Mosley v. Alabama Unified Judicial System

Filing 58

ORDER GRANTING Dfts' 39 Motion for Summary Judgment as to all counts as set out. Plf's 51 Motion for Leave to File Sur-Reply is GRANTED, & Plf's 52 Motion to Strike is DENIED AS MOOT. Signed by Judge Callie V. S. Granade on 5/9/2013. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
LINDA JOHNSON-MOSLEY,

)
)
Plaintiff,
)
)
v.
) Civil Action No. 12-0184-CG-N
)
)
ALABAMA UNIFIED JUDICIAL
)
SYSTEM, ADMINISTRATIVE
)
OFFICE OF COURTS, AND THE
)
JUVENILE COURT OF MOBILE
)
COUNTY, ALABAMA, HON.
)
EDMOND NAMAN AND
)
LAWRENCE BATTISTE
)
)
Defendants.
)
ORDER
This matter is before the court on the motion for summary judgment
(Doc. 40) filed by the defendants, the Alabama Administrative Office of
Courts (the “AOC”), the Juvenile Court of Mobile County, Alabama (the
“Juvenile Court”), Judge Edmond Naman (“Judge Naman”), and Lawrence
Battiste (“Battiste”) (collectively, the “defendants”). The court has reviewed
the parties’ briefs in support and opposition (Docs. 40, 44, 45, 50, 51)1 and the
matter is now ripe for resolution. For the reasons stated below, the
defendants’ motion for summary judgment is due to be GRANTED.

Plaintiff’s motion for leave to file a sur-reply, (Doc. 51), to which the
Defendants have not objected, is GRANTED. Plaintiff’s motion to strike
Defendants’ reply and to strike the accompanying Affidavit (Doc. 52) is
DENIED AS MOOT.
1

I. FACTUAL BACKGROUND
The plaintiff, Linda Johnson-Moseley (“Moseley”) is a 60-year-old
African-American female who has been employed by the Juvenile Court as a
Juvenile Probation Officer for over 37 years. Doc. 24 at 3. She has over 40
years of experience in the fields of psychology and counseling and holds a
B.A. degree in Psychology, an M.A. degree in Counseling and Guidance, and
an Ed.D. in Counseling and Counseling Psychology. Doc. 45 at 1-2, 7.
During her tenure with the Juvenile Court, Mosley performed a
variety of supervisory roles and received several noteworthy appointments
and awards. Doc. 45-1 at 1-4. She served on the Governor’s Advisory Council
on Juvenile Justice and the Children’s Policy Council. Id. at 4. In 2002 she
was recognized as the Probation Supervisor of the Year and was named
Employee of the Year for Region III of the State of Alabama in 1993. Id.
More recently, she was selected to participate in Leadership Mobile for the
Class of 2010. Id.
Throughout her career, Mosley received “Excellent” and “Outstanding”
ratings on her performance evaluations. Id. at 5. On her most recent
evaluation, performed on October 6, 2009, Larry Harris, the outgoing Chief
Juvenile Probation Officer (“CJPO”), rated Mosley “outstanding” (35 out of
35). Id. at 7.
Mosley alleges the “atmosphere” at the Juvenile Court changed in
early 2009, after she complained to Judge Naman about racially insensitive

2

remarks directed toward her by a white supervisor, Pat Cannedy, at a
conference in February 2009. Id. at 5. In a written complaint addressed to
Judge Naman shortly thereafter, Mosley voiced two complaints. First, she
complained that Cannedy referred to her as a “slave driver.” Doc. 45-7.
Second, she complained that Cannedy improperly disclosed the identity of a
Juvenile Court Referee and made comments which, in Mosley’s opinion, left
the group with a negative impression of the Referee. Id. Mosley contends
that Judge Naman did not acknowledge her written complaint as evidenced
by the fact that he appointed Cannedy and other white supervisors to a
Leadership Team for the Juvenile Court shortly after receiving Mosley’s
letter. Doc. 45-1 at 5. Cannedy was also appointed to the Probation Reform
Team, which was responsible for “completely restructuring and overhauling
the entire Probation Department.” Id. Mosley states that she met with
Judge Naman to discuss her concern that the Leadership Team consisted of
all white supervisors who, in Mosley’s opinion, had less education and
experience than she did. Id.
Several months later, in August 2009, Moseley learned that the CJPO
was due to retire, and met with Judge Naman to discuss her interest in the
position. Id. at 5-6. In late September 2009, the Juvenile Court posted a job
vacancy announcement for the newly-vacated CJPO position. 2 Doc. 40-8 at
14. Mosley applied, but was not selected. Doc. 45-1 at 7. Instead, the

2

The court refers to Moseley’s version of the job vacancy announcement (Doc. 45-5).

3

Juvenile Court hired Lawrence Battiste, a black male with a Bachelor’s
degree in human resources management and an extensive law enforcement
background. Doc. 40-2 at 4.
On February 7, 2010, Moseley filed a grievance with the
Administrative Office of the Courts (“AOC”) alleging that Judge Naman had
retaliated against her by refusing to interview her for the CJPO position.
Doc. 45-1 at 8. The next day, she filed a formal complaint with the U.S.
Equal Employment Opportunity Commission (“EEOC”) (the “2010 EEOC
Charge”) alleging sex and age discrimination. Doc. 45-6 at 1.
Additionally, Moseley contends that Naman and Battiste retaliated
against her for filing the 2010 EEOC Charge by promoting Cannedy to the
position of Deputy Chief Probation Officer without posting public notice of the
vacancy; by relocating her office to a less desirable location; by reducing the
number of Juvenile Probation Officers she supervised from ten to zero; by
adding to her workload; and ultimately informing her on March 31, 2011,
that she was being laid off due to administrative restructuring in the
Juvenile Court. Doc. 45-1 at 9-10.
On April 4, 2011, believing that her termination was retaliatory,
Mosley filed another EEOC charge against the Juvenile Court (“2011 EEOC
Charge”) alleging sex and age discrimination and retaliation. Doc. 45-6 at 2.
Additionally, Mosley appealed the layoff decision to the AOC on April 15,
2011. Doc. 45-8. In June 2011, the Appeals Board ordered that Mosley be

4

reinstated with benefits and back pay, and placed in a comparable position to
the nearest classification to the one that had been abolished as part of the
administrative restructuring. Doc. 40-4 at 1.
On December 21, 2011, the EEOC declined to file suit on Mosley’s
behalf, but issued her a right to sue letter for her 2010 EEOC Charge. Doc.
45-4 at 1. Moseley filed suit on March 13, 2012, but later filed an amended
complaint (Doc. 24) on October 24, 2012, after receiving notice of a right to
sue with respect to the 2011 EEOC Charge. Moseley asserts claims for sexbased discrimination and retaliation under Title VII, §1981, and § 1983. See
Doc. 24 at 12-13.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment
shall be granted “if the movant shows that there is no genuine dispute as to
any material fact and that the movant is entitled to judgment as a matter of
law.” The trial court’s function is not “to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for
trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “The mere
existence of some evidence to support the non-moving party is not sufficient
for denial of summary judgment; there must be ‘sufficient evidence favoring
the nonmoving party for a jury to return a verdict for that party.’” Bailey v.
Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir. 2002) (quoting Anderson, 477 U.S.
at 249). “If the evidence is merely colorable, or is not significantly probative,

5

summary judgment may be granted.” Anderson, 477 U.S. at 249-250.
(internal citations omitted).
The basic issue before the court on a motion for summary judgment is
“whether the evidence presents a sufficient disagreement to require
submission to a jury or whether it is so one-sided that one party must prevail
as a matter of law.” See Anderson, 477 U.S. at 251-252. The moving party
bears the burden of proving that no genuine issue of material fact exists.
O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir. 2001). In
evaluating the argument of the moving party, the court must view all
evidence in the light most favorable to the non-moving party, and resolve all
reasonable doubts about the facts in its favor. Burton v. City of Belle Glade,
178 F.3d 1175, 1187 (11th Cir. 1999). “If reasonable minds might differ on
the inferences arising from undisputed facts, then a court should deny
summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d
1532, 1535 (11th Cir. 1989) (citing Mercantile Bank & Trust v. Fidelity &
Deposit Co., 750 F.2d 838, 841 (11th Cir. 1985)).
Once the movant satisfies her initial burden under Rule 56(a), the nonmoving party “must make a sufficient showing to establish the existence of
each essential element to that party's case, and on which that party will bear
the burden of proof at trial.” Howard v. BP Oil Co., 32 F.3d 520, 524 (11th
Cir. 1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)).
Otherwise stated, the non-movant must “demonstrate that there is indeed a

6

material issue of fact that precludes summary judgment.” Clark v. Coats &
Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). The non-moving party “may
not rely merely on allegations or denials in its own pleading; rather, its
response .... must be by affidavits or as otherwise provided in this rule be set
out specific facts showing a genuine issue for trial.” Vega v. Invsco Group,
Ltd., 2011 WL 2533755, *2 (11th Cir. 2011). “A mere ‘scintilla’ of evidence
supporting the [non-moving] party’s position will not suffice; there must be
enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citation omitted).
“[T]he nonmoving party may avail itself of all facts and justifiable inferences
in the record taken as a whole.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d
994, 998 (11th Cir. 1992). “Where the record taken as a whole could not lead
a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986) (internal quotation and citation omitted).
III. LEGAL ANALYSIS
A. Claims Against Individual Defendants
Counts Three and Four of Moseley’s second amended complaint allege
that the AOC, the Mobile County Juvenile Court, and Judge Naman violated
Moseley’s Title VII rights. Doc. 24 at 12-13. The defendants argue that
Moseley “cannot maintain an action” against either Naman or Battiste in
their individual capacities because their employer, the AOC, is also a named
defendant. Doc. 40 at 7-8 (citing Taylor v. Alabama, 95 F.Supp.2d 1297, 1309
7

(M.D. Ala. 2000)). This argument is somewhat misplaced.
First, the court notes that Battiste is not named in any of the Title VII
counts. Moseley only brought individual capacity Title VII claims against
Judge Naman. See Doc. 24 at 12-13. Secondly, Moseley concedes in her
opposition brief that she only wants to proceed against Naman and Battiste
as individuals under § 1981. Doc. 45 at 5, 6, 16 n.4. Thus, although the
defendants are correct in that Moseley cannot maintain a Title VII claim
against Judge Naman, they are incorrect to argue flatly that she cannot
maintain an action against him at all. 3,4
Accordingly, the defendants’ motion for summary judgment is granted
in part with regard to Moseley’s Title VII claims against Judge Naman in his
individual capacity (Counts Three and Four). The court will address the
remainder of Counts Three and Four, as well as Moseley’s § 1981 claims
against Judge Naman and Battiste, in greater detail, infra.
B. § 1983 Claims (Counts One and Two)
Moseley alleged claims for violation of her due process rights under the
5th and 14th Amendments of the United States Constitution, brought via 42
U.S.C. § 1983. Doc. 24 at 12 (Counts One and Two). However, Moseley’s
opposition to summary judgment contains no mention of these claims. The
The court notes in passing that individual capacity suits under Title VII are
inappropriate, generally. Busby v. City of Orlando, 931 F.2d 764, 772 (11th
Cir.1991).
4 The defendants also urge that “any Title VII claims against Judge Naman
or Mr. Battiste that are not prohibited would be barred as untimely.” Doc. 40
at 9. For the reasons stated, supra, the court finds this argument to be moot.
3

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only claims she discussed in her brief relate to her allegations of
discrimination and retaliation pursuant to Title VII and §1981. See Doc. 45.
Therefore, Counts One and Two are deemed abandoned, and summary
judgment is due to be granted in favor of the defendants on these counts. See
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir. 2001) (holding
that a claim included in a complaint but not raised at summary judgment is
deemed abandoned). See also Shamburger v. City of Mobile, 2008 WL
2874363 at *1 (S.D. Ala. 2008) (“grounds alleged in the complaint but not
relied upon in summary judgment are deemed abandoned.”) (citing
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995)).
C. Discrimination Claims (Counts Three and Five)
1) Statement of the Law
Mosley’s discrimination claims are brought pursuant to Title VII and
42 U.S.C. §1981. Title VII prohibits an employer from discriminating against
a person based on a protected factor such as race, color, sex, religion, or
national origin. 42 U.S.C. §2000e-2(a)(1). Likewise, §1981 prohibits
intentional discrimination in the making and enforcement of public and
private contracts, including employment contracts. See, e.g., Johnson v.
Railway Express Agency, 421 U.S. 454 (1975) (holding unequivocally that
§1981 protects against racial discrimination in private employment).
The test for intentional discrimination in suits under Title VII and
§1981 is the same. Ferrill v. Parker Group, 168 F.3d 468 (11th Cir. 1999).
The plaintiff has the burden of establishing a prima facie case of employment
9

discrimination by a preponderance of the evidence. McDonnell Douglas Corp.
v. Green, 411 U.S. 792 (1973). This prima facie case can be established in
any one of three ways: (1) by presenting direct evidence of discriminatory
intent; (2) by presenting circumstantial evidence of discriminatory intent
through the McDonnell Douglas test; or (3) by demonstrating through
statistics a pattern of discrimination. Earley v. Champion International
Corp., 907 F.2d 1077, 1081 (11th Cir. 1990).
Where, as here, the plaintiff wishes to prove a claim of race or sex
discrimination through circumstantial rather than direct evidence, the court
evaluates the claims using the burden-shifting framework established by the
Supreme Court in McDonnell Douglas, 411 U.S. 792. As stated, supra, under
this framework the plaintiff must satisfy the initial burden under the statute
by establishing a prima facie case of intentional discrimination. Smith v.
Lockheed-Martin Corporation, 2011 WL 2567777, *2 (11th Cir. 2011). For
claims of race or sex discrimination, the plaintiff must show that (1) she is a
member of a protected class (here, female and African-American); (2) she was
qualified for the position she held; (3) she suffered an adverse employment
action; and (4) her employer treated her less favorably than similarly
situated individuals outside of her protected class. Alvarez v. Royal Atlantic
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). With respect to this
last showing, “the individuals must be similarly situated in all relevant
respects besides race, since different treatment of dissimilarly situated

10

persons does not violate civil rights laws.” Jackson v. BellSouth
Telecommunications, 372 F.3d 1250, 1273-1274 (11th Cir. 2004) (internal
citations and quotation omitted).
If a plaintiff establishes the prima facie elements of the claim, she
raises a presumption that her protected status (i.e., race or sex) motivated
her employer to treat her unfavorably. Smith v. Lockheed-Martin
Corporation, 644 F.3d 1321, 1325 (11th Cir. 2011) (citing Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254 (1981)). The defendant then has an
opportunity to articulate a legitimate, non-discriminatory reason for the
challenged employment action as an affirmative defense to liability. Id. This
burden of rebuttal is “extremely light.” Tipton v. Canadian Imperial Bank of
Commerce, 872 F.2d 1491, 1495 (11th Cir. 1995). If the defendant employer
meets its burden, then the presumption of discrimination raised by the
plaintiff’s prima facie case is rebutted and thus disappears. Smith, 644 F.3d
at 1325-26.
The plaintiff must then provide evidence that creates a genuine issue
of material fact that the defendant’s articulated, nondiscriminatory reasons
are, instead, a pretext for unlawful race or sex discrimination. See Brooks v.
County Comm’n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006)
(internal quotation marks and citation omitted) (plaintiff shows pretext by
“demonstrat[ing] that the proffered reason was not the true reason for the
employment decision[,]” and by “introduc[ing] significantly probative

11

evidence . . . that the asserted reason is merely pretext for discrimination.”).
An employer’s reason is not pretext for discrimination “unless it is shown
both that the reason was false, and that discrimination was the real reason.”
Id. at 1163 (emphasis in original) (quoting St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502, 515 (1993)). As part of the pretext inquiry, the court “must
evaluate whether the plaintiff has demonstrated such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable fact
finder could find them unworthy of credence.” Jackson v. State of Ala. State
Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal quotation
marks and citations omitted). “A plaintiff is not allowed to recast an
employer’s proffered nondiscriminatory reasons or substitute his business
judgment for that of the employer. Provided that the proffered reason is one
that might motivate a reasonable employer, an employee must meet that
reason head on and rebut it, and the employee cannot succeed by simply
quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229
F.3d 1012, 1030 (11th Cir. 2000).
2) Moseley’s Prima Facie Case
In order to establish a prima facie case of failure to promote, Mosley
must show that: “(1) she is a member of a protected class, (2) she was
qualified and applied for the promotion, (3) she was rejected despite her
qualifications, and (4) other equally or less qualified employees who were not

12

members of the protected class were promoted.” Wilson v. B/E Aerospace,
Inc., 376 F.3d 1079 (11th Cir. 2004). Demonstrating a prima facie case is not
onerous; it requires only that the plaintiff establish facts adequate to permit
an inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1561-62
(11th Cir. 1997) (citations omitted).
The defendants argue that Mosley cannot establish that she suffered
an adverse employment action because the CJPO position for which she
applied was statutorily exempted from Title VII’s coverage by virtue of the
“personal staff exemption” contained in 42 U.S.C. § 2000e(f). Doc. 40 at 1113. This statute states that, for purposes of Title VII, “the term ‘employee’
shall not include any person elected to public office in any State or political
subdivision of any State by the qualified voters thereof, or any person
chosen by such officer to be on such officer’s personal staff, or an
appointee on the policy making level or an immediate advisor with respect to
the exercise of the constitutional or legal powers of the office . . . .” 42 U.S.C.
§ 2000e(f) (emphasis added). Unsurprisingly, Moseley disputes that the
CJPO position falls within this exemption. Doc. 45 at 11-12.
“[A] plaintiff’s status as an employee under Title VII is a question of
federal, rather than of state, law; it is to be ascertained through consideration
of the statutory language of the Act, its legislative history, existing federal
case law, and the particular circumstances of the case at hand.” E.E.O.C. v.
Reno, 758 F.2d 581, 584 (11th Cir. 1985). However, “state law is relevant

13

only so far as it describes the Title VII plaintiff’s position, including duties
and supervision.” Clark v. Tarrant Cty, Tex., 798 F.2d 736, 742 (5th Cir.
1986). The relevant factors pertinent to determining whether an employee
falls within the Title VII personal staff exemption are: (1) whether the elected
official has plenary powers of appointment and removal, (2) whether the
employee is personally accountable only to that elected official, (3) whether
the person represents the elected official in the eyes of the public, (4) whether
the elected official exercises considerable control over the position, (5) the
level of the position in the organization’s chain of command, and (6) the
actual intimacy of the working relationship between the elected official and
the employee. Laurie v. Alabama Court of Criminal Appeals, 88 F.Supp.2d
1334, 1338 (M.D. Ala. 2000) (citing Teneyuca v. Bexar County, 767 F.2d 148,
151 (5th Cir. 1985)).
Construing the facts in the light most favorable to Moseley, the court
cannot find as a matter of law that the CJPO is a member of Judge Naman’s
personal staff. In support of their motion, the defendants attach copies of the
Alabama state statutes, which they contend statutorily determine several of
the Teneyuca factors. Doc. 40-8. However, there is no evidence before the
court proving the intimate work relationship required under Teneyuca, other
than the defendants’ passing statement that the CJPO “works intimately
with the Judge on an almost daily basis.” Doc. 50 at 7. Similarly, while the
Alabama state statute does designate the person holding CJPO position as

14

serving “at the pleasure of the appointing juvenile court judge,” Ala. Code 125A-8(3), without more, the Court cannot be sure whether the CJPO is
accountable only to the juvenile court judge, and thus cannot determine
whether the second Teneyuca factor is satisfied. As for the fourth Teneyuca
factor, there is minimal evidence that the juvenile judge exercises
“considerable” control over the position; indeed the statute suggests the
juvenile court, and not the judge, directs the CJPO. Id. (indicating that the
CJPO shall administer juvenile probation services “under the direction of the
juvenile court.”) Moseley has also raised a dispute as to whether the CJPO
position is the same position as described in the statute. Doc. 51 at 6.
Additionally, the job announcement cited by the defendants states that the
position requires the employee to “exercise considerable initiative, judgment
and independent decision-making,” which weighs against the position being
one afforded “personal staff” status. Doc. 41-1 at 1. Based on the present
record, the defendants have not presented sufficient evidence for the court to
find as a matter of law that the CJPO position falls within the “personal
staff” exception of Title VII. Accordingly, the defendants are not entitled to
summary judgment based upon the “personal staff” exception.
Moseley has satisfied the remaining elements of a prima facie case of
sex discrimination. Having served as a Juvenile Probation Officer for over 37
years, with multiple advanced degrees, including an Ed.D. in counseling, it is
undisputed that Moseley was qualified for the position. Doc. 45-1 at 1. It is

15

also undisputed that she applied and was rejected for the position. Id. at 7.
Finally, Judge Naman ultimately appointed Battiste, a man outside of
Moseley’s protected class who had less relevant education and less experience
than Moseley, to fill the position. Id.
Although the second amended complaint makes oblique references to
racial discrimination, Moseley did not present any such argument in her
opposition to summary judgment. Therefore, the court finds that Moseley
has abandoned this claim. Shamburger v. City of Mobile, 2008 WL 2874363
at *1 (S.D. Ala. 2008) (“grounds alleged in the complaint but not relied upon
in summary judgment are deemed abandoned.”) (citing Resolution Trust
Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995)). Even if the court
did not deem Moseley’s race discrimination claim to be abandoned, it would
find that she cannot establish a prima facie case of race discrimination
because she cannot show that Judge Naman, the AOC, or the Juvenile Court
treated similarly-situated workers outside of her protected class. Battiste,
who was hired as the new CJPO, is African-American, and obviously not
outside of Moseley’s protected class for purposes of her race discrimination
allegations.
3) The Defendants’ Legitimate and Nondiscriminatory Reasons
The defendants argue that Battiste was selected due to a number of
factors, including: “his administrative and management background; his
willingness to follow the Judge’s direction concerning needed changes in the
program, and his understanding and abilities to relate with, and oversee and
16

manage other employees.” Doc. 40-6 at 1. This is a perfectly legitimate, nondiscriminatory reason for having hiring Battiste over Moseley. Therefore, the
court finds the defendants have satisfied their light burden of rebuttal. See
Tipton, 872 F.2d at 1495. Accordingly, the burden now shifts to Moseley to
demonstrate that these reasons were merely pretext for sex discrimination.
4) Pretext
As evidence of pretext, Moseley claims that the former CJPO “made it
clear” that Judge Naman was doing “whatever he could do” to avoid giving
the CJPO position to Mosley. Doc. 45-1 at 8. She also states that she had
been warned by two unidentified white juvenile probation officers, on
separate occasions, “to be careful because ‘there was a target on [her] back.’”
Id. Neither of these hearsay statements are admissible because Moseley has
not established that either the former CJPO nor the two juvenile probation
officers had personal knowledge of Judge Naman’s intentions. See id. To be
considered on summary judgment, affidavits or declarations must be based
on personal knowledge, cannot be conclusory, and must contain information
that can be reduced to admissible form at trial. See, e.g., Corwin v. Walt
Disney Co., 475 F.3d 1239, 1249 (11th Cir. 2007) (“Even on summary
judgment, a court is not obligated to take as true testimony that is not based
upon personal knowledge.”); Rowell v. BellSouth Corp., 433 F.3d 794, 800
(11th Cir. 2005) (“On motions for summary judgment, we may consider only
that evidence which can be reduced to an admissible form.”); Leigh v. Warner

17

Bros., Inc., 212 F.3d 1210 (11th Cir. 2000) (“This court has consistently held
that conclusory allegations without specific supporting facts have no
probative value.”) (citation omitted).
As further evidence of pretext, Moseley also claims that a white male
probation officer, Kenneth Brutkiewicz, told Mosley that Judge Naman had
introduced Cannedy to a local group as his next CJPO. Id. at 5-6. This
statement is rank hearsay, and Moseley has not identified a hearsay
exception which would make the statement otherwise admissible. Macuba v.
DeBoer, 193 F.3d 1316, 1322-24 (11th Cir. 1999) (discussing proper
application of hearsay rule to motions for summary judgment). Furthermore,
even if Brutkiewicz’s statement were admissible, it does not tend to prove
pretext because it tends to show that Judge Naman was open to the
possibility of hiring a woman, thus undermining Moseley’s assertion of sex
discrimination.
Mosley further argues that her experience, lack of a disciplinary
record, and high evaluations establish that the defendants’ proffered nondiscriminatory reasons are pretextual. Doc. 45 at 16. The court disagrees.
Courts “are not in the business of adjudging whether employment decisions
are prudent or fair. Instead, our sole concern is whether unlawful
discriminatory animus motivates a challenged employment decision.” Damon
v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir.
1999) (citing Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181,

18

1187 (11th Cir. 1984)). The fact that the defendants cited Battiste’s
experience as the Chief of Police in Prichard and as a Lieutenant in the
Mobile County Sheriff’s office is consistent with the defendants’ assertion
that the new CJPO would be required to perform extensive managerial and
administrative duties.5 Simply pointing out Moseley’s own credentials, as
impressive as they are, does not by itself rebut the defendants’ nondiscriminatory reason. Therefore, the court concludes that Mosley has failed
to show that the disparities between her qualifications and Battiste’s were “of
such weight and significance that no reasonable person, in the exercise of
impartial judgment, could have chosen the candidate selected over the
plaintiff.” Brooks, 446 F.3d at 1163.
Accordingly, the court finds that the defendants’ motion for summary
judgment is due to be granted as to Moseley’s Title VII failure to promote
claim (Counts Three) and her remaining allegations of sex and race
discrimination (Title Five).
D. Retaliation Claims (Counts Four and Five)
1) Statement of the Law
As with discrimination claims, a Title VII retaliation claim based on
circumstantial evidence is analyzed according to the McDonnell Douglas
Plaintiff disputes the job vacancy announcement offered by defendants,
(Doc. 40-1 at 1-2) and submits an announcement she claims was the actual
advertisement (Doc. 45-5 at 2). Both postings are identical for the most part.
Because Moseley is the non-movant, the court must resolve questions of fact
in her favor and therefore refers to her job vacancy announcement. (Doc. 454).
5

19

framework. See McDonnell Douglas Corp., 411 U.S. at 802-04; Farley v.
Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir. 1999) (applying
McDonnell Douglas-type analysis to retaliation claims). The plaintiff bears
the initial burden of establishing a prima facie case of retaliation, which she
may do by demonstrating that (1) she engaged in statutorily-protected
activity; (2) she suffered a materially adverse employment action; and (3)
there was some causal relation between these two events. Dixon v. The
Hallmark Companies, Inc., 627 F.3d 849 (11th Cir. 2010). The Eleventh
Circuit construes the “causal link” element broadly, so as “to require merely
that the plaintiff establish that the protected activity and the adverse action
were not wholly unrelated.” Goldsmith v. Bagby Elevator Co., Inc. 513 F.3d
1261, 1286 (11th Cir. 2008) (quoting Simmons v. Camden County Bd. of
Educ., 757 F.2d 1187, 1189 (11th Cir. 1985)).
Once a plaintiff has established the prima facie elements of the claim,
the defendant has an opportunity to articulate a legitimate, nonretaliatory
reason for the challenged employment action as an affirmative defense to
liability. Smith v. Lockheed-Martin Corporation, 2011 WL 2567777, *2 (11th
Cir. 2011). The plaintiff must then prove by a preponderance of the evidence
that the reason provided by the employer is a pretext for prohibited
retaliatory conduct. Id. However, “ ‘a plaintiff employee may not establish
that an employer's proffered reason is pretextual merely by questioning the
wisdom of the employer's reason’ as long as ‘the reason is one that might

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motivate a reasonable employer.’ ” Pennington v. City of Huntsville, 261 F.3d
1262, 1267 (11th Cir. 2001) (citation omitted). Furthermore, as the Supreme
Court has held, a reason is not pretext for discrimination “unless it is shown
both that the reason was false, and that discrimination was the real reason.”
St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 515 (emphasis in original);
accord Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d 1344,
1349 (11th Cir. 2007) (“A plaintiff must show not merely that the defendant's
employment decisions were mistaken but that they were in fact motivated by
race.”) (citations and internal quotation marks omitted). In the context of a
promotion, “a plaintiff cannot prove pretext by simply arguing or even by
showing that he was better qualified than the [person] who received the
position he coveted. A plaintiff must show not merely that the defendant's
employment decisions were mistaken but that they were in fact motivated by
race.” Id. (additional citations and quotation omitted).
2) Prima Facie Case
Plaintiff’s retaliation claims stem from several incidents, including (1)
not being promoted to the CJPO position in retaliation for lodging complaints
of perceived racial discrimination; (2) the alleged denial of an opportunity to
compete for the unadvertised position of Deputy Chief Probation Officer; (3)
Moseley’s alleged demotion and reduction in work duties; and (4) Moseley’s
alleged termination. Doc. 45 at 6, 16. The court addresses each allegation in
turn.
First, Moseley contends that she was passed over for promotion to the
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CJPO position in retaliation for numerous informal complaints of
discrimination she made. Id. at 6. Moseley’s affidavit supports her claim
that she complained about perceived racial discrimination, including a
written complaint against Cannedy for making allegedly racially insensitive
remarks as well as the appointment of an all-white Probation Reform Team.
Doc. 45-1 at 5. Complaints of discrimination directed to one’s supervisor
certainly qualify as protected expression. Rollins v. Florida Dep't of Law
Enforcement, 868 F.2d 397, 400 (11th Cir.1989) (internal complaints of
discrimination are statutorily protected conduct). Furthermore, it is
undisputed that Moseley was passed over for the CJPO position four to six
weeks later. Doc. 45 at 9. This constitutes an adverse employment action
within close temporal proximity to Moseley’s complaints of discrimination.
See Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir. 2000)
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53 (2006). Therefore, the court finds that Moseley has established a
prima facie case of retaliation against the AOC and the Mobile County
Juvenile Court with regard to her not being hired for the CJPO position.
The same cannot be said for Moseley’s allegation that she was denied
the opportunity to compete for the newly created position of Deputy Chief
Probation officer. This allegation is devoid of any citation to evidence which
would support the claim. See Doc. 45 at 17; Doc. 45-1 at 9. See also Pace v.
Capobianco, 283 F.3d 1275, 1278-79 (11th Cir. 2002); Leigh v. Warner Bros.,

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Inc., 212 F.3d 1210, 1217 (11th Cir. 2000) ( “This court has consistently held
that conclusory allegations without specific supporting facts have no
probative value”). Accordingly, the court finds that Moseley has failed to
establish a prima facie case regarding this allegation.
Moseley has also failed to establish that her allegations of demotion
and reduction in work duties constitute adverse employment actions. For one
thing, Moseley has not alleged that she suffered a decrease in pay or benefits;
therefore, her use of the term “demotion” to describe her situation is more
editorial than objective. See Doc. 45; Doc. 45-1. Furthermore, while Moseley
contends the number of probation officers she supervised was reduced from
ten to zero, she has cited no case law to support the notion that this
constitutes an adverse employment action. Doc. 45 at 19. In fact, the
Eleventh Circuit has stated that “courts have been reluctant to hold that
changes in job duties amount to adverse employment action[s] when
unaccompanied by any tangible harm such as a reduction in salary. Davis v.
Town of Lake Park, Florida, 245 F.3d 1232, 1244 (11th Cir. 2001).
Lastly, Plaintiff’s claim that she was terminated in retaliation for
filing the 2010 EEOC complaint is unsupported by any evidence suggesting a
causal connection. Doc. 45 at 19. In fact, this portion of Moseley’s opposition
brief is almost totally devoid of citations to the record. Id. The one piece of
record evidence to which Moseley did point is her own April 15, 2011, letter to
the AOC, in which she characterizes her lay off as retaliation. Doc. 45-8. But

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this conclusory statement has no probative value. See Pace, 283 F.3d at
1278-79; see also Leigh, 212 F.3d at 1217. Furthermore, Moseley was
informed of her “lay off” March 31, 2011 -- almost 14 months after she filed
her the 2010 EEOC Charge (dated February 8, 2010). Doc. 45-1 at 10. This
period of time is too remote to satisfy Moseley’s burden of causation based
upon temporal proximity, alone. Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (“A three to four month disparity between the
statutorily protected expression and the adverse employment action is not
enough.”) (citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273
(2001)).
Accordingly, the court finds that the only retaliation claim for which
Moseley has established a prima facie case is her allegation that she was not
promoted to the CJPO position in retaliation for her numerous informal
complaints of discrimination. Doc. 45 at 6. The defendants’ summary
judgment motion is due to be granted with regard to the remaining
retaliation allegations.
3) The Defendants’ Legitimate, Non-Retaliatory Reasons
The defendants argue that Battiste was selected for the CJPO position
because Judge Naman was “particularly impressed with the extensive
administrative and management experience that Mr. Battiste held that far
exceeded any other applicants.” Doc. 40 at 15. The defendants argue further
that Battiste’s experience was significant to Judge Naman because the CJPO

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“is required to perform extensive managerial and administrative duties
pursuant to the direct instructions of the judge.” Id. at 15-16. This is a
legitimate, non-discriminatory reason for hiring Battiste over Moseley.
Therefore, the court finds the defendants have satisfied their light burden of
rebuttal. See Tipton, 872 F.2d at 1495. Thus, the burden now shifts to
Moseley to demonstrate that these reasons were merely pretext for
retaliation.
4) Pretext
Moseley argues that the defendants’ proffered non-retaliatory reasons
are pretextual because she has superior professional credentials and
experience in working with juvenile offenders. Doc. 45 at 12-13. Citing only
Battiste’s resume and application, she argues that Battiste “cannot point to
any experience working with juveniles or counseling such individuals,” and
argues further that “[Battiste’s] resume and application do not reflect any,
much less ‘considerable knowledge’ or experience in counseling, juvenile
probationary activities, or social and psychological forces relating to juvenile
delinquency.” Id. at 13 (emphasis in original).
Instead of pointing to additional record evidence to support her
argument, Moseley engages in rank speculation, arguing without citation
that given the disparity in experience, the human resources professionals on
the CJPO search committee “had to have been forewarned about Defendant
Naman’s preference for the job,” and asserting (again, without citing facts in

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the record) that “it was predetermined that Moseley would not be referred for
an interview.” Id. But the disparity between Battiste’s and Moseley’s
education and experience alone do not support this conclusion. At best,
Moseley’s argument suggests that Judge Naman may have made a bad
employment decision, which does not establish pretext. Judge Naman was
entitled to hire Battiste over Moseley for “a good reason, a bad reason, a
reason based on erroneous facts, or for no reason at all, as long as its action is
not for a [retaliatory] reason.” Nix v. WLCY Radio/Rahall Comm's, 738 F.2d
1181, 1187 (11th Cir. 1984). Without more, Moseley’s pretext argument falls
short.
Accordingly, the court finds that summary judgment is due to be
granted with regard to Moseley’s retaliation claims (Counts Four and Five).
IV. CONCLUSION
The defendants’ motion for summary judgment is GRANTED as to all
counts.
DONE and ORDERED this 9th day of May, 2013.
/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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