Shumate v. Selma City School System et al

Filing 137

Order, upon reconsideration of the previous 98 Order on Motion for Summary Judgment, summary judgment is GRANTED on Counts II & VII as set out. Signed by Judge Callie V. S. Granade on 10/24/2013. (tot)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION

MARILYN K. SHUMATE,
)

)

Plaintiff
)

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v.
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Civil No. 11-00078-CG-M

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SELMA CITY BOARD OF
)
EDUCATION
)

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Defendant.
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ORDER
Until recently, an employee who engaged in conduct protected under
Title VII and suffered a materially adverse employment as a result had a
claim for retaliation if “the protected activity and the adverse action were not
wholly unrelated.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261,
1286 (11th Cir. 2008) (quotations omitted). Applying that standard, the court
denied a motion for summary judgment on Plaintiff Marilyn K. Shumate’s
claim of retaliation based on her application for a job as the cafeteria
manager of Kingston Elementary School.1 (See Doc. 98 (granting summary
judgment as to all of Shumate’s other claims).)

That instance of alleged retaliation forms the basis for two claims of
retaliation—one under Title VII (Count Two), the other under § 1981 (Count
VII)—so it would be more accurate for this opinion to refer to Shumate’s
surviving claims. But because those two claims involve the same facts and
legal elements --(more on that infra)--, the court will, for brevity’s sake, refer
to them as a single claim of retaliation.
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But the Supreme Court has changed the rules since then. Now, thanks
to University of Texas Southwestern Medical Center v. Nassar, 133 S. Ct.
2517 (2013), Title VII retaliation claims cannot succeed without evidence that
the adverse employment action wouldn’t have happened if it weren’t for the
protected conduct—the not-wholly-unrelated standard has given way to a
more demanding one of but-for causation. See id. at 2533 (“Title VII
retaliation claims must be proved according to traditional principles of butfor causation . . . .”). The matter comes before the court on the Board’s motion
to reconsider. (Doc. 127.)
In light of Nassar, reconsideration is indeed in order; but only of the
court’s legal conclusions. There is no need to revisit the factual
determinations from the earlier order on summary judgment. Thus, this
opinion will take it for granted that the evidence, viewed in the light most
favorable to Shumate, shows that the interview panel “unlawfully considered
and/or discussed protected activity”—i.e., another lawsuit Shumate filed
against the Board before she applied for the job at Kingston—before it
decided to hire someone else. (Doc. 8 at 19.)
Under the McDonnell Douglas framework, that evidence establishes an
inference of discrimination (see Doc. 98 at 14–16), which the Board must
rebut with evidence of legitimate, nonretaliatory reasons that Shumate did
not get the job at Kingston, see Smith v. Lockheed-Martin Corp., No. 09–
15428, 2011 WL 2567777, at *2 (11th Cir. June 30, 2011). And as the court

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noted in its order on summary judgment, the Board has met that burden with
evidence that it had a number of good reasons for not hiring Shumate,
including her relatively poor interview performance, her relative lack of
experience, and her history of problems getting along with others. (See Doc.
98 at 17.) On these first two points, Nassar does not change the analysis.
That leaves the final McDonnell Douglas step, which requires Shumate
to show pretext. Specifically, Shumate must present evidence that could lead
a reasonable juror to conclude both that the Board’s articulated reasons for
not hiring her were false and that the real reason was unlawful retaliation.
See St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515 (1993). This is where
Nassar’s holding makes a difference.
Under the old standard, Shumate didn’t have to prove that she would
have gotten the job if the interview panel hadn’t considered her lawsuit; it
was enough that the interview panel “considered and/or discussed” the
lawsuit when it was deciding whom to hire at Kingston. (Doc. 98 at 19.)
Presented with that evidence, a reasonable juror could conclude that the
interview panel wouldn’t have discussed Shumate’s lawsuit at all unless it
factored into their decision, which would support an inference that Shumate’s
protected conduct was a motivating factor behind her not getting hired.
Shumate could defeat summary judgment with that evidence when she didn’t
have to show that her protected conduct was the reason she didn’t get the job,
just that it factored in to the decision.

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But post-Nassar, Shumate has to meet a higher standard. In order to
prove that she suffered unlawful retaliation, she has to convince a jury that
she would have gotten the job if the interview panel hadn’t discussed her
other lawsuit. The evidence does not support that conclusion. Instead, given
the unrebutted evidence that the interview panel hired the successful
candidate because she was better qualified (see Doc. 98 at 36–38 (finding that
Shumate’s evidence failed to show that the Board’s belief that the successful
candidate was better qualified was false)), a reasonable jury could not
conclude that Shumate would have gotten the job but for her protected
conduct. Because Shumate has failed to rebut the Board’s legitimate,
nonretaliatory reasons for not hiring her, her retaliation claim can no longer
survive the Board’s motion for summary judgment.
Shumate resists that conclusion, but she doesn’t point to any evidence
that compels a different result. (For that matter, she doesn’t point to any
evidence at all.) Instead, she opposes the motion for reconsideration with
three off-the-mark legal arguments that don’t so much as mention the
evidence in this case.
First, Shumate argues that Nassar’s holding doesn’t apply to her
§ 1981 claims. But that argument contradicts decades of decisions that hold
§ 1981 claims based on employment discrimination to the same standard as
claims under Title VII. See, e.g., Stallworth v. Shuler, 777 F.2d 1431, 1433
(11th Cir. 1985) (“Where . . . a plaintiff predicates liability under Title VII on

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disparate treatment and also claims liability under [§ 1981], the legal
elements of the claims are identical . . . .); 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”); see also Welch v. Eli
Lilly & Co., No. 1:10-cv-1705, 2013 WL 4413323, at *19 (S.D. Ind. Aug. 15,
2013) (applying Nassar’s standard to a retaliation claim under § 1981).
Absent a clear signal that Nassar’s holding unsettled that binding authority,
the court will not apply a different standard to Shumate’s § 1981 claim than
it does to her claim under Title VII. Thus, her first argument fails.
Shumate’s next argument is technically correct but hardly persuasive;
she spends ten pages arguing that “[t]he ‘but for’ standard adopted by the
Court in Nassar is not the ‘sole cause’ standard.” (Doc. 129 at 6.) That
axiomatic premise hardly deserves such treatment given the crystal clarity of
Nassar’s holding: “Title VII retaliation claims must be proved according to
traditional principles of but-for causation . . . .” Nassar, 133 S. Ct. at 2533. To
the extent the Board has invited the court to apply a standard of sole
causation, the court has declined. This opinion is premised on the standard
announced in Nassar. On summary judgment, Shumate’s burden is only to
produce evidence that could lead a jury to conclude that her lawsuit was the
but-for cause of her nonselection at Kingston. For the reasons discussed
above, she has failed to carry that burden.

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Finally, Shumate argues that the court cannot grant the Board’s
motion without “weigh[ing] the evidence and judg[ing] the credibility of
witnesses.” (Doc. 129 at 15.) She never really explains what she means by
that. To the extent the credibility of any witnesses are at issue here, the court
has resolved all questions in Shumate’s favor by assuming that the Board
discussed her other lawsuit before it decided not to hire her. And although
Shumate correctly notes that “where there are genuine issues of material fact
as to what actually motivated the defendant, those factual disputes may [not]
be resolved by the Court” (Doc. 129 at 16), she hasn’t pointed to any evidence
that creates a genuine issue of material fact on the question of but-for
causation.
Accordingly, it is ORDERED that, upon reconsideration of the
previous order on summary judgment (Doc. 98), summary judgment is
GRANTED on Counts II and VII pertaining to Shumate’s 2011 interview for
the Kingston Elementary position. Because those were Shumate’s only
surviving claims, an appropriate judgment will follow.
DONE and ORDERED this 24th day of October, 2013.

/s/ Callie V. S. Granade
UNITED STATES DISTRICT JUDGE

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