Hammon v. Board of School Commissioners of Mobile County, Alabama et al
ORDER granting the Board's 23 Motion for Summary Judgment as set out. Signed by Judge Kristi K. DuBose on 7/22/2013. (cmj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
JERRY L. HAMMON,
BOARD OF SCHOOL COMMISSIONERS )
OF MOBILE COUNTY, ALABAMA,
CIVIL ACTION NO. 12-00454-KD-C
This action is before the Court on the Motion for Summary Judgment (Doc. 23) and
supporting materials (Docs. 24-26) filed by the Defendant, the Board of School Commissioners
of Mobile County, Alabama (the Board), the Response in opposition and supporting materials
(Docs. 27-31) filed by Plaintiff Jerry L. Hammon (Hammon), and the Board’s Reply (Doc. 32).
Upon consideration, and for the reasons stated herein, the Board’s motion is GRANTED.
I. Procedural History
Hammon filed his charge with the Equal Employment Opportunity Commission in
October 2010 and timely filed this action after receiving his Notice of Rights letter from the
EEOC (Doc. 26-1, p. 16-17; Doc. 1 at ¶ 8; Doc. 1-1). Hammon alleges that he was
discriminatorily denied a math teaching position by the Board on the basis of his race and sex in
violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (Title VII), as
amended by the Civil Rights Act of 1991, on basis of race in violation of 42 U.S.C. § 1981, and
on the basis of his age in violation of the Age Discrimination in Employment Act, 29 U.S.C. §
Superintendent Martha Peek was dismissed from this action. (Doc. 10)
621 et seq. (ADEA). The Board timely filed its answer denying liability on all counts. (Doc. 5)
II. Findings of Fact2
Hammon is a white male over the age of 40. (Doc. 31-10, p. 2, Hammon Declaration)
He received his B.S. Degree in Adult Interdisciplinary Studies from the University of South
Alabama in 2001. (Doc. 26-1, p. 5, Hammon Depo.; Doc. 26-1, p. 31. Ex. 1, Hammon Resume)
Hammon was first employed as a teacher with the Mobile County Public School System
(MCPSS) at the beginning of the 2001-2002 school year. (Doc. 26-1, p. 6) Prior to then,
between 1990 and 2001, Hammon taught at private schools. (Id. p. 31) The following is a
chronological listing of the schools at which Hammon has taught:
Evangel Christian School
(Eight Mile, AL)
Northway Christian Academy
(Eight Mile, AL)
First Independent Methodist School
Mowa Choctaw Friends Academy
Oak Park Christian School
St. Mary School
Mary G. Montgomery High School
Shaw High School
Williamson High School
Blount High School
2001-2002 (fall semester only)
2001-2002 (spring semester only)
The Court has made its determination of facts by “review[ing] the record, and all its
inferences, in the light most favorable to [the Plaintiff,] the nonmoving party.” Benson v. Tocco,
Inc.,113 F.3d 1203, 1207 (11th Cir. 1997).
Daphne High School
(Baldwin County School System)
B.C. Rain High School
(Id., p. 6-9, 31)
Hammon states that he left Blount after two years because his family was contemplating
moving to Baldwin County, that his position in Daphne was “non-renewed” because of budget
cuts,3 and that his position at Rain was also “non-renewed” because of budget cuts. (Doc. 31-10,
p. 6). Hammon states that with the exception of his decision to relocate to Baldwin County, his
moves to different schools were the “result of routine non-renewals of probationary teachers.”
(Doc. 31-10, p. 7) Since the end of the 2009-2010 school year, Hammon has continued working
with the MCPSS as a substitute teacher. (Id., p. 4)
Hammon first interviewed with Vigor High School Principal Kenneth Edwards, a black
male, for the math teacher vacancy at Vigor in the summer of 2009. In his declaration, Hammon
states as follows:
During our interview Kenneth Edwards told me that the position shown as vacant
. . . was currently held by a long term substitute who was doing a good job and
who he would not replace. He told me that “she is working on completing her
certification”. The interview ended with no job offer but Edwards told me that if
the long term substitute was not allowed to continue in the position, I would be
(Doc. 31-10, p. 8).
Carol Palumbo, Assistant Principal at Daphne High School, wrote a letter of
recommendation to Kim Staley, Principal at B.C. Rain High School, wherein she stated that
Hammon was “an excellent teacher.” (Doc. 31-10, p. 27) Palumbo also signed a “Confidential
Reference Form” which indicated that Hammon’s reason for leaving was “Reduction in force”
and that he would be recommended should her school have a vacancy. (Id., p. 28-29)
In July 2010, after receiving notice that his position at Rain would not be renewed and
meeting with Bryan Hack, Executive Manager of Human Resources, Hammon again interviewed
with Edwards regarding the math teacher vacancy at Vigor. (Doc. 26-2, p. 4, 8, Edwards Depo.;
Doc. 31-10, p. 2) At that time, Hammon was certified to teach high school math and was rated
“highly qualified” under state and federal law. (Doc. 31-10, p. 2; Doc. 31-1, p. 4, Hack Depo.)
Hammon states that Edwards told him during this interview that “the position at Vigor was open,
but he was trying to hold [the vacant teaching position] for the teacher who had filled the
position during the 2009-10 school year . . . that she, the teacher, was working on completing her
certification but he wasn’t certain if she would have it or not . . . [and that] he was protecting the
position for the uncertified teacher so she could qualify for the position.” (Doc. 31-10, p. 10)
Later, in August 2010, Hammon met again with Hack about possible math positions in
the MCPSS. Hack did not mention the position at Vigor, so Hammon asked about that position.
Hack told him that “state law allows for one exception and a School Board member has asked
the Superintendent to protect that position for the non-certified teacher” and that “[w]e are not
going to touch that one.” (Doc. 31-10, p. 10) A few days after this meeting, Hammon went to
the Human Resources Department of the MCPSS to speak with John Powell (Powell), the
Personnel Administrator for High Schools, about job vacancies in the school system. (Id., p. 11)
During this meeting, Powell told Hammon that “the math position held for the non-certified
teacher at Vigor was being vacated” and that Hammon should go to Vigor to interview. (Id.).
Hammon did so and met again with Edwards. (Id.) Hammon told Edwards that Powell
had told him that the position was being vacated and Hammon asked for the job. (Id., p. 11-12)
During their meeting, Edwards contacted the MCPSS office to verify the information. He then
told Hammon that the position would not be vacated, but that Hammon would be considered if
the position was vacated. (Id., p. 12)
Hammon next contacted his employee organization representative Danny Goodwin who
sent a complaint to Hack, the Superintendent, and the Board that a position was reserved for an
uncertified teacher in preference to Hammon, a certified and highly qualified applicant (Doc. 3110, p. 12; Doc. 31-11, p. 3, Goodwin Declaration; Doc. 31-10, p. 40, copy of letter). A few days
later, Goodwin contacted Hammon to inform him that the Superintendent had removed the hold
from the Vigor position and that Edwards would make the final decision. (Doc. 31-10, p. 13).
Hammon then met with Edwards for a fourth interview. (Id.) However, Edwards indicated that
the position would be “re-advertised.” (Id)
After the interview, Edwards contacted the principals of two schools where Hammon had
previously worked – Marlon Firle at B. C. Rain High School (2007 through 2010) and Ron
Coleman at Blount High School (2004 through 2006). (Doc. 26-2, p. 11, 13) Edwards testified
that Firle told him that while Hammon “knows his subject content, . . . he has a problem with his
classroom management.” (Doc. 26-2, p. 11) Edwards admits that he “didn’t go into any of the
detail” as to this criticism and that he “take[s] the value of what [a] principal is saying” and
“d[oes]n’t go into the valuation of it.” (Id.). At his deposition, Firle could not give the specifics
of any verbal admonitions regarding Hammon’s classroom management. (Doc. 31-9, p. 3, 4,
Firle Depo.) He confirmed that he told Edwards “there were some classroom management issues
with Mr. Hammon” but did not “recall going into any detail.” (Doc. 31-9, p. 7, Firle Depo.). Firle
also recalled giving Hammon “some verbal feedback as to classroom management.” (Id.)
Hammon states that Firle never provided him with any written or verbal feedback and to the
contrary, Firle’s written evaluations indicated that classroom management was an area of
strength. (Doc. 31-10, p. 3)4
Edwards testified that Coleman said that Hammon “had problems in classroom
management[,]” although Edwards again did not inquire further and admits that their
conversation lasted only a minute or two, “if that long.” (Id., p. 13-14). Coleman testified that
he did not “recall” any communications with Edwards about Hammon. (Doc. 31-5, p. 3,
Coleman Depo.) Hammon states that Coleman was the principal at Blount in 2004-2005. He
disputes Coleman’s comments as testified by Edwards. (Id. p. 5) Hammon also points out that
any deficiencies Coleman may have observed in 2004 did not prevent his employment at Blount
the next year and at Rain from 2007 until 2010. (Id.) 5
Hammond states that during the 2005 - 2006 term, his principal at Blount was Don
Mitchell. Hammon states that Mitchell never gave him any written or verbal admonition as to
classroom management, that his end-of-year rating for classroom management was an area of
strength,6 and that Mitchell appointed Hammon to his leadership team. (Doc. 31-10, p. 4-5)
Edwards testified that Hammon mentioned needing only one or two more years to
become vested with the MCPSS. (Doc. 26-2, p. 15) Based on “how” and “when” the statement
On August 16, 2007, Firle stated in an “Instructional Observational Snapshot” that “[i]t
is evident that classroom management is in order.” (Doc. 31-13, p. 38) On May 19, 2009, Firle
reported that “Mr. Hammon presents instruction in an organized manner”, “Mr. Hammon
manages class time and student behavior”, and “Mr. Hammon promotes a positive learning
climate.” (Doc. 31-13, p. 3-4, Alabama Professional Education Personnel Evaluation Program
Evaluation Summary Report (PEPE)).
In November 2004, during Hammon’s first semester at Blount, Coleman had written a
memorandum which was placed in Hammon’s file. (Doc. 26-1, p. 35) He documented an
informal classroom observation finding that Hammon did not have his classroom under control.
Hammon provides a copy of his PEPE showing that it was completed by Mitchell (Doc.
31-10, p. 30-33) Under “Classroom Management”, Hammon’s competency score was 3 “Area of
Strength” with the highest score possible of 4 “Demonstrates Excellence” (Id., p. 31) The
document is either un-signed or the signatures did not survive the conversion to PDF format.
was made, Edwards “looked at that to be someone saying that they were willing to work two
years and not longer” and that he was “looking for someone to make a long-term endowment on
[his] kids, not a short term.” (Id.) Hammon states that he told Edwards that he had one more
year to vest in the retirement system but that he intended to continue working as long as possible
and had no plans to retire. (Doc. 31-10, p. 7)
The position Hammon sought remained vacant until January 2011, when it was filled by
Kimebric Windham (Windham), an African-American female below the age of 40. Windham is
the “long term substitute” who was allowed to continue in the position. She had worked
continuously at Vigor since the beginning of the 2005-2006 school year, either as an unpaid
intern, a substitute, or a teacher. (Doc. 25-6, p. 4-6) She had been actively involved at Vigor by
sponsoring the cheerleading squad and volunteering with other athletic teams even during time
periods when she was not employed as a substitute teacher or teacher. (Doc. 25-6, p. 4-6)
In May 2010, at the request of Edwards, Windham had written Powell to request that she
be allowed to substitute teach math at Vigor during the fall of 2010 as fulfillment of her
internship requirement with Alabama State University where she was pursuing her Master of
Education with a major in math education. (Doc. 31-2, p. 3-4, Powell Depo.; Doc. 31-6, p. 9-10,
Windham Depo.) Powell does not recall taking any action on the letter but recalls that Edwards
requested Windham and that the decision whether to allow Windham to substitute “would have
been left up to the principal.” (Doc. 31-2, p. 21 (Powell Depo.)
Ultimately, Windham began teaching at Vigor during the fall of 2010 and obtained her
master’s degree in December 2010. (Doc. 25-6, p. 7; Doc. 31-13, p. 10, Statement of Degree
Completion from the Registrar at Alabama State University) A “Professional Educator
Certificate” was issued to Windham in May 2011. (Doc. 31-13, p. 9) Effective January 13,
2011, she was hired as the secondary math teacher in the position Hammon sought. (Doc. 31-13,
p. 8, “Employee Action Form”)7
Windham is a long-time family friend of Board Member Reginald Crenshaw. Crenshaw
is a black male. Vigor is in his district. (Doc. 31-8, p. 8-10, Crenshaw Depo.) Crenshaw has
known Windham for more than thirty years and knew her father, mother and taught her brother.
(Doc. 31-8, p. 11-12, Crenshaw Depo.) In its reply, the Board states that “the Board and Dr.
Crenshaw vehemently denies he did anything to influence Mr. Edwards’s decision.” (Doc. 32-5)
Executive Director of Human Resources, Pauline Scarbrough testified that she believed she “had
heard someone mention his name” in connection with the math position at Vigor but she had no
“direct knowledge” of Crenshaw exerting pressure regarding the position. (Doc. 31-3, p. 18,
During the relevant time period, Dr. Roy Nichols was the Superintendent. During his
term, the Board adopted a policy whereby their authority was limited to actions taken as a board
and for board members to give directions to school system employees, including principals,
would not be a “proper role”. (Doc. 31-7, p. 9-13, 13) Nichols reviewed several items of intraoffice communications regarding the math teacher position at Vigor but could not specifically
recall whether Crenshaw had pressured him to allow an uncertified teacher to be hired for the
position. (Doc. 31-7, p. 10) Nichols testified “Dr. Crenshaw was one of those [board members]
who tended to get more involved than he needed to.” (Doc. 31-7, p. 10)
Hammon asserts that Windham “repeatedly received special dispensations” from the
MCPSS in violation of Board policy and Alabama law including allowing her to substitute teach
or teach when she did not have the requisite teaching certificate or an application for an
alternative certificate or a “highly qualified” status and allowing her to student teach and receive
pay as a substitute in violation of Board policy. (Doc. 29, p. 15-16, Hammon’s Statement of
Contested Facts) However, there is no dispute of fact that in the summer of 2010, when
Hammon sought the math teacher position, he was properly certified and Windham was not.
III. Conclusions of Law
A. Summary judgment standard
Summary judgment should 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.” Fed. R.
Civ. P. 56(a). If a party asserts “that a fact cannot be or is genuinely disputed”, the party must
(A) cit[e] 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) show 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.
Fed. R. Civ. P. 56(c)(1)(A)(B).
The Board, as the party seeking summary judgment bears “the initial burden to show the
district court, by reference to materials on file, that there are no genuine issues of material fact
that should be decided at trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
The party seeking summary judgment “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of material fact.” Clark, 929
F.2d at 608 quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553 (1986).
Once the Board has satisfied its responsibility, the burden shifts to Hammon, as the nonmovant, to show the existence of a genuine issue of material fact. Id. “In reviewing whether the
nonmoving party has met its burden, the court must stop short of weighing the evidence and
making credibility determination 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, 999 (11th Cir. 1992) citing Anderson v. Liberty Lobby,
477 U.S. 242, 255, 106 S. Ct. 2505 (1986); Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-159,
90 S. Ct. 1598, 1608-1609 (1970). However, “[a] moving party is entitled to summary judgment
if the nonmoving party has ‘failed to make a sufficient showing on an essential element of her
case with respect to which she has the burden of proof.’” In re Walker, 48 F. 3d 1161, 1163 (11th
Cir. 1995) quoting Celotex Corp., 477 U.S. at 323, 106 S. Ct. at 2552.
Overall, the court must “resolve all issues of material fact in favor of the [non-movant],
and then determine the legal question of whether the [movant] is entitled to judgment as a matter
of law under that version of the facts.” McDowell v. Brown, 392 F.3d 1283, 1288 (11th Cir. 2004)
(citing Durruthy v. Pastor, 351 F.3d 1080, 1084 (11th Cir. 2003)).
However, the mere existence of any factual dispute will not automatically necessitate
denial of a motion for summary judgment; rather, only factual disputes that are material preclude
entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358
F.3d 804, 809 (11th Cir. 2004). “An issue of fact is material if it is a legal element of the claim
under the applicable substantive law which might affect the outcome of the case. It is genuine if
the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.”
Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798, 807 (11th Cir. 2010) (citation omitted).
B. Title VII Race and Sex Discrimination claim
Title VII makes it “an unlawful practice for an employer to [ ] fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of such individual's”
race or sex. 42 U.S.C. § 2000e–2(a)(1). Hammon, as the plaintiff bears the burden of proving
that he has been discriminated against on basis of race and sex and he may establish his claims
through either direct or circumstantial evidence of discrimination. Dixon v. The Hallmark
Companies, Inc., 627 F.3d 849, 854 (11th Cir. 2010). Hammon relies upon circumstantial
evidence, and therefore, the court applies the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973);
E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272 (11th Cir. 2002). Under this
framework, Hammon must initially establish a prima facie case of discrimination and thus create
a rebuttable presumption that the Board has discriminated against him. Lane v. Broward County,
Florida, 411 Fed.Appx. 272, 273 (11th Cir. 2011) (quoting Joe’s Stone Crab, 296 F. 3d at 12721273). The “burden then shifts” to the Board to rebut the presumption by producing evidence
that it did not hire Hammon for “some legitimate, non discriminatory reason.” Id. If the Board
meets this burden of production, then the “presumption of discrimination is rebutted” and
Hammon “must show that the “proffered reason really is a pretext for unlawful discrimination.”
Id. Although the burdens shift, “the ultimate burden of persuading the trier of fact” that the
Board has intentionally discriminated against Hammon remains “at all times” with Hammon. Id.
There is no dispute of fact that Hammon has met the initial burden of establishing a
prima facie case of discrimination on the basis of race and sex. (Doc. 24, p. 4-5). Hammon is a
member of a protected class, he applied for the math teacher position and was qualified for the
position, he was not hired despite his qualification, and the position was filed by Kimebric
Windham, a person outside his protected class. Lane, 411 Fed. Appx at 273.
The burden then shifts to the Board to produce, i.e., articulate a legitimate, nondiscriminatory reason for its decision. Id. at 273. The burden is “exceedingly light” since the
Court makes no credibility determinations and “need not be persuaded that the [Board] was
actually motivated by the proffered reason.” Id. at 273-274. The Board has met its burden of
production in that it has articulated “clear and reasonably specific non-discriminatory basis for
its action.” Id. at 274. The Board proffered that Hammon was not hired because he had a record
of poor classroom management, a history of job-hopping, and because Edwards was looking for
a teacher who would make a long term commitment to Vigor (Doc. 24, p. 8-10).
The issue now is whether Hammon can “come forward with evidence sufficient to permit
a reasonable fact finder to conclude that the legitimate reasons given by the [Board] were not its
true reasons, but were a pretext for discrimination.” Id. at 274 (citation omitted) Hammon argues
that the evidence from which a jury could find that the proffered reasons are false is that an
“African-American Board member had intervened to place a ‘hold’ on filling the position at
Vigor so that a younger, unqualified, African-American female could continue to seek to qualify
for the position.” (Doc. 30, p. 15) Hammon argues that “it was unfair to deny the position to
[him] and that a properly certified person should be placed in the position.” (Id.) Hammon
argues that each of the Board’s proffered reasons are “fraught with weakness, implausibility or
outright” false and that his evidence casts sufficient doubt on the proffered reasons to allow a
reasonable fact-finder to decide that the reasons were a pretext for discrimination. (Id.)8
Hammon has come forward with some evidence to rebut the proffered reasons given by
the Board. First, he presented evidence that any alleged deficiency in classroom management
had been in his distant teaching history, that in his more recent evaluations “classroom
management” had been an “area of strength” by the Principal at Rain, and that he had been
recommended as an “excellent teacher” by the Assistant Principal at Daphne. Second, as to the
proffered reason of “job-hopping”, Hammon presented evidence that during the past five years,
the changes in teaching positions were the result of budget cuts or routine transfers of
probationary new teachers with only one instance of a voluntary decision to change schools. He
also presented evidence that during the past five years, he taught at Blount for two consecutive
years and most recently, taught at Rain for three consecutive years. Third, Hammon testified that
while he needed one more year to vest in the MCPSS pension, he told Edwards that he intended
to “keep working as long as [he] possibly could, had no plans to retire and wanted to work for
the long haul.” (Doc. 31-10, p. 7) However, much of this is “quarreling with the wisdom” of the
reasons which is not subject to second-guessing by this Court. Chapman v. AI Transport, 229
Hammon’s argument is based on the fact that Crenshaw and Windham are black and
Windham is female. However, the Court finds that Hammon has not met his burden to come
forward with sufficient evidence from which a fact-finder could reasonably infer that Edwards
and hence, the Board, did not hire Hammon because of his race and sex. Instead, the evidence
would support a finding that Crenshaw involved himself in the process, not because Hammon
was a white male, but because Crenshaw wanted the job for a close family friend, Windham.
Under this scenario, Edwards, under pressure from Crenshaw, would not have hired any other
applicant regardless of their race or sex. In other words, fair or unfair, the job was going to be
Windham’s. There simply is no evidence to support that Hammon was rejected because he was
male or because he was white. He was rejected because he wasn’t Windham.
Additionally, the McDonnell-Douglas “framework is not, and never was intended to be,
the sine qua non for a plaintiff to survive a summary judgment motion in an employment
discrimination case.” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011).
Hammon’s discrimination claims may proceed to trial “if the record, viewed in a light most
favorable to [him], presents ‘a convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker.’” Id. (internal citations and
footnote omitted); see also Chapter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1255-56
(11th Cir. 2012) (applying Smith in holding that an employee “d[id] not have to use the
McDonnell-Douglas framework to survive summary judgment because the record contain[ed]
enough non-comparator evidence for a jury to reasonably infer that [her supervisor]
F.3d 1012, 1030 (11th Cir. 2000) (en banc).
discriminated against [her] because she was pregnant). The “convincing mosaic” Hammon has
presented is that favoritism but not racism or sexism controlled this hiring decision. There
simply is no circumstantial evidence that would allow a jury to infer intentional race or sex
discrimination against Hammon by the Board.
C. Title 42 U.S.C. § 1981 claim of race discrimination and Title 42 U.S.C. § 1985(3)
claim of conspiracy.
In Count II of the complaint, Hammon alleged that he had been discriminated against on
basis of race in violation of 42 U.S.C. § 1981 because the Board had given the teaching position
to “an unqualified African-American in a manner substantially motivated by the factor of race”.
(Doc. 1, p. 10-11). The Board moved for summary judgment as to this count (doc. 24, p. 10-11).
In the opening paragraph, Hammon alleged that this action was also brought pursuant to
42 U.S.C. § 1985(3). (Doc. 1, p. 1) However, 42 U.S.C. § 1983 was not invoked and Hammon
did not plead a separate count for conspiracy to interfere with his civil rights under § 1985(3).
The Board moved for summary judgment as to any claim alleging a conspiracy on basis of the
intra-corporate conspiracy exception. 9
Hammon did not respond in opposition to the Board’s argument. (Doc. 30, p. 14-15)
Therefore, Hammon is deemed to have abandoned his claim of race discrimination under § 1981
and any claim asserted under 42 U.S.C. § 1985(3). Accordingly, summary judgment is granted
in favor of the Board as to Count II and any claim asserted for conspiracy to violate civil rights.
See Ekokotu v. Federal Express Corp., - - - Fed. Appx. - - -, 2013 WL 3491397, *2 (11th Cir.
Pursuant to the intracorporate conspiracy doctrine, corporate employees cannot
conspire among themselves where they are acting within the scope of their employment, i.e., as
agents of the corporation. Their conduct is attributable to the corporation and that negates “the
multiplicity of actors necessary for the formation of a conspiracy.” Grider v. City of Auburn, 618
F .3d 1240, 1261 (11th Cir. 2010) (quotations omitted).
2013) (“Here, the district court did not err with respect to Ekokotu's national origin
discrimination claims. First, the court correctly held that Ekokotu abandoned the claims because
he not only failed to argue them in response to FedEx's motion for summary judgment, but he
explicitly and unequivocally disavowed them in response to FedEx's motion for summary
judgment.”) (citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir. 1995));
Foy v. Pat Donalson Agency, - - - F. Supp. 2d - - -, 2013 2248157, *20 (N.D. Ala. May 22, 2013)
(finding that Foy abandoned the FLSA cause of action “when she failed to address in her
response the argument on that claim set out in defendants’ initial [summary judgment] brief”)
(citing Coalition for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F. 3d 1301,
1326 (11th Cir. 2000) (“failure to brief and argue this issue during the proceedings before the
district court is grounds for finding that the issue has been abandoned”)).
D. ADEA claim
The Board argues that because the ADEA “requires that age be the reason that the
employer decided to act, an ADEA plaintiff must establish ‘but for’ causality, no ‘same decision’
affirmative defense can exist: employer either acted because of plaintiff’s age or it did not.”
(Doc. 24, p. 12). The Board argues that Hammon cannot pursue both race and gender
discrimination and age discrimination because “by it very nature he cannot prevail on an age
claim since age would not be the ‘but for’ cause of his not receiving the position.” (Id.)
Hammon does not address the Board’s position that he must now decide between his
ADEA claim and his Title VII claims. Instead, Hammon makes the identical argument in
response to both – that he has made his prima facie case and that the Board’s proffered reasons
are a pretext for discrimination.
The ADEA prohibits employers such as the Board from refusing to hire an employee who
is at least 40 years of age because of that employee's age. The statute provides, in relevant part,
that “[i]t shall be unlawful for an employer ... to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual's age.” 29 U.S.C. §
The issue of whether the plaintiff could bring both an ADEA claim and a race claim
under Title VII in the same action without resulting in the dismissal of the ADEA claim was
recently addressed in McQueen v. Wells Fargo Home Mortgage, 2013 WL 3357000 (N.D. Ala.
June 28, 2013). In McQueen, the district court discussed the decisions in Gross v. FBL Financial
Services, Inc., 557 U.S. 167, 176, 129 S.Ct. 2343, 2350 (2009), Mora v. Jackson Memorial
Foundation, Inc., 597 F.3d 1201, 1204 (11th Cir. 2010), and Archie v. Home-Town Suites, LLC,
749 F. Supp. 2d 1308 (M.D. Ala. 2010) and held that “under the ADEA, the plaintiff can allege
that the alleged discriminatory acts were committed both because of her age and race”.
McQueen, at *22 (italics in original). In Archie, the district court addressed whether a plaintiff
could pursue both a gender and an age claim arising from the same adverse employment action.
The district court explained that
[G]ross requires “but for” causation. It has long been the law that there is a
difference between “but for” causation and “sole” causation. See McDonald v.
Santa Fe Trail Transp. Co., 427 U.S. 273, 282 n. 10, 96 S.Ct. 2574, 49 L.Ed.2d
493 (1976) (distinguishing sole causation from but for causation); see also
McNely v. Ocala Star–Banner Corp., 99 F.3d 1068, 1076 (11th Cir.1996)(same).
Gross refers only to “but for” causation. Gross, 129 S.Ct. at 2350.
It appears to the court, therefore, that even after Gross, a plaintiff might prove
that gender discrimination was a substantial or motivating factor in an adverse
employment action, satisfying the standard for the Title VII claim, but also show
that if it had not been for her age, she would not have been terminated, satisfying
the ADEA standard.
Archie, 749 F. Supp. 2d at 1315 n. 4; McQueen, at *22.
Despite the Board’s argument, it appears that Hammon may bring both a Title VII claim
and an ADEA claim and need not elect between the two. In that regard, as with Title VII,
A plaintiff can establish age discrimination through either direct or
circumstantial evidence. Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201,
1204 (11th Cir.2010). Prior to Gross, we consistently evaluated ADEA claims
based on circumstantial evidence of discrimination under the burden-shifting
framework in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817,
36 L.Ed.2d 668 (1973). See, e.g., Chapman v. AI Transp., 229 F.3d 1012, 1024
(11th Cir.2000) (en banc). Under this framework, a plaintiff must first establish a
prima facie case of discrimination. Id. at 1024. Next, the defendant must
articulate a legitimate, non-discriminatory reason for the challenged employment
action. Id. If the defendant articulates one or more such reasons, the plaintiff is
afforded an opportunity to show that the employer's stated reason is a pretext for
discrimination. See Kragor v. Takeda Pharm. Am., Inc., 702 F.3d 1304, 1307,
No. 11–16052, 2012 WL 6618360, at *2 (11th Cir. Dec. 20, 2012) (citing Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 2106,
147 L.Ed.2d 105 (2000); McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825).
The burden of persuasion always remains on the plaintiff in an ADEA case to
proffer evidence sufficient to permit a reasonable fact finder to conclude that the
discriminatory animus was the “but-for” cause of the adverse employment
action. See Gross, 557 U.S. at 176, 129 S.Ct. at 2350.
Following Gross, we have continued to evaluate ADEA claims based on
circumstantial evidence under the McDonnell Douglas framework. See Kragor,
702 F.3d at 1308, 2012 WL 6618360, at *2. This is not only consistent with our
pre- Gross case law, but also it is entirely consistent with Gross, which expressly
left open the question of whether this application is appropriate. Gross, 557 U.S.
at 175 n. 2, 129 S.Ct. at 2349 n. 2 (“[T]he Court has not definitively decided
whether the evidentiary framework of [ McDonnell Douglas] utilized in Title VII
cases is appropriate in the ADEA context.”). Gross held that it is improper to
shift the burden of persuasion to the defendant in an age-discrimination case. Id.
at 173, 129 S.Ct. at 2348 (“[W]e must first determine whether the burden of
persuasion ever shifts to the party defending an alleged mixed-motives
discrimination claim brought under the ADEA. We hold that it does not.”
(footnote omitted)). But the McDonnell Douglas framework does not shift the
burden of persuasion to the defendant; instead, once the employee establishes a
prima facie case of discrimination, the burden of production is shifted to the
employer to articulate a legitimate, non-discriminatory reason for the adverse
employment action. See Tex. Dep't of Comm. Affairs v. Burdine, 450 U.S. 248,
254–55, 101 S.Ct. 1089, 1094–95, 67 L.Ed.2d 207 (1981). If the employer offers
a legitimate, non-discriminatory reason, the employee is afforded an opportunity
to show that the employer's stated reason is a pretext for discrimination. See id. at
256, 101 S.Ct. at 1095; see also Kragor, 702 F.3d at 1308, 2012 WL 6618360, at
*2. Importantly, throughout this entire process, the ultimate burden of persuasion
remains on the employee. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502,
506–07, 113 S.Ct. 2742, 2747, 125 L.Ed.2d 407 (1993) (“It is important to note,
however, that although the McDonnell Douglas presumption shifts the burden of
production to the defendant, ‘[t]he ultimate burden of persuading the trier of fact
that the defendant intentionally discriminated against remains at all times with
the plaintiff.’ ”) (citation omitted); see also Willis v. Conopco, Inc., 108 F.3d
282, 286 (11th Cir.1997).
Our continued application of the McDonnell Douglas framework in ADEA cases
is also consistent with all of our sister circuits that have addressed the issue. . . .
Although our Kragor decision and our holding today reaffirm the use of the
McDonnell Douglas framework in ADEA cases, this framework is not the sine
qua non for a plaintiff to survive summary judgment in a discrimination case.
See Smith v. Lockheed Martin Corp., 644 F.3d 1321, 1328 (11th Cir.2011).
Instead, “the plaintiff will always survive summary judgment if he presents
circumstantial evidence that creates a triable issue concerning the employer's
discriminatory intent.” Id. A triable issue of fact exists “if the record, viewed in a
light most favorable to the plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.” Id. (footnote omitted) (internal quotation
Sims v. MVM, Inc., 704 F.3d 1327, 1332-1333 (11th Cir. 2013) (some internal citations omitted).
Hammon does not argue that he has direct evidence of age discrimination. Instead, he
argues that he has presented sufficient evidence to rebut the Board’s proffered explanation why
he was not hired as a pretext for discrimination and produced evidence that the real reason was to
hold the position for a younger, unqualified person.
The Board does not dispute that Hammon has made a prima facie case of age
discrimination. He has shown that he is a member of a protected group of persons over age
forty, that he was not hired for the teaching position, that a person outside his protected group
was hired, and that he was qualified for the job at issue. McQueen, at *22. The burden of
production then shifted to the Board to proffer legitimate non-discriminatory reasons for not
hiring Hammon. Again, the Board proffers that Hammon was not hired because he had a record
of poor classroom management, a history of job-hopping, and because Edwards was looking for
a teacher who would make a long term commitment to Vigor. (Doc. 24, p. 8-10) The latter is
based upon Edwards’ impression that Hammon planned to work one or two more years, vest in
the retirement system, and then retire from teaching.
The issue now is whether Hammon has “come forward with evidence sufficient to permit
a reasonable fact finder to conclude that the legitimate reasons given by the [Board] were not its
true reasons, but were a pretext for discrimination.” Lane, 411 Fed. Appx at 274 (citation
omitted) Hammon argues that the evidence from which a jury could find that the proffered
reasons are false is that an “African-American Board member had intervened to place a ‘hold’ on
filling the position at Vigor so that a younger, unqualified, African-American female could
continue to seek to qualify for the position.” (Doc. 30, p. 15) Hammon argues that each of the
Board’s proffered reasons are “fraught with weakness, implausibility or outright” false and that
his evidence casts sufficient doubt on the proffered reasons to allow a reasonable fact-finder to
decide that the reasons were a pretext for age discrimination. (Id.)
However, the Court finds that Hammon has not met his burden to come forward with
sufficient evidence from which a fact-finder could reasonably infer that Edwards and hence, the
Board, did not hire Hammon because of his age. Instead, as previously indicated, the evidence
indicates only that Hammon was rejected because he was not Windham, not because of his age.
As explained by the Court of Appeals for the Eleventh Circuit, the district courts
. . . do not sit as a “super-personnel department,” and it is not our role to secondguess the wisdom of an employer's business decisions—indeed the wisdom of
them is irrelevant—as long as those decisions were not made with a
discriminatory motive. Chapman, 229 F.3d at 1030. That is true “[n]o matter how
medieval a firm's practices, no matter how high-handed its decisional process, no
matter how mistaken the firm's managers.” Id. (quotation marks and citations
omitted); see also Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d 1181, 1187
(11th Cir.1984) (“[An] employer may fire an employee 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 discriminatory reason.”); Wallace v. SMC Pneumatics, Inc., 103
F.3d 1394, 1399 (7th Cir. 1997) (listing, among “embarrassing” but nonactionable reasons under Title VII, “nepotism, personal friendship, the plaintiff's
being a perceived threat to his superior, a mistaken evaluation, the plaintiff's
being a whistleblower, the employer's antipathy to irrelevant but not statutorily
protected personal characteristics, a superior officer's desire to shift blame to a
hapless subordinate ... or even an invidious factor but not one outlawed by the
statute under which the plaintiff is suing; ... or there might be no reason”).
Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 -1267 (11th Cir. 2010).
Upon consideration of the evidence and for the reasons set forth herein, the Court finds
that the Board is entitled to judgment as a matter of law. See McDowell v. Brown, 392 F.3d
1283, 1288 (11th Cir. 2004) (having resolved all issues of material fact in favor of the nonmovant, the court must “then determine the legal question of whether the [movant] is entitled to
judgment as a matter of law under that version of the facts.”) (citation omitted). Accordingly,
the Board’s motion for summary judgment is GRANTED.
Judgment shall be entered by separate document as provided in Rule 58 of the Federal
Rules of Civil Procedure.
DONE and ORDERED this the 22nd day of July 2013.
s/ Kristi K. DuBose
KRISTI K. DuBOSE
UNITED STATES DISTRICT JUDGE
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