McGriff v. Alabama Power Company

Filing 24

MEMORANDUM OPINION. Signed by Judge Virginia Emerson Hopkins on 7/12/2013. (JLC)

FILED
2013 Jul-12 PM 02:57
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
OSCAR JAMES (“JIM”)
MCGRIFF, JR.,
Plaintiff,
v.
ALABAMA POWER COMPANY,
Defendant.

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) Case No.: 7:12-CV-2241-VEH
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MEMORANDUM OPINION
I.

INTRODUCTION
Plaintiff Oscar James McGriff, Jr. (“Mr. McGriff”) initiated this job

discrimination lawsuit arising under the Age Discrimination in Employment Act
(“ADEA”) and the Alabama Age Discrimination in Employment Act (“AADEA”)
against Defendant Alabama Power Company (“APCo”) on June 21, 2012. (Doc. 1).
Pending before the court is APCo’s Motion for Summary Judgment (Doc. 18) (the
“Rule 56 Motion”) filed on April 15, 2013. APCo filed all of its supporting materials
on this same date. (Docs. 19, 20).
Mr. McGriff filed his brief and evidence in opposition to the Rule 56 Motion

(Doc. 21)1 on May 6, 2013. On May 20, 2013, APCo followed with its reply (Doc.
23) and also filed a Motion To Strike Exhibits 2 and 3 in Plaintiff’s Evidentiary
Submission (Doc. 23) (the “Strike Motion”).
Neither side elected to file any additional briefing. Accordingly, both the Rule
56 Motion and the Strike Motion are now under submission, and, for the reasons
explained below, both motions are due to be granted. Alternatively, the Strike
Motion is due to be termed as moot.
II.

FACTUAL BACKGROUND2
Mr. McGriff began working for APCo in 1978 as a Junior Accountant. AF

No. 1.3 Mr. McGriff currently holds the job of Dispatch Supervisor or Operations

The page references to Doc. 21 correspond with the court’s CM/ECF
numbering system.
1

Keeping in mind that when deciding a motion for summary judgment the
court must view the evidence and all factual inferences in the light most favorable to
the party opposing the motion, the court provides the following statement of facts.
See Optimum Techs., Inc. v. Henkel Consumer Adhesives, Inc., 496 F.3d 1231, 1241
(11th Cir. 2007) (observing that, in connection with summary judgment, a court must
review all facts and inferences in a light most favorable to the non-moving party).
This statement does not represent actual findings of fact. See In re Celotex Corp.,
487 F.3d 1320, 1328 (11th Cir. 2007). Instead, the court has provided this statement
simply to place the court’s legal analysis in the context of this particular case or
controversy.
2

The designation “AF” stands for admitted fact and indicates a fact offered
by APCo that Mr. McGriff has admitted in his written submissions on summary
judgment or by virtue of any other evidence offered in support of his case. Whenever
3

2

Supervisor within the Power Delivery Department. AF No. 4. He has been in this
position for fourteen years. Id.
On May 24, 2011, Mr. McGriff applied for the position of Assistant Customer
Service Manager (“ACSM”) for APCo’s Tuscaloosa Business Office located within
the company’s Western Division. AF No. 8. Michael Magouyrk (“Mr. Magouyrk”),
along with other candidates, also applied for this position. Ultimately, Mr. McGriff
and Mr. Magouyrk were the only two applicants who satisfied APCo’s screening
criteria and who were selected to be interviewed. AF No. 21.
Tammy Graves (“Ms. Graves”), APCo’s Tuscaloosa Business Office Manager,
picked two other employees to serve with her on the selection committee for the
ACSM position: Chris Shinstock (“Mr. Shinstock”) and Terry Tittle (“Mr. Tittle”).
AF No. 23.1.

Additionally, Nancy Potts (“Ms. Potts”), APCo’s Compliance

Specialist for the Western Division, assisted the selection committee and took notes
during the interview process. AF No. 24; (Doc. 20-7 at 6 ¶ 16 (“I also took notes
Mr. McGriff has adequately disputed a fact offered by APCo, the court has accepted
Mr. McGriff’s version. The court’s numbering of admitted facts (e.g., AF No. 1)
corresponds to the numbering of APCo’s statement of facts as set forth in Doc. 19 and
responded to by Mr. McGriff in Doc. 21. A number following a decimal point
corresponds to the particular sentence within the numbered statement of facts. For
example, (AF No. 23.1) would indicate the first sentence of paragraph 23 of APCo’s
statement of facts is the subject of the court’s citation to the record. Other facts
referenced by the parties that require further clarification are dealt with later in the
court’s opinion.
3

regarding the interviewees’ responses and regarding the committee members’
comments on the candidates.”)).4
Both candidates’ interviews occurred on May 27, 2011. AF No. 26.1. Mr.
Magouyrk had a very good interview and gave calm and concise answers. AF No.
30.1. Mr. McGriff, on the other hand, became emotional during his interview and had
trouble focusing on and answering the interview questions without digressing. AF
No. 32.1; AF No. 32.2.
The selection committee determined that Mr. McGriff lacked knowledge and
experience in several current APCo business office practices in contrast to Mr.
Magouyrk’s exposure to these areas. AF No. 33.1; AF No. 35. Mr. Magouyrk also
had more familiarity than Mr. McGriff with respect to compliance procedures
required by the Sarbanes-Oxley Act (“SOX”). (Doc. 20-8 at 7 ¶ 19).5 Both
“[e]xperience in business office operations” and “[d]etailed knowledge of . . . SOX
compliance” were included as requirements in the job posting for the ACSM position
generated by Ms. Graves. AF No. 10; AF No. 9.1.
Subsequent to receiving input from the other members of the selection

The page references to Doc. 20-7 correspond with the court’s CM/ECF
numbering system.
4

The page references to Doc. 20-8 correspond with the court’s CM/ECF
numbering system.
5

4

committee, Ms. Graves selected Mr. Magouyrk as the most qualified candidate for the
job. (See Doc. 20-8 at 9 ¶ 24 (“Both Mr. Shinstock and Mr. Tittle recommended that
I hire Mr. Magouyrk as [the ACSM].”)); AF No. 39. At the time of the selection
process, Mr. McGriff was 64 years old and Mr. Magouyrk was 31 years old. AF No.
42.1.
III.

STANDARDS
A.

Summary Judgment

Summary judgment is proper only when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P.
56(c). All reasonable doubts about the facts and all justifiable inferences are resolved
in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
Cir. 1993). A dispute 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, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Once the moving party
has properly supported its motion for summary judgment, the burden shifts to the
nonmoving party to ‘come forward with specific facts showing that there is a genuine
issue for trial.’” International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270,
1274 (11th Cir. 2006) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 586-87, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).
5

B.

Employment Discrimination Generally

A plaintiff in an employment discrimination case maintains the ultimate burden
of proving that the adverse employment decision was made because of intentional
discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143,
120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) (“Although intermediate evidentiary
burdens shift back and forth under this framework, ‘[t]he ultimate burden of
persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.’” (quoting Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207
(1981))); Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984)
(“A Title VII disparate treatment plaintiff must prove that the defendant acted with
discriminatory purpose.” (citing Clark v. Huntsville City Board of Education, 717
F.2d 525, 529 (11th Cir. 1983))).
Although the Supreme Court has established the basic allocation of burdens
and order of proof in a disparate treatment case, see, e.g., McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Burdine, supra;
Desert Palace v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 56 L. Ed. 2d 84 (2003), that
framework applies only in cases in which there is no direct evidence of
discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir.
6

1987) (“The McDonnell Douglas-Burdine patterns of proof were designed to ease the
evidentiary burdens on employment discrimin[a]tion plaintiffs, who rarely are
fortunate enough to have access to direct evidence of intentional discrimination.”
(citing Thornbrough v. Columbus and Greenville R.R., 760 F.2d 633, 638 (5th Cir.
1985), abrogated on other grounds by St. Mary’s Honor Center v. Hicks, 509 U.S.
502, 113 S. Ct. 2742, 125 L. Ed. 2d 40 (1993)).6
Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden
of proving by a preponderance of evidence a prima facie case of discrimination.
Second, once the plaintiff proves a prima facie case, the burden of production shifts
to the defendant to articulate a legitimate, nondiscriminatory reason for its
employment decision. Finally, if the defendant carries its burden, the plaintiff must
either prove by a preponderance of the evidence that the legitimate reasons offered
by the defendant are merely a pretext for discrimination or present sufficient
evidence, of any type, for a reasonable jury to conclude that discrimination was a
“motivating factor” for the employment action, even though the defendant’s
As the Eleventh Circuit has explained, “only the most blatant remarks, whose
intent could be nothing other than to discriminate on the basis of age, . . . constitute
direct evidence of discrimination.” Carter v. City of Miami, 870 F.2d 578, 582 (11th
Cir. 1989) (citing Barnes v. Southwest Forest Industries, Inc., 814 F.2d 607, 610-11
(11th Cir. 1987)). Based upon this standard, Mr. McGriff has properly presented his
case to the court as a circumstantial evidence one. (See, e.g., Doc. 21 at 11 (setting
forth prima facie factors applicable to an ADEA discrimination claim)).
6

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legitimate reason may also be true or have played some role in the decision.
McDonnell Douglas, 411 U.S. at 802-05, 93 S. Ct. at 1824-26; Burdine, 450 U.S. at
252-54, 101 S. Ct. at 1093-94; Desert Palace, 539 U.S. at 101-02, 123 S. Ct. at 2155.
C.

Age Discrimination
1.

ADEA

The ADEA provides that “[i]t shall be unlawful for an employer . . . to fail or
refuse to hire or to discharge any individual or otherwise discriminate against any
individual with respect to his [or her] compensation, terms, conditions, or privileges
of employment, because of such individual’s age.” 29 U.S.C. § 623(a)(1). In order
to fall under the ADEA’s protections, an employee must be “at least 40 years of
age[,]” 29 U.S.C. § 631(a), and the plaintiff “retains the burden of persuasion to
establish that age was the ‘but-for’ cause of the employer’s adverse action.”7 Gross
v. FBL Financial Services, Inc., 557 U.S. 167, 177, 129 S. Ct. 2343, 2351, 174 L. Ed.
2d 119 (2009) (emphasis added).
The Eleventh Circuit “has adopted a variation” of the prima facie case standard
articulated by the Supreme Court for Title VII claims in McDonnell Douglas for cases
arising under the ADEA. Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565,

In contrast to the motivating factor standard that is applicable in Title VII and
other discrimination lawsuits.
7

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566 (11th Cir. 1992). “Under this variation of the McDonnell Douglas test for
establishing a prima facie case of discrimination, the plaintiff must show that he (1)
was a member of the protected group of persons between the ages of 40 and 70, (2)
was subject to adverse employment action, (3) was replaced with [or not selected for
a position over] a person outside the protected group, and (4) was qualified to do the
job.” Mitchell, 967 F.2d at 566 (citing Verbraeken v. Westinghouse Elec. Corp., 881
F.2d 1041, 1045 (11th Cir. 1989)); see also Standard v. A.B.E.L. Services, Inc., 161
F.3d 1318, 1333 (11th Cir. 1998) (“To establish his prima facie case of
discriminatory failure to promote, Standard must show that (1) he was in a protected
group; (2) he was not given the promotion; (3) he was qualified for the position and
(4) someone outside of the protected group was given the position.” (citing Coutu v.
Martin County Bd. of County Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995))).
“If this is done, the defendant has the burden of going forward and articulating
a legitimate, non-discriminatory rationale for the [adverse employment action].”
Verbraeken, 881 F.2d at 1045. “Finally, if the defendant rebuts the presumption of
discrimination, the plaintiff must prove by a preponderance of the evidence that the
employer’s asserted reason is merely a pretext for a discriminatory [action].” Id.
2.

AADEA

Finally, claims arising under the AADEA are analyzed according to the same
9

framework as the ADEA. See Robinson v. Alabama Cent. Credit Union, 964 So. 2d
1225, 1228 (Ala. 2007) (“[T]he federal courts have applied to AADEA claims the
same evidentiary framework applied to federal age-discrimination claims.”); id.
(citations omitted) (“We agree that this framework . . . is the proper means by which
to review an AADEA claim.”).
D.

Evidentiary Rulings

All evidentiary decisions are reviewed under an abuse-of-discretion standard.
See, e.g., General Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S. Ct. 512, 517, 139 L.
Ed. 2d 508 (1997) (“We have held that abuse of discretion is the proper standard of
review of a district court's evidentiary rulings.”). “An abuse of discretion can occur
where the district court applies the wrong law, follows the wrong procedure, bases
its decision on clearly erroneous facts, or commits a clear error in judgment.” United
States v. Estelan, 156 Fed. App’x 185, 196 (11th Cir. 2005) (citing United States v.
Brown, 415 F.3d 1257, 1266 (11th Cir. 2005)).
Moreover, as the Eleventh Circuit has made clear, not every incorrect
evidentiary ruling constitutes reversible error:
Auto-Owners’ second argument is that it is entitled to a new trial
on the basis of what it describes as a number of erroneous evidentiary
rulings by the district court. Evidentiary rulings are also reviewed under
an abuse of discretion standard. Finch v. City of Vernon, 877 F.2d 1497,
1504 (11th Cir. 1989). Moreover, even if Auto-Owners can show that
10

certain errors were committed, the errors must have affected “substantial
rights” in order to provide the basis for a new trial. See Fed. R. Evid.
103(a). “Error in the admission or exclusion of evidence is harmless if
it does not affect the substantial rights of the parties.” Perry, 734 F.2d
at 1446. See also Allstate Insurance Co. v. James, 845 F.2d 315, 319
(11th Cir. 1988).
Haygood v. Auto-Owners Ins. Co., 995 F.2d 1512, 1515 (11th Cir. 1993). Therefore,
even the existence of many evidentiary errors does not guarantee an appealing party
relief from an adverse final judgment. Instead, such erroneous rulings by a district
court must “affect the substantial rights of the parties” in order for reversible error to
occur.
IV.

ANALYSIS
A.

APCo’s Rule 56 Motion
1.

Mr. McGriff has established a prima facie case of age
discrimination.

APCo does not challenge the sufficiency of Mr. McGriff’s prima facie case of
age discrimination. (See Doc. 19 at 20-21 (“Assuming arguendo that McGriff can
establish a prima facie case, APCo had legitimate, non-discriminatory reasons for
selecting Magouyrk over McGriff.”)). Accordingly, APCo has conceded and/or
alternatively abandoned at the summary judgment stage any prima facie attack on Mr.
McGriff’s failure to promote claim. See, e.g., Coalition for the Abolition of
Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000)
11

(failure to brief and argue issue at the district court is sufficient to find the issue has
been abandoned); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (“There is no burden upon the district court to distill every potential
argument that could be made based upon the materials before it on summary
judgment.” (citing Blue Cross & Blue Shield v. Weitz, 913 F.2d 1544, 1550 (11th Cir.
1990))); Dunmar, 43 F.3d at 599 (“[T]he onus is upon the parties to formulate
arguments . . . .” (citing Road Sprinkler Fitters Local Union No. 669 v. Indep.
Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994))); Hudson v. Norfolk Southern
Ry. Co., 209 F. Supp. 2d 1301, 1324 (N.D. Ga. 2001) (“When a party fails to respond
to an argument or otherwise address a claim, the Court deems such argument or claim
abandoned.” (citing Dunmar, 43 F.3d at 599)).
Further, Mr. McGriff has undoubtedly satisfied the requisite elements: (1)
when he applied for the ACSM position, he was in his sixties and, therefore, fell
within the protected age group; (2) he did not receive the promotion; (3) he was
qualified for the job; and (4) APCo hired a candidate, Mr. Magouyrk, who was in his
thirties and outside the protected age status, to fill the opening. See Coutu, 47 F.3d
at 1073 (setting forth prima facie model applicable when plaintiff is alleging a failure
to hire); (see also Doc. 20-7 at 5 ¶ 10 (“At the time of the selection process, Mr.
McGriff was 64 years old and Mr. Magouyrk was 31 years old.”); id. at 6 ¶ 18 (“Ms.
12

Graves selected Mr. Magouyrk for the position of Assistant Customer Service
Manager.”)). Therefore, the court concludes that Mr. McGriff has met his prima facie
burden.
2.

APCo has articulated non-discriminatory
reasons for its decision and Mr. McGriff has
not adduced sufficient evidence that those
reasons are pretextual.

APCo has, in turn, met its burden of production. Accordingly, as the briefs
reveal, the heart of the parties’ dispute is over whether Mr. McGriff has adduced
sufficient evidence of pretext pertaining to APCo’s promotional decision.
APCo’s reasons for selecting Mr. Magouyrk over Mr. McGriff for the position
of ACSM as articulated by Ms. Graves were: (1) Mr. McGriff had less recent
business office experience than Mr. Magouyrk and specifically that he lacked
familiarity with APCo’s current processes for Cash, No Reads, Collections, and Life
Support; (2) Mr. McGriff had only a very limited exposure to compliance standards
under SOX; and (3) Mr. McGriff had a much worse interview than Mr. Magouyrk.
(Doc. 19 at 21). Thus two of APCo’s justifications are objective, while the last one
is subjective.
Whenever a defendant offers multiple reasons for an employment decision,
“[i]n order to avoid summary judgment, a plaintiff must produce sufficient evidence

13

for a reasonable factfinder to conclude that each of the employer’s proffered
nondiscriminatory reasons is pretextual.” Chapman v. AI Transport, 229 F.3d 1012,
1037 (11th Cir. 2000) (citing Combs v. Plantation Patterns, 106 F.3d 1519,1543
(11th Cir. 1997)) (emphasis added). To create a triable issue of pretext, the caliber
of the plaintiff’s proof must be “of such quality and weight that reasonable and
fairminded men in the exercise of impartial judgment might reach different
conclusions.” MacPherson v. University of Montevallo, 922 F.2d 766, 776 (11th Cir.
1991 (internal quotation marks omitted) (quoting Verbraeken, 881 F.2d at1045).
Here, the court concludes that the evidence upon which Mr. McGriff relies is
inadequate to establish pretext with respect to each of the three explanations provided
by APCo regarding its decision not to hire him for the open position.
a.

Mr. MrGriff’s Lack of Exposure to
Current Business Office Processes

Regarding the first reason, Mr. McGriff contends that his lack of exposure to
APCo’s “current” business office processes is “suspicious” because he was “not
asked] any questions regarding those technical matters during his interview.” (Doc.
21 at 16). Mr. McGriff also urges that the use of the word “‘current’ referred to the
fact that he is an older man, and that his age was the reason that he was not hired for
the position.” (Doc. 21 at 16). However, the word “current” as applied to APCo’s

14

business office processes is not inherently age-related, and Mr. McGriff has not
shown that it is a code word for age discrimination in the context of the facts of this
case.
Moreover, nowhere in his response does Mr. McGriff squarely address his level
of expertise in the four specific areas identified by APCo: (1) cash; (2) no reads; (3)
collections; and (4) life support. (Doc. 21 at 16). Further, while Mr. McGriff has
recited several job experiences that he has gained as a Dispatch Supervisor (Doc. 21
at 16), he has not shown how handling accounting functions, interacting with
customer service representatives, and addressing billing matters, translate into having
a familiarity with the collection of specialized business office operations delineated
by APCo for the position at issue.
b.

Mr. McGriff’s Deficits in SOX
Compliance

Mr. McGriff’s brief offers no arguments about APCo’s second reason–his lack
of SOX compliance-related experience. (See Doc. 21 at 13-14 (omitting any
reference to SOX as a factor in APCo’s decision)). In the dearth of any opposition
which brings into question the merits of this articulated rationale, Mr. McGriff has
conceded any contention that this particular explanation offered by APCo is, instead,
a pretext for age-related discrimination. Therefore, consistent with Chapman and

15

Combs, APCo is entitled to summary judgment for this reason alone.
Similarly, because Mr. McGriff’s pretext position is nonexistent, he has
neglected not only to trigger this court’s consideration of, but also to carry, his
applicable burden as the nonmovant in a circumstantial evidence case of
discrimination. As the Eleventh Circuit has succinctly described a litigant’s duty to
suitably frame an issue for judicial review:
The district court did not consider that argument because it was
not fairly presented. Only one sentence in Smith’s 116-page petition
for a writ of habeas mentioned the possibility of inter-claim cumulative
analysis and no authority was cited for it. Smith did not even allude to
the argument in his combined 123-page memoranda of law in support of
his petition. That is not adequate presentation of the issue. See United
States v. Massey, 443 F.3d 814, 819 (11th Cir. 2006) (an issue was not
adequately presented unless it was raised in a way that the district court
could not misunderstand it); United States v. Dunkel, 927 F.2d 955, 956
(7th Cir. 1991) (“Judges are not like pigs, hunting for truffles buried in
briefs.”); cf. Flanigan’s Enters. Inc. v. Fulton County, 242 F.3d 976, 987
n. 16 (11th Cir. 2001) (holding that an argument was waived because the
appellants “fail[ed] to elaborate or provide any citation of authority in
support of” the argument in their brief). Because the issue or argument
was not properly presented to the district court, we will not decide it.
See Johnson v. United States, 340 F.3d 1219, 1228 n. 8 (11th Cir. 2003)
(“Arguments not raised in the district court are waived.”); Hurley v.
Moore, 233 F.3d 1295, 1297-98 (11th Cir. 2000); Nyland v. Moore, 216
F.3d 1264, 1265 (11th Cir. 2000); Redwing Carriers, Inc. v. Saraland
Apartments, 94 F.3d 1489, 1511 n. 30 (11th Cir. 1996); Walker v. Jones,
10 F.3d 1569, 1572 (11th Cir. 1994).
Smith v. Secretary, Dept. of Corrections, 572 F.3d 1327, 1352 (11th Cir. 2009)
(emphasis added). Therefore, akin to Smith, Mr. McGriff’s pretext prong also fails
16

on account of Mr. McGriff’s failure to acknowledge, much less create a genuine issue
of, pretext with respect to his undisputed SOX deficiencies.
c.

Mr. McGriff’s Poor Interview

Concerning APCo’s third explanation, Mr. McGriff does not dispute APCo’s
assessment of his interview as a poor one. Further, to the extent that Mr. McGriff
contests APCo’s reliance upon his admittedly unimpressive interview as a subjective
criterion for deselecting him, such an objection, without more, is inadequate to carry
his pretext burden.
As the Eleventh Circuit has clarified an employer’s use of subjective factors
in the context of a challenged promotion:
As we recently explained in Chapman:
A subjective reason can constitute a legally sufficient,
legitimate, nondiscriminatory reason under the McDonnell
Douglas/Burdine analysis. Indeed, subjective evaluations
of a job candidate are often critical to the decisionmaking
process, and if anything, are becoming more so in our
increasingly service-oriented economy . . . . Personal
qualities . . . factor heavily into employment decisions
concerning supervisory or professional positions. Traits
such as “common sense, good judgment, originality,
ambition, loyalty, and tact” often must be assessed
primarily in a subjective fashion, Watson v. Fort Worth
Bank & Trust, 487 U.S. 977, 991, 108 S. Ct. 2777, 2787,
101 L. Ed. 2d 827 (1988), yet they are essential to an
individual’s success in a supervisory or professional
position. See id. at 999, 108 S. Ct. at 2791 (“It would be a
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most radical interpretation of Title VII for a court to enjoin
use of an historically settled process and plainly relevant
criteria largely because they lead to decisions which are
difficult for a court to review.”). It is inconceivable that
Congress intended anti-discrimination statutes to deprive
an employer of the ability to rely on important criteria in its
employment decisions merely because those criteria are
only capable of subjective evaluation. See Watson[], 487
U.S. at 999, 108 S. Ct. at 2791. To phrase it differently,
subjective reasons are not the red-headed stepchildren of
proffered nondiscriminatory explanations for employment
decisions. Subjective reasons can be just as valid as
objective reasons. . . . A subjective reason is a legally
sufficient, legitimate, nondiscriminatory reason if the
defendant articulates a clear and reasonably specific factual
basis upon which it based its subjective opinion.
229 F.3d at 1033-34 (citations omitted).
As Chapman makes clear, an employer’s use of subjective factors
in making a hiring or promotion decision does not raise a red flag.
Certainly nothing in our precedent establishes that an employer’s
reliance upon legitimate, job-related subjective considerations suggests
in its own right an intent to facilitate discrimination. To reiterate,
Plaintiffs do not squarely challenge the legitimacy of the specific criteria
that Fields asserts he took into account in deciding who to promote.
Defendants’ expert, Dr. Austin, endorsed the appropriateness of those
criteria, and Plaintiffs did not contradict that evidence, other than to
propose that the process should have relied more heavily on objective
data such as the written test scores from the qualification exercise.
Although Plaintiffs, as noted below, disagree with how the various
candidates stacked up under the criteria considered by Chief Fields, they
completely fail to show discriminatory intent in the selection of those
criteria or in the choice to focus on those criteria and correspondingly
downplay “objective” data from the qualification exercise. Simply put,
the fact that Chief Fields’s decisions were based on subjective
considerations, such as a candidate’s leadership ability and maturity,
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does not by itself advance Plaintiffs’ pretext argument.
Denney v. City of Albany, 247 F.3d 1172, 1185-86 (11th Cir. 2001) (footnotes
omitted) (emphasis added); cf. Chapman, 229 F.3d at 1036 (“Because the poor
interview subjective reason backed up by clear and reasonably specific bases is a
legitimate, nondiscriminatory reason, and Chapman failed to present sufficient
evidence to show that the reason was pretextual, the defendants were entitled to
summary judgment on the ADEA claims.”).
d.

Mr. McGriff’s Other Ineffective
Efforts in Establishing Pretext

Mr. McGriff additionally suggests that pretext exists because he “had managed
covered employees for years [in contrast to Mr. Magouyrk], and he knew the
Defendant’s contract book very well.” (Doc. 21 at 16-17). While disparities in the
qualifications and experience levels of candidates may, under certain circumstances,
constitute evidence of pretext, in this instance, Mr. McGriff has failed to show gaps
“of such weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the plaintiff for the
job in question.” Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004),
overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 126 S. Ct.
1195, 163 L. Ed. 2d 1053 (2006).

19

In particular, Mr. McGriff has conceded that Mr. Magouyrk had more
experience in the areas of SOX compliance and certain current business office
processes than he. Mr. McGriff also does not dispute that Mr. Magouyrk’s interview
went better than his.
Instead, Mr. McGriff’s brief seems to suggest that his years of service with
APCo should outweigh all other selection criteria. However, “Title VII does not
[even] require the employer’s needs and expectations to be objectively reasonable;
it simply prohibits the employer from discriminating on the basis of membership in
a protected class.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266
(11th Cir. 2010); see also Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th
Cir. 1991) (“Federal courts ‘do not sit as a super-personnel department that
reexamines an entity’s business decisions. . . .’” (quoting Mechnig v. Sears, Roebuck
& Co., 864 F.2d 1359, 1365 (7th Cir. 1988))). Thus, Mr. McGriff cannot satisfy the
pretext prong by virtue of his “clearly superior” qualifications for the ACSM position.
Ash, 546 U.S. at 457, 126 S. Ct. at 1198 (internal quotation marks omitted) (quoting
Raad v. Fairbanks North Star Borough School Dist., 323 F.3d 1185, 1194 (9th Cir.
2003)).
Mr. McGriff also points to some arguably age-related comments made by Ms.
Potts in which she encouraged Mr. McGriff to consider retiring. See AF No. 42.3
20

(Ms. Potts’s allegedly telling Mr. McGriff “if I was in your position, I would retire”
and “you ought to think about retiring”); AF No. 42.4 (Ms. Potts’s allegedly stating
to Mr. McGriff post-promotion “I guess she [Ms. Graves] wanted someone that was
up and coming”). While the record establishes that Ms. Potts facilitated the interview
and selection process in an administrative capacity, it lacks confirmation that she had
any substantive input into the decision to select Mr. Magouyrk over Mr. McGriff.8
Instead, the record reveals that the sole person responsible for the final decision
adverse to Mr. McGriff was Ms. Graves, the Tuscaloosa Business Office Manager.
Further, in reaching her conclusion, Ms. Graves has explained that she relied only
upon input from the two other selection committee members picked by her: Mr.
Shinstock and Mr. Tittle.
As the Eleventh Circuit has described the caliber of proof necessary for a
reasonable jury to conclude that an employee served in a decision-maker role:
With regard to her second theory of causation, Clover relies
primarily on two pieces of evidence to support her position that
Hollingsworth was a decision-maker. We find neither persuasive. First,
she points to Hollingsworth’s testimony that it was the general practice
of the Human Resources Department, of which Hollingsworth was
Assistant Vice-President, to review and evaluate termination decisions
at TSYS. Clover argues that Hollingsworth’s role in reviewing and
For example, Mr. McGriff has not adduced any evidence that Ms. Graves
asked Ms. Potts for her opinion about who was the best candidate or that Ms. Graves
consulted Ms. Potts’ notes before reaching her final determination.
8

21

evaluating termination decisions was enough for a reasonable jury to
infer that she was a decision-maker in TSYS’ termination of Clover.
The problem with that argument, however, is that Hollingsworth did not
testify that she actually had the authority to overrule the decision of
Miller, a senior vice-president, to terminate Clover. Nor did Clover
present any evidence showing Hollingsworth had such authority.
Furthermore, the undisputed testimony of both Hollingsworth and Miller
was that Hollingsworth made no recommendation at all to Miller
concerning whether he should terminate her. There is no evidence to
contradict that unequivocal testimony.
Second, Clover points to her testimony that Miller told her that he
would revoke his decision to terminate her if she could work out her
differences with Hollingsworth concerning the scheduled time of
Clover's March 23 meeting with the Human Resources. According to
Clover, she did work out those differences, and Hollingsworth promised
to tell Miller. Although Clover argues that this made Hollingsworth a
decision-maker in her termination, we cannot agree. At most, the
evidence shows Hollingsworth supplied Miller with information
(apparently favorable to Clover) which he may or may not have
considered in making his decision to terminate Clover. It does not show
that Hollingsworth made the decision. To the contrary, Clover’s own
testimony was that when Hollingsworth called her on March 27, 1995,
Hollingsworth told her that it was Miller who had decided to terminate
her for falsifying information. Accordingly, we conclude that Clover
failed to present sufficient evidence to establish that Hollingsworth was
a decision-maker in her termination.
Clover v. Total System Services, Inc., 176 F.3d 1346, 1356 (11th Cir. 1999) (emphasis
added).
Here, comparable to Clover, the record lacks proof that Ms. Potts made any
recommendations to Ms. Graves about which candidate to select, much less that she
had the authority to overrule Ms. Graves’s promotional decision. Thus, a reasonable
22

jury could not find Ms. Potts to be a decision-maker and any ambiguous age-related
references made by her are, therefore, ineffective to show pretext:
In several age discrimination cases, however, this court has explained
that comments by non-decisionmakers do not raise an inference of
discrimination, especially if those comments are ambiguous. See
Standard, 161 F.3d at 1329-30 (statement by non-decisionmaker that
“older people have more go wrong” was not probative of discriminatory
intent); Mauter v. Hardy Corp., 825 F.2d 1554, 1558 (11th Cir.1987)
(statement by non-decisionmaker that “[t]he Hardy Corporation was
going to weed out the old ones” did not raise a genuine issue of material
fact regarding discriminatory intent); Barnes v. Southwest Forest
Industries, Inc., 814 F.2d 607, 610-11 (11th Cir.1987) (statement by
decisionmaker that employee could not pass a physical examination “at
[his] age,” when weighed against other evidence, did not raise issue of
discriminatory intent).
Mitchell v. USBI Co., 186 F.3d 1352, 1355 (11th Cir. 1999) (emphasis added).
The age-related and isolated utterances made by Ms. Potts pertain to her
opinions about whether and when Mr. McGriff should retire and her
speculation–“guessing”– about what was on Ms. Graves’s mind when she decided to
promote Mr. Magouyrk over Mr. McGriff. Consistent with the Eleventh Circuit’s
reasoning in Mitchell and other comparable cases, this evidence, attributable to an
employee who lacked decision-making authority or input, does not raise a reasonable
inference of age discrimination with respect to Mr. MrGriff’s non-promotion.
Further, this same type of analysis applies equally to the alleged question asked by
Harry Gabriel (“Mr. Gabriel”), the Division Operations Manager for Power Delivery,
23

in an open meeting of field service foreman occurring during the spring of 2011. See
AF No. 42.5 (inquiring whether “anybody know when Jim McGriff is going to
retire?”).
Furthermore, Mr. McGriff has failed to advance a cat’s paw theory of
discrimination tied to either Ms. Potts or Mr. Gabriel. Cf. Williamson v. Adventist
Health System/Sunbelt, Inc., 372 Fed. App’x 936, 938 (11th Cir. 2010) (“We have
held that a ‘cat’s paw’ theory of recovery may apply when a biased actor recommends
that an adverse employment action be taken against an employee, but the biased actor
is not the ultimate decision-maker.” (citing Stimpson v. City of Tuscaloosa, 186 F.3d
1328, 1332 (11th Cir. 1999))); Williamson, 372 Fed. App’x at 938 (“In such a
situation, the employee must provide evidence that the recommender's alleged
discriminatory animus directly caused the decision-maker to take adverse
employment action against its employee.” (citing Simpson, 186 F.3d at 1331).
Therefore, neither Ms. Potts nor Mr. Gabriel helps Mr. McGriff to meet his pretext
requirement.
Citing to his own deposition testimony as underlying evidentiary support, Mr.
McGriff finally vaguely contends that APCo’s treatment of employees Susan
McKinney and Joe Hyatt are sufficient to show pretext in his situation because they
“both lost positions to younger candidates.” (Doc. 21 at 17). However, Mr. McGriff
24

offers no context that explains the circumstances surrounding APCo’s handling of
these job openings, omitting, in particular, who the relevant decision-makers were.
In sum, Mr. McGriff’s attempts to show pretext are unavailing, and APCo’s
Rule 56 Motion is due to be granted consistent with the court’s conclusions reached
as to each one of the above alternative justifications provided by APCO for its
decision. See, e.g., Chapman, 229 F.3d at 1037 (“[W]e affirm the district court’s
grant of summary judgment to the defendants on two independently adequate bases:
Chapman’s failure to create a genuine issue of pretext as to the objective reason, and
also his failure to create a genuine issue of pretext as to the subjective reason.”).
B.

APCo’s Unopposed Strike Motion

The Strike Motion seeks to strike from the record two exhibits relied upon by
Mr. McGriff in opposition to summary judgment on the grounds that neither
document has been properly authenticated by way of an affidavit or declaration from
a witness who has personal knowledge of the materials. (Doc. 22 at 2 ¶ 3). Exhibit
2 (Doc. 21-3) is labeled “Knowledge Transfer” and exhibit 3 (Doc. 21-4) is entitled
“What Constitutes ‘Qualified’”. Mr. McGriff elected not to oppose APCo’s Strike
Motion.
In support of its evidentiary position, APCo relies upon an unpublished panel
decision by the Eleventh Circuit in Saunders v. Emory Healthcare, Inc., 360 Fed.
25

App’x 110 (11th Cir. 2010):
The district court’s decision to grant in part Emory’s motion to
strike Saunders’ unauthenticated exhibits was not an abuse of discretion.
To be admissible in support of or in opposition to a motion for summary
judgment, a document must be authenticated by and attached to an
affidavit that meets the requirements of Rule 56(e) and the affiant must
be a person through whom the exhibits could be admitted into evidence.
10 A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice and Procedure: Civil § 2722, at 382-84 (3d ed.1998). Because
the exhibits were not properly authenticated, the district court was not
required to consider them in opposition to Emory’s motion for summary
judgment. Moreover, many of the stricken exhibits were authenticated
by either Emory or deponents in the case; therefore, striking Saunders’
exhibits did not cause a substantial prejudicial effect. Because
Saunders’ exhibits were not properly authenticated and the decision to
strike them did not cause a substantial prejudicial effect, the district
court did not abuse its discretion by striking the exhibits.
Saunders, 360 Fed. App’x at 113 (emphasis added).
As the Eleventh Circuit has summarized the evidentiary contours applicable on
summary judgment in a published decision:
We do not read Celotex to permit McMillian to defeat summary
judgment with the type of hearsay evidence offered in this case. In
Celotex, the Supreme Court said:
We do not mean that the nonmoving party must produce
evidence in a form that would be admissible at trial in
order to avoid summary judgment. Obviously, Rule 56
does not require the nonmoving party to depose her own
witnesses. Rule 56(e) permits a proper summary judgment
motion to be opposed by any of the kinds of evidentiary
materials listed in Rule 56(c), except the mere pleadings
themselves, and it is from this list that one would normally
26

expect the nonmoving party to make the showing to which
we have referred.
477 U.S. at 324, 106 S. Ct. at 2553. We read this statement as simply
allowing otherwise admissible evidence to be submitted in inadmissible
form at the summary judgment stage, though at trial it must be submitted
in admissible form. See Offshore Aviation, 831 F.2d at 1017
(Edmondson, J., concurring).
McMillian v. Johnson, 88 F.3d 1573, 1584 (11th Cir. 1996) (emphasis by underlining
added); see also Fed. R. Civ. P. 56(c)(2) (“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.”).9
Here, APCo maintains that exhibits 2 and 3 are inadmissible because they are
unauthenticated. Mr. McGriff neither contests the inadmissible status of these
documents nor explains how at trial they might otherwise be submitted in an
admissible form. Under such circumstances and applying McMillian’s Rule 56
evidentiary model persuasively, the court finds that APCo’s Strike Motion is due to
be granted.
However, even when considering the challenged evidence as some proof of
pretext, the court still finds that APCo’s Rule 56 Motion is due to be granted and,
thus, APCo’s Strike Motion is alternatively due to be termed as moot. More

9

Rule 56, as amended on April 28, 2010, and effective on December 1, 2010.
27

particularly, as Mr. McGriff has summarized these materials, exhibit 2 “recognize[s]
the aging employee population and discusses] how to transfer the knowledge from the
older employees to the younger employees who do not have such experience.” (Doc.
21 at 17). Exhibit 3 contains the “suggest[ion] that the company should hire new
employees with fresher perspectives instead of hiring employees based primarily on
their experience.” Id.
However, Mr. McGriff’s reliance upon these records creates only a weak issue
of pretext, at best, because he has made no attempt to link these documents to the
final decision-maker and recommenders who were substantively involved in the
selection of Mr. Magouyrk over him for the open ACSM position. As a result, the
court cannot confirm, and, indeed, can only speculate about whether these materials
had any impact on the promotional process that was unfavorable to Mr. McGriff.
Moreover, such a paucity of pretext is outweighed by the plethora of evidence that
no illegal age discrimination took place.
As the Supreme Court has recognized regarding a plaintiff’s burden in a
circumstantial evidence case of discrimination:
This is not to say that such a showing by the plaintiff will always
be adequate to sustain a jury’s finding of liability. Certainly there will
be instances where, although the plaintiff has established a prima facie
case and set forth sufficient evidence to reject the defendant's
explanation, no rational factfinder could conclude that the action was
28

discriminatory. For instance, an employer would be entitled to judgment
as a matter of law if the record conclusively revealed some other,
nondiscriminatory reason for the employer’s decision, or if the plaintiff
created only a weak issue of fact as to whether the employer’s reason
was untrue and there was abundant and uncontroverted independent
evidence that no discrimination had occurred. See Aka v. Washington
Hospital Center, 156 F.3d, at 1291-1292; see also Fisher v. Vassar
College, 114 F.3d, at 1338 (“[I]f the circumstances show that the
defendant gave the false explanation to conceal something other than
discrimination, the inference of discrimination will be weak or
nonexistent”). To hold otherwise would be effectively to insulate an
entire category of employment discrimination cases from review under
Rule 50, and we have reiterated that trial courts should not “‘treat
discrimination differently from other ultimate questions of fact.’” St.
Mary’s Honor Center, supra, at 524, 113 S. Ct. 2742 (quoting Aikens,
460 U.S., at 716, 103 S. Ct. 1478).
Reeves, 530 U.S. at 148, 120 S. Ct. at 2109 (emphasis by underling added); see also
id. at 150, 120 S. Ct. at 2110 (“And the standard for granting summary judgment
‘mirrors’ the standard for judgment as a matter of law, such that ‘the inquiry under
each is the same.’” (quoting Anderson, 477 U.S. at 250, 251, 106 S. Ct. at 2511,
2512)); Chapman, 229 F.3d at 1025 n.11 (addressing Reeves’s holding and
acknowledging that “Reeves tells us judgment as a matter of law will sometimes be
available to an employer” under Rule 56 when a plaintiff’s proof of pretext is merely
minimal and the employer’s proffered reasons are strongly supported).
Therefore, guided by Reeves and Chapman, the court additionally concludes
that APCo is still entitled to summary judgment even when factoring in the contents

29

of exhibits 2 and 3 as indicia of pretext because such circumstantial evidence, read
in conjunction with the entire record, including Mr. MrGriff’s prima facie case as
well as his collection of concessions on summary judgment, fails to create a triable
issue regarding the truthfulness of the multiple reasons given by Ms. Graves for her
ACSM promotional decision. Cf. Ross v. Rhodes Furniture, Inc., 146 F.3d 1286,
1292 (11th Cir. 1998) (“If so, the court must then determine whether such
circumstantial evidence, along with other evidence (including Ross’s prima facie
case), might lead a reasonable jury to disbelieve Rhodes’s proffered reason for firing
Ross.”).
V.

CONCLUSION
Accordingly, for the reasons explained above, APCo’s Rule 56 Motion is due

to be granted. Further, APCo’s Strike Motion is due to be granted or, alternatively,
termed as moot. The court will enter a separate order.
DONE and ORDERED this 12th day of July, 2013.

VIRGINIA EMERSON HOPKINS
United States District Judge

30