Thompson v. Bishop State Community College et al

Filing 46

ORDER granting 25 Motion for Summary Judgment in favor of Defendants on all claims, and this case is dismissed with prejudice. Signed by Judge Kristi K. DuBose on 4/15/2011. copies to parties. (sdb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
Dr. William Thompson,

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Plaintiff,
v.
Bishop State Community College, et al.,
Defendants.

CIVIL ACTION NO. 1:10-246-KD-B

ORDER
This matter is before the Court on Defendants’ “Motion for Summary Judgment” and
supporting documents (Docs. 25-27) and Plaintiff’s Response and supporting documents (Docs.
42-43, 44-1). For the reasons set forth herein, the Court finds that Defendants’ motion for
summary judgment is due to be GRANTED.
I.

Background
On May 11, 2010, Plaintiff Dr. William Thompson (“Plaintiff”) initiated this action for

alleged racially discriminatory treatment in his failure to receive a promotion, in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., and 42 U.S.C.
§ 1981, against Defendants Bishop State Community College, the Alabama Department of PostSecondary Education, and the State of Alabama (“Defendants”). (Doc. 1). Plaintiff had timely
filed a Charge of Discrimination with the Equal Employment Opportunity Commission, received
a “Right to Sue” letter, and filed his complaint within 90 days of receiving the letter. (Id. at 1-2).
Defendants have moved for summary judgment as to all claims. (Doc. 25).
II.

Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R.
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Civ. P. 56(a) (Dec. 2010). The recently amended Rule 56(c) governs procedures and provides as
follows:
(1) Supporting Factual Positions. A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory
answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support
the fact.
(2) Objection That a Fact Is Not Supported by Admissible Evidence. 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.
(3) Materials Not Cited. The court need consider only the cited materials, but it may
consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a
motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters
stated.
Fed. R. Civ. P. 56(c) (Dec. 2010).
Defendants, as the parties seeking summary judgment, bear the initial responsibility of
informing the district court of the basis for their motion, and identifying those portions of the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which they believe demonstrate the absence of a genuine issue of material fact.
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the nonmoving party fails to make a sufficient showing on
an essential element of his case with respect to which he has the burden of proof, the moving
parties are entitled to summary judgment. Celotex, 477 U.S. at 323. In reviewing whether the

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nonmoving party has met his burden, the court must stop short of weighing the evidence and
making credibility determinations of the truth of the matter. Instead, the evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor. Tipton v.
Bergrohr GMBH-Siegen, 965 F.2d 994, 998-999 (11th Cir. 1992), cert. denied, 507 U.S. 911
(1993) (internal citations and quotations omitted). The mere existence of a factual dispute will
not automatically necessitate denial; rather, only factual disputes that are material preclude entry
of summary judgment. Lofton v. Sec’y of Dep’t of Children & Family Servs., 358 F.3d 804, 809
(11th Cir. 2004), cert. denied, 534 U.S. 1081 (2005).
III.

Facts1
Bishop State Community College (“Bishop State”), located in Mobile, Alabama, is a

member of the Alabama College System, the state-supported network of two-year community,
junior, and technical colleges serving residents of Alabama. Presently, it hosts approximately
3,800 students and employs approximately 370 people. Its current president, Dr. James Lowe
(“Lowe”), joined the college as its Interim President in July 2007 and was appointed President of
the College in May 2008.
Bishop State was experiencing a number of problems at the time Lowe became its
Interim President. First, the college had been placed on probation by its accrediting agency,
accreditation being necessary for its continued ability to operate. Second, the U.S. Department
of Education had placed Bishop State on heightened cash monitoring due to financial aid
improprieties, which involved over twenty college employees being subject to arrest and
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The Court has made its determination of facts by “review[ing] the record, and all its inferences,
in the light most favorable to [Plaintiff,] the nonmoving party.” Benson v. Tocco, Inc., 113 F.3d
1203, 1207 (11th Cir. 1997).

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criminal charges. Moreover, the college owes the U.S. Department of Education $2.7 million for
improper financial aid grants. In addition, since 2008, Bishop State’s allocation from the
Alabama Education Trust Fund has been cut by approximately $4 million, a 22% reduction. As
a result, Bishop State’s operations and maintenance budget has shown a deficit each year since
2008.
The Alabama Department of Postsecondary Education requires that each community
college maintain a reserve fund of at least two months of a college’s operation and maintenance
expenses. At one point in time, Bishop State’s operations bank account contained less than 10%
of this required amount. On two occasions, Lowe found it necessary to obtain loans in order to
make payroll for the college’s employees. Budgetary constraints persist at Bishop State to this
day.
Lowe’s appointment as Interim President in July 2007 was in conjunction with thenChancellor Bradley Byrne’s appointment of the Project Phoenix Team, a group comprised of
individuals from other Alabama colleges with expertise in various areas of college operations
who were charged with evaluating and assessing Bishop State’s operations and programs and
with making recommendations for solving problems. Led by Lowe, the Project Phoenix Team
remained at Bishop State for approximately a year. The members of the Project Phoenix Team
were not employees of Bishop State, held no official title at the college, and were compensated
by their respective employers rather than Bishop State.
Bishop State’s instructional operations are separated into divisions. These divisions
include those involved in traditional general education, such as humanities, social sciences, math
and science, education, business and economics; those involved in technical training; and those
involved in granting degrees or certifications in health-related professions. The Alabama

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Department of Postsecondary Education grants college presidents authority to appoint division
chairs who are charged with performing additional duties for their divisions. Division chairs
each receive a monthly stipend of $400. Chair positions at Bishop State are at-will assignments.
Among other required qualifications, a candidate for division chair must have a Master’s degree
from an accredited institution, with a minimum of eighteen graduate semester hours in a field of
study covered by the division.
When Lowe arrived at Bishop State, all divisions, with the exception of the divisions of
education and of health-related programs (“HRP division”), had serving division chairs. The
humanities and social science divisions are two of the largest divisions at Bishop State, in terms
of both number of students and number of instructors. When Lowe began at Bishop State, Dr.
Keflyn Reed was serving as chair of the division of humanities, and Dr. Alalazu Ugoji was
serving as chair of the division of social sciences. Dr. Ugoji resigned following the summer
semester of 2008, and Dr. Reed was appointed Interim Associate Academic Dean in the spring of
2009, leaving both chair positions vacant. After consulting with the outgoing chairs and various
instructors of both divisions, Lowe chose to appoint Diana McNeil as interim chair of the
humanities division and Malvareen Harris as interim chair of the social sciences division. Both
candidates are African-American, and both met the required education qualifications for division
chair. Currently, only one of Bishop State’s division chairs is a white person.
Plaintiff, a white male, has been employed at Bishop State since 1988 and serves in the
Funeral Services Education program as its director and instructor. Funeral Services Education is
one of five programs comprising the college’s HRP division. Plaintiff holds a Bachelor of
Science degree in psychology and a master’s degree in counseling and human development from
Troy State University, and a doctor of education degree in curriculum and instruction from the

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University of West Florida. Beginning in the fall of 2007, Plaintiff made multiple requests to
Lowe to be appointed chair of the HRP division. Though this position had been filled from time
to time in the past, Plaintiff was informed that Bishop State was not looking to appoint, nor was
it searching for, anyone to fill the position when Plaintiff made his requests. The position
remains unfilled.
IV.

Analysis
Plaintiff has alleged discriminatory failure to promote under both Title VII and 42 U.S.C.

§ 1981. (Doc. 1). “A claim under 42 U.S.C. § 1981 requires intentional race discrimination[;]”
therefore, the test to determine the validity of such a claim is “‘the same as the formulation used
in Title VII discriminatory treatment cases.’” Greer v. Birmingham Beverage Co., 291 Fed.
Appx. 943, 945 (11th Cir. 2008) (quoting Brown v. Am. Honda Motor Co., Inc., 939 F.2d 946,
949 (11th Cir. 1991)).
A plaintiff may prove a claim of intentional discrimination through direct evidence,
circumstantial evidence, or through statistical proof. See, e.g., Burke-Fowler v. Orange County,
Fla., 447 F.3d 1319, 1322-1323 (11th Cir. 2006); Earley v. Champion Int’l Corp., 907 F.2d 1077,
1081 (11th Cir. 1990). No statistical evidence has been presented in this case. Indeed, in his
motion to dismiss paragraph nine of his Complaint, Plaintiff expressly indicated that he did not
intend to conduct statistical analysis. (Doc. 34 at 1). Direct evidence of discrimination is
defined as “evidence which reflects a discriminatory or retaliatory attitude correlating to the
discrimination or retaliation complained of by the employee. Only the most blatant remarks,
whose intent could be nothing other than to discriminate . . . constitute direct evidence of
discrimination.” Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 512 F.3d 1296, 1300
(11th Cir. 2008) (internal citations and quotations omitted). Plaintiff alleges no direct evidence

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of discrimination. Therefore, Plaintiff must rely on circumstantial evidence to show
discrimination in this case.
Where a plaintiff relies on circumstantial evidence of discrimination, courts evaluate
whether summary judgment is appropriate using the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Dep’t of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981). Under the McDonnell Douglas framework, a plaintiff must show
an inference of discriminatory intent and therefore carries an initial burden of establishing a
prima facie case of discrimination. Id. at 802. Presenting a prima facie case requires that the
plaintiff establish facts adequate to permit an inference of discrimination. Holifield v. Reno, 115
F.3d 1555, 1562 (11th Cir. 1997). The successful assertion of a prima facie case then “creates a
rebuttable presumption that the employer unlawfully discriminated against” the plaintiff.
E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). The burden then
shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment
action. Id. See, e.g., Holifield, 115 F.3d at 1564. A defendant must only identify a
nondiscriminatory basis, not prove it. Coutu v. Martin Cnty. Bd. of Cnty. Comm’rs, 47 F.3d
1068, 1073 (11th Cir. 1995). In the last step of the burden-shifting analysis, if the employer
meets “its burden of production, the presumption of discrimination is rebutted, and the inquiry
‘proceeds to a new level of specificity,’ in which the plaintiff must show that the proffered
reason really is a pretext for unlawful discrimination.” Joe’s Stone Crabs, 296 F.3d at 12721273. See also Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997). On
establishing pretext, the Eleventh Circuit has held that
[a] plaintiff can satisfy her burden of showing pretext “either directly by persuading the
court that a discriminatory reason more likely motivated the employer or indirectly by
showing that the employer's proffered explanation is unworthy of credence.” Burdine,
450 U.S. at 256, 101 S. Ct. 1089. There must be sufficient evidence to allow a reasonable
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fact-finder to conclude that the employer's articulated reasons are not believable. Jackson
v. State of Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005). This can be
accomplished by pointing to “weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions” in the proffered explanation. Id. The plaintiff must
present significant and probative evidence of pretext in order to avoid summary
judgment. Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir.1996).
This court has explained that if the proffered reason was legitimate and
nondiscriminatory, then the plaintiff must “‘meet [the proffered] reason head on and
rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that
reason.’” Brooks v. County Comm'n of Jefferson County, Ala., 446 F.3d 1160, 1163
(11th Cir. 2006) (quoting Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)).
This court has further explained that “[a] reason is not pretext for discrimination ‘unless it
is shown both that the reason was false, and that discrimination was the real reason.’ ” Id.
(quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S. Ct. 2742, 125 L. Ed.
2d 407 (1993) (emphasis in original)).
Davis-Dietz v. Sears, Roebuck and Co., 284 Fed. Appx. 626, 630 (11th Cir. 2008).
As stated, Plaintiff must initially establish a prima facie case. To establish the elements
of a prima facie case of discriminatory failure to promote under McDonell Douglas, the plaintiff
must show that: 1) he is a member of a protected class under Title VII; 2) he sought and was
qualified for a position that the defendant employer was attempting to fill; 3) he was rejected by
the defendant despite his qualifications; and 4) after his rejection, the defendant either continued
to attempt to fill the position or in fact filled the position with a person outside the plaintiff’s
protected class. See Harrington v. Disney Reg'l Entm't, Inc., 276 Fed. Appx. 863, 872 (11th Cir.
2007) (citing Crawford v. W. Electric Co., Inc., 614 F.2d 1300, 1315 (5th Cir. 1980)).
The Plaintiff cannot establish a prima facie case because he is unable to establish either
the second or the fourth element. As to the second element, there is no evidence that Bishop
State is seeking or sought to fill the position. As to the fourth element, Plaintiff argues that the
recent appointments of Diana McNeil and Malvareen Harris, both African-American, as interim
chairs of their respective divisions (humanities and social sciences) satisfies his burden.
However, neither McNeil nor Harris was appointed to the position that Plaintiff seeks, i.e., chair
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of the HRP division. Moreover, Plaintiff does not claim to be qualified for either chair position
for which McNeil and Harris were appointed. Thus, McNeil and Harris are not relevant to the
inquiry. Accordingly, Plaintiff is unable to carry his burden to establish a prima facie case.
V.

Conclusion
For the reasons set forth herein, summary judgment is GRANTED in favor of

Defendants on all claims, and this case is dismissed with prejudice.
DONE and ORDERED this the 15th day of April, 2011.
/s/ Kristi K. DuBose
KRISTI K. DUBOSE
UNITED STATES DISTRICT JUDGE

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