Nettles et al v. Daphne Utilities

Filing 120

ORDER granting 74 Motion for Summary Judgment entered as further set out. The Clerk of Court is directed to terminate Carlos Butler as a party plaintiff to these proceedings. A final judgment will be entered as to plaintiff Butler upon resolution of the remaining claims brought by plaintiffs Goodloe and Nettles. Signed by Chief Judge William H. Steele on 3/24/2015. (mbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
VONEKA Q. NETTLES, et al.,
Plaintiffs,
v.
DAPHNE UTILITIES,
Defendant.

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CIVIL ACTION 13-0605-WS-C

ORDER
This matter comes before the Court on defendant’s Motion for Summary Judgment (doc.
74) with respect to the claims of plaintiff Carlos Butler. The Motion has been briefed and is now
ripe for disposition.
I.

Relevant Background.
Carlos Butler is one of three plaintiffs who brought this action alleging race-based

employment discrimination by defendant, Daphne Utilities.1 As pleaded in the Amended
Complaint, Butler, who is African-American, has asserted a single claim of discriminatory
evaluation / denial of a raise. Specifically, in Count V, Butler alleges that Daphne Utilities
violated 42 U.S.C. § 1981, the Due Process Clause and 42 U.S.C. § 1983 “by failing to properly
evaluate Plaintiff Carlos Butler’s job performance, and thereby, denying him an annual raise.”
(Doc. 6, ¶ 53.) Daphne Utilities now seeks entry of summary judgment in its favor as to Count
V on the grounds that there are no genuine issues of material fact and that it is entitled to
judgment as a matter of law.

1

The other two plaintiffs, Cedric Goodloe and Voneka Nettles, assert claims that
are factually (and in some instances, legally) distinct from Butler’s. In light of the individualspecific nature of each plaintiff’s claims, the Court has ordered separate trials for each plaintiff.
(See doc. 18.) Defendant filed three plaintiff-specific Motions for Summary Judgment, each of
which has been briefed independently. This Order is confined to the claims of plaintiff Butler,
and neither considers nor adjudicates the claims of plaintiffs Goodloe or Nettles.

The pertinent record facts are as follows:2 Daphne Utilities hired Butler as a Wastewater
Field Service Worker on or about October 5, 2006. (Butler Dep. (doc. 76, Exh. 2), at 11, 51-52.)
In this capacity, Butler reported directly to Woodrow Maye, an African-American whose title
was Wastewater Field Services Supervisor. (Lyndall Aff. (doc. 76, Exh. 1), ¶ 3; Butler Dep., at
11.) Some time in 2012, Maye’s supervisor, Larry Jackson, was reassigned elsewhere in the
company, after which Maye reported directly to Danny Lyndall, the Operations Manager at
Daphne Utilities, for a period of time. (Lyndall Aff., ¶¶ 2-4.)3 In October 2012, Daphne Utilities
performed a reorganization, pursuant to which a white employee named Jim Caudle (who had
previously overseen the Water Reclamation Department for several years) became the supervisor
of the entire Wastewater Department, including both the Water Reclamation and the Wastewater
Collection sections. (Id., ¶ 5.) As a result of this change (which Daphne Utilities has justified
via legitimate business reasons and to which Butler has ascribed no discriminatory motive),
Maye reported directly to Caudle, who in turn reported to Lyndall. (Id., ¶ 5 & Exh. A.)
Prior to this reorganization, Maye had already prepared annual performance evaluations
for the employees under his supervision, including Butler. (Jackson Decl. (doc. 102, Exh. A), at
1.) Maye’s evaluation of Butler’s performance rated him a “4” (meaning “exceeds
expectations”) in five listed categories. (Doc. 76, Exh. 3 at Exh. 2.)4 Jackson’s practice had

2

The Court is mindful of its obligation under Rule 56 to construe the record,
including all evidence and factual inferences, in the light most favorable to the nonmoving party.
See Skop v. City of Atlanta, GA, 485 F.3d 1130, 1136 (11th Cir. 2007). Thus, Butler’s evidence is
taken as true and all justifiable inferences are drawn in his favor. Also, federal courts cannot
weigh credibility at the summary judgment stage. See Feliciano v. City of Miami Beach, 707
F.3d 1244, 1252 (11th Cir. 2013) (“Even if a district court believes that the evidence presented by
one side is of doubtful veracity, it is not proper to grant summary judgment on the basis of
credibility choices.”). Therefore, the Court will “make no credibility determinations or choose
between conflicting testimony, but instead accept[s] [Butler’s] version of the facts drawing all
justifiable inferences in [his] favor.” Burnette v. Taylor, 533 F.3d 1325, 1330 (11th Cir. 2008).
3

In his summary judgment brief, Butler denies that any such temporal gap occurred
following Jackson’s departure or that Jackson was ever reassigned to a different position prior to
his December 2012 retirement. (Doc. 102, at 3.) Such discrepancies need not be explored here,
as they are not material to the issues presented on summary judgment.
4

There appears to be a missing page from the mostly-illegible copy of Maye’s draft
evaluation of Butler contained in the court file. (Id.)

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been to review those evaluations and then forward them to Human Resources along with his
recommendations for raises. (Jackson Decl., at 1.) Following the October 2012 reorganization
of the department, the evaluation for Butler prepared by Maye never took effect because
performance evaluations for Wastewater Collection employees became subject to a new
procedure.
After Caudle assumed managerial responsibilities for the Wastewater Collection
Department, he personally prepared performance evaluations for all Collection Systems workers,
with input from Maye, in December 2012. (Caudle Aff. (doc. 76, Exh. 5), ¶¶ 4-5.)5 The
resulting final evaluation for Butler, dated December 27, 2012, was both more comprehensive
and less favorable than the Maye draft had been. For example, Caudle rated Butler a “2”
(“below expectations”) for quality of work, indicating, “Carlos needs to communicate more
effectively with supervision and management.” (Caudle Aff., ¶ 6 & Exh. A, at 1.) Likewise,
Caudle rated Butler a “2” for initiative/enthusiasm, writing, “Carlos appears to be reserved in the
morning staff meetings …[and] needs to demonstrate his knowledge in helping the department
grow.” (Id. at 2.) In the category of safety and housekeeping, Caudle awarded Butler a score of
“1,” writing, “The maintenance, appearance, and cleanliness of all vehicles in this department
fall well below acceptable standards.” (Id. at 3.) Overall, Caudle gave Butler a performance
rating of 2.6 (slightly below “meets expectations”).6

5

Plaintiff objects that “Maye had no input into Caudle’s evaluations.” (Doc. 102,
at 4.) This assertion is not credited because plaintiff provides no evidentiary support for it other
than the Declaration of Carlos Butler (doc. 103, at 2), which lacks any discernible foundation
establishing Butler’s personal knowledge. Without some indication that Butler actually had
firsthand knowledge about whether Caudle obtained input from Maye, such a conclusory remark
in his Declaration does not pass muster under Rule 56(c)(4), Fed.R.Civ.P., and is not properly
considered. Besides, plaintiff’s assertion that Maye lacked input into Caudle’s evaluations is
contradicted elsewhere in plaintiff’s own brief, wherein he acknowledges that “Maye gave
Caudle the evaluations of all the employees he supervised.” (Doc. 102, at 26.)
6

In subsequent documentation, Caudle identified additional specifics in support of
the Butler evaluation. According to Caudle, “Butler exhibited a negative attitude when changes
and improvements were suggested,” even telling Caudle that he (Butler) could learn nothing
from Caudle as to field services work. (Caudle Aff., ¶ 6.) Caudle further maintained that Butler
“was unresponsive and uninvolved during staff meetings,” “was sleeping during morning
meetings,” “was taking longer than allowed lunch breaks,” and was failing to complete daily
schedules, clean tools, secure trucks, and follow safety protocols. (Id.) For his part, Butler
(Continued)
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Performance evaluations at Daphne Utilities matter because they are tied to
compensation. Defendant has no precise numerical formula for translating evaluations into
raises. (Butler Decl., at 2.) Nonetheless, Daphne Utilities utilizes a merit raise system, pursuant
to which employees are awarded pay increases solely on the basis of performance, as opposed to
step increases or raises linked to years of service. (Caudle Aff., ¶ 6.) In Caudle’s view, “Carlos
Butler’s unacceptable performance in 2012 did not merit a raise.” (Id.) Butler was called into a
meeting with Caudle and Maye, at which time he was shown both the final evaluation that
Caudle had prepared and the earlier Maye version. (Butler Dep., at 20-21.)7 At that time, Butler
expressed disagreement with the numerical scores on the Caudle evaluation, and declined to sign
the document. (Id. at 21-22, 26.) Caudle notified Butler that, based on the unfavorable
evaluation, Butler was ineligible for a merit raise. (Id. at 24.)
Multiple other Wastewater Collection employees fared better in the December 2012
evaluation process, receiving positive performance evaluations from Caudle, along with pay
raises. At the time the evaluations were done, there were five employees in that department:
Butler, James McPherson, Jay Bivins, Sybil Williams and supervisor Woodrow Maye. (Caudle
Aff., ¶ 5.) With one exception, Caudle prepared evaluations for these individuals in late 2012,
following which McPherson and Bivins were awarded raises based on those evaluations. (Id., ¶
7.) The exception was Maye, who did not receive a performance evaluation in 2012. (Lyndall
Aff. II (doc. 117, Exh. 4), ¶ 2.) Maye’s evaluation was delayed until the middle of 2013 pending
an accident investigation and related litigation, following which he too was awarded a raise

maintains that these alleged deficiencies lack any factual basis and amount to complete
fabrications. (Butler Decl. (doc. 103), at 3.)
7

Butler asserts that he “was the only employee to receive two evaluations,” one
from Maye and one from Caudle. (Butler Decl., at 3.) This statement is not credited because it
flunks Rule 56(c)(4)’s personal knowledge prerequisite for summary judgment declarations (i.e.,
how would Butler have personal knowledge whether his co-workers received two evaluations in
their meetings with Caudle?). Besides, plaintiff contradicts this remark in his own brief by
acknowledging that “Mr. Maye had prepared 2012 evaluations for his workers prior to Mr.
Caudle’s re-evaluations.” (Doc. 102, at 4.) By plaintiff’s own admission, then, he was treated
no differently than his colleagues in this regard. At any rate, competent record evidence
confirms that all Wastewater Collection employees were given both the Maye draft and the
Caudle evaluation during their performance reviews. (Maye Statement (doc. 117, Exh. 2), at 27.)

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retroactive to 2012. (Caudle Aff., ¶ 7; Lyndall Aff. II, ¶ 2.) Williams did not receive a raise in
December 2012; however, she was awarded a raise retroactive to 2012 after demonstrating
improvement on her mid-year evaluation in 2013. (Id.)8 After accounting for mid-year 2013
evaluations, Butler was the only Wastewater Collection Department employee to whom Caudle
did not award a merit raise, effective December 2012. The Wastewater Collection employees
who did receive raises (Maye, McPherson, Bivins and Williams) are all African-American.
(Doc. 102, at 11.)
In the wake of this disappointment, Butler exercised his rights under Daphne Utilities
policies to contest Caudle’s December 2012 evaluation of his performance. At his request,
Daphne Utilities convened multiple meetings involving Butler and various company officials
(including Caudle, Lyndall, HR Manager Deloris Brown, and others). (Butler Decl., at 3-5;
Butler Dep., at 28-33, 35-37, 40-42.) At some point during this series of meetings and
conferences, Butler filed a formal grievance, invoking the specific mechanism recognized by
Daphne Utilities policy. (Butler Dep., at 39-40.) In a written grievance dated April 8, 2013,
Butler explained, “It is my position that Mr. Maye should have been the one rating my job
performance, and not Mr. Caudle.” (Doc. 76, Exh. 3, at 3.) Butler further balked that Caudle
“has never during the rating period in question, supervised or witnessed any job tasks”
performed by Butler, and “hade [sic] no knowledge of [Butler’s] work performance, which made
him unqualified” to issue the December 2012 evaluation. (Id.) Butler concluded, “I personally
believe that the denial of the pay raise … is discriminatory in nature and creates a hostile
working environment.” (Id. at 4.)
After a lengthy, multifaceted investigation, Daphne Utilities General Manager Rob
McElroy issued a written memo to Butler on June 6, 2013, summarizing his findings. In that
document, McElroy chided Butler that “[n]o employee of Daphne Utilities chooses who
ultimately oversees the department and conducts their performance evaluations; instead,
management makes these decisions.” (Doc. 76, Exh. 8, at 1.) McElroy elaborated that Caudle
was selected for the task “with the knowledge and understanding that [he] had only been the
manager for two months prior to the evaluation,” and opined that, in McElroy’s view, “two
8

By contrast, at a meeting with Caudle and Maye after his mid-year evaluation,
Caudle notified Butler that he still would not receive a raise. (Butler Dep., at 39.)

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months is a sufficient time” for a manager to observe and evaluate employee performance. (Id.
at 2.) Ultimately, McElroy found that Caudle “was competent to oversee [Butler’s] performance
evaluation, and, that there are no facts which suggest that his supervision was tainted by some
improper discriminatory motive.” (Id.)9
This lawsuit followed, with Butler alleging that his poor evaluation and accompanying
denial of merit raise were the product of unlawful race discrimination by Daphne Utilities. In
opposing defendant’s Motion for Summary Judgment, Butler states, “My only issue was that I
should not have been evaluated by someone who had not supervised or otherwise observed my
daily performance.” (Butler Decl., at 6.)10
II.

Summary Judgment Standard.
Summary judgment should be granted only “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.” Rule
56(a), Fed.R.Civ.P. 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).
Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to
show the existence of a genuine issue of material fact. Id. “If the nonmoving party fails to make
9

Sometime later, Daphne Utilities requested that Edward McDermott, Esq.,
conduct an investigation into the processing of Butler’s grievance. (McElroy Aff. (doc. 76, Exh.
6), ¶ 7.) McDermott’s report questioned whether, under company policies and procedures,
Butler’s grievance should have been decided by Deloris Brown (the HR Manager) rather than
McElroy (the General Manager); however, he also concluded, “There are no factual bases for
Butler’s allegations that Caudle’s ratings and denial of a pay raise were racially discriminatory
and created a hostile working environment.” (Id., ¶ 7 & Exh. F, at 11.)
10

Clearly, then, the issue of whether Caudle (as opposed to someone else) should
have completed Butler’s performance evaluation is central to plaintiff’s discrimination claim. In
its reply brief, Daphne Utilities decries this argument as “a bait and switch,” objecting that
“Butler’s complaint is he did not receive a raise” (doc. 116, at 2) and that he somehow changed
gears on summary judgment by focusing on the evaluation and evaluator. Such criticism is
unfounded. The Amended Complaint leaves no doubt that Butler is complaining about both the
alleged failure “to properly evaluate Plaintiff Carlos Butler’s job performance” and the denial of
an annual raise. (Doc. 6, ¶ 53; see also id., at ¶¶ 21, 24, 29.) The manner in which his
performance evaluation was conducted is and has always been part and parcel of this lawsuit;
therefore, defendant could not have been unfairly surprised by the nature of plaintiff’s summary
judgment arguments.

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'a sufficient showing on an essential element of her case with respect to which she has the burden
of proof,' the moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v.
Catrett, 477 U.S. 317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party
has met its burden, the court must stop short of weighing the evidence and making credibility
determinations of the truth of the matter. Instead, the evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 999 (11th Cir. 1992) (internal citations and quotations omitted).
“Summary judgment is justified only for those cases devoid of any need for factual
determinations.” Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11th Cir. 1987)
(citation omitted).
The Eleventh Circuit has expressly rejected the notion that summary judgment should
seldom be used in employment discrimination cases because they involve issues of motivation
and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the
summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to
be placed on either side of the scale.” Id. at 1086 (citation omitted); see also Williamson v.
Clarke County Dep’t of Human Resources, 834 F. Supp.2d 1310, 1318 (S.D. Ala. 2011)
(recognizing and applying rule that summary judgment standard is applied equally in
employment discrimination cases as in other kinds of federal actions).
III.

Analysis.
A.

The McDonnell Douglas Standard.

Absent direct evidence of discrimination,11 Butler must make a showing of circumstantial
evidence that satisfies the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973).12 Under this familiar burden-shifting analysis, plaintiff is
11

Plaintiff’s deposition testimony confirms that he has no such direct evidence.
Indeed, Butler repeatedly testified that neither Caudle nor any other Daphne Utilities manager
had ever used language that he viewed as racially motivated in connection with this incident.
(Butler Dep., at 22, 33, 41, 62-63.)
12

Although plaintiff’s claims are nominally brought under 42 U.S.C. § 1981 and 42
U.S.C. § 1983, both sides properly recognize that the applicable legal standard is identical (doc.
75, at 9-10, 16; doc. 102, at 20-23). See, e.g., Brown v. Alabama Dep’t of Transportation, 597
F.3d 1160, 1174 n.6 (11th Cir. 2010) (“The analysis under [§ 1981] claims mirrors that under
Title VII.”); Rice-Lamar v. City of Fort Lauderdale, Fla., 232 F.3d 836, 843 n.11 (11th Cir.
(Continued)
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required to make out a prima facie case of race discrimination. If he does so, that showing
“creates a rebuttable presumption that the employer acted illegally.” Underwood v. Perry
County Com’n, 431 F.3d 788, 794 (11th Cir. 2005). At that point, “the burden shifts to the
employer to articulate some legitimate, nondiscriminatory reason for the adverse employment
action. ... If the employer does this, the burden shifts back to the plaintiff to show that the
employer’s stated reason was a pretext for discrimination.” Crawford v. Carroll, 529 F.3d 961,
976 (11th Cir. 2008) (citations and internal quotation marks omitted); see also Holifield v. Reno,
115 F.3d 1555, 1566 (11th Cir. 1997) (outlining similar procedure for Title VII retaliation
claims). A plaintiff may establish pretext “either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer’s proffered explanation is unworthy of credence.” Brooks v. County Com'n of
Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006) (quotation omitted). “The ultimate
burden of persuading the trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff.” Springer v. Convergys Customer Management
Group Inc., 509 F.3d 1344, 1347 (11th Cir. 2007).
B.

Plaintiff’s Claim of Discriminatory Evaluation / Denial of Raise.

In Count V of the Amended Complaint, Butler asserts a claim that Daphne Utilities failed
properly to evaluate his job performance and denied him an annual raise, all in violation of 42
U.S.C. §§ 1981 and 1983. Although both the evaluation and the denial of raise are recited in the
2000) (“The elements of a section 1983 claim of race or gender discrimination are the same as
the elements of a Title VII disparate treatment action. … The elements of a claim of race
discrimination under 42 U.S.C. § 1981 are also the same as a Title VII disparate treatment claim
in the employment context.”); Whiting v. Jackson State University, 616 F.2d 116, 121 (5th Cir.
1980) (“Section 1983 serves as a basis for relief for violations of federal law under color of state
law. Insofar as it is used as a parallel remedy for transgression of section 1981 and section 706
of Title VII rights, the elements of the causes of action do not differ ….”); Brown v. School Bd.
of Orange County, Florida, 459 Fed.Appx. 817, 819 (11th Cir. Feb. 28, 2012) (“Title VII and §
1981 have the same requirements of proof and utilize the same analytical framework.”). The
parties have not argued that the analysis differs for any of the various species of claims that
Butler is asserting, save for the Due Process claim (nominally recited in the Amended
Complaint) which he now disclaims any intent to pursue. (See doc. 76, Exh. 10, at #13; doc.
100; doc. 102, at 15.) Nor does plaintiff contend that the analytical framework or legal standard
would differ if he were proceeding under an Equal Protection theory, as he seeks to do by
separate motion.

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pleadings, Butler’s claim hinges on the evaluation. That is to say, Butler does not suggest that,
even if his performance evaluation was not racially discriminatory, Daphne Utilities’ failure to
award him a merit raise in 2012 would remain actionable in Count V. To the contrary, Butler’s
position is that the performance evaluation was the product of race discrimination, and that the
decision to deny him a raise flowed directly from the biased evaluation. A corollary to this
formulation is that, if Butler cannot show genuine issues of material fact as to whether his
performance evaluation evinces race-based disparate treatment, then Count V must fail.
Defendant now moves for summary judgment, reasoning that Butler cannot make out a
prima facie case because he has failed to identify an appropriate comparator. (Doc. 75, at 1920.)13 To establish a prima facie case of race discrimination in the context of an unfavorable
evaluation / denial of a raise, Butler must show that: (i) he belongs to a protected class; (ii) he
was qualified to do the job; (iii) he was subjected to an adverse employment action; and (iv) the
employer treated similarly situated employees outside his class more favorably. See, e.g.,
Crawford, 529 F.3d at 970; McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008).14 Daphne
Utilities seizes on the “similarly situated comparator” prong of the test, reasoning that Butler has
not shown that his adverse treatment by defendant is “in contrast with similarly situated
employees outside the protected class.” (Doc. 75, at 19.) Such an argument is properly
cognizable on summary judgment. See Felder v. Bradford Health Services, 493 Fed.Appx. 17,
20-21 (11th Cir. Oct. 18, 2012) (concluding that plaintiff failed to establish prima facie case of
racially discriminatory denial of pay raise because she “failed to identify a comparator whose
experience was substantially similar to her own” or “to present any other evidence of
discrimination”).

13

This argument is the sole ground for dismissal of Count V identified in Daphne
Utilities’ principal brief; therefore, the Motion for Summary Judgment as to Carlos Butler’s
claims stands or falls on whether he has made a sufficient showing of comparators or has
otherwise met his prima facie burden.
14

In his brief, plaintiff correctly observes that there are other possible means of
establishing a prima facie case of disparate treatment. (Doc. 102, at 24.) However, he identifies
no alternative formulation that he contends is more appropriate or better suited to the facts and
circumstances presented here. Nor does plaintiff argue that the iteration of the prima facie test
advanced by Daphne Utilities is inappropriate or undesirable.

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The only white comparator identified by Butler is James “Eddie” Ferguson, a Wastewater
Treatment Plant Operator in the Water Reclamation Department. (Butler Dep., at 42-43; doc.
102, at 10-11 & 28.) The record reflects that Ferguson received a 2012 performance evaluation
score of 3.2 (as compared to Butler’s 2.6) and a merit raise (which Butler did not). (Anderson
Aff. (doc. 76, Exh. 9), ¶ 3 & Exh. B.) Butler objects that Ferguson received a score of “2”
(“below expectations”) for his deficient attendance while Butler received only a score of “3”
(“meets expectations”) despite having no attendance issues. (Doc. 102, at 10-11; Butler Decl., at
5.) The problem with Butler’s reliance on Ferguson as a comparator is that the two of them are
not similarly situated in relevant respects. Butler worked in the Wastewater Collection
Department, while Ferguson worked in the Water Reclamation Department. Ferguson’s
performance evaluation for 2012 was prepared by supervisor Arthur Anderson, as was the case
for all Water Reclamation employees. (Id., ¶¶ 2-3; Caudle Statement (doc. 117, Exh. 1), at 7.)
By contrast, Butler’s final performance evaluation for 2012 was prepared by Caudle, as was the
case for all Wastewater Collection employees. Of course, different decisionmakers may
reasonably be expected to rate the same levels of performance differently; therefore, the
observed proximity between the attendance rating given to Ferguson and that given to Butler
does not evince a race-based disparity because the two individuals were not similarly situated.
Butler’s rejoinder to the foregoing is to argue that the fact that Ferguson’s and Butler’s
evaluations were prepared by different supervisors is itself proof of disparate treatment. (Doc.
102, at 28.) In that regard, plaintiff’s evidence is that employees in the Water Reclamation
Department were predominantly white, whereas employees in the Wastewater Collection
Department were predominantly black. (Butler Decl., at 1.) As of December 2012, Caudle was
the manager in charge of both departments. So, plaintiff observes, the mostly white Water
Reclamation Department was evaluated by a low-level supervisor (Anderson), while the (at that
time) all-black Wastewater Collection Department was evaluated by the department manager
(Caudle) rather than the equivalent low-level supervisor (Maye). Unspoken is plaintiff’s
apparent conclusion that it is racially discriminatory to have a strict manager (Caudle) prepare
performance evaluations for a department staffed by African-American workers, while a more
lenient frontline supervisor (Anderson) prepares evaluations for a department staffed by
Caucasian workers.

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This argument and these facts fail to support a reasonable inference of race
discrimination by Daphne Utilities for a number of reasons. First, the record is devoid of
evidence to support the premise that Anderson was more generous than Caudle in the
performance evaluation process. While plaintiff protests that all employees in the Water
Reclamation Department received raises (Butler Decl., at 5), the undisputed evidence is that all
employees in the Wastewater Collection Department save Butler himself ultimately received
raises as well (doc. 102, at 11). Thus, the record does not support an inference that it was
inherently adverse or harmful to employee raise prospects for Caudle (as opposed to a frontline
supervisor) to prepare their evaluations.
Second, Daphne Utilities had a legitimate business reason for having Anderson prepare
evaluations on the Water Reclamation side, and having Caudle prepare evaluations on the
Wastewater Collection side. Indeed, Caudle had been manager over the Water Reclamation
Department for approximately five years as of December 2012, with Anderson being his direct
report throughout that time period. (Caudle Statement, at 4-5.) For the first two years of that
arrangement, Caudle (and not Anderson) prepared final evaluations for the Water Reclamation
employees. (Id. at 7.) Eventually, however, Anderson became “very proficient with the
evaluation process” in the manner sought by Caudle, such that Anderson was permitted to
prepare evaluations for those employees himself. (Id.) By contrast, December 2012 marked the
first round of performance evaluations for which Caudle had been manager of the Wastewater
Collection Department; therefore, Caudle’s intent was to work with Maye just as he had done
with Anderson at first, with Caudle writing and approving final evaluations of all employees.
(Id. at 7, 15.) In short, the reason why Caudle handled evaluations differently in the Water
Reclamation section versus the Wastewater Collection section was that he had managed the
former section for years and had a frontline supervisor fully trained as to Caudle’s preferred
methodology for evaluations, whereas Caudle was relatively new to managing the latter section
and had not previously worked with Maye on evaluations. Plaintiff has identified no facts or
circumstances that might cast doubt on the veracity of this explanation or suggest that it was
somehow a smokescreen for unlawful race discrimination.
At the end of the day, the story here is simple, benign and unchallenged by contrary
record facts. Caudle had no experience working with the low-level supervisor in Butler’s
department, so he wished to prepare the evaluations himself. In Ferguson’s department,

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however, Caudle had been working with the same low-level supervisor for years and had
developed trust in that individual’s evaluation abilities, so Caudle did not prepare the evaluations
there. Nothing about this collection of facts and reasoning gives rise to even a whiff of race
discrimination. To be sure, Butler emphatically objects to Caudle’s qualifications to evaluate his
performance. As he put it in his summary judgment declaration, “My only issue was that I
should not have been evaluated by someone who had not supervised or otherwise observed my
daily performance.” (Butler Decl., at 6.)15 Assuming Butler’s factual premise to be correct (i.e.,
that Caudle had never observed his performance and was unqualified to evaluate him), it may
well have been unwise or imprudent for Daphne Utilities to allow Caudle to evaluate Wastewater
Collection employees such as Butler in December 2012. But the test for a § 1981 or Equal
Protection violation is not whether an employee’s human resources practices are well-conceived,
fair or optimal.
On that point, it has been oft-observed that an employee cannot succeed on a
discrimination case by “simply quarreling with the wisdom of” the employer’s decisions.
Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000). After all, “[f]ederal courts do
not sit as a super-personnel department that reexamines an entity’s business decisions.” Id.
(citation and internal quotation marks omitted). They do not concern themselves with “how
medieval a firm’s practices” or “how mistaken the firm’s managers” might be. Id.; see also
Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1266 (11th Cir. 2010) (“it is not our
role to second-guess the wisdom of an employer’s business decisions – indeed the wisdom of
them is irrelevant”); Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999) (“We are not in the business of adjudging whether employment decisions are prudent
or fair.”). At most, plaintiff’s evidence and argument supports an inference that it was a bad idea
15

This statement echoes Butler’s objection in his grievance that “Caudle has never
during the rating period in question, supervised or witnessed any job tasks performed by me. He
hade [sic] no knowledge of my work performance, which made him unqualified to give me a
performance rating.” (Doc. 76, Exh. 3, at 3.) It finds further reinforcement in Butler’s summary
judgment brief, which is rife with statements that “Mr. Caudle could not possibly be in a better
position than Mr. Maye to assess his strengths and weaknesses,” that his evaluation was unfair
because of the “subjectivity of the process,” and that “Butler contends that he should not have
been evaluated by someone who had not supervised or otherwise observed his daily
performance.” (Doc. 102, at 10, 26.)

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(from an accuracy standpoint) for Caudle to evaluate Butler’s performance, not that it was
racially biased for him to do so. There is simply no plausible basis for inferring discriminatory
intent from the fact that Caudle performed performance evaluations for a department that he had
supervised for less than two months, even if (as plaintiff alleges) he lacked sufficient facts, data
and observation to prepare such evaluations with meaningful precision.
In addition to Butler’s inability to identify a similarly situated comparator or to present
facts raising a reasonable inference that it was racially discriminatory (as opposed to just
unenlightened human resources practice) for Caudle to prepare his performance evaluation,
Count V fails as a matter of law for an additional reason. Undisputed facts reveal that Caudle
evaluated the performance of four African-American employees in the Wastewater Collection
Department in December 2012, to-wit: Carlos Butler, Sybil Williams, Jay Bivins and James
McPherson. Caudle issued favorable evaluations to Bivins and McPherson, both of whom
received merit raises in December 2012. Caudle did not evaluate Butler’s and Williams’
performance favorably, so both were denied raises; however, Caudle left open the possibility of
retroactive raises for them following mid-year evaluations in 2013 if they showed improvement.
In Caudle’s view, Williams displayed the requisite improvement, as a result of which Caudle
awarded her a raise in mid-2013, retroactive to 2012. He did the same for the department’s
supervisor, Woodrow Maye, upon reviewing his performance for the first time in July 2013. The
point is that every African-American employee in the Wastewater Collection Department other
than Butler received a merit raise either at the end of 2012 or in mid-2013, retroactive to the end
of 2012. No colorable inference of invidious race discrimination can exist where Caudle’s
evaluations and raise recommendations resulted in 4 out of 5 black employees in the department
receiving merit raises effective December 2012, with the lone exception being our plaintiff,
Butler.16

16

This conclusion is not undermined by Butler’s attempt on summary judgment to
rely on evidence of procedural regularities in the ensuing internal grievance process. In
particular, Butler cites a 2014 report by attorney Edward B. McDermott, suggesting that it might
have violated Daphne Utilities policy for the company to remove HR Manager Deloris Brown
from the investigation and replace her with General Manager Rob McElroy. (Doc. 102, at 29.)
But this is a red herring. Butler has not presented a claim for discriminatory grievance handling,
or for breach of contract in connection with Daphne Utilities’ disposition of his grievance.
Nothing about McElroy’s empanelment as decision maker for Butler’s grievance appears to have
(Continued)
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In sum, nothing about the record in this case suggests that race had anything to do with
Butler’s performance evaluation or denial of a raise. Butler has not identified a similarly situated
comparator outside the protected class who was rated more favorably than he. Butler’s protests
that “Mr. Caudle could not possibly be in a better position than Mr. Maye to assess his strengths
and weaknesses” and his objections to the “subjectivity of the process” (doc. 102, at 10) do not
enable him to withstand summary judgment review. After all, federal civil rights law does not
entitle an employee to an accurate performance evaluation by a knowledgeable supervisor of the
employee’s choosing.
More generally, plaintiff’s case fails because Butler has identified no record facts about
Caudle’s involvement that might raise a reasonable inference of disparate treatment on the basis
of race. To be sure, Caudle may not have been the most knowledgeable or qualified person to
evaluate the performance of Wastewater Collection employees in December 2012, but there is no
reason to believe that he took on this responsibility in furtherance of a racist agenda. Differences
in the evaluation process for December 2012 in the predominantly black Wastewater Collection
section versus the predominantly white Water Reclamation section are readily explained away by
innocuous facts pertaining to the length of time that Caudle had managed each and his level of
familiarity / trust in the line supervisor to complete evaluations in harmony with Caudle’s
preferences. And, of course, the net result of Caudle’s evaluations was that four of the five black
Wastewater Collection employees received merit raises, either on the spot in December 2012 or
retroactively in mid-2013. Against that undisputed factual backdrop, Butler’s insistence that
Caudle and/or Daphne Utilities rigged the process to deprive African-American Wastewater
Collection employees of merit raises lacks plausibility, much less evidentiary support.

any bearing on the legitimacy vel non of Caudle’s decision to evaluate Wastewater Collection
employees himself. The latter decision, not the former, is being challenged by Butler in the
Amended Complaint. Besides, insofar as Butler urges the Court to adopt the McDermott report,
he should be cognizant that the last sentence of that report reads as follows: “There are no factual
bases for Butler’s allegations that Caudle’s ratings and denial of a pay raise were racially
discriminatory and created a hostile working environment.” (McElroy Aff., ¶ 7 & Exh. F at 11.)
Butler cannot simply cherry-pick the portions of the McDermott report he likes and discard the
remainder.

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Accordingly, Daphne Utilities is entitled to entry of summary judgment in its favor on
Count V based on Butler’s failure to establish a prima facie case of racially discriminatory
performance evaluation / denial of merit raise, or to come forward with any evidence raising a
reasonable inference of disparate treatment based on race.17
IV.

Conclusion.
For all of the foregoing reasons, it is ordered that Defendant’s Motion for Summary

Judgment (doc. 74) is granted. Plaintiff Carlos Butler’s claim of discriminatory performance
evaluation / denial of raise (Count V) is dismissed because there are no genuine issues of
material fact and defendant is entitled to judgment is a matter of law. Count V was the only
claim asserted by Butler in the Amended Complaint; therefore, the Clerk of Court is directed to
terminate Carlos Butler as a party plaintiff to these proceedings. A final judgment will be
entered as to plaintiff Butler upon resolution of the remaining claims brought by plaintiffs Cedric
Goodloe and Voneka Nettles.
DONE and ORDERED this 24th day of March, 2015.
s/ WILLIAM H. STEELE
CHIEF UNITED STATES DISTRICT JUDGE

17

Also in its principal brief, Daphne Utilities contends that it is entitled to judgment
as a matter of law on “any claim for” punitive damages that Butler is asserting. (Doc. 75, at 2021.) The Amended Complaint is devoid of any reference to punitive damages; rather, the ad
damnum clause requests that Butler be awarded a declaratory judgment; $300,000 in
compensatory damages; all annual increases and benefits he has been wrongfully denied; and
costs and fees. (Doc. 6, at 10-11.) As the Amended Complaint lacks any indication that punitive
damages are being sought, Daphne Utilities’ Motion for Summary Judgment is unnecessary
insofar as it seeks dismissal of a nonexistent element of damages.

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