THOMAS v. HALL
ORDER GRANTING 24 Motion for Summary Judgment. The Clerk of Court is directed to enter summary final judgment in favor of the dft, consistent with this order, and tax costs against the pla. Signed by CHIEF JUDGE M CASEY RODGERS on September 9, 2011. (kvg)
Page 1 of 11
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
LEONARD A. THOMAS,
Case No. 3:10cv171/MCR/EMT
WENDALL HALL, in his official
capacity as SHERIFF OF SANTA
ROSA COUNTY, FLORIDA,
The plaintiff, Leonard Thomas, filed this lawsuit against Wendall Hall, in his official
capacity as Sheriff of Santa Rosa County, Florida (“Sheriff”), asserting claims for failure to
promote in violation of Title VII of the Civil Rights Act of 1964, as amended (“Title VII”), 42
U.S.C. § 2000e-2, et seq., and the Florida Civil Rights Act of 1992 (“FCRA”), Fla. Stat.
§ 760.01, et seq. (doc. 1). Pending before the court is the Sheriff’s motion for summary
judgment (doc. 24), to which the plaintiff has responded in opposition (docs. 31, 32).
Having considered the Sheriff’s motion and the plaintiff’s response, the court finds there
is no genuine issue of material fact and the Sheriff is entitled to summary judgment as a
matter of law.
The plaintiff, who is a black male, has been employed by the Santa Rosa County
Sheriff’s Office (“SRCSO”) for approximately 27 years. The plaintiff claims that, during that
time, he twice has been denied promotions because of his race. Specifically, the plaintiff
claims that he applied for and was denied a promotion to lieutenant in the patrol division
Page 2 of 11
in 20081 and applied for and was denied a promotion to lieutenant in the major crimes
section of the investigative division in 2009.2 Under the SRCSO promotional policy in
effect at the time the plaintiff applied for the promotions, the Sheriff was responsible for
identifying promotional needs.3 Once the Sheriff identified a promotional need, the human
resources section was to prepare and post a roster identifying the deputies who met the
eligibility requirements for the position so that deputies could verify the accuracy of their
eligibility and report any discrepancies.4 Once the eligibility list was compiled and posted,
the vacancy was announced. The human resources section would then rank candidates
based on total composite scores derived from several factors, including training courses,
formal education, experience as a field training officer, supervisory experience, a written
examination, responses to written scenario-based questions, and seniority, and prepare
a final promotional roster based on the rankings. The final promotional roster was to
remain in effect for twenty-four months after it was posted and, as promotions occurred,
candidates would move up the list and be added to the active promotional roster, which
consisted of the five highest ranking candidates. Each time a position became available,
the Sheriff was provided with the names appearing on the active promotional roster and
the selection committee, which consisted of the department major and division captains,
would meet and discuss each candidates’ qualification for the vacancy to be filed. The
The individual prom oted to lieutenant in the patrol division was to be assigned to a watch
com m ander’s position, supervising law enforcem ent operations throughout the county during the evening
The m ajor crim es lieutenant also served in a supervisory capacity and oversaw the detective unit,
crim es against children unit, crim e analysis unit, narcotics unit, crim e scene unit, and evidence unit.
The policy is set forth in Prom otional Procedures General Order D-017.
At the tim e of the events in question, there were two divisions in the Sheriff’s departm ent – law
enforcem ent and detention. It appears that, within the law enforcem ent division, the were at least two
positions to which one could be prom oted – sergeant and lieutenant. Prom otional rosters were based on
available positions rather than the actual vacancies to be filled.
Page 3 of 11
selection committee would then recommend one of the five for promotion.5 Although the
Sheriff was authorized to select for promotion any one of the five highest ranking
candidates, it was his practice to follow the recommendation of the department major and
division captains. At the time the plaintiff applied for the promotion to lieutenant in the
patrol division, he ranked third on the active promotional roster. The top ranking candidate,
Sergeant Doug Laws (“Laws”), a white male, was promoted. The plaintiff ranked second
when he applied for promotion to lieutenant in the major crimes section of the investigative
division. The third highest ranking candidate, Sergeant Joe McCurdy (“McCurdy”), who
also is a white male, was chosen for that position. The plaintiff claims that he was denied
both promotions because of his race.
On September 15, 2009, the plaintiff filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”) based on the Sheriff’s failure to promote
him to the position in the investigative division. The plaintiff amended his charge on
November 16, 2009, to include the position in the patrol division. According to the
plaintiff’s complaint, the EEOC issued its determination and notice of rights to sue on
February 24, 2010.6 This lawsuit ensued. The Sheriff has filed a motion for summary
judgment, arguing that he is entitled to summary judgment as a matter of law with respect
to the plaintiff’s claim based on the position in the patrol division because the plaintiff did
not timely file a charge of discrimination. The Sheriff argues that he is entitled to summary
judgment on the plaintiff’s claim based on the position in the investigative division because
the plaintiff has failed to show that the Sheriff’s reasons for promoting McCurdy were
pretexts for race discrimination. The court agrees with the Sheriff on both grounds.
At least with regard to the prom otions at issue in this case, the division captain consulted the
candidates’ supervisors to obtain input on the candidates’ qualifications for the positions prior to m aking
recom m endations.
There is no copy of the EEOC’s determ ination in the record.
Page 4 of 11
Summary Judgment Standard
Summary judgment is appropriate where “the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine issue as to
any material fact and that the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “[T]he plain language of Rule 56(a) mandates the entry of summary
judgment, after adequate time for discovery and upon motion, against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). “[T]he mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly supported motion for summary
judgment; the requirement is that there be no genuine issue of material fact.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is “material” if it might
affect the outcome of the case under the governing law, and it is “genuine” if the record
taken as a whole could lead a rational fact finder to find for the non-moving party. Id.
Summary judgment is not appropriate “if a reasonable fact finder evaluating the evidence
could draw more than one inference from the facts, and if that inference introduces a
genuine issue of material fact.” Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590, 594 (11th
Cir. 1995). When assessing the sufficiency of the evidence, the court must view all the
evidence, and all factual inferences reasonably drawn therefrom, in the light most favorable
to the nonmoving party. See Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th
Cir. 1993). A mere scintilla of evidence in support of the nonmoving party’s position will
not suffice to demonstrate a genuine issue of material fact and thereby preclude summary
judgment. Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990).
Plaintiff’s Failure to Promote Claims
In order to maintain a Title VII claim, a plaintiff must first timely file a charge of
discrimination with the EEOC. See Maynard v. Pneumatic Products Corp., 256 F.3d 1259,
1262 (11th Cir. 2001). Ordinarily, the charge must be filed within 180 days after the
Page 5 of 11
alleged unlawful employment practice. Id.; see 42 U.S.C. § 2000e-5(e)(1). The period for
filing a charge with the EEOC may be extended to 300 days in deferral states, however,
if the plaintiff first files a timely charge of discrimination with a state or local agency.7 Id.
Although Florida is a deferral state and the Sheriff does not dispute that the plaintiff’s
charge was dual-filed, the plaintiff’s charge nevertheless was untimely with regard to the
patrol division position. Indeed, although the plaintiff was denied the promotion on
December 19, 2008, he did not amend his EEOC charge to include the denial of that
promotion until November 16, 2009, which was more than 300 days after the alleged
unlawful employment practice occurred.8 As a result, the plaintiff’s claim based on the
patrol division position is untimely under both Title VII and the FCRA and must be
As the Eleventh Circuit has explained,
[d]eferral states are those that prohibit the unlawful em ploym ent practice at
issue and have established state or local authorities to grant or seek relief
for such practice. In deferral states, no charge m ay be filed [with the EEOC]
. . . by the person aggrieved before the expiration of sixty days after
proceedings have been com m enced under the State or local law, unless
such proceedings have been earlier term inated. . . . This gives the deferral
state agencies notice of the alleged discrim ination and an opportunity to
investigate the allegations before the federal agency gets involved. Thus,
in deferral states, either a com plainant m ust file with the state agency by the
240th day after the discrim inatory act, or the state agency m ust term inate
proceedings by the 300th day on a charge filed after the 240th day.
Deferral states m ay also enter into worksharing agreem ents with the EEOC,
whereby the deferral states waive the right to investigate a charge during the
sixty-day deferral period. The deferral state's waiver of the opportunity to
investigate during the sixty-day deferral period m ay constitute a term ination
of the state's proceedings, thereby m aking a charge filed after the 240th day
tim ely by virtue of the deferral state's term ination of its proceedings before
the 300th day.
Maynard, 256 F.3d at 1262 (internal m arks and citations om itted).
Discrete discrim inatory acts, such as a failure to prom ote, “‘are not actionable if tim e barred, even
when they are related to acts alleged in tim ely filed charges.’” Smithers v. W ynne, 319 Fed. Appx. 755, 756-57
(11th Cir. 2008) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113 (2002)). “The clock for
the charging period starts when the discrete unlawful practice takes place.” Id. at 757.
Curiously, the plaintiff did not address the tim eliness issue in his response to the Sheriff’s m otion.
Page 6 of 11
Because the plaintiff failed to timely exhaust his administrative remedies with
respect to the patrol division position, the court need consider only his claim that he was
discriminated against with regard to the promotion to lieutenant in the investigative division.
Both Title VII and the FCRA prohibit an employer from discriminating against an employee
with respect to compensation, terms, conditions, or privileges of employment because of
the employee’s race. See 42 U.S.C. § 2000e-2(a)(1), Fla. Stat. § 760.10(1)(a), (7).10 In
this case, the plaintiff relies solely on circumstantial evidence in support of his claim; as a
result, the court must apply the burden-shifting framework established by the Supreme
Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). See Brooks v. Cnty. Comm’n of Jefferson
Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006). “The first step of the McDonnell Douglas
framework requires the plaintiff to make out a case sufficient to withstand a motion for
summary judgment (or a motion for judgment as a matter of law) – i.e., a ‘prima facie
case.’” Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1325 (11th Cir. 2011). In order
to do so, a plaintiff claiming that he was denied a promotion based on his race must
establish the following four elements: (1) he is a member of a protected class; (2) he was
qualified for and applied for the promotion; (3) he was rejected despite his qualifications;
and (4) other employees who are equally or less qualified, but were not members of the
protected class, were promoted. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089
(11th Cir. 2006). If the plaintiff establishes a prima facie case of discrimination, a
rebuttable presumption arises that the employer unlawfully discriminated against him and
the burden shifts to the employer to produce evidence of a “legitimate, nondiscriminatory”
reason for the employment decision. Smith, 644 F.3d at 1325. “If the employer meets its
burden of production, the presumption of discrimination raised by the plaintiff’s prima facie
The FCRA is patterned after Title VII; thus, Title VII case law is applicable to claim s brought under
the FCRA and the court need not analyze the claim s separately. See Smith v. Naples Commun. Hosp., Inc.,
No. 10-12460, 2011 W L 2652178, at *2 (11th Cir. July 7, 2011).
Page 7 of 11
case is rebutted and thus disappears.”11
Smith, 644 F.3d at 1325-26.
presumption of discrimination is rebutted, the inquiry proceeds to a new level of specificity,
whereby the plaintiff must show the employer’s proffered reason to be a pretext for
unlawful discrimination.” Id. at 1326 (internal marks omitted). “It is at this stage that the
plaintiff’s burden . . . merges with the ultimate burden of persuading the court that [the
plaintiff] has been the victim of intentional discrimination.” Id. (internal marks omitted). A
plaintiff asserting a failure-to-promote claim
cannot prove pretext by simply arguing or even by showing that
he was better qualified than the officer who received the
position he coveted. A plaintiff must show not merely that the
defendant's employment decisions were mistaken but that they
were in fact motivated by race. [As the Eleventh Circuit has]
explained, a plaintiff may not establish that an employer's
proffered reason is pretextual merely by questioning the
wisdom of the employer's reasons, at least not where . . . the
reason is one that might motivate a reasonable employer.
Brooks, 446 F.3d at 1163 (internal marks omitted). Rather, the plaintiff must demonstrate
“such weaknesses, implausibilities, inconsistencies, or contradictions in [the employer’s]
proffered legitimate reasons for its action that a reasonable fact finder could find them
unworthy of credence.” Porter v. Am. Cast Iron Pipe Co., No. 10-14017, 2011 WL
1990667, at *1 (11th Cir. May 23, 2011) (internal marks omitted).
The Sheriff concedes that the plaintiff has established a prima facie case of failure
to promote with respect to the position in the investigative division. The Sheriff argues,
however, that he had a legitimate, nondiscriminatory reason for promoting McCurdy rather
than the plaintiff. Specifically, the Sheriff contends that he followed the recommendation
of the department major and division captains and promoted McCurdy because McCurdy
A trier of fact does not have to believe the em ployer’s proffered reason in order to find that the
em ployer has m et its burden, “[f]or the burden-of-production discrim ination necessarily precedes the
credibility-assessm ent stage.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Nor is an em ployer
required to persuade the court its reason is “legitim ate.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th
Cir. 2004), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). The em ployer
is required only to present evidence which, taken as true, perm its a reasonable fact finder to conclude there
was a legitim ate nondiscrim inatory reason for the em ploym ent action. St. Mary’s Honor Ctr., 509 U.S. at 509;
Cooper, 390 F.3d at 725.
Page 8 of 11
was considerably more qualified than all of the other candidates, including the plaintiff,
largely because of his supervisory experience in the investigative division.12 Because the
Sheriff has proffered a legitimate, nondiscriminatory reason for the promotion decision, the
burden shifts back to the plaintiff to show that the true motive underlying the Sheriff’s
decision was discriminatory. In an effort to do so, the plaintiff argues that he was more
qualified than McCurdy because he had a higher composite score and thus ranked higher
than McCurdy on the eligibility list. The plaintiff has failed to show a disparity between his
qualifications and those of McCurdy sufficient to prove pretext. According to the Eleventh
Circuit, “[d]isparities in qualifications must be of such weight that and significance that no
reasonable person, in the exercise of impartial judgment, could have chosen the candidate
selected over the plaintiff for the job in question.” Porter, 2011 WL 1990667, at *2 (internal
marks omitted). There simply is no evidence that the plaintiff’s qualifications were such
that no reasonable person could have chosen McCurdy over him for the position in the
investigative division. In fact, the evidence suggests that McCurdy was more qualified than
the plaintiff despite the plaintiff’s higher ranking, and the plaintiff has “failed to rebut or
even address [McCurdy’s] identified strengths in the other dimensions on which [the
selection committee and Sheriff] relied.” Id. There likewise is no evidence that race played
any role in the promotion decision.
The plaintiff nevertheless argues that no objective criteria were used in the selection
process, resulting in arbitrary decision making and an increase in the potential for
On April 5, 2003, McCurdy was prom oted to corporal in the m ajor crim es section, which is in the
investigative division. He rem ained in that position until he was prom oted to sergeant on Septem ber 15, 2003.
After he becam e a sergeant, McCurdy was assigned patrol supervisory duties, which he perform ed until he
returned to the m ajor crim es section on February 9, 2004. He was the supervisor of the m ajor crim es section
until he was reassigned to the narcotics unit, which also is in the investigative division, on June 24, 2006. At
the tim e of his prom otion to lieutenant, McCurdy was a sergeant in the narcotics unit. By contrast, at the tim e
he applied for the prom otion, the plaintiff was a supervisor in the patrol division. Moreover, the plaintiff had
been assigned only to the narcotics unit of the investigative division and had not worked in that unit since
1997, when he was transferred to the patrol division. Unlike McCurdy, the plaintiff had no supervisory
experience in the investigative division. Moreover, McCurdy had received a num ber of com m endations based
on outstanding perform ance. He was twice recognized as supervisor of the year. One such recognition
occurred in 2009, prior to his prom otion to m ajor crim es lieutenant, and was based in part on his perform ance
as a sergeant in the narcotics unit. The other recognition occurred in 2008, while McCurdy was serving as
a sergeant in the investigative division. McCurdy also was recognized as officer and investigator of the year.
The plaintiff was recognized as supervisor of the year in 2007 and served in the Honor Guard.
Page 9 of 11
discrimination. In support of his position, the plaintiff points to the fact that the selection
committee’s decision with respect to the position in the patrol division was based on
composite rankings whereas its decision with respect to the position in the investigative
division was based on experience. It is undisputed that the policy in place at the time the
plaintiff applied for the promotions allowed the selection committee to exercise discretion
in recommending one of the top five candidates for promotion.13 As the Eleventh has
observed, however, “subjective reasons are not the red-headed stepchildren of proffered
nondiscriminatory explanations for employment decisions.” Id. (internal marks omitted).
And although the plaintiff has demonstrated that Laws and McCurdy were promoted for
different reasons, he has not identified any inconsistencies in the reasons given for
McCurdy’s promotion. To the contrary, members of the selection committee testified
uniformly that McCurdy was selected because of his supervisory experience in the
According to James Spencer, who was the captain over the
investigations division responsible for the major crimes section, at the time the lieutenant
position was filled, a new sergeant was coming in who had no supervisory experience in
major crimes; as a result, Spencer was “in a desperate situation for a supervisor that had
experience . . . in major crimes.” He, along with the rest of the selection committee,
considered McCurdy, who had been an investigator and supervisor in the major crimes
section, to be the most qualified candidate. It should also be noted that, while the selection
committee passed over the plaintiff in recommending McCurdy for the promotion, it also
passed over another white male, Tony Musselwhite, who was ranked higher than the
plaintiff. Spencer testified that Musselwhite was not selected because he, like the plaintiff,
was lacking in supervisory experience in the major crimes section. At least two members
of the selection committee also testified that, had the opening been in the patrol division,
It should be noted that the subjectivity com ponent of the prom otional process resulted from an
agreem ent between the union representing em ployees of the SRCSO and the SRCSO . As the Sheriff
explained in his deposition, prior to entering into an agreem ent with the union, which presum ably was a
collective bargaining agreem ent, it was his practice to autom atically prom ote the highest-ranking candidate
on the prom otional roster based solely on the candidate’s ranking. It was the union that introduced the
subjective elem ent, insisting that the Sheriff be provided with the nam es of the five highest ranking candidates
with no one autom atically selected.
Page 10 of 11
as they originally thought, the plaintiff would have been promoted – because of his
supervisory experience in that division.14 In short, there is no evidence that the Sheriff
promoted McCurdy for any reason other than the legitimate non-discriminatory reasons he
has articulated or that race played any role in the promotion decision.15 Because the
plaintiff has failed to rebut the Sheriff’s legitimate, nondiscriminatory reasons for failing to
promote him, the Sheriff is entitled to summary judgment as a matter of law on the
plaintiff’s failure to promote claim.16 Accordingly, it is hereby ORDERED that defendant’s
motion for summary judgment (doc. 24) is GRANTED. The Clerk of Court is directed to
enter summary final judgment in favor of the defendant, consistent with this order, and tax
Had Laws not refused a transfer to another district, his position as lieutenant in the patrol division
would have been available and the plaintiff would have been prom oted. W hen Laws learned of his pending
transfer, however, Laws requested to rem ain in his current position for m orale reasons, which the Sheriff
allowed. In an affidavit subm itted in response to the Sheriff’s m otion, the plaintiff states that he is not aware
of any prior instance in which som eone was allowed to refuse a transfer. According to Robert Jeffrey Floyd,
who was a m em ber of the selection com m ittee, however, the Sheriff would honor a request not to be
transferred if there was a com pelling basis upon which to do so, which the Sheriff apparently found in Law’s
It also should be noted that at least one of the m em bers of the selection com m ittee served on the
panel that recom m ended the plaintiff for supervisor of the year in 2007 and Major Collier approved the
request, along with the Sheriff and detention supervisor.
The plaintiff also asks the court to consider the statistical or num erical m akeup of the SRCSO and
alleges that he was the only black law enforcem ent deputy at the SRCSO at the tim e of the 2008 and 2009
prom otions. W hile it is true that “[s]tatistical inform ation concerning an em ployer’s general policy and practice
concerning m inority em ploym ent m ay be relevant to a showing of pretext, even in a case alleging an individual
instance of discrim ination rather than a ‘pattern and practice’ of discrim ination,” Sweat v. Miller Brewing Co.,
708 F.2d 655, 658 (11th Cir. 1983) (citing McDonnell Douglas, 411 U.S. at 805), the plaintiff has introduced
no statistical inform ation into the record for the court to consider. The plaintiff further argues that evidence
that Rena Sm ith, a black fem ale, was passed over for a prom otion to Jail Director in 2001 in favor of a white
m ale underm ines the Sheriff’s legitim ate nondiscrim inatory reasons for failing to prom ote him . Not only has
the plaintiff asserted a failure-to-prom ote claim , rather than a disparate treatm ent claim , such that
com parators do not enter into the analysis, but Sm ith clearly was not sim ilarly situated to the plaintiff and any
failure to prom ote her, without m ore, does not cast any doubt upon the legitim acy of the Sheriff’s proffered
reasons for his failure to prom ote the plaintiff.
Page 11 of 11
costs against the plaintiff.
DONE AND ORDERED this 9th day of September, 2011.
M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?