Jones v. City of Tuscaloosa, Alabama
MEMORANDUM OPINION. Signed by Magistrate Judge Staci G Cornelius on 3/4/16. (MRR, )
2016 Mar-04 AM 08:44
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
CITY OF TUSCALOOSA,
Case No.: 7:13-cv-02191-SGC
Plaintiff Stevie Jones (“Jones”) brings this action against the City of
Tuscaloosa (“the City”), alleging the City discriminated against him in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”),
and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”).
(Docs. 1 & 4). The City has moved for summary judgment on the only claim
Jones asserted in his Amended Complaint—a discriminatory failure to promote
claim.2 (Doc. 21). This Court has jurisdiction under 28 U.S.C. §§ 636(c), 1331,
and 1367. For the reasons stated below, the City’s motion will be granted.
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 33).
The City initially moved for summary judgement on three claims possibly asserted in
Jones’s Amended Complaint: (1) discriminatory failure to promote, (2) retaliation, and
(3) hostile work environment. (Doc. 22 at 13). In response to the City’s motion for summary
judgment, Jones made it clear he is asserting only a discriminatory failure to promote claim and
STANDARD OF REVIEW
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is appropriate “if the movant shows 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). The party moving for summary judgment always bears the initial
burden of proving the absence of a genuine issue of material fact. Id. at 323
Once the moving party has met its burden, then the non-moving party must
“go beyond the pleadings” and point to specific facts in the record to show there is
a genuine issue for trial. Celotex, 477 U.S. at 324 (citation omitted). 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 (1986).
“[A] ‘judge’s function’ at summary judgment is not ‘to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine
issue for trial.’” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (per curium)
is not asserting separate retaliation and hostile work environment claims. (Doc. 29 at 18).
Accordingly, the City’s motion for summary judgment is MOOT as to the nonexistent retaliation
and hostile work environment claims, and the undersigned need not and does not address the
City’s arguments regarding those claims.
(quoting Anderson, 477 U.S. at 249). The court must “examine the evidence in the
light most favorable to the non-moving party,” drawing all inferences in favor of
such party. Earl v. Mervyns, Inc., 207 F.3d 1361, 1365 (11th Cir. 2000). Any
factual disputes will be resolved in the non-moving party’s favor when sufficient
competent evidence supports that party’s version of the disputed facts. See Pace v.
Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to
resolve disputes in the non-moving party’s favor when that party’s version of the
events is supported by insufficient evidence.). However, “mere conclusions and
unsupported factual allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per
curiam) (citation omitted).
RELEVANT FACTUAL BACKGROUND3
Jones’s Employment with the City
Jones, an African American, earned his high school diploma in 1999 and has
been employed by the City in its water and sewer department since 2001. (Doc. 23
at 10-12).4 The City has multiple departments, which are managed by different
people. (Id. at 10, 96, 102). Accordingly, the people who make hiring decisions
for one department in the City are not necessarily the same people who make
Consistent with the summary judgment standard, to the extent any factual inferences are
drawn, they are drawn in favor of Jones, the non-movant.
All citations to the record refer to document and page numbers as assigned by the
court’s electronic filing system.
hiring decisions in another department. (See id. at 96, 102). Job openings with the
City are posted online, and an interested individual must submit an application to
be considered for a position in any of the City’s departments. (Id. at 28-29, 90,
96). As to be expected, submitting an application for a position does not guarantee
an interview. (Id. at 90, 102).
Jones applied for an entry level crew worker position in the City’s water and
sewer department on March 16, 2001. (Id. at 9-10, 96). Jones interviewed for the
position with Sedell Bullard, from the City’s human resources department, and
Ron Smith, who would be his initial supervisor, and the City hired Jones on May
21, 2001. (Id. at 9, 11). As a crew worker, Jones worked on a vacuum truck to
clean and unclog sewer lines, and he also cleared right of ways, repaired trucks,
and cut grass. (Id. at 11).
On August 9, 2002, Jones received an oral warning from the City for
neglecting his duties by being in a location during working hours where he was not
supposed to be. (See id. at 12, 62). This is the only discipline Jones has received
during his employment with the City. (Id. at 12).
In 2003, Jones applied for a water/wastewater maintenance assistant position
in the water and sewer department. (Id. at 12). Smith interviewed Jones, and the
City hired Jones for the position, effective June 14, 2003.5 (Id. at 12). As a
maintenance assistant, Jones works with and assists lift station maintenance
technicians, or operators, in the water and sewer department. (Id. at 15). The
maintenance assistant position was a promotion for Jones, and he has remained in
the maintenance assistant position since 2003. (See id. at 97; Doc. 29-1 at ¶ 3).
Sometime in 2003 or 2004, Stacey King, a Caucasian maintenance
technician in the water and sewer department, told Jones, “you can’t wipe that
black off you,” while Jones was washing his hands. (Doc. 23 at 14; Doc. 29-1 at
¶ 12). Jones responded by telling King he is “proud of [his] color and would not
change it for anything,” and King then “looked with silence and started turning
back to a [Caucasian] worker.” (Doc. 23 at 14). A few months after that incident,
Jones heard King refer to an African-American maintenance operator as a monkey
after King had a disagreement with the operator. (Id. at 16; Doc. 29-1 at ¶¶ 20-21).
King became Jones’s supervisor in the water and sewer department at some
time after King made the offensive racial comments to Jones, though the record
does not identify when that change occurred.6 (See doc. 23 at 15; 29-1 at ¶ 9).
Before Jones received the promotion, the City initially offered the maintenance assistant
position to a Caucasian employee who turned the position down. (Id. at 13). The City asserts
the Caucasian employee had a better disciplinary record than Jones, while Jones asserts he had
more experience than the Caucasian employee. (Id. at 13, 97).
Jones asserts “King was hired over [Essex Taylor, an African-American employee,
hired before King] for the supervisor position.” (Doc. 29-1 at ¶¶ 18-19).
Jones testified that King showed favoritism to Caucasian employees in the water
and sewer department. (Doc. 30 at 4).
Jones’s Applications for Promotions with the City
Since 2006, and as detailed below, Jones has applied for nine promotions
with the City, including three promotions he applied for within the water and sewer
department.7 Jones did not receive any of these promotions, and each of the
positions was filled by a Caucasian applicant. (See Doc. 29-1 at ¶¶ 3-4).
On October 25, 2006, Jones applied for a lift station maintenance technician
position, which is also known as a maintenance operator position, in the water and
sewer department. (Doc. 23 at 18). Jones interviewed for the position with Smith,
but the City did not offer him the job. (Id. at 18, 20). Instead, the position went to
Gary Honeycutt, a Caucasian employee. (Id.; See also Doc. 29-1at ¶ 4). Smith
later told Jones he was the second choice and “was next in line for this position.”
(See Doc 23 at 18). Honeycutt had twenty-two years of experience in commercial
maintenance and an industrial electrical degree when the City offered him the job.
(Id. at 19, 97). Jones, however, had more “hand-on experience” than Honeycutt
and had to show Honeycutt “a lot of tricks of the trade” after he was hired. (Id.).
Although Jones’s discriminatory failure to promote claim is limited to promotion
decisions made on or after December 4, 2009, see Doc. 29 at 13 n.1, all of the promotions Jones
has applied for with the City are addressed in this Memorandum Opinion’s factual background
section in order to give context to Jones’s claim.
Jones applied for another promotion in May 2007 when he submitted an
application for a grease trap inspector position with the water and sewer
department. (Id. at 22). The duties of that position include inspecting grease traps,
certifying grease traps, issuing citations, and communicating findings. (Id.). Jones
had some experience with grease traps because he would “help out” when the
department needed someone to help another employee who worked with grease
traps. (Id. at 23). As before, Jones interviewed for the position with Smith but did
not get the promotion.
(Id. at 22-23).
The position went instead to Phillip
Burroughs, a Caucasian employee. (Id.; Doc. 29-1 at ¶ 23). Burroughs had been
working with the City on a lift station maintenance crew longer than Jones had
when the City offered the grease trap inspector position to Burroughs. (Doc. 23 at
23). Additionally, Jimmy Junkin, the head of the water and sewer department,
asserts Burroughs had a better disciplinary record than Jones and possessed an
ADEM Grade II Wastewater Operation Certificate.8, 9 (Id. at 97).
Jones did not apply for another promotion until July 2011, when he applied
for a facilities maintenance technician position in the City’s facilities maintenance
ADEM stands for Alabama Department of Environmental Management. Jones asserts
Burroughs did not get his ADEM certificate until after he was offered the grease trap inspector
position. (Doc. 23 at 23).
In his opposition to the City’s motion for summary judgment, Jones notes he needs
additional discovery in response to many of the City’s statements of fact regarding the other
candidates’ qualifications and disciplinary records. (Doc. 29 at 4-7). Jones, however, has not
filed a Rule 56(d) affidavit or declaration showing why he cannot present facts necessary to
justify his opposition. See Fed. R. Civ. P. 56(d).
(Doc. 23 at 28).
The position’s duties include repairing air
conditioning and heating equipment, including ducts and exhausts, and repairing
coolers and refrigerators. (Id.). According to the job posting for the position, the
City preferred applicants with vocational or technical training in industrial
commercial heating, ventilation, and air conditioning system maintenance. (Id. at
29). Jones was taking classes at Shelton State Community College for a certificate
in air conditioning and refrigeration in July 2011, but he did not yet have the
certificate when he applied for the position. (Id.). Jones interviewed for the
position but, once again, did not get the promotion. (Id.). Instead, the position
went to Danny Lynn. (Id.). Cliff Penick, the director and department head of the
facilities maintenance department, asserts Lynn was selected because he had a
better disciplinary record than Jones and possessed an air conditioner license. (Id.
at 90-91). Jones is not aware of Lynn’s qualifications for the position, or how they
may compare to his own. (Id. at 29).
Jones sustained an injury to his Achilles tendon while playing basketball on
November 4, 2011, and his injury required surgery. (Doc. 30 at 5). Jones was on
leave from work for about seven months to recover from his injury, and he
returned to work in April 2012. (Id.). While Jones was out on leave in 2012, the
City had two openings for the water/wastewater maintenance technician position in
the water and sewer department. (See Doc. 23 at 30). The job openings were
posted online, but Jones did not submit an application for the positions. (Id.). The
technician positions went to Donnie Smitherman and Robert Kinder, two
Caucasian employees, in May 2012. (Id.). Junkin, the head of the water and sewer
department, asserts Smitherman and Kinder were “more qualified” than Jones for
the position. (Id. at 98).
Jones could have applied for the technician positions when they were posted
but chose not to because he wanted to seek employment in other departments. (Id.
at 30). Jones decided to look for opportunities outside of the water and sewer
department because of the way he had been treated in the department, including
being passed over for two other promotions he had applied for in 2006 and 2007.
(Id.). Additionally, when Jones was preparing to apply for a different position,
King told him he did not need to apply because he wouldn’t get the position. 10 (Id.
at 30-31; Doc. 29-1 at ¶¶ 9-10).
King also told Smitherman, a Caucasian
maintenance operator, “they wouldn’t hire [African Americans] in this department,
because if [they] hired [African Americans] and they didn’t work out, they would
be stuck with them.” (Doc. 23 at 21, 31; Doc. 29-1 at ¶15). King made that
comment “in relation to Archie Wilson, an African American employee in another
department, who applied for a lift station operator position….” (Doc. 29-1 at ¶15).
The record is unclear regarding when King made this statement and what position
Jones was preparing to apply for when the statement was made.
After he returned to work in 2012, Jones submitted an application for a
SSO/FOG11 technical investigator position in the water and sewer department.
(Doc. 23 at 31). The responsibilities for that position include inspecting grease
traps, ensuring city codes are complied with, reporting sewer overflows to ADEM,
and conducting educational meetings. (Id.). The position also required using
certain computer programs called Lucidity and GIS that Jones was not familiar
with. (See id. at 36). Smith interviewed Jones for the position, but Jones was not
selected. (Id. at 36). Rather, the City hired Craig Thorpe, a Caucasian senior
equipment operator, for the SSO/FOG position. (Id. at 34). Junkin, the head of the
water and sewer department, asserts Thorpe had a better disciplinary record than
Jones and was more experienced with the computer software used by the
SSO/FOG technical inspector. (Id. at 98).
The next promotion Jones applied for was in October 2012 for a mechanical
and gas inspector position in the City’s planning and development services
department. (Id. at 37). Among the responsibilities of that position are reviewing
building plans, inspecting mechanical and gas installations to ensure compliance
with all codes, and addressing erosion and safety issues at construction sites. (Id.
at 37, 65). The City’s preferred qualifications for the position are “[p]ossession of
SSO/FOG stands for sanitary sewer overflow/fats, oil, and grease. (Doc. 23 at 32).
HVAC12 Card and/or Gas Journeyman Card.”
(Id. at 65).
Jones had some
experience working on house remodeling as a side job, and he had also earned an
HVAC certificate from Shelton State Community College in September 2011,
along with an HVAC Technician Certification EPA Clean Air Section 608 in June
2012. (Id. at 76).
Jones was interviewed for the mechanical and gas inspector position. (See
id. at 39). The person who interviewed Jones asked him why he didn’t apply for
the job when it was first posted13 and told Jones, “we [have] been looking for a guy
like you.” (Id.). After Jones’s interview, the interviewer talked to King, though
Jones does not know what King may have said about him. (Id. at 39-40). The City
did not select Jones for the mechanical and gas inspector position; instead, the City
hired Daniel Rice, who is Caucasian, for the position on November 5, 2012. (Id. at
38, 42, 70). Alan Boswell, the Chief Building Official within the planning and
development services department, asserts Rice was selected over Jones because
Rice had a better disciplinary record, a college degree, and a journeyman gas card,
and he had experience working with the gas company for several years. (Id. at 6869, 102).
HVAC stands for heating, ventilation, and air conditioning.
Jones was out on leave when the position was initially posted. (See Doc. 23 at 39).
Jones applied for the job after he returned from leave and it was reposted. (See id.).
In June 2013, Jones applied for two facilities maintenance supervisor
positions in the facilities maintenance department: an electrical supervisor and an
HVAC supervisor. (Doc. 23 at 50). The “positions involved pricing and bidding
jobs, and construction coordination of electrical and HVAC projects.” (Id. at 91).
The City received twenty-seven applications for the positions, including Jones’s,
and Jones was not selected for an interview. (Id. at 50-51). Penick, the director of
the facilities maintenance department, asserts Jones was less qualified than the six
applicants who were interviewed.
(Id. at 91).
James Floyd Rice and Lloyd
Hopkins were hired for the positions. (Id. at 51). Rice had experience as a
certified master plumber, gas fitter, and lead supervisor, and Hopkins had
experience as a lead electrician and foreman. (Id. at 91).
Jones next applied for a promotion in late 2013 when he submitted an
application for a building inspector position in the City’s planning and
development services department. (Id. at 52, 103). The position required five
years of experience in the building trades. (Id. at 103). Jones had “worked on the
side” doing home remodeling, but he did not have five years of experience in the
building trades and admitted he did not know “a whole lot” about building codes.
(Id. at 52-53).
The City received eighty-six applications for the position and did
not select Jones for an interview. (Id. at 103). The City hired Kenneth Pritchett for
the position on February 5, 2014.
(Id. at 52-54, 103).
Pritchett had more
experience in residential construction than Jones did, and he had worked as a
maintenance technician for the City since 1994. (Id. at 79, 103).
Jones also applied for a plumbing and gas inspector position in early 2014 in
the planning and development department. (Doc. 23 at 55). Once again, Jones
was not interviewed for the position. (Id. at 56, 103). Boswell, the City’s Chief
Building Official, asserts Jones was less qualified than the applicants who were
interviewed. (Id. at 103-04). In March 2014, the City hired Dale Hall for the
position. (Id. at 104). Hall had twenty-five years of experience as a plumber, a
master plumber’s license, a master gas fitter’s license, and a medical gas license.
(Id. at 84, 104).
Finally, Jones applied for another promotion in March 2014 when he
submitted an application for a facilities maintenance technician position in the
City’s facilities maintenance department. (Id. at 57). The City received twentynine applications for the position and did not grant Jones an interview for the
opening. (Id. at 57). Jones does not know the qualifications of the people who
interviewed for the position. (Id.). The City hired Brandon Cain for the position
on March 27, 2014. (Id. at 58-59, 92). Cain is a “college graduate, journeyman
electrician,  a master mechanic, and possessed an air conditioner repairman’s
card.” (Id. at 92).
Jones’s Grievance and EEOC Charge
Jones filed a grievance with the City on March 18, 2013, which he submitted
to Sedell Bullard, an African American in the City’s human resources department.
(Doc. 23 at 42, 71). Jones’s grievance described several different issues, including
his assignments to work with a maintenance operator who was “on drugs” and an
assignment to “be trained and learn all the duties of a secretary” at the wastewater
treatment plant. (Id. at 44-45, 71). Because Jones wanted to focus only on those
issues, his grievance did not mention any of the denial of promotions Jones had
applied for. (Id. at 43).
Jones then filed an EEOC Charge against the City on April 8, 2013,
asserting he had applied for several jobs he was qualified for, and “[o]ther
Caucasian applicants have been hired ahead of [him]” even though Jones
“qualified ahead of these applicants through training and seniority.” (Id. at 73).
The EEOC closed its file on Jones’s charge and issued a right to sue letter on
September 5, 2013. (Id. at 74). This action followed.
Jones alleges the City discriminated against him in violation of Title VII and
§ 1981 when it did not promote him because of his race.14 (Doc. 1; Doc. 4). Jones
Title VII and § 1981 “have the same requirements of proof and use the same analytical
framework….” Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998).
Therefore, the court considers Jones’s discriminatory failure to promote claim as a single claim.
bears the ultimate burden of proving his claim of discrimination. See, e.g., Brooks
v. Cnty. Comm’n of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006)
(“”[T]he ultimate burden of persuading the trier of fact that the employer
intentionally discriminated against the employee remains at all times with the
plaintiff.”) (citation omitted); Walker v. Nations Bank of Florida N.A., 53 F.3d
1548, 1555 (11th Cir. 1995). Jones may prove his claim with either direct or
Direct Evidence of Discrimination
“Direct evidence is evidence that establishes the existence of discriminatory
intent behind the employment decision without any inference or presumption.”
Standard, 161 F.3d at 1330 (citation omitted); see also Scott v. Suncoast Beverage
Sales, Ltd., 295 F.3d 1223, 1227 (11th Cir. 2002) (“‘[O]nly the most blatant
remarks, whose intent could be nothing other than to discriminate on the [protected
classification]’ are direct evidence of discrimination.”) (citation omitted).
Accordingly, “remarks by non-decisionmakers or remarks unrelated to the
decisionmaking process itself are not direct evidence of discrimination.” Standard,
161 F.3d at 1330 (citation omitted).
Jones asserts he “make[s] direct allegations of racial discrimination against
King” based on King’s racial comments to Jones. (Doc. 29-1 at ¶ 12; See also
Doc. 29 at 12). Before he became Jones’s supervisor, King said to Jones, “[you]
can’t wipe the black off you,” and he referred to another African-American
employee as a monkey. (Id. at ¶¶ 12, 21). Moreover, at some time while King was
Jones’s supervisor, King told Jones “[t]here was no point in applying for [a] job
because [King] would not get it.” (Id. at ¶ 9). King also told a white employee,
“[t]hey will not hire blacks in [the water and sewer] department, because if he
hired blacks and they did not work out he would be stuck [with] them.” (Id. at 15).
While these comments are offensive and concerning, they do not constitute direct
evidence of discrimination. First, there is no evidence King, who was a
maintenance operator and then a supervisor in the water and sewer department,
was a decisionmaker regarding any of the promotions Jones applied for. Also,
there is no evidence King’s remarks were made in relation to any of the
promotions at issue in this matter. Indeed, the Rule 56 record does not reveal when
King told Jones there was no point in applying for a job, or what job King may
have been referring to.
The McDonnell Douglas Burden-Shifting Framework
With no direct evidence of discrimination, Jones must rely on circumstantial
evidence to establish his claim, employing the burden-shifting framework
established by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This
requires a plaintiff to first establish a prima facie case of discrimination by
showing “(1) he is a member of a protected class; (2) he was qualified and applied
for the promotion; (3) he was rejected despite his qualifications; and (4) the
position was filled by an individual outside the protected class.”
Alabama Bd. of Pardons & Paroles, 591 Fed. Appx. 737, 742 (11th Cir. 2014)
(citing Walker v. Mortham, 158 F.3d 1177, 1186, 1193 (11th Cir. 1998)). If the
plaintiff establishes a prima facie case, the burden shifts to the employer “to
articulate a legitimate, non-discriminatory reason for the promotion decision.” Id.
(citing Kidd. v. Mando Am. Corp., 731 F.3d 1196, 1205 (11th Cir. 2013)). Because
the employer must only produce, not prove, a non-discriminatory reason for its
action, the employer’s burden is “exceedingly light.” Nations Bank, 53 F.3d at
1556. Once the employer meets its burden of production, the burden shifts back to
the plaintiff to show the employer’s proffered reason is just pretext for
discrimination. Holmes, 591 Fed. Appx. at 742 (citing Springer v. Convergys
Customer Mgmt. Group, Inc., 509 F.3d 1344, 1347 (11th Cir. 2007)).
The City’s reasons for its decisions regarding the promotions
Here, the City does not argue Jones cannot establish a prima facie case of
discrimination.15 (See Doc. 22 at 13-14). Rather, the City argues it had legitimate,
In its reply brief the City asserts Jones failed to establish a prima facie case with
respect to several of the promotions he applied for because he did not have the minimum
requirements for those positions. (Doc. 31 at 4). However, because the City raised this
argument for the first time in its reply brief, it will not be considered by the court. See Herring v.
Secretary, Dept. of Corrections, 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have
admonished, arguments raised for the first time in a reply brief are not properly before a
reviewing court.”) (citations and internal quotations omitted); Pennsylvania Nat. Mut. Cas. Ins.
nondiscriminatory reasons for selecting other candidates for the promotions instead
of Jones, and it points to the other candidates’ qualifications, such as professional
experience and education, and the candidates’ disciplinary records, to justify its
decisions regarding the promotions. (Id. at 14). Jones’s failure to promote claim
involves eight different promotions he was denied since December 4, 2009.16 The
City produced evidence of the following reasons to justify each of its decision
regarding those promotions:
(1) July 2011: the candidate selected over Jones for the facilities
maintenance technician position had a better disciplinary record
than Jones and possessed an air conditioner license, which Jones
did not have;
(2) May 2012: the two candidates selected for the maintenance
technicians were “more qualified than [Jones];” 17
Co. v. J.F. Morgan Gen. Contractors, Inc., 79 F.Supp.3d 1245, 1256 (N.D. Ala. 2015) (declining
to consider an argument raised for the first time in a party’s reply brief) (citations omitted).
Jones asserts a four-year statute of limitations applies to his failure to promote claim.
(Doc. 29 at 13, n.1). A federal four-year statute of limitations applies to federal statutes enacted
after December 1, 1990, except as otherwise provided by law. 28 U.S.C. § 1658. Accordingly,
the four-year statute of limitations will apply to Jones’s failure to promote claim under § 1981 if
the claim was made possible by the 1991 revisions to the Civil Rights Act, otherwise a two-year
statute of limitations will apply. Edwards v. Nat’l Vision, Inc., 946 F.Supp. 2d 1153, 1170 (N.D.
Ala. 2013) (citations omitted). “Before the enactment of the 1991 Civil Rights Act, a failure to
promote claim could be brought under § 1981 if the promotion rose to the level of an
‘opportunity for a new and distinct relation between the employee and the employer.’” Id.
(quoting Patterson v. McLean Credit Union, 491 U.S. 164, 185 (1989)). There is nothing in the
Rule 56 record on this point, and the City does not challenge the application of a four-year
statute of limitations. (Doc. 31 at 3). Accordingly, the court will consider each of the promotion
decisions made during the four-year period before Jones filed his complaint.
Although Jones did not apply for the maintenance technician positions in 2012, King
had previously told Jones there was no point for him to apply for a job in the water and sewer
department because he would not get the position. (Doc. 29-1 at ¶ 9). Thus, at this stage in the
case, the court will consider the City’s decision regarding the selection of candidates for these
(3) May 2012: the candidate selected over Jones for the SSO/FOG
technical inspector position had a better disciplinary record than
Jones and was more experienced with the computer software used
in the position;
(4) October 2012: the candidate selected over Jones for the
mechanical and gas inspector position had a college degree and a
journeyman gas card, which Jones did not have;
(5) June 2013: the candidates selected over Jones for the facilities
maintenance supervisor positions had experience as a certified
master plumber, gas fitter, and lead supervisor, and as a lead
electrician and foreman;
(6) February 2014: the candidate selected over Jones for the building
inspector position had more experience in residential construction
(7) March 2014: the candidate selected over Jones for the plumbing
and gas inspector position had twenty-five years of experience as
a plumber, a master plumber’s license, a master’s gas fitter’s
license, and a medical gas license; and
(8) March 2014: the candidate selected over Jones for the facilities
maintenance technician position had a college degree, a
journeyman electrician card, an air conditioner repairman’s card,
and was a master mechanic.
(Doc. 22 at 5-12; Doc. 23 at 84, 91, 92, 98, 102, 104).
Each of the above reasons for the City’s decisions to select another
candidate instead of Jones is a legitimate, non-discriminatory reason for the City’s
Although the City’s assertion the two candidates selected for the
maintenance technician positions in 2012 were “more qualified” than Jones is
vague and conclusory, the City’s burden is “exceedingly light,” and Jones has not
positions in May 2012. See Int’l Brotherhood of Teamsters v. United States, 324, 365-67 (1977)
(finding the failure to submit a futile application does not bar relief under Title VII).
pointed to any authority to support his assertion the City’s articulated reasons are
insufficient. See Nations Bank, 53 F.3d at 1556; (see also Doc. 29 at 4, 13, 15).
Thus, the City satisfied its “exceedingly light” burden of production, and the
burden shifts to Jones to show the City’s proffered reasons for its promotion
decisions are pretext for its actual, discriminatory reasons.
Pretext for discrimination
To prove pretext, Jones “must meet the [City’s proffered reasons] ‘head on
and rebut [them]’” by showing “both that the reason[s] [were] false and that
discrimination was the real reason” for the City’s promotion decisions. Holmes,
591 Fed. Appx. at 743 (quoting Chapman v. A1 Transport, 229 F.3d 1012, 1030
(11th Cir. 2000); citing Brooks, 446 F.3d at 1163). Jones may accomplish that by
showing “‘such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence.’” Rioux v. City of
Atlanta, Ga., 520 F.3d, 1269, 1275 (11th Cir. 2008) (quoting Combs v. Plantation
Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)).
Additionally, “[Jones] may not establish that [the City’s] proffered reason is
pretextual merely by questioning the wisdom of the employer’s reasons, at least
not where the reason is one that might motivate a reasonable employer.” Brooks,
446 F.3d at 1163 (quotation and internal alteration omitted). In the context of his
failure to promote claim, Jones “must show that the disparities between the
successful applicant’s and [his] own qualifications were ‘of such weight and
significance that no reasonable person, in the exercise of impartial judgement,
could have chosen the candidate selected over the plaintiff.’” Id. (quoting Cooper
v. S. Co., 390 F.3d 695, 732 (11th Cir. 2004)).
With respect to the City’s proffered reasons for three of the promotions—
Jones’s July 2011 application for facilities maintenance technician, his May 2012
application for SSO/FOG technician, and his June 2013 application for facilities
maintenance supervisory positions—Jones essentially offers no response at all.
Instead of addressing the City’s proffered reasons for those decisions head on,
Jones asserts he needs further discovery. (Doc. 29 at 4-5). Jones, however, did not
file a Rule 56(f) affidavit or seek an order to compel discovery in this case.
Additionally, Jones came forward with nothing to suggest the City’s reasons for
those promotion decisions were false or unworthy of credence. (See Doc. 23 at
29, As a result, Jones has not shown the City’s proffered reasons for those three
promotion decisions were pretext for discrimination.
Jones also offered very little in response to the City’s proffered reasons for
its selection of candidates in May 2012 for the maintenance technician positions in
the water and sewer department. In an affidavit supporting the City’s motion for
summary judgment, the head of the City’s water and sewer department attested that
the “promotions were awarded to two individuals more qualified than [Jones].”
(Doc. 23 at 98). In response to that statement, Jones simply states “the affidavit is
conclusory and does not discuss the qualifications or name the persons  promoted
in 2012.” (Doc. 29 at 4, 13). The two candidates selected for the maintenance
technician positions, Smitherman and Kinder, were named in Jones’s deposition
and in his declaration. (Doc. 23 at 31; Doc. 29-1 at 2). Jones did not introduce any
evidence regarding Smitherman’s and Kinder’s qualifications for the promotion in
May 2012, and therefore, he has not shown a question of fact regarding if the
City’s proffered reasons for the May 2012 decision regarding the maintenance
technician positions were pretext for discrimination.
Next, in response to the City’s reason for selecting Daniel Rice for the
position of mechanical and gas inspector in the City’s planning and development
services department, Jones states he “had a HVAC certificate and was informed
that the City was looking for someone like him for the position.” (Doc. 29 at 5).
His statements, however, do nothing to show the City’s proffered reasons for
choosing Rice over Jones, including Rice’s better disciplinary record, college
degree, journeyman gas card, and experience working for the gas company, are
unworthy of credence. (See Doc. 22 at 7-8). Additionally, Jones has not shown he
is more qualified than, or equally qualified as, Rice, nor has he shown a disparity
in qualifications so significant “that no reasonable person, in the exercise of
impartial judgment, could have chosen [Rice] over [Jones].” Brooks, 446 F.3d at
1163 (quotation omitted).
The City asserts it selected Pritchett over Jones for the building inspector
position in February 2014 because Pritchett “had significantly more experience in
residential construction than [Jones].” (Doc. 22 at 10). In response, Jones asserts
he “did residential remodeling” and Pritchett’s application reflects that prior to
being selected for [the position], he was a maintenance technician for [the City]”
and “[Pritchett’s] residential construction experience appears to be limited to
[framing] houses for five years in the 1980’s.” (Doc. 29 at 6). Once again, Jones
did not meet the City’s proffered reason for selecting Pritchett head on and come
forward with facts to suggest the reason is unworthy of credence. Although Jones
did some residential remodeling on the side, he admitted he had no experience
working on new home construction and did not have five years of experience in the
building trade. (Doc. 23 at 53). Although Pritchett’s experience in residential
home construction may be dated, that alone does not show Pritchett’s prior
experience would not motivate a reasonable employer or that no reasonable person
could have chosen Pritchett over Jones. See Brooks, 446 F.3d at 1163.
In March 2014, the City selected Dale Hall for a plumbing and gas inspector
position Jones had also applied for, and the City produced evidence Hall had
twenty-five years of experience as a plumber and a master plumber and gas fitter
license as reasons for selecting Hall over Jones. (See Doc. 23 at 84, 104). In
response, Jones notes that Hall has only a high school degree and that the affidavit
from Alan Boswell, the City’s Chief Building Official, “reflects that Jones lacked
commercial and residential construction experience” while Hall’s “resume reflects
plumbing experience.” (Doc. 29 at 7). First, there is no evidence more than a high
school degree was a requirement for the plumbing and gas inspector position.
Second, although Boswell’s statement regarding Jones’s deficient experience in
commercial and residential construction appears to be inconsistent with Hall’s lack
of commercial and residential construction experience, Boswell also describes
Hall’s experience as a plumber as a reason for selecting Hall. (Doc. 23 at 104).
Moreover, the apparent inconsistency in Boswell’s affidavit is not enough to show
the City’s proffered reason for selecting Hall is pretext for discrimination. Indeed,
there is nothing to suggest a reasonable employer would not have selected Hall
over Jones based on Hall’s plumbing experience and license, and Jones did not
come forward with any evidence or argument to show no reasonable person could
have chosen Hall over Jones. See Brooks, 446 F.3d at 1163.
Finally, in response to the City’s proffered reasons for selecting Brandon
Cain for the facilities maintenance technician position in March 2014—Cain’s
college degree, air conditioner repairman’s card, and his experience as a
journeyman electrician and master mechanic, Jones simply disputes that a college
degree was a requirement for the position.18 (Doc. 29 at 7). Jones’s arguments do
not show the City’s proffered reasons for selecting Cain are pretext for
discrimination because a reasonable employer may view a college degree as a
positive attribute even if a college degree is not a requirement for the position.
Additionally, Jones’s argument does not address, much less meet head on, the
other reasons the City produced to support its decision to select Cain rather than
Jones for the position. Accordingly, Jones has not shown that no reasonable
employer could have selected Cain over Jones for the facilities maintenance
technician position. See Brooks, 446 F.3d at 1163.
Without evidence to show there is a question of fact regarding if the City’s
proffered reasons for its promotion decisions were pretext for discrimination, Jones
appears to rely upon an alleged pattern of discrimination to show pretext. (See
Doc. 29 at 5-6, 8-9). Jones argues he “observed a pattern [in the City] of failing to
promote African-Americans,” (Id. at 5), but the only specific evidence in the Rule
56 regarding the City’s promotion decisions relates to the promotions involving
Jones. Jones asserts “not a single African-American was promoted while King was
supervisor of the Lift station” in the water and sewer department and that “King
Jones also asserts “[t]he selectees for other positions, including Pritchett, … listed no
college degree on [their] application[s]. When Jones applies for [a] maintenance tech[nician],
the lack of a college degree is one of the deciding factors.” (Doc. 29 at 7). However, there is no
evidence regarding the other applicants for the positions, including the position Pritchett
received. Thus, there is nothing to suggest it was inconsistent for the City to use the possession
of a college degree in its decision it hire Cain, rather than Jones, for the facilities maintenance
was hired over Taylor, [an African-American employee with more experience] for
the supervisor position” in the water and sewer department. (Doc. 29-1 at 3).
Jones did not, however, introduce any evidence regarding how many African
Americans applied for promotions within the City or the water and sewer
department, what the qualifications of those applicants were, and who was selected
for those promotions. Moreover, Jones did not even attempt to introduce any
statistical analysis regarding African Americans who applied for promotions in the
City. Thus, Jones cannot rely on the alleged pattern of discrimination to show the
City’s proffered reasons for its promotion decisions were pretext for its actual
discriminatory reasons. See Jefferson v. Burger King Corp., 505 Fed. Appx. 830,
833 (11th Cir. 2013) (“A plaintiff may establish a prima facie case of racial
discrimination by presenting statistical proof of a pattern of discrimination…, [but]
[s]tatistics without an analytical foundation  are ‘virtually meaningless.’”)
(quoting Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089 (11th Cir. 2004))
(internal citation omitted).
After a careful review of the Rule 56 record, the court concludes Jones failed
to demonstrate any of the City’s proffered reasons for selecting other candidates
were pretext for discrimination.
Based on the foregoing, the City’s motion for summary judgment (Doc. 21)
will be granted, and Jones’s claim against the City of Tuscaloosa will be dismissed
with prejudice. A separate order will be entered.
DONE this 4th day of March, 2016.
STACI G. CORNELIUS
U.S. MAGISTRATE JUDGE
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