Mosley v. Alabama Unified Judicial System

Filing 99

ORDER DENYING Plf's 80 Motion to Strike Witness Affidavits, Plf's 81 Motion to Strike Renewed Motion for Summary Judgment as to Counts I & II, Plf's 82 Motion to Strike Portions of Judge Naman's Affadavit & GRANTING Dfts' 76 Renewed Motion for Summary Judgment as set out. Signed by Judge Callie V. S. Granade on 7/25/2014. (tot)

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

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Plaintiff,
vs.
ALABAMA UNIFIED JUDICIAL
SYSTEM, ADMINISTRATIVE
OFFICE OF THE COURTS; THE
JUVENILE COURT OF MOBILE
COUNTY, ALABAMA; THE HON.
EDMOND NAMAN; and LAWRENCE
BATTISTE,

Civil Action No. 12-0184-CG-N

Defendants.
ORDER
This matter is before the court on Defendants’ renewed motion for summary
judgment, Plaintiff’s response and Defendants’ reply (Docs. 76, 83, 93); Plaintiff’s
motion to strike witness affidavits, Defendants’ objection and Plaintiff’s reply (Docs.
80, 90, 94); Plaintiff’s motion to strike renewed motion for summary judgment as to
Counts I and II, Defendants’ objection and Plaintiff’s reply (Docs. 81, 91, 94); and
Plaintiff’s motion to strike portions of Judge Naman’s affidavit and Defendants’
objection (Docs. 82, 92). For the reasons stated below, the court finds that Plaintiff’s
motions to strike should be denied and that Defendants’ motion for summary
judgment should be granted.

1

I. Motions to Strike
A. Affidavits of Vonda Sanders and Larry Harris
Plaintiff moves to strike the affidavits of Vonda Sanders (Doc. 77-2) and Larry
Harris (Doc. 77-1) on the basis that these individuals were not listed in Defendants’
initial disclosures as required by Federal Rule 26(a)(1) and this court’s Rule 16(b)
Scheduling Order (Doc. 21). Plaintiff argues that she did not have notice that these
individuals were likely to have discoverable information that the defendants would
use to support their defenses, and they were never otherwise mentioned as potential
witnesses. Defendants respond that they have been unable to find a copy of their
initial disclosures, but contend that Plaintiff has been aware of these potential
witnesses throughout the litigation. Defendants point out that both witnesses are
named in the fact section of Plaintiff’s amended complaint and Harris was also
named in Plaintiff’s original complaint. (Doc. 1, ¶ 15; Doc. 24 ¶¶ 13, 27). Plaintiff
also submitted exhibits in response to the original summary judgment motion as
well as to the current summary judgment motion that mention these witnesses and
their involvement in this matter. (eg. Doc. 45-9; Doc. 83-1, ¶¶ 2, 9, 11, 12, 16, 27, 30,
33, 43, 72). Additionally, both witnesses were listed as witnesses in the May 8, 2013,
joint pretrial document, with Harris being listed as a potential witness for the
plaintiff. (Doc. 56, pp. 33-35). The joint pretrial document also stated “Defendants
reserve the right to call any and all witnesses called by the plaintiff.” (Doc. 56, p. 35).
At no time did Plaintiff object to Defendants’ witness list. Plaintiff still lists Harris
2

as a witness in the current joint pretrial document, filed on July 22, 2014. (Doc. 95,
pp. 37-38). Defendants also list Sanders as a witness in the current joint pretrial
document and there is no indication in that document that the Plaintiff objected to
her inclusion. (Doc. 95, pp. 37-38).
Moreover, it is abundantly clear to the court that the plaintiff had to be aware
of the names and roles of the individuals on the screening committee since she was
interviewed by that committee, and that she knew when she filed this lawsuit that
the process and considerations of the committee would be relevant to the issues in
the case.
Rule 26(e) places upon litigants an obligation to supplement in a timely
manner incomplete or incorrect disclosures “if the additional or correct information
has not otherwise been made known to the other parties during the discovery
process or in writing.” FED. R. CIV. P. 26(e)(1)(A). If a party fails to discharge the
said obligation, that party “is not allowed to use that information or witness to
supply evidence on a motion, at a hearing, or at trial, unless the failure was
substantially justified or is harmless.” FED. R. CIV. P. 37(c). Although no party has
provided a copy of the initial disclosures, the Court will presume that these
individuals were not listed by the defendants. However, Plaintiff clearly was aware
that both Harris and Sanders were potential witnesses even before she filed her
complaint. Additionally, she was on notice by at least May 8, 2013, the date of the
first joint pretrial document, that the defendants might call Harris and Sanders as
witnesses at trial. While the pretrial document was filed after the close of discovery,
3

Plaintiff did not object to their inclusion as witnesses and had, in fact, proffered
Harris as her own witness. The Rule 16(b) Scheduling Order entered in this case
expressly states the following:
Any
 objection
 to
 the
 designation
 of
 a
 witness
 (whether
 lay
 or
 expert)
 shall
 be

submitted
 with
 the
 Joint
 Pretrial
 Document.

 Failure
 to
 comply
 shall

constitute
 a
 waiver
 of
 any
 such
 objection.

(Doc. 21-1, p. 4, ¶ H (emphasis in original)). Under the circumstances, the court
finds that these witnesses were known to the parties during discovery and that even
if defendants should have supplemented their disclosures, the error was harmless.
Knowing the role these potential witnesses played in the case, Plaintiff chose not to
obtain discovery information from them. In addition, the plaintiff has waived any
objection to the designation of Harris or Sanders as witnesses. Accordingly,
Plaintiff’s motion to strike the affidavits of Vonda Sanders and Larry Harris is
denied.
B. Counts I and II of Renewed Motion for Summary Judgment
Plaintiff moves to strike defendants’ motion as to Counts I and II because she
argues that these counts were not addressed in the defendants’ first motion for
summary judgment, and nothing new has developed in the record of this case, such
as additional discovery, that would allow Defendants another opportunity to move
for summary judgment. Plaintiff is correct that successive motions for summary
judgment are disfavored, see Allstate Finance Corp. v. Zimmerman, 296 F.2d 797,
799 (5th Cir.1961), but a district court has discretion to allow successive motions.
See Enlow v. Tishomingo County, Miss., 962 F.2d 501, 507 (5th Cir.1992). This
4

Court “has broad discretion in controlling its own docket” and is even free to
“reconsider a previously denied summary judgment motion even in the absence of
new material presented.” Enlow, 962 F.2d at 501 n.16) (citations omitted). After
receiving the mandate from the Eleventh Circuit, this Court gave defendant
permission to file a second motion for summary judgment without limiting the scope
of any such motion. (Doc. 73). Plaintiff sought clarification of the Order granting the
right to file a second motion for summary judgment, requesting that Plaintiff be
allowed to file a motion for summary judgment as well, (Doc 73), which the Court
also granted. (Doc. 74). Defendants filed their motion timely. Plaintiff did not file a
motion for summary judgment. Plaintiff has not presented any authority to
demonstrate that the Court’s order permitting the motion was in error. Accordingly,
plaintiff’s motion to strike the renewed motion for summary judgment as to Counts I
and II is denied.
C. Portion of Judge Naman’s Affidavit
Plaintiff moves to strike portions of Judge Naman’s affidavit as hearsay.
The Federal Rules of Evidence define “hearsay” as “a statement that: (1) the
declarant does not make while testifying at the current trial or hearing; and (2) a
party offers in evidence to prove the truth of the matter asserted in the statement.”
FED. R. EVID. 801(c). The Court notes that even if the statements are found to be
hearsay, the Court may consider hearsay at the summary judgment stage “if the
statement could be ‘reduced to admissible evidence at trial’ or ‘reduced to admissible
form.’” Macuba v. Deboer, 193 F.3d 1316, 1323 (11th Cir.1999) (collecting cases).
5

The statements at issue here were made to Judge Naman (1) by consultants
Tim Roche and Stu Berry about concerns they had about plaintiff and (2) by Karen
Trussell describing her impression or understanding of an exchange that occurred
between Plaintiff and another employee, Pat Cannedy. (Doc. 77-3, ¶¶ 9-10). The
court finds that such statements are not hearsay because they are not offered for the
truth of the matter asserted, but to show Judge Naman’s mindset or understanding.
Whether Roche, Berry and Trussel were truthful in their statements or what precise
wording was used is immaterial. What is at issue is whether Judge Naman
understood or believed that such comments had been made and acted or based his
decisions, at least in part, on his understanding of those comments. It is Judge
Naman’s perception of what he believes he was told and how that contributed to his
evaluation of the plaintiff that is important in this matter. Accordingly, plaintiff’s
motion to strike portions of Judge Naman’s affidavit is denied.

II. Motion for Summary Judgment
A. Background
This Court previously entered summary judgment in favor of Defendants on
all counts. (Doc. 58). Plaintiff appealed, and the Eleventh Circuit affirmed in part
and vacated and remanded in part. (Doc. 70). The Eleventh Circuit concluded that
Defendants had failed to sufficiently raise in their motion for summary judgment a
challenge to Plaintiff’s due process and equal protection claims asserted in Counts I
and II. (Doc. 70, p. 6). Accordingly the judgment on those Counts was vacated, and
6

they were remanded for consideration by this Court. Additionally, the Eleventh
Circuit found that, with regard to Plaintiff’s Title VII gender discrimination claim
for failure to promote/hire to the Chief Judicial Probation Officer (CJPO) vacancy
(asserted in Count III), and Plaintiff’s § 1981 claim of retaliation in relation to the
CJPO vacancy (asserted in Count V), defendants had not sufficiently stated a
legitimate nondiscriminatory reason for their decisions. (Doc. 70, pp. 10-12, 15).
Specifically, the Court of Appeals found that because Judge Naman selected Battiste
from a group of applicants recommended by the screening committee, and Plaintiff
was not among that group, Judge “Naman never had an opportunity to actively
compare Mosley’s qualifications to those of Battiste.” (Doc. 70, p. 11). Accordingly,
Judge Naman’s conclusion that Battiste had superior qualifications could not serve
as a legitimate nondiscriminatory reason to rebut Plaintiff’s prima facie case. (Doc.
70, pp. 11-12). The Appeals Court further stated:
“Had
 the
 Defendants
 presented
 evidence
 regarding
 why
 the
 screening

committee
 recommended
 Battiste
 to
 Judge
 Naman,
 while
 declining
 to
 advance

Mosley,
 such
 evidence
 of
 an
 active
 comparison
 between
 the
 two
 candidates

may
 have
 served
 as
 a
 sufficient,
 legitimate,
 nondiscriminatory
 reason.

 See

Joshi,
 763
 F.2d
 at
 1235.

 However,
 the
 record
 is
 silent
 as
 to
 the
 screening

committee’s
 reasons
 for
 advancing
 Battiste
 over
 Mosley
 during
 this
 portion
 of

the
 hiring
 process.

(Doc. 70, p 12 n. 6). Defendants now move for summary judgment as to all of the
remaining claims. Because this is the defendants’ second motion for summary
judgment and the parties have limited their arguments to particular aspects of the
case, the Court finds it unnecessary to restate the detailed facts of the case. To the

7

extent they are relevant, the Court will address the facts in conjunction with the
arguments discussed below.
B. 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 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, summary judgment may be granted." Anderson, 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,
8

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 could differ on
the inferences arising from undisputed facts, then a court should deny summary
judgment.” Miranda v. B&B Cash Grocery Store, Inc., 975 F.2d 1518, 1534 (11th Cir.
1992) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841
(11th Cir. 1985)).
Once the movant satisfies his initial burden under Rule 56(c), the non-moving
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 Company, 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 material issue of fact that precludes summary
judgment.” See 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
9

record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574 at 587 (1986) (internal quotation and citation
omitted).
C. Discussion
1. Counts I and II
Defendants first contend that they are entitled to Eleventh Amendment
immunity from damages on Counts I and II. Absent abrogation or waiver, the
Eleventh Amendment of the United States Constitution bars federal claims for
damages against the states, including suits brought by a state’s own citizens. Hans
v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890). “The State of Alabama,
its agencies, and its officials acting in their official capacity are not considered
‘persons’ for purposes of an action for damages under 42 U.S.C. § 1983. State Dep't
of Pub. Safety v. Sexton, 748 So.2d 200 (Ala. Civ. App. 1998) (citing Hafer v. Melo,
502 U.S. 21 (1991)).
Defendants also contend that Judge Naman and Mr. Battiste are protected by
qualified immunity. “Qualified immunity protects government officials performing
discretionary functions from civil trials . . . and from liability if their conduct violates
no clearly established statutory or constitutional rights of which a reasonable person
would have known.” Lassiter v. Alabama A & M Univ., 28 F.3d 1146, 1149 (11th Cir.
1994) (en banc) (internal quotations and citations omitted).

10

To receive qualified immunity, a public official “must first prove that he was
acting within the scope of his discretionary authority when the allegedly wrongful
acts occurred.” Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal
quotation marks omitted). In the instant case, the defendants were clearly working
within the scope of their discretionary authority. The burden then shifts to the
plaintiff to demonstrate that the official’s actions violated a clearly established right.
Grayden v. Rhodes, 345 F.3d 1225, 1231 (11th Cir. 2003). This can be broken down
into a two-step inquiry: (1) whether the facts, viewed in the light most favorable to
the plaintiff, show the defendants’ conduct violated the plaintiff’s rights; and (2)
whether those rights were clearly established at the time of the alleged deprivation.
Id.
In Count I, Plaintiff asserts a due process claim against Judge Naman and
Battiste relating to when she was laid off in April 2011. In Count II, Plaintiff
asserts an equal protection claim of discriminatory layoff and failure to rehire.
To the extent Plaintiff asserts Count II against AOC, the claim fails because
there is no evidence that AOC knew of, sanctioned, participated in, or was otherwise
“affirmatively linked” to the acts plaintiff complains of, and respondeat superior is
not available to a plaintiff under § 1983. Gilmere v. City of Atlanta, Ga., 774 F.2d
1495 (11th Cir. 1985) cert. denied. 476 U.S. 1115 (1986); Bd. of Comm'rs of Bryan
Cnty. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997)); Monell
v. Department of Social Services of City of New York, 436 U.S. 658 (1978).

11

Defendants argue that all persons were treated equally and constitutional due
process was followed and thus, that they have not violated Plaintiff’s clearly
established rights. As to Count I, Defendants assert that there is no evidence that
Battiste was involved in the ultimate decision to layoff the plaintiff and that plaintiff
was afforded due process. As to Count II, Defendants assert that Plaintiff has not
shown that she was treated differently from similarly situated employees in either
her layoff or her rehire.
The only argument or evidence plaintiff has offered relating to Counts I and II
are contained in her motion to strike, which the Court denied, above. Plaintiff has
failed to offer any argument or evidence regarding the merits of her Due Process and
Equal Protection claim. “In opposing a motion for summary judgment, a ‘party may
not rely on his pleadings to avoid judgment against him.’” Resolution Trust Corp. v.
Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995), cert. denied sub nom., Jones v.
Resolution Trust Corp., 516 U.S. 817 (1995)(citing Ryan v. Int’l Union of Operating
Eng’rs., Local 675, 794 F.2d 641, 643 (11 Cir. 1986)). Moreover, “[t]here is no burden
upon the district court to distill every potential argument that could be made based
upon the materials before it on summary judgment. Rather, the onus is upon the
parties to formulate arguments; grounds alleged in the complaint but not relied
upon in summary judgment are deemed abandoned.” Id. at 599 (citations omitted).
Accordingly, the Court finds that summary judgment is due to be granted in favor of
Defendants on Counts I and II.

12

2. Count III
The remaining claim asserted in Count III consists of a Title VII gender
discrimination claim against AOC, for failure to promote/hire to the CJPO vacancy.
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). The plaintiff has the burden of establishing a prima facie case of
employment 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 sex discrimination
through circumstantial rather than direct evidence, the Court evaluates the claim
using the burden-shifting framework established by the Supreme Court in
McDonnell Douglas, 411 U.S. 792. 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 sex discrimination, the plaintiff must show that (1) she is a
member of a protected class (here, female); (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.
13

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 [sex], since different treatment of dissimilarly situated
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). In the instant case, for the purposes of this summary
judgment motion, there appears to be no dispute that Plaintiff has established a
prima facie case of discrimination.
By establishing the prima facie elements of the claim, Plaintiff raises a
presumption that her protected status (i.e her 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)).
Accordingly, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the challenged employment action. 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 sex discrimination. See Brooks v. County Comm’n of
Jefferson County, 446 F.3d 1160, 1163 (11th Cir. 2006) (plaintiff shows pretext by
14

“demonstrat[ing] that the proffered reason was not the true reason for the
employment decision[,]” and by “introduc[ing] significantly probative evidence . . .
that the asserted reason is merely pretext for discrimination.” (internal quotation
marks and citation omitted)). 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).
In the instant case, the CJPO position sought by the plaintiff was awarded to
Lawrence Battiste, who was one of three candidates recommended by a screening
committee. The Eleventh Circuit found that Defendants had not sufficiently stated a
legitimate nondiscriminatory reason in their original motion for summary judgment
15

because they had not provide a sufficient nondiscriminatory reason why the plaintiff
was not recommended by the screening committee. The Eleventh Circuit noted that
“an active comparison between the two candidates may have served as a sufficient,
legitimate, nondiscriminatory reason.” (Doc. 70, p. 12 n. 6). In light of the Eleventh
Circuit’s opinion, defendants have focused their renewed motion on their contention
that the screening committee had legitimate nondiscriminatory reasons for
recommending Battiste over the plaintiff.
Defendants contend that the qualifications sought by Judge Naman for the
new CJPO had been made clear to the selection committee and that the selection
committee found Battiste to be far more qualified for the CJPO position. Vonda
Sanders, the former Assistant Director of Human Resources for AOC, served on the
selection committee. (Doc. 77-2, ¶ 4). Ms. Sanders understood that Judge Naman
could have appointed a CJPO, but instead devised the selection committee in an
effort to appoint the best qualified applicant for the CJPO position in order to move
the Mobile County Juvenile Court forward in the most positive and efficient manner.
(Doc. 77-2, ¶¶ 4, 5). The committee interviewed all seventeen applicants for the
position because they all met the minimum qualifications for the position. (Doc. 77-2,
¶ 6). Sanders was most impressed by applicants Rhoda Kimble, Lawrence Battiste,
and Shannon Shelly-Tremblay. (Doc. 77-2, ¶ 6). “These applicants particularly had a
vision of the role of the CJPO position and possessed experience to move the Mobile
County Juvenile Court forward in the direction Judge Naman had communicated.”
(Doc. 77-2, ¶ 6). During plaintiff’s interview, Sanders did not get the impression
16

that the plaintiff was the best fit for the CJPO position because “she constantly
spoke about how things used to be in the past and how she would implement some of
the old programs that used to exist.” (Doc. 77-2, ¶ 7). According to Sanders, Mr.
Battiste, Ms. Tremblay, and Ms. Kimble all met the minimum qualifications and
exhibited the appropriate experience and attitude that would make them a proper fit
for the CJPO position. (Doc. 77-2, ¶8).
Larry Harris, the former CJPO, also served on the selection committee.
Harris states that they knew what Judge Naman was looking for in a new CJPO,
but he had not established strict criteria for screening the candidates. (Doc. 77-1, ¶
6). Harris knew that Judge Naman “wanted to develop new programs [to] revitalize
the activities of our Court, work with other agencies, and reach out to the
community to truly assist the juveniles and families in the area.” (Doc. 77-1, ¶ 8).
During Harris’ tenure as CJPO, he was very busy and they had made a lot of
progress, for example Naman revitalized the local Children’s Policy program, a
state-sponsored initiative that had languished under the previous administration.
(Doc. 77-1, ¶ 8). Harris did not think Plaintiff’s interview went well. (Doc. 77-1, ¶ 7).
Harris described Plaintiff’s interview as follows:
Even
 though
 she
 had
 served
 under
 Judge
 Naman’s
 supervision
 for
 three
 years,

she
 stated
 that
 she
 thought
 the
 Court
 should
 return
 to
 old
 ways
 of
 doing

things
 as
 when
 Judge
 Strickland
 was
 presiding
 judge
 in
 the
 seventies
 and

eighties
 of
 the
 juvenile
 court
 of
 Mobile
 County.

 She
 even
 mentioned
 Judge

Strickland’s
 name
 when
 talking
 about
 this.

 She
 seemed
 to
 not
 want
 to
 move

forward
 into
 the
 future
 as
 Judge
 Naman
 wanted
 the
 Court
 to
 do.

(Doc. 77-1, ¶ 7).
17

Defendants contend that the above testimony of Sanders and Harris
sufficiently establishes a legitimate, nondiscriminatory reason for the committee’s
decision not to recommend the plaintiff for the CJPO position.1 Plaintiff disagrees
and attempts to discredit the testimony as vague and subjective. However,
“[s]ubjective reasons can be just as valid as objective reasons.” Chapman v. AI
Transport, 229 F.3d 1012, 1033 (11th Cir. 2000). Whether subjective or objective, the
reasons must be clear and reasonably specific so that the plaintiff is “afforded a full
and fair opportunity to demonstrate pretext.” Id. at 1034. The Court finds
Defendants’ reasons are sufficiently clear and specific. While Sanders and Harris
offer mostly general conclusions of their impressions of the candidates, they also
offer more specific factual bases to explain their statements. Sanders reports that
plaintiff “constantly spoke about how things used to be in the past and how she
would implement some of the old programs that used to exist.” Harris offers that
the plaintiff “stated that she thought the Court should return to old ways of doing
things as when Judge Strickland was presiding judge in the seventies and eighties.”
As stated above, the defendants’ burden of establishing a legitimate
nondiscriminatory reason is “extremely light.” Tipton, 872 F.2d at 1495. The Court

Due to the history of this case, the parties’ arguments as to Count III are focused
almost exclusively on the committee’s decision to recommend three candidates, in
particular Battiste, and to not recommend the plaintiff. As to Naman’s decision to
hire Battiste after he was recommended by the committee, the Court reiterates its
previous conclusions in the original summary judgment Order: (1) that Defendants
provided legitimate nondiscriminatory reasons for Naman’s decision to hire Battiste
over Plaintiff, and (2) that Plaintiff has not shown pretext. (Doc. 58, pp. 16-19).
18
1

finds that Defendants have met that burden and that the presumption of
discrimination raised by the plaintiff’s prima facie case is rebutted, and thus
disappears.
Therefore, the Court turns to Plaintiff’s contention that the articulated
nondiscriminatory reasons are merely pretext for unlawful sex discrimination.
Plaintiff contends that the screening committee and Defendants’ reasons should not
be believed because they are vague and subjective and because Plaintiff was more
qualified. Plaintiff argues that this Circuit has often condemned such practices as
using unpublicized, subjective criteria for hiring or promotions, because they are
“ready conduits to race-based decisions”. However, the cases cited by Plaintiff do
not refer simply to an employer’s subjective reasons (which, as indicated above, can
be as valid as objective reasons), but concerned circumstances where the hiring or
promotion process was wholly devoid of structure or objective criteria. Where there
is an informal or secretive system of appointment, with no advertising or posting of
the position, no formal application procedures and personnel choices heavily
influenced by subjective factors, the results may be suspect. See Stallworth v.
Shuler, 777 F.2d 1431, 1434 (11th Cir. 1985); Roberts v. Gadsden Mem. Hosp., 835
F.2d 793, 798 (11th Cir.), modified, 850 F.2d 1549 (11th Cir. 1988). In these cited
cases, it was the entire process of hiring or promoting that was informal or secretive
and tended to facilitate the consideration of impermissible criteria. In Plaintiff’s
case, the process was not informal or secretive. Potential candidates were given the
opportunity to respond to the formally posted vacancy with their applications, and
19

all of the applicants were interviewed by the selection committee. The selection
committee then recommended three candidates to Judge Naman, who then
interviewed the candidates personally. The evidence does not indicate that the
hiring process or procedures were secretive or devoid of formal process.
In a third case cited by plaintiff, Crawford v. Western Electric Co., 614 F.2d
1300 (5th Cir. 1980), the court found that, because the criteria for work assignments
and review procedures were so subjective, the court would consider the plaintiffs to
have been qualified to do the work and, therefore, to have satisfied the second prong
of a prima facie case. In Crawford, employees were hired at “Index 1” and could
progress to successively higher indexes if they “(1) perform work in the proper codes
within the higher index and (2) receive a rating in the index review conference
indicating that they are qualified in the proper codes.” Id. at 1311. Statistical
evidence indicated that on average white employees achieved “Index 3” a full year
sooner than black employees and that it took black employees more than twice as
long as white employees to reach “Index 5.” Id. at 1313. There was also evidence of
racially motivated conduct and language, such as supervisors addressing black
employees as “boys” and a supervisor telling a black employee that he did not need
any training because “he didn’t figure there was nothing they could teach … a man
of your background.” Id. at 1314, 1316 n 29. The supervisors had no instructions or
criteria to guide them in their reviews, they did not keep any records of the quality
and efficiency of work done, and they doled jobs out based partly on the supervisor’s
perception of the employees’ skills. Id. at 1314. The Crawford plaintiffs asserted
20

that they could not qualify for advancement because they were neither given work
assignments, nor the required positive reviews. The trial court found that the
plaintiffs had not met a prima facie case because they had not shown that they were
qualified to do the work. The Fifth Circuit disagreed, stating that “an employer may
not utilize wholly subjective standards by which to judge its employees’
qualifications and then plead lack of qualification when its promotion process, for
example, is challenged as discriminatory.” Id. at 1315, 1317. The court found that
the advancement requirements were “suspect” and expressed “a skepticism that
Black persons dependent directly on decisive recommendations from Whites can
expect non-discriminatory action.” Id. at 1315, 1317. The court concluded that:
From
 the
 statistics,
 plus
 proof
 of
 subjectivity
 and
 racial
 incidents,
 we
 believe

plaintiffs'
 evidence
 raises
 an
 inference
 either
 that
 blacks
 were
 not
 given

opportunities
 equal
 to
 those
 given
 whites
 to
 work
 in
 higher
 codes
 or
 that,

work
 opportunities
 being
 equal,
 whites
 were
 rated
 “qualified”
 much
 sooner

than
 blacks
 on
 the
 average.
 In
 either
 case,
 the
 evidence
 is
 suggestive
 that

whites
 were
 treated
 better
 in
 general.

Id. at 1317. The defendant in Crawford was then given the opportunity to rebut the
presumption that arose from plaintiffs having established a prima facie case. Id. at
1318-19. The defendant in Crawford successfully rebutted the presumption as to
work assignments after mid-1974 “by proving that economic factors played a large
part in reducing available work and that supervisors were ordered to assign work on
a racially neutral basis.” Id. at p. 1219.
This Court finds that Crawford is not analogous to the instant case. The
subjective factors at issue in Crawford were being used to establish a statistical
21

prima facie case, rather than show pretext. The Court agrees that subjective bases
for a decision are clearly less compelling and may be “suspect” when the
circumstances or other evidence indicate bias. However, in the instant case, unlike
the Crawford case, the decision makers (ie. the committee members) were not all
outside her protected class (there were both men and women serving on the
committee), there is no statistical evidence tending to show discrimination, and
there is no evidence of discriminatory conduct or language.
Plaintiff contends that Defendants’ reasons should not be believed because
Plaintiff is more qualified for the CJPO position than Battiste, and Battiste does not
even meet the minimum criteria listed in the job announcement. Specifically,
Plaintiff points to the fact that Battiste does not have a “bachelor’s degree in
counseling, criminal justice, psychology, sociology or a closely related field” and has
never been employed in a position involving juvenile delinquency, counseling or case
management. However, Battiste had comparable education and experience. As
discussed in the prior summary judgment ruling, Battiste has a bachelor’s degree in
human resources management and an extensive law enforcement background,
including serving as the Chief of Police in Prichard and as a Lieutenant in the
Mobile County Sheriff’s office. As this Court previously stated:
Simply
 pointing
 out
 Mosley’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.”

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(Doc. 58, p. 19, quoting Brooks, 446 F.3d at 1163.
Moreover, as previously stated, pretext is not shown “unless it is shown both
that the reason was false, and that discrimination was the real reason.” Brooks, 446
F.3d at 1163 (citation omitted, emphasis in original). None of the evidence indicates
that the reason Plaintiff was not recommended was because she was a woman,
especially in light of the fact that two of the three candidates that were
recommended by the committee were women. The Court therefore finds that the
plaintiff has not shown pretext.
3. Count V
The remaining claim asserted in Count V consists of a § 1981 claim against
the individual defendants2 for retaliation in relation to the CJPO vacancy. Like
Plaintiff’s title VII discrimination claim discussed above, a retaliation claim based
on circumstantial evidence is analyzed according to the McDonnell Douglas
framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973);
Anyanwu v. Brumos Motor Cars, Inc., 496 Fed.Appx. 943, 945–46 (11th Cir. 2012)
(citing Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.1998))

The individual defendants in this case are Judge Naman and Battiste. Since the
only retaliation claim remaining concerns Plaintiff not receiving the CJPO position
the Court finds that Plaintiff does not have a viable retaliation claim against
Battiste. Battiste was the candidate chosen for the CJPO position and was clearly
not one of the decisionmakers. Accordingly, to the extent Plaintiff asserts her
retaliation claim against Battiste, summary judgment is due to be granted in favor
of Battiste.
2

23

(“Racial discrimination and retaliation claims are cognizable under both Title VII
and 42 U.S.C. § 1981, and they ‘have the same requirements of proof and use the
same analytical framework.’ ”).
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 statutorilyprotected 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). For the purposes of this renewed
summary judgment motion there appears to be no dispute that plaintiff has
established a prima facie case of retaliation. Thus, the Court turns to whether
Defendants have proffered a legitimate nondiscriminatory reason for the decision
and whether the plaintiff has shown pretext.
The Court finds that Defendants have proffered a legitimate
nondiscriminatory reason. After being recommended by the selection committee for
the reasons discussed above, Judge Naman selected Battiste because he was more
qualified due to his extensive administrative and management experience. 3 Thus,

Since this claim is asserted only against Judge Naman individually, it is only his
actions that are in question. Thus, although the Eleventh Circuit seems to have
suggested that the committee’s recommendation must be parsed, it is not clear to
this Court why the committee’s decision would be relevant unless Judge Naman
influenced the committee members or used his control over the process to affect the
outcome of their decision. Plaintiff has not shown that either of these scenarios exist
in this case. Given that plaintiff was not recommended by the selection committee
and Battiste was, Judge Naman’s decision not to hire her need not be overly
compelling. However, the Court is mindful that Judge Naman was not required to
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3

the burden now shifts to Plaintiff to demonstrate that these reasons were merely
pretext for retaliation.
Plaintiff again argues that she was more qualified than Battiste. This
argument fails for the same reason it fails under Plaintiff’s discrimination claim.
The alleged disparity in education and experience at best suggests that Judge
Naman may have made a bad employment decision. Plaintiff cites various
statements contained in Judge Naman’s affidavit that mostly describe his concerns
about Plaintiff. Plaintiff attempts to counter his statements with her own
credentials and contends they are evidence of his retaliatory intent. However, after
reviewing Naman’s averments, the Court finds that they do not show retaliatory
intent. “[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 motivate a reasonable employer.” Pennington v. City of
Huntsville, 261 F.3d 1262, 1267 (11th Cir. 2001) (citation and internal quotations
omitted). 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 [his] action is not for a [retaliatory] reason.” Nix v. WLCY Radio/Rahall

follow the committee’s recommendation. The evidence shows that Judge Naman
found Battiste to be more qualified and had serious doubts about Plaintiff’s ability to
handle the CJPO position. The Court finds this sufficiently establishes a legitimate
nondiscriminatory reason. To the extent the decision by the committee members is
relevant, the Court found, above, that there were legitimate nondiscriminatory
reasons for their actions.
25

Comm's, 738 F.2d 1181, 1187 (11th Cir. 1984). Plaintiff has not shown that Judge
Naman’s reasons were pretextual.

CONCLUSION
For the reasons discussed above, Defendants’ renewed motion for summary
judgment (Doc. 76) is hereby GRANTED.
DONE and ORDERED this 25th day of July, 2014.
/s/ Callie V.S. Granade
UNITED STATES DISTRICT JUDGE

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