavily discounted
expert procurement services’ and he repeatedly referenced his negotiation of multimillion and multi-billion dollar deals.” Doc. 23-3 at 7; see also doc. 23-2 at 18
(wherein Conlon testified that Jones’s submission “presented itself in an arrogant
manner”). Conlon stated that the Committee “had concerns about placing any
employee in a position who believes that they are taking a position beneath them or
that they are not being paid for what they determine their value to be.” Id. Conlon
also cited “errors in [Jones’s] submission,” for instance, that he had misspelled the
word “statutes” in the “very sentence where he guaranteed accuracy and
completeness of his work,” failed to capitalize the word “Huntsville” in his
application, and misspelled the word “principal” for the pertinent context. See id.
at 7–8. Finally, Conlon noted that Jones’s resume was “ten pages long and [Jones]
did not seem to [display] any effort . . . to tailor [it] to this particular job.” Id. at 8.
Another Committee member, Melissa Williams, mentioned during the hiring
discussions that Jones’s employment history reflected annual salaries exceeding
$100,000, which far surpassed the approximately $50,000 salary range assigned to
the buyer position. See doc. 23-3 at 9.
Because the Hiring Committee invited only the top nine candidates to
interview, see doc. 23-3 at 10, Jones did not receive an interview. Doc. 23-2 at 9.
The Committee ultimately interviewed three candidates, all of whom were female,
id., and selected Dana Peeden from that group. See doc. 23-3 at 11. Peeden’s
application stated that she earned an annual salary of $28,600 in her current
position, doc. 23-3 at 12, had “experience working with vendors and managing
equipment” and “inventory experience that would fit with the requirement that she
monitor the bills to make sure [UNA] was getting what it paid for,” and “had
handled many aspects of secretarial and administrative tasks.” Doc. 23-3 at 11.
Significantly, Peeden’s application materials, like Jones’s, contained several
grammatical and typographical errors. For example, Peeden typed “i.e,” instead of
“i.e.,” see doc. 23-2 at 25, misspelled the word “database,” see id., and wrote
“August, 2001 to November 2003,” see id. at 27. Conlon admitted during her
deposition that Peeden’s errors did not demonstrate “good attention to detail.”
Doc. 23-2 at 27.
Title VII makes it unlawful to “fail or refuse to hire” any individual
“because of such individual’s race, color, religion, sex, or national origin.” 42
U.S.C. § 2000e-2(a)(1). Where, as here, Jones is attempting to prove intentional
discrimination through circumstantial evidence, the court utilizes the McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), burden-shifting method of proof.
Under this method, Jones bears the burden of establishing a prima facie case of sex
discrimination. See Walker v. Mortham, 158 F.3d 1177, 1183 (11th Cir. 1998). If
Jones satisfies his initial burden, then UNA must show a legitimate, nondiscriminatory reason for its employment action. See id. at 1184. If UNA does so,
then Jones must prove that UNA’s proffered reason is a pretext for unlawful
discrimination. See Mulhall v. Advance Sec., 19 F.3d 586, 597 (11th Cir. 1994).
However, “[t]he ultimate burden of persuading the trier of fact that [UNA]
intentionally discriminated against [Jones] remains at all times with [Jones].” See
Springer v. Convergys Mgmt. Group, Inc., 509 F.3d 1344, 1347 (11th Cir. 2007).
A. UNA proffers legitimate, nondiscriminatory reasons for failing to
UNA concedes that Jones can establish a prima facie case. Doc. 22 at 20.
Therefore, the next step in the McDonnell Douglas framework requires UNA to
articulate a legitimate, nondiscriminatory reason for failing to hire Jones. See
Walker, 158 F.3d at 1183. UNA has met its burden through its contentions that
Jones’s submissions contained multiple spelling and grammatical errors, see doc.
22 at 24, and that Jones’s cover letter conveyed a boastful impression that Jones
believed he was “doing UNA a favor by applying for the job,” see id. at 18, 23. To
the extent Jones argues that UNA’s perception of him as arrogant is subjective and
therefore not worthy of credence, see doc. 25 at 21, the court rejects any such
a legally sufficient, legitimate,
nondiscriminatory reason if the defendant articulates a clear and reasonably
specific factual basis upon which it based its subjective opinion.” Chapman v. AI
Transp., 229 F.3d 1012, 1034 (11th Cir. 2000). See also Denney v. City of Albany,
247 F.3d 1172, 1186 (11th Cir. 2001) (“[A]n employer’s use of subjective factors
in making a hiring . . . decision does not raise a red flag. Certainly nothing in our
precedent established that an employer’s reliance upon legitimate, job-related
subjective considerations suggests in its own right an intent to facilitate
discrimination.”). Here, UNA points to several specific facts giving rise to the
Hiring Committee’s perception of Jones as arrogant, including his statement that, if
hired, he would be providing “heavily discounted” services to UNA. Accordingly,
UNA has met its burden of articulating legitimate, nondiscriminatory reasons for
failing to hire Jones.
B. Jones cannot show that each of UNA’s proffered legitimate,
nondiscriminatory reasons is mere pretext for sex discrimination.
Consequently, the burden shifts to Jones to prove that UNA’s reasons are
pretext for unlawful sex discrimination. See Mulhall, 19 F.3d at 597. To do this,
Jones points out that (1) the selected candidate’s (i.e., Peeden’s) application
materials also contained several spelling and/or grammatical errors, (2) Peeden’s
application also displayed arrogance, and (3) UNA did not mention its alleged
concerns that Jones’s application materials were boastful in response to Jones’s
EEOC charge, and only articulated this second reason after Jones filed this lawsuit.
Docs. 25 at 12, 14–17; 26-3 at 3. As to the first contention, although Peeden did
not present herself as the embodiment of an over-qualified candidate willing to
sacrifice to take a position beneath her, Peeden’s application does also, in fact,
contain a few typos. Based on these, the court agrees with Jones that a reasonable
jury could doubt the veracity of UNA’s first articulated reason, that is, the lack of
attention to detail in Jones’s application package, and find that UNA treated
Peeden’s application more favorably than that of Jones, despite similar spelling
and grammatical errors. See Jarvis v. Siemens Med. Solutions USA, Inc., 460 F.
App’x 851, 857 (11th Cir. 2012) (citing Rioux v. City of Atlanta, 520 F.3d 1269,
1279–80 (11th Cir. 2008); Rojas v. Florida, 285 F.3d 1339, 1343–44 (11th Cir.
2002)) (“[E]ven where a plaintiff fails to rebut all of the employer’s proffered
reasons for taking the adverse action, he may still establish pretext by showing that
a similarly situated [individual] was treated more favorably.”).
Nonetheless, where, as here, “the employer proffers more than one
legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to
survive a motion for summary judgment.” Crawford v. City of Fairburn, 482 F.3d
1305, 1308 (11th Cir. 2007) (citing Chapman, 229 F.3d at 1037) (emphasis added).
The court therefore turns next to UNA’s second reason, i.e., that Jones’s
application package appeared boastful. To rebut this assertion, Jones first argues
that Peeden’s cover letter also contained a statement that a reasonable jury could
deem as “arrogant.” Doc. 25 at 22. According to Jones, Peeden’s contention that
“I would look forward to a further opportunity of meeting with your group . . . .,”
doc. 26-5 at 2, is a statement that “implies that [Peeden] has better things to do,”
doc. 25 at 22. Jones explained her logic further, adding that “a cheating husband’s
wife ‘would look forward’ to meeting her husband’s mistress, but she would rather
eat shards of glass.” Doc. 25 at 22. This is a very strained interpretation of
Peeden’s generic and cordial statement, and one which is used by most applicants.
The undersigned does not believe that any reasonable juror could view this
statement as arrogant or that Peeden was suggesting that she “has better things to
do” than try to get a job which would actually pay her significantly more than her
Second, Jones contends that UNA’s contention that he is boastful and
arrogant is a “shifting reason” not worthy of credence. Jones argues that UNA’s
failure to mention its perception of Jones as boastful in response to Jones’s EEOC
charge is proof that it later “tack[ed] on” that reason. See doc. 25 at 14, 24–25.
Jones is certainly correct that UNA’s EEOC response is silent as to this reason, see
doc. 26-3 at 2–5, and indeed, the Eleventh Circuit has held that “shifting” reasons
for an adverse employment action may constitute evidence of pretext.
Cleveland v. Home Shopping Network, 369 F.3d 1189, 1194 (11th Cir. 2004). The
Circuit has also stated, however, that “additional, but undisclosed, reasons for an
employer’s decision do not demonstrate pretext.” Landolfi v. City of Melbourne,
515 F. App’x 832, 835 (11th Cir. 2013) (citing Tidwell v. Carter Prods., 135 F.3d
1422, 1428 (11th Cir. 1998)) (emphasis added). This is especially true when the
proffered reasons are not “inconsistent.” See Landolfi, 515 F. App’x at 835 (citing
Zaben v. Air Prod. & Chemicals, Inc., 129 F.3d 1453, 1458–59 (11th Cir. 1997)).
Here, the clerical errors in Jones’s application materials and his inclusion of
arguably boastful statements in his cover letter are certainly not inconsistent
reasons for UNA’s decision, and UNA’s failure to state the Hiring Committee’s
perception of Jones as boastful in response to Jones’s EEOC charge does not give
rise to a reasonable inference of pretext. Moreover, there is abundant record
evidence that “boastfulness” was not a reason concocted at litigation, but, instead,
was one considered by members of the Hiring Committee during their meetings.
For example, Conlon testified that
[t]he Committee believed that Mr. Jones may [have] deem[ed] himself
to be far more valuable than the position that involved primarily data
entry, clerical, and administrative functions. Committee Member
Melissa Williams noted that Mr. Jones’ employment history reflected
annual salaries exceeding $100,000, which was significantly greater
than the approximately $30,000 annual salary assigned to the Buyer
position. The significant difference between Mr. Jones’ prior salary
and the Buyer position salary caused the Committee concern as to
whether Mr. Jones would be a good fit in the Buyer position.
Doc. 23-3 at 9. See also doc. 23-2 at 15 (“The committee didn’t like [Jones’s]
cover letter. It came across as arrogant and pompous.”); 18 (“The presentation of
his documentation presented itself in an arrogant manner,” because it “was written
in a way that implied it was beneath this person to take the position, but yet would
be willing to do so, so that it could enhance the environment, but yet wasn’t careful
enough to be sure there weren’t errors in the document.”); 29 (“[I]n his resume, he
is the person negotiating, which does not line up with this job. He is the person in
this resume that is doing the planning, consultations. He isn’t presenting himself
as the person sitting at a desk processing the paperwork.”). Ethan Humphres,
another member of the Hiring Committee, testified as follows:
During the Committee’s meeting to discuss the applications and
submissions, I initiated a conversation with my problems with Mr.
Jones’ submission. In reviewing his submission, the tone of the cover
letter and materials was, in my view, very arrogant. The materials
were presented in a way that Mr. Jones considered himself far above
this position, but that he was going to do UNA a favor by accepting
the position. He bragged that his qualifications “greatly exceed” the
job requirements, and he submitted an extremely lengthy resume that
repeatedly boasted of his involvement in multi-billion dollar deals.
He then went on to suggest that he would provide his services in the
form of “heavily discounted expert procurement services.” It
concerned me that Mr. Jones felt that he would be providing charity
by working for the University. I questioned the fit of someone in a
position who sees the position as far beneath their skills or who thinks
they are doing the University a favor by taking a job.
Doc. 23-5 at 3.
In summary, Jones certainly has every right to believe he was overqualified
and the best candidate for the position. However, the selection officials believed
otherwise and have explained why they ranked other candidates higher than Jones.
Even if this court disagrees with the reasons, it is certainly not a super personnel
committee charged with second guessing business decisions. See Kidd v. Mando
Am. Corp., 731 F.3d 1196, 1207 (11th Cir. 2013) (“[I]n enacting Title VII
Congress did not intend to transform federal courts into a super-personnel
department that reexamines an entity’s business decisions. Our job is instead to
determine whether the employer gave an honest explanation to justify its hiring
decisions. If the employer gives one, we’re not in a position to second-guess [its]
business judgment.”) (internal quotation marks and citations omitted). “To avoid
summary judgment [Jones] must introduce significantly probative evidence
showing that the asserted reason is merely a pretext for discrimination.” Clark v.
Coats & Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993). Jones has failed to
rebut each of UNA’s proffered legitimate, nondiscriminatory reasons for failing to
hire him, and has failed to present any evidence of alleged gender bias. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) (a reason is not pretext for
discrimination “unless it is shown both that the reason was false, and that
discrimination was the real reason”) (emphasis in original). Therefore, his claim
For the reasons stated above, UNA’s motion for summary judgment, doc.
21, is due to be granted. The court will enter a separate order contemporaneously
DONE the 6th day of February, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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