Lynam et al v. Alabama Department of Post Secondary Education
MEMORANDUM OPINION & ORDER, Dfts' 46 Motion for Summary Judgment is GRANTED as set out. Signed by Senior Judge Callie V. S. Granade on 11/4/2016. (tot)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
BISHOP STATE COMMUNITY
COLLEGE, and ALABAMA
) CIVIL ACTION NO. 15-378-CG-C
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Defendants’ motion for summary judgment
(Doc. 46), Plaintiff’s opposition thereto (Doc. 54), and Defendants’ reply (Doc. 57).
For the reasons explained below, the Court finds that Defendants’ motion is due to
This case arises from Plaintiff’s termination from Bishop State Community
College (“Bishop State”). The Complaint asserts two counts: (I) that Defendants
intentionally interfered with employment relations and (II) that Defendants
discriminated against Plaintiff on the basis of his race in violation of Title VII of the
Civil Rights Act of 1964. (Doc. 1). Count I was dismissed by this Court on December
1, 2015.1 (Doc. 17). Thus, the only claim remaining is Plaintiff’s Title VII racial
Plaintiff’s claim for punitive damages was also dismissed. (Doc. 17).
In response to Defendants’ motion for summary judgment Plaintiff concedes
that the facts stated by Defendants in their summary judgment brief are accurate.
In fact, Plaintiff incorporated those facts “the same” in his responsive brief. (Doc.
54, p. 1). They include the “agreed facts” stated below.
II. Agreed Facts
Plaintiff John Lynam (Caucasian) was employed by Bishop State as its
Executive Director of Workforce Development for two months - from December 2013
through January 2014. He was a full-time, probationary (non-tenured) employee
during his brief period of employment. Lynam reported to Kathy Thompson
(African-American), the Dean of Technical Education and Workforce Development.
Thompson recommended Lynam’s termination. Thompson reported to James Lowe
(African-American), then-President of Bishop State. Lowe interviewed and selected
Lynam for the Executive Director position and terminated Lynam on Thompson’s
recommendation. Lowe died in February 2015.
The Position Announcement for the position of Executive Director of
Workforce Development stated that the person selected would “analyze, develop and
coordinate business-industry needs for the county and city, promoting Bishop State
Community College’s academic and technical programs as the primary source for
meeting those workforce needs.” Essential job functions included providing
leadership to the Technical Education Division, promoting and assisting in the
establishment of Bishop State’s academic and technical programs, designing and
implementing a “Business Service” approach, serving as a liaison to local and
regional economic development organizations, designing continuing strategic
workforce development plans, creating training opportunities for Bishop State,
seeking external funding for College projects, and working in collaboration with
other Bishop State, business, and industry teams.
The Executive Director position was posted on August 5, 2013, and Lynam
submitted his application on August 13. The Executive Director position was a new
position at Bishop State. A Screening Committee, composed of six individuals,
reviewed the applications, determined that Lynam met the minimum requirements
for the position, and selected him as one of six candidates for an interview. After
interviewing the six candidates, the Screening Committee recommended three
candidates for the President’s consideration, in no particular order: Harrietta Eaton
(African- American), Jessica James (Caucasian), and Lynam. Lowe interviewed the
candidates, and invited Thompson and Marcella Sims (Director of Human
Resources) to attend the interviews. Lowe selected Lynam for the position, and
Lynam began employment in early December 2013.
Lynam believes that Thompson did not want him in the position because she
instead wanted to “bring her person from Georgia.” Though Lynam did not know
that person or anything else about that person, he believed “[i]t was a male African
American,” though he acknowledged “I do not know that to be fully true.” Lynam
based his assumption about the person’s race on a photo in Thompson’s office taken
of her with an African-American man, though Lynam does not know if that was the
person she wanted hired. Lynam did not hear from anyone else that this person was
African-American, and he just assumed, without any basis, that the person in the
photograph was who Thompson wanted hired. Lynam knew of no other identifying
characteristics about this person, and did not know whether or not he had applied
for the position. Lynam heard “gossip” from Sheria Mitchell (African American), a
College employee who also reported to Thompson, that Thompson wanted to bring
in someone from Georgia. Mitchell did not tell Lynam that person was AfricanAmerican. Mitchell testified that Thompson wanted to hire a white male from
Georgia with whom Thompson had previously worked. Lynam swore under penalty
of perjury in his EEOC Charge of Discrimination as follows: “I have since learned
that my supervisor, Dr. Kathy Thompson, wanted me fired because she wanted one
of her own African-American candidates hired for the Executive director position.”
He stated similarly in an interrogatory response “I believe [my termination] was
based on my race because I was told that [Thompson] had wanted Dr. Lowe to hire
an African-American candidate that she wanted, and he did not.” Lynam’s
deposition testimony contradicts his EEOC and discovery statements and
demonstrates he had no factual basis for asserting that the person Thompson
wanted hired was African.
Thompson testified that she wanted a candidate from Georgia, named Tol
Williams, for the position. Williams is a Caucasian male, the same race and gender
as Lynam. Thompson and Williams had previously worked together and she
encouraged him to apply. Williams applied for the position and was one of six
candidates selected for an interview by the Screening Committee, but he was not
selected for a final interview with the President. Lynam does not know if
Thompson’s person from Georgia even applied for the position, but he believes
Thompson wanted “to discredit all three applicants [Lynam, James, and Eaton] so
she could bring her own person in.” Thompson told Williams that she would let the
College know that she had worked with him in the past and would do anything she
could to help Williams get the position, even though it was not her decision to make.
Thompson told Lowe that she hoped Williams would be selected for the position,
and Lowe told her that if Williams was selected by the Screening Committee for a
final interview, he would hire him. But Williams was not selected for a final
After sitting in the interviews of the final three candidates - Lynam, James,
and Eaton - Thompson recommended to Lowe that none of them be hired for the
Executive Director position because she felt none of them were a good fit or had the
background that Thompson needed to support her and carry out her vision. She
suggested the position be readvertised to see if there were other applicants of more
substance. Despite her recommendation, Lowe offered Lynam the position, and
Thompson accepted Lowe’s decision and was committed to moving forward.
A few days before beginning his employment at Bishop State, Lynam met
with Thompson for about 30 minutes. They discussed his position, and Lynam found
out that he would have staff reporting to him. Lynam told Thompson at this
meeting that his ex-wife had cancer. Lynam also met with Lowe briefly before he
On Lynam’s first day of work, Monday, December 2, 2013, Lynam discussed
his job duties with Thompson and was directed by her to create a workforce
development plan. Lynam also met with other Bishop State employees on his first
On Tuesday December 3, his second day, he went to the office, spoke with
Thompson, met with Sheria Mitchell (who was to report to Lynam), and met with
Brad Wallace at the Truck Driving School that morning. According to Thompson,
Lynam did not arrive at work before 9:00 a.m. without any explanation for his late
arrival. According to Lynam, Thompson told Lynam at the Truck Driving School
that if he performs the way a former employee, Jim Kellen, performed, he would
“suffer the same fate as Mr. Kellen, and not work here any more.” Lynam does not
know what Kellen’s position was or why he was terminated; he only contends that
there was a connection between himself and Kellen because they were “both white
males.” Kellen worked at Bishop State in workforce development before Thompson
did, and reported to Lowe. Thompson testified that she never said that Lynam
would be fired like Kellen. Kellen was the former Bishop State Director of
Workforce Development. He applied for the Dean of Technical Education and
Workforce Development position that Thompson was hired for, and retired after he
did not get that position. Kellen and Thompson never worked together at Bishop
State. According to Thompson, Lynam did not return to his office at the Southwest
Campus after the meeting at the Truck Driving School as she expected him to.
Lynam started his third day, Wednesday, December 4, meeting Mitchell at
the main campus at 9:00 a.m. He did not report to the Southwest Campus before
this meeting at 8:00. Thompson’s office was located on the Southwest Campus
(located on Dauphin Island Parkway), and Lynam’s office was there too. The Main
Campus is on Broad Street. He emailed Thompson about introducing her to a
representative of Infirmary Health, which Thompson responded to, by asking
Lynam to meet with her that day. Lynam asked for clarification regarding whether
the meeting was just with her or with the Infirmary Health representative.
Thompson clarified that she wanted to meet with Lynam that day to hear about his
progress regarding his work plan. She instructed Lynam that she did not want to
meet with someone until she has more information regarding their position, how
the meeting will benefit Bishop State, the purpose of the meeting, and what Lynam
hopes to gain from it.
Thompson emailed him again that morning regarding his job duties. It
Your office at the SW campus is ready for you to occupy. The office will
be your primary location and where you begin your day and end your
day until you become integrated into the flow of activity and work
Please refrain from attempting to redefine the job of executive director
of workforce development (you were hired to carry out) as if you are an
independent agent or consultant. If you have the wrong impression of
the job, let’s discuss it and clear it up. Let me be clear, you do not work
independently of me, your staff and Bishop State. The most productive
and successful new work relationships begin with your desire to learn
why my priorities and goals are as the Dean and then for you to work
to carry them out. This should be your first and only priority. I greatly
appreciate your eagerness to connect me with the business and
industry community; however Dr. Lowe and my staff have done an
excellent job of integrating me into it. Plus, it is my natural tendency
to network across a broad spectrum of sectors and I have done this
Please keep in mind that you do not have leave (sick, vacation or
personal) earned that allows you to be away from the office for any
Again, if there is anything related to the job you do not understand,
please address it with me asap. As you are aware, I am accessible 24
hours a day.
Lynam did not have any accrued vacation, sick time, or annual leave. He
understood his work hours were 8:00 a.m. to 5:00 p.m.
Lynam met with Thompson later that day. According to Lynam, Thompson
told him that he should have delayed his hiring given his ex-wife’s condition.
Thompson also said that Lynam should not be working independently of her and
was unhappy that Lynam was trying to introduce her to industry representatives.
He thought that she “took it the wrong way.” Lynam also claims that Thompson
made a comment in this meeting about Lynam’s lack of prior experience at a
historically black college (“HBC” or “HBCU”), although he does not remember how
that subject came up, why she said it, or anything else from the meeting. Lynam
concedes that this comment did not relate to his race. Thompson denies making
such a remark to Lynam, and testified that she did not have any experience at a
historically black college until Bishop State either. Even so, Lynam has no evidence
to suggest that Thompson’s comments about his ex-wife or his lack of HBC
experience were because of his race.
Thompson recalls that she told Lynam she was not pleased with his behavior
and thought he did not understand that this position required him to first become
acclimated to Bishop State before he could go out and speak for the College. She
explained that his work hours were 8:00 to 5:00, and that his office was at the
Southwest Campus. Thompson wanted a proposal of how Lynam planned to carry
out his workforce development activities and what strategies he would employ over
the next year. She indicated that the meeting would serve as his first warning and
that the next meeting would be their final.
Lynam left around 3:30 or 4:00 on December 3rd or 4th to go to the hospital to
see his ex-wife with his children. Thompson sent an email to Lowe on the evening of
the 3rd regarding her concerns about Lynam’s work hours and said that Lynam
texted her at 3:00 p.m. that day to tell her that his ex-wife was in the hospital and
that he was going to take his children to see her. Thompson also complained to
Mitchell that Lynam had left work without permission. Thompson asked Mitchell
sometime that week what she thought of Lynam, and Thompson told Mitchell that
she did not think Lynam was going to work out, without explanation.
On Lynam’s fourth day, Thursday December 5, Lynam attended a meeting at
Infirmary Health on behalf of Bishop State at 7:00 a.m. for two hours, and then
arrived at the Southwest Campus at 10:00 a.m., met with Thompson and a student,
and left at 4:30 to have dinner with a representative of Hargrove.
On Friday, December 6, Lynam did not report to work because his ex-wife
passed away. He emailed Thompson that morning to let her know, and said he
would touch base with everyone later that morning. He did not report to work that
day and did not speak with anyone at Bishop State that day, except that he emailed
Gloria Knight in Human Resources. He told Knight that he knew he hadn’t accrued
any off time but he needed to be with his children that day.
The following day, Saturday, December 72, Lynam spoke with Thompson by
phone regarding taking an unpaid leave of absence because of his ex-wife’s death.
According to Lynam, Thompson told Lynam that she wanted him to take leave, and
that he had no option. Thompson testified that she recommended that he take the
leave because she thought he needed to be with and help his three children who just
lost their mother; she thought “it was the humane thing to do” and made “a lot of
The facts stated in Defendants’ brief list the date as December 6, but the
deposition testimony cited in the brief (Doc. 46-1, p. 56) refers to Saturday,
sense to me, being a mother, that you would want to spend that time with your
children.” After his ex-wife passed away, Lynam was solely responsible for the care
and custody of his three minor children. She does not recall Lynam refusing or
telling her that he did not want to take leave. Lynam was placed on leave without
pay from December 6, 2013 until January 1, 2014. He did not report to work the
following Monday, and did not discuss any concerns he had with the leave with
Lowe, anyone in Human Resources, or anyone else at Bishop State. He attended a
professional development seminar in mid-December, with Thompson’s approval,
and attended the Bishop State Christmas luncheon. However he did not report to
work on any other days and did not ask to return from his leave sooner. The College
was also closed for some time over the holidays.
Lynam returned to work on Thursday, January 2, and spent the day in the
office at the Southwest Campus. On Friday, January 3, Lynam spent the day at his
office, had a meeting with department chairs, and a meeting with Thompson. On
Monday, January 6, he met with Thompson briefly, worked on plans and a proposal,
but did not have any other meetings. On Tuesday, January 7, Lynam met with
Mitchell and Thompson, separately.
On Wednesday, January 8, Lynam was called into Lowe’s office to meet with
Lowe and Sims, and Lowe told Lynam that he was being terminated. Lynam
received a letter in this meeting from Lowe informing him that his employment
would be “discontinued after January 31, 2014;” no reason was given in the letter.
Lowe told Lynam that it was “not working out” between Lynam and Thompson.
Lynam responded that he wanted “to go on the record” to say that he “did not ask to
be put on leave,” and that it had come to his attention that Thompson “did not want
to hire me in the first place.” Lowe replied that Lynam should talk to Thompson.
Lynam returned to the Southwest Campus and Thompson would not see him. A
security guard brought Lynam a second letter from Lowe stating that he would be
on paid administrative leave until January 31, 2014. Lynam did not go back and
talk to Lowe and he never talked to Thompson about why he was terminated.
Lowe made the decision to terminate Lynam, as only he had the authority to
terminate employees as President of Bishop State. Lynam alleged in his complaint
that he was terminated on the basis of race for taking a leave of absence. Lynam
does not have any evidence that Lowe terminated him because of his race, that
Lowe harbored any discriminatory animus against him because of his race, and
Lynam has no reason to believe that he would have been treated differently if he
was African-American or another race.
Thompson submitted a letter to Lowe on January 2 recommending that
Lynam be terminated based on his performance before his leave of absence. She
stated in the letter that it was her opinion that Lynam was “not a good fit as the
executive director, Workforce Development based on the following facts.” She stated
in the letter that Lynam requested to work from home or from his car, that he
believed that his job was 100% in the community and that he was also responsible
for managing a staff and programs. She was advised that Lynam told his staff they
were free to end their workday following the completion of any task and were not
required to remain at work. She stated that his hours were 8:00 to 5:00 but that he
did not consistently report to work on time or leave on time. She expressed concern
that on his fourth day, Lynam met with an architectural firm to develop
internships, but that Lynam was not familiar with the programs of study at Bishop
State and the types of internships that were needed. Finally she stated that she
received notice from Lynam that his ex-wife had passed away and that he would not
be in the office on December 6, and that he agreed to take an unpaid leave until
January 2 to address the personal issues related to the passing of his ex-wife.
Thompson maintained a memorandum intended for Lynam’s personnel file
that she used to prepare the letter recommending Lynam’s termination. It
elaborated on what she stated in her termination recommendation letter, and
included concerns that Lynam wanted to work from home and that he did not arrive
at the campus by 8:00 a.m. every day. The memorandum also included an email to
Lowe on Lynam’s second day expressing concerns that Lynam was unwilling to
commit himself to the job he was hired to do and had no intentions of managing his
staff. She said, “I do not believe John Lynam has any intentions of working with my
team and me, if it means there are expectations that require him to be present,
responsible and contribute as part of a team. He wants to operate independently
and without any expectations other than he will use his connections to help BSCC.
Call me old fashioned – I believe when you start a new job, the goal should be to
demonstrate interest in the job, a commitment to the job, and an effort to fulfill the
job expectations. I have not seen any of this. I recommend that we move to
terminate him immediately.” Thompson also included emails between her and
Lynam, including the email described above on December 4 that asked Lynam to
refrain from redefining his job. Finally, Thompson stated in the memorandum that
she learned from her administrative assistant Ida Watson Pines (African-American)
that Lynam informed his staff that they are free to leave work early. She testified
that Watson was told this by Sheria Mitchell, who later confirmed it when she met
with Thompson. Thompson submitted an affidavit to the EEOC which also stated
her reasons for recommending that Lynam be terminated. She summarized his
activity during the first week of his employment, as she did in her memorandum
and in her letter recommending termination, and stated that the recommendation
had nothing to do with Lynam’s race. There are a few inconsistencies between
Thompson’s letter recommending termination and her memorandum regarding the
times that Lynam reported to work. The memo stated that Lynam appeared at work
at 9:00 a.m. on his second day, December 3, and attended a meeting at 9:00 a.m. on
December 5. However, in her letter to Lowe recommending Lynam’s termination,
Thompson wrote that Lynam began his day on December 3 at 10:00, and on
December 5 at 10:00. Her affidavit to the EEOC is consistent with her
memorandum. She does not remember why the times on her letter recommending
termination are inconsistent with the memorandum she prepared. Whether she
noted a 9 a.m. or 10 a.m. arrival time, both times are after the 8 a.m. expected start
time, and she noted that Plaintiff was late at least two days during his first week of
Thompson testified that she had an “instinct” that Lynam would be a
problem because he asked to work from his home, and indicated that he did not
want to come to work every day. Because of this she started taking notes and
paying attention. She also testified that although Lynam was supposed to work
with outside business leaders, “it wasn’t time yet. He didn’t know anything about
the organization, but he’s supposed to go outside and talk to the business industry
about Bishop State and really didn’t know what we were trying to accomplish.”
“[B]eing out in the community a hundred percent of the time, that’s not working as
Lynam testified that his evidence of Thompson engaging in race
discrimination was “the way she spoke to” him, that she was “demeaning, very
degrading” towards him. When asked if race was the only reason why Thompson
wanted to terminate Lynam, Lynam responded, “Yes and no. I guess she didn’t like
me.” Yet he does not know why Thompson did not like him, and has no evidence
that she did not like him because of his race. Thompson never called him any
insulting or race-based names, never made any racially insensitive jokes, and never
spoke of race, except for her comment regarding HBC work experience. When asked
in deposition what evidence he had to support his claim that Thompson wanted
Lynam terminated because of his race, he said, “it couldn’t have been anything else.
I had been there twenty-four hours, what else could it have been? It had to have
Thompson testified that she does not believe that an African-American
should have been hired as Executive Director of Workforce Development, or that
African-Americans should be given preference in hiring at Bishop State. Race was
“absolutely not” a factor in her recommendation to terminate Lynam; his race made
no difference to her. Williams never observed Thompson show favoritism towards
anyone, especially on the basis of race.
Following Lynam’s termination, the Executive Director of Workforce
Development position was not readvertised or filled. Lynam claims that Ida Watson
Pines (“Watson”) (African- American), Thompson’s assistant, assumed some of his
duties when he left. However he does not know if Watson ever took leave or ever
spent substantial time off-campus.
Watson is the Workforce Development Coordinator at Bishop State, and
worked as Thompson’s administrative assistant when Thompson worked at the
College from 2013 to 2015. Watson worked for Kellen before she worked for
Thompson. After Lynam left Bishop State, Watson did not take on any of his job
duties and her job duties did not change. She has never taken any extended leave
from the College other than regular vacation time.
Beyond his own issues with Thompson, Lynam cites other employees who
had problems with her. According to Lynam, Sheria Mitchell (African-American)
said that “Kathy was very demeaning to her and to the staff . . . I think her words
was crazy that she used with me . . . She was not rational.” Lynam testified that
Thompson’s behavior to Mitchell was similar to Thompson’s behavior with him.
Mitchell told Lynam that many employees had problems with Thompson, morale
was declining, she degrades and talks down to people, and people wanted to quit
because of her. Lynam thinks Thompson was a bad manager because she was “very
derogatory towards people and couldn’t communicate very well.”
Lynam produced a letter from “Concerned Employees – Bishop State
Community College,” written by Mitchell, to show “the pattern of Kathy Thompson .
. . of havoc, mean spirited, degrading, that I was not the only person she had an
issue with obviously.” Lynam does not have any firsthand knowledge of what was
claimed in the letter. The only reference to race in the letter is an allegation that
Thompson herself referred to another instructor as a racist, but Lynam does not
have any knowledge of when she made this statement, to whom she made this
statement, or the race of the instructor to whom she was referring.
The College’s files contained numerous complaints against Thompson, from
both Caucasian and African-American employees, including several by Mitchell and
April Payne, both of whom are African-American. A petition was signed by 16
employees, of which approximately half were African-American and half Caucasian,
stating that they had no confidence in Thompson. Mitchell testified that she felt she
worked in a hostile working environment, that Thompson made derogatory
comments towards her, would sabotage her work, and defamed her character. She
also testified that Thompson was disrespectful and untruthful to “[p]robably
everybody that worked for her,” including April Payne (African-American), Mitch
Higginbotham (Caucasian), Jason Corley (Caucasian), and Roderick McSwain
(African- American), and testified that Thompson also had disagreements with
“almost everybody at the school at some point in time,” including with Dean
McCane (African-American), Dean Allen (African-American), Dr. Chucks (AfricanAmerican), Mr. Grayson (African-American), and Prescilla Andrews (AfricanAmerican). Mitchell filed her own grievance against Thompson, claiming she was
subjected to a hostile work environment. Payne and Higginbotham also filed
grievances against Thompson. Ida Watson Pines was aware that several employees
had conflicts with Thompson, including Payne. Watson has no reason to believe that
these conflicts were because of anyone’s race.
A. 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 a factual dispute will not
automatically necessitate denial; rather, only factual disputes that are material
preclude entry of summary judgment. Lofton v. Sec’y of Dep’t of Children & Family
Servs., 358 F.3d 804, 809 (11th Cir. 2004). "If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted." Anderson, at 249250. (internal citations omitted).
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 nonmovant 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). In
reviewing whether a non-moving party has met its burden, the Court must draw all
justifiable inferences in favor of the non-moving party. Tipton v. Bergrohr GMBHSiegen, 965 F.2d 994, 998 – 99 (11th Cir. 1992) (internal citations and quotations
omitted). Thus the inquiry 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.” Liberty Lobby, 477 U.S. at 251–52.
B. Racial Discrimination Claim
Plaintiff’s complaint asserts a claim for racial discrimination against both
Bishop State and Alabama Community College System (“ACCS”).
Defendants moved for summary judgment as to Defendant ACCS, arguing
that Plaintiff does not allege any facts in the complaint to show that anyone at
ACCS discriminated against Plaintiff on the basis of his race. In his response,
Plaintiff did not oppose these arguments or even mention ACCS.
“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 (11th 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 [or answer] but not relied
upon in summary judgment are deemed abandoned.” Id. at 599 (citations omitted).
In the instant case, no facts have been offered to support a claim by Plaintiff
against ACCS for racial discrimination. The Court notes that in the heading of
Plaintiff’s response brief, Plaintiff listed only Bishop State as a Defendant and that
in the body of the brief Plaintiff refers to a singular “Defendant” rather than to
“Defendants.” The Court concludes that Plaintiff has abandoned his claim against
2. Bishop State
Plaintiff opposes summary judgment as to his Title VII claim against Bishop
State. Title VII of the Civil Rights Act of 1964 makes it “an unlawful employment
practice for an employer ... to discriminate against any individual with respect to
his compensation, terms, conditions, or privileges of employment, because of such
individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e–2(a)(1).
A plaintiff may prove discrimination by relying on either direct, circumstantial, or
statistical evidence. See Walker v. Nationsbank of Florida N.A., 53 F.3d 1548, 1555
(11th Cir. 1995). Direct evidence is evidence which, “if believed, proves the
existence of discriminatory motive ‘without inference or presumption.’ ” Hamilton v.
Montgomery County Bd. of Educ., 122 F.Supp.2d 1273, 1279 (M.D. Ala. 2000)
(quoting Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th
Cir. 1998)). As the U.S. District Court for the Middle District of Alabama explained:
Not only must it be evidence of discriminatory ‘actions or statements of
an employer’ but the actions or statements at issue must ‘correlate to
the discrimination or retaliation complained of by the employee.’
Further, the statements ‘must be made by a person involved in the
challenged decision’ and must not be subject to varying reasonable
Id. (quoting Lane v. Ogden Entertainment, Inc., 13 F.Supp.2d 1261, 1274 (M.D. Ala.
1998)). No direct evidence of discrimination has been submitted to the Court. None
of the evidence offered proves without inference or presumption that the person who
made the employment decisions did so based on Plaintiff’s race. Neither has
Plaintiff attempted to show discrimination through statistical evidence.
A plaintiff may attempt to show discrimination based on circumstantial
evidence through the application of the McDonnell Douglas burden-shifting analysis
established by the Supreme Court. McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973). Under the McDonnell Douglas framework, a plaintiff must first raise an
inference of discrimination by establishing a prima facie case. See Chapman v. AI
Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (citing Combs v. Plantation
Patterns, 106 F.3d 1519, 1527-28 (11th Cir.1997)).
In order to make out a prima facie case of discriminatory termination based
on race, a plaintiff must show: “(1) that he is a member of a protected racial class,
(2) that he was qualified for the position, (3) that he experienced an adverse
employment action, and (4) that he was replaced by someone outside of his
protected class or received less favorable treatment than a similarly situated person
outside of his protected class.” Knott v. Grede II, LLC, 2016 WL 375148, at *2 (S.D.
Ala. Jan. 28, 2016) (quoting Flowers v. Troup Cnty., Ga., Sch. Dist., 803 F.3d 1327,
1336 (11th Cir. 2015)). The first prong is satisfied, as it is undisputed that Plaintiff
is a member of a protected class. There is also no dispute that Defendant suffered
an adverse job action by being terminated. However, Defendants contend that
there is no evidence that similarly situated employees outside his classification
were treated more favorably. To be an appropriate comparator, the employee must
be “similarly situated in all aspects.” Holifield v. Reno, 115 F.3d 1555, 1563 (11th
Cir. 1997). “The comparator must be nearly identical to the plaintiff to prevent
courts from second-guessing a reasonable decision by the employer." Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004) (internal citations omitted).
The evidence demonstrates that there are no similarly situated employees and that
Plaintiff was not replaced by someone of another race. Plaintiff concedes that the
evidence does not support a prima facie case under the traditional McDonnellDouglas framework. (Doc. 54, p. 5). Plaintiff admits “there is neither a ‘comparator’
nor a replacement employee in this case.”
However, Plaintiff asserts that he can nonetheless establish an inference of
discriminatory intent based on circumstantial evidence. Plaintiff is correct that
“establishing the elements of 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). “[T]he plaintiff will always survive summary
judgment if he presents circumstantial evidence that creates a triable issue
concerning the employer's discriminatory intent.” Id. (citations omitted). To create
a triable issue of fact, the plaintiff must come forward with “a convincing mosaic of
circumstantial evidence that would allow a jury to infer intentional discrimination
by the decisionmaker.” Id. (footnote and citations omitted); see also Chapter 7
Trustee v. Gate Gourmet, Inc., 683 F.3d 1249, 1256 (11th Cir. 2012) (“Whatever
form it takes, if the circumstantial evidence is sufficient to raise a reasonable
inference that the employer discriminated against the plaintiff, summary judgment
is improper.” (citations omitted)).
Plaintiff asserts that Thompson wanted to fire Plaintiff from the start.
However, even if that were true, that by itself does not raise an inference that
Thompson had any racial bias against Plaintiff. 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.” Nix v. WLCY
Radio/Rahall Communication, 738 F.2d 1181, 1187 (11th Cir. 1984).
The Court notes that the overwhelming testimony suggests that although
many employees had issues with Thompson, the issues where not confined to her
dealings with employees of a particular gender or race. Thompson appears to have
had a pattern of conflicts with employees, but the pattern was with all employees,
not just Caucasian males. Plaintiff testified that Thompson never called him any
names based on his race, never made any racially sensitive jokes and never brought
up or talked about race with Plaintiff. (Doc. 57-2, p. 8).
Plaintiff argues that although Thompson testified that she did not want to
hire any of the three candidates who were recommended by the Screening
Committee, she later hired one of the candidates, Harrietta Eaton, who is a black
female. However, the evidence presented indicates that Eaton was hired for
assistance in a new program over a year after Plaintiff was terminated. She was
hired to fill a six-month independent contractor position and she was interviewed by
the division chairs, Erica Hunter and Rick Everett, who then recommended Eaton
to Thompson for the role. (Doc. 57-3, pp. 39, 42; Doc. 57-5). This evidence does not
suggest that Thomson preferred Eaton to Plaintiff for the position Plaintiff applied
for and was hired. The facts agreed to by the parties clearly indicate that
Thompson did not want to hire Plaintiff or Eaton for that position. Plaintiff thought
Thompson wanted to hire a man from Georgia that Thompson previously worked
with and Plaintiff assumed that person was African-American. However, the
person from Georgia Thompson wanted to hire was Tol Williams who is a Caucasian
male, the same race and gender as Plaintiff. Williams applied for the position but
was not selected for a final interview with the President. Thompson’s preference for
Williams clearly does not show racial bias or discrinatory intent.
Plaintiff argues that Thompson gave difference reasons why she
recommended Plaintiff be terminated. However, Thompson recommended that
Plaintiff be terminated more than once and the Court does not find her testimony to
be inconsistent. Plaintiff also points to inconsistencies by Thompson regarding the
times she reported Plaintiff arrived to work during his first week in the position. A
memorandum Thompson prepared for Plaintiff’s personnel file stated that Plaintiff
arrived at 9:00 a.m. on December 3, at 9:00 a.m. and on December 5 attended a
meeting at 9:00 a.m. and appeared at work at 10:00 a.m. that day. Whereas in a
letter to Lowe, Thompson wrote that Plaintiff began his day on December 3 at 10:00
a.m. and on December 5 at 10:00 a.m. However, Thompson’s statements were
consistent in asserting that Plaintiff had arrived late and the fact that she was
inconsistent regarding the precise time Plaintiff arrived is a minor detail that is not
sufficient to raise an inference of intentional discrimination. As stated earlier, even
if Plaintiff could show that Thompson wanted him to be terminated from the start,
such evidence simply does not raise an inference of racial discrimination. Similarly,
Plaintiff’s argument that Thompson suggested he take a leave of absence and then
sent an email to Lowe criticizing him for taking leave does not raise an inference of
racial discrimination. Such facts support the contention that Thompson wanted
Plaintiff to be terminated, but do not indicate any racial animosity.
Plaintiff has failed to provide evidence that he was replaced by someone
outside of his protected class or that Defendant treated similarly situated
employees outside his classification more favorably and has not come forward with
“a convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.” Smith, 644 F.3d at 1328.
Accordingly, the Court finds that summary judgment is due to be granted in favor of
For the reasons stated above, Defendants’ motion for summary judgment
(Doc. 46) is GRANTED.
DONE and ORDERED this 4th day of November, 2016.
/s/ Callie V. S. Granade
SENIOR UNITED STATES DISTRICT JUDGE
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