EQUAL EMPLOYMENT OPPORTUNITY COMMISSION v. WEST CUSTOMER MANAGEMENT GROUP LLC

Filing 147

ORDER. Plaintiff's motion for partial summary judgment (doc. 100 ) is DENIED.Defendant's motion for summary judgment (doc. 110 ) is DENIED. Defendant's motion to exclude the report and testimony of Dr. Shurita Thom as-Tate (doc. 111 is GRANTED, consistent with this order; and Plaintiff's motionsto exclude or to strike the Supplemental Declaration of Rajka Smiljanic (docs. 105 & 125 ) are DENIED as moot, but without prejudice. Plaintiff's motion t o strike the Declaration of Penny Majeski (doc. 123) is DENIED as moot, but without prejudice. Defendant's objections to Plaintiff's sealed evidence submitted in support of its opposition to Defendant's motion for summary judgment (doc. 128 ) are overruled, consistent with this order. Trial and a pretrial conference date will be set by separate order. Signed by CHIEF JUDGE M CASEY RODGERS on September 26, 2012. (pmc)

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IN THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF FLORIDA
PENSACOLA DIVISION

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,
Plaintiff,
v.

Case No. 3:10cv378/MCR/CJK

WEST CUSTOMER MANAGEMENT
GROUP, LLC,
Defendant.
_______________________________/
ORDER
Plaintiff Equal Employment Opportunity Commission (“EEOC”) has filed suit
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, as amended, see
42 U.S.C. § 1981a, on behalf of Derrick Roberts, who claims that Defendant West
Customer Management Group, LLC (“West”) engaged in employment discrimination by
refusing to hire him because of his national origin. See 42 U.S.C. § 2000e-2(a)(1)
(proscribing, in relevant part, discrimination on grounds of national origin). Pending before
the court is the EEOC’s motion for partial summary judgment on West’s first affirmative
defense (doc. 100), and West’s motion for summary judgment against the EEOC (doc.
110). Both motions are opposed. Also pending are motions by both parties to strike
declarations and expert testimony and West’s objections to the EEOC’s evidence in
support of its opposition to summary judgment (see docs. 105, 111, 123, 125, 128).
Having fully considered the matter, the court denies the motion for summary judgment and
motion for partial summary judgment because genuine issues of material fact exist on the
record before the court. The remaining objections and motions to strike are therefore
either moot or better addressed at the pretrial conference.

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Background1
This suit arises out of the claim of Plaintiff Derrick Roberts that in 2008, he was
rejected for employment as a Customer Service Representative (“CSR”) with West
because of national origin discrimination. The undisputed facts are as follows. Roberts
was born in Jamaica and graduated from high school there. He moved to the United
States in 1989 and became a United States citizen in 1999. His first and only language
is English, but he speaks with an accent. Prior to moving to the United States, Roberts
worked for 11 years as a civilian employee for the United States military at Guantanamo
Bay, Cuba, as a mechanic and in a laundromat for a short time, making change and giving
out soap. After moving to Florida in 1989, Roberts was employed as a mechanic from
1990 until 2001, and from 2003 through 2004. He also worked for the Escambia County
Area Transit from October 2004 until 2006, when he injured his back on the job. Roberts
testified that this resulted in a permanent medical restriction prohibiting him from lifting
more than 10 pounds.2 In September 2008, Roberts completed a four-month course in
information technology and received an information technology certification.
West provides customer service to corporate clients and employs customer service
representatives to resolve by telephone billing questions and technical repair issues for
customers of West’s clients.

The successful candidate for a CSR position must

satisfactorily complete an online computer skills assessment test and must have a high
school diploma or GED, previous customer service experience, familiarity with a computer
keyboard and mouse, a flexible schedule, and the ability to communicate using a clear,
distinct voice. On November 18, 2008, Roberts completed an online application for a CRS
position and a computer skills assessment test. He was interviewed the following day,
November 19, 2008, by Employment Specialist Steven Henry, who asked questions about

1

For the lim ited purposes of this sum m ary judgm ent proceeding, the court views “the evidence and
all reasonable inferences drawn from it in the light m ost favorable to the nonm oving party," which in this case
is the plaintiff. Martin v. Brevard County Pub. Sch., 543 F.3d 1261, 1265 (11th Cir. 2008) (internal m arks
om itted). The court is m indful that “what is considered to be the facts at the sum m ary judgm ent stage m ay
not turn out to be the actual facts if the case goes to trial.” Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.
1996).
2

EEOC contends this injury prevents Roberts from working as a m echanic, and W est disputes this
fact. This dispute is not m aterial to the outcom e of the sum m ary judgm ent m otions.

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his experience with computers3 and customers, specifically inquiring about how he had
dealt with customers in particular instances in the past. During the interview, Henry asked
Roberts a series of prepared questions and took notes on his answers. In question 3B,
Henry asked Roberts to describe how he had dealt with a challenging customer situation
in the past. According to Henry's notes, Roberts recalled a time when he was working as
a mechanic and had diagnosed a mechanical problem but the customer disagreed with his
conclusion and thought the problem was something else. Henry recorded that Roberts
said he told the customer he could only fix what he sees, and “if someone else thinks it is
something else, let them fix it.” Henry viewed this as rude. Roberts denied answering in
this manner and said the notes did not accurately reflect what he had said. According to
Roberts, he recalled answering simply that the customer said her dad thought something
else was wrong, but Roberts replied he had to fix the car according to his own diagnostics,
and she ended up allowing him to fix it. Roberts was never asked what country he was
from and he did not tell Henry he was Jamaican, although it is indicated on his high school
diploma, which Henry reviewed because it was a job requirement to have a high school
diploma. Roberts said Henry never asked him to repeat his answers. At the end of the
interview, Roberts said that a woman asked him some of the same questions relating to
computers. Then, according to Roberts, Henry informed him that he did not have the
requisite computer skills and told him he had “a deep accent.” (Doc. 100-3, at 13; Roberts
Depo. at 52). Roberts also said Henry told him he was worried that Roberts would upset
an angry customer. Later in his deposition testimony, Roberts stated he believed West
refused to hire him because Henry had told him that his “thick accent” “would make matters
worse to a customer” and that he did not have the requisite computer skills. (Doc. 100-3,
at 25). Roberts asserts that no one had ever previously told him they could not understand
him.
According to Henry, he had difficulty understanding Roberts and had to ask some

3
Henry inquired about Roberts's com puter skills, specifically his fam iliarity with the com puter
program s Internet Explorer, Microsoft W ord, and Excel. Roberts testified by deposition that he explained he
was still learning but that he used Internet Explorer for checking em ail and reading the paper, and that his
experience with W ord included typing letters and accounting coursework discussion questions; and he knew
Excel was used for creating spreadsheets.

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questions several times before understanding Roberts’s response.4 Henry testified that the
ability to communicate clearly and be understood were important considerations for the
hiring decision, as well as the answer to question 3B, illustrating rudeness to a customer
and weak computer skills. Because of his difficulty understanding Roberts, Henry at some
point asked a nearby co-worker, Pamela Thomas, to listen to the interview to hear if she
had difficulty understanding Roberts. She testified by deposition that she tried to listen and
could hear that Roberts was talking, but it was difficult for her to hear him well enough to
understand Roberts during the interview. Henry testified that when he concluded asking
Roberts the prepared questions, he advised Employment Supervisor Andreina Fowler that
he had a gentleman whom he was having difficulty understanding, and he asked for her
opinion on the matter. Fowler testified that this was unusual, but she then asked Roberts
some questions and agreed Roberts was difficult to understand and had difficulty
communicating. Fowler also testified by deposition that, upon reviewing Roberts’s answers
regarding customer service and computers, she felt he was not a qualified applicant.
Henry testified that he may have commented on Roberts’s accent at the end when he
informed Roberts he would not be considered for the position; Henry testified that Roberts
“suddenly got very loud” and demanded to know the reasons. (Doc. 112-2, at 29). Toward
the end of his deposition, Henry testified that Roberts got loud after Henry advised him he
would not be considered but was eligible to reapply after six months.5 Roberts disputes
that he was told he could reapply.
Following the interview, Henry completed a candidate disposition form, which listed
options for the interviewer to select as reasons why this candidate would not be
considered. Henry selected “lacked experience/knowledge as indicated by answers to
interview questions,” and “other,” and he specifically noted Roberts’s computer skills and
customer service experience as the reason. Henry further wrote on this form that Roberts

4

To the contrary, Roberts could not recall during his deposition any point during the interview when
Henry requested he repeat an answer or otherwise indicated that he did not understand Roberts' response
to a question.
5

Thom as testified that although she heard Henry go through the questions, she could not hear
Roberts's answers; however, she did hear Roberts raise his voice at the end of the interview. Thom as did
not recall Henry giving any particular reasons for rejecting Roberts as a candidate.

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was “very difficult to understand” and had a “heavy accent,” and noted that Fowler
confirmed his impressions.6 (Doc. 112-2, at 72). Henry testified that he rejected Roberts
based on three considerations: Roberts gave a deficient answer to question 3B on the
prepared interview questions, regarding how he had dealt with a difficult customer; he was
concerned about Roberts’s computer skills because he had replied that he was “not versed
on maneuvering through the computer;” and Henry was concerned about Roberts’s
communication skills. (Doc. 112-2, at 41).
The record shows that in November 2008, West was busy hiring for several training
classes at one time. Henry testified that he and other interviewers were interviewing 10 to
15 persons on a typical day at that time. According to West’s representative, Penny Ann
Majeski, and documentary evidence, West hired 1,405 CSRs in Pensacola, Florida,
between May 1, 2008 and January 31, 2009. Fowler testified that she did not know of any
Jamaicans who were hired at any time since she began working for West in October 2005.
According to Majeski, West did not hire anyone with problems it identified in Roberts, that
is, having weaknesses in customer service skills, computer skills and difficulty
communicating clearly. She identified that the minimum computer skills would require a
candidate to be able to identify basic trouble-shooting procedures, such as pressing
“control-alt-delete” for a frozen screen; Roberts stated that he would “reboot.” EEOC,
however, identified records of West containing interviewer notes and candidate disposition
reports reflecting that West had hired candidates despite answers indicating a lack of
customer service experience or lack of computer troubleshooting skills, according to the
criteria Majeski and Henry described as critical in the decision not to hire Roberts, and
showing that other candidates who were rejected for a lack of communication skills were
allowed to reapply in six or twelve months.7 Roberts stated he was not told he could
reapply, and the EEOC presented evidence that one other applicant rejected for poor

6

Henry testified that Roberts becam e loud when advised he would not be considered for
em ploym ent. The EEOC, however, points out that this is not recorded in his notes or the candidate disposition
form . EEOC also notes that Henry did not testify in his deposition that a lack of custom er service experience
form ed part of his decision, though this is written on the candidate disposition form .
7

Henry was the interviewer on som e of these records but not on any where the candidate was
rejected for poor com m unication skills.

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communications skills who likewise received no notation that she could reapply was a
candidate reportedly from Puerto Rico.
Following West’s rejection of Roberts for the CSR position, he searched for another
position by applying for jobs online, checking with other employers, and interviewing for
three different jobs. He worked for Lock Pro doing light roadside assistance work for one
month in 2009 but left because they did not pay him. He also worked as a driver for two
weeks in 2010, and has attempted to engage in self-employment as a roadside assistant.
Since February 2011, Roberts has worked for Securitas as a security guard, at a rate of
pay of $7.50 per hour.
Roberts filed an EEOC discrimination charge against West, asserting discrimination
on the basis of his national origin, and the EEOC found reasonable cause to conclude that
West violated Title VII in refusing to hire Roberts.8 The EEOC filed this suit on September
30, 2010. West filed a motion for summary final judgment, arguing there is no direct
evidence of discrimination and no circumstantial evidence, because it articulated a
legitimate business reason for not hiring Roberts. Also, the EEOC filed a motion for partial
summary judgment on West’s affirmative defense that Roberts failed to mitigate damages
by not seeking comparable positions.
In response to West’s motion, the EEOC has proffered the expert witness testimony
of Dr. Shurita Thomas-Tate, a speech pathologist and with special knowledge regarding
variations of English. She conducted a speech evaluation of Roberts on February 25,
2011, administering a standard battery of tests, including word level analysis, standardized
reading samples, and a conversational language sample. She also developed and
administered a simulated phone task to provide further information. In her opinion,
Roberts’s speech intelligibility at the word level, conversational level, and over the
telephone is greater than 99%. Dr. Tate further opined that at the age of 51 and having

8

After receiving the EEOC determ ination, W est requested a discussion with the EEOC and a
conference call was held on Septem ber 20, 2010. M ajeski filed a declaration stating that during this
conference call with EEOC representatives, the EEOC investigator adm itted that during the investigation, she
and the director had to ask Roberts to repeat inform ation on several occasions, although ultim ately, they were
able to understand him . The investigator also adm itted that the EEOC had not interviewed anyone at W est
or any other witnesses prior to m aking the cause determ ination. This declaration is the subject of a m otion
to strike by the EEOC on grounds of adm inistrative privilege.

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been in the United States for over 20 years, his pattern of language usage is stable and
would not have changed since his interview with West in 2008 absent professional
intervention, which she said he reportedly had not received. She concluded that Roberts’s
speech and accent pose no barrier to his ability to communicate effectively. West has
moved to strike or exclude this expert testimony on grounds that it is not scientifically
reliable and that any probative value it may have is outweighed by its prejudicial effect. In
support of the motion, West proffered the expert declaration of Dr. Rajka Smiljanic, a
linguist, who expresses the opinion that Dr. Tate’s testing was inadequate on several
grounds. EEOC has moved to strike or exclude Dr. Smiljanic’s testimony, arguing that, as
a linquist, she is unqualified to express opinions concerning the methods and conclusions
of a speech pathologist, such as Dr. Tate, and that Dr. Smiljanic’s opinions are not
sufficiently reliable.
Discussion
Motions to Strike and Objections
Before addressing the pending summary judgment motions, it is necessary to
consider the motions to strike and objections to evidence in the record. The objections
West has raised to statements of fact and evidence set forth by the EEOC largely consist
of additional argument on grounds that the EEOC has mischaracterized testimony or
provided incomplete or misleading portions of testimony. The court has set forth above the
material facts, taking these objections into consideration as necessary but overruling them
for the most part because they relate to the weight or context of the evidence as opposed
to its admissibility. The court has viewed the record in the light most favorable to the
EEOC on West’s motion and in the light most favorable to West on EEOC’s motion for
partial summary judgment.
As to West’s objections to EEOC’s exhibits J through GG on grounds of hearsay,
authenticity, and lack of personal knowledge, the court concludes for reasons that follow
that they should be overruled.9 Exhibits J through GG consist of West’s own records and
interviewer notes that it produced in discovery regarding candidates who were hired or
9

W est argues that these candidates were not sim ilarly situated to Roberts, however, this argum ent
is not a proper ground on which to exclude the evidence.

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rejected. The rule of authentication merely requires the proponent to produce “sufficient
evidence to make out a prima facie case that the proffered evidence is what it purports to
be.” United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985); Fed. R. Evid.
901(a). While authentication may be accomplished by means of a witness with knowledge,
courts also have admitted documents produced during discovery as authentic when offered
by the party opponent. See Slone v. Judd, No. 8:09cv1175, 2011 WL 1124618, at *2 (M.D.
Fla. 2011) (“Documents produced during discovery are deemed authentic when offered by
a party opponent.” (internal marks omitted)) (unpublished); Sklar v. Clough, No. 106cv627,
2007 WL 2049698, at *4 (N.D. Ga. 2007) (same) (unpublished); see also Snyder v.
Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988) (affirming the admission of notes of
a corporate employee produced during discovery). EEOC’s exhibits J through GG are
personnel interview records and notes recorded on the very same form as was used during
Roberts’s interview, with West’s logo, and produced by West during discovery. West has
not argued that these notes are not what they purport to be. Also, the court may consider
a hearsay statement on summary judgment if the statement could be reduced to an
admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999).
Thus, the fact that evidence currently may be in an inadmissible form does not prevent
consideration of the evidence at summary judgment. The interview notes and candidate
disposition forms were written by West’s own interviewers, who made hiring decisions on
West’s behalf, and therefore, they are either business records, see Fed. R. Evid. 803(6),
or are admissible as statements of a party opponent, made by an agent within the scope
of that relationship, and are not hearsay, see Fed. R. Evid. 801(d)(2)(D). Some of the
statements also are not offered for the truth of the matter asserted.
West and EEOC both seek to exclude their opponent’s expert witness. Expert
testimony by one who is qualified by knowledge, skill, experience, training, or education,
is admissible if scientific or specialized knowledge will help the trier of fact to understand
the evidence and if the testimony is based on sufficient facts or data and is the product of
reliable principles and methods applied to the facts of the case. Fed. R. Evid. 702; see
also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Daubert and Rule 702
impose certain gatekeeping responsibilities on the trial judge with regard to expert evidence

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“to ensure the reliability and relevancy of expert testimony.” Kumho Tire Co. v. Carmichael,
526 U.S. 137, 152 (1999). The court must “make certain that an expert, whether basing
testimony upon professional studies or personal experience, employs in the courtroom the
same level of intellectual rigor that characterizes the practice of an expert in the relevant
field.” Id. To this end, the court engages in a three-part inquiry before admitting an
expert’s opinion, considering (1) whether the expert is qualified to testify regarding the
matter; (2) whether the methodology used in reaching the expert’s conclusions is
sufficiently reliable under a Daubert inquiry;10 and (3) whether the testimony will assist the
trier of fact, through scientific, technical, or other specialized expertise, to understand the
evidence or to determine a fact in issue. See Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d
1183, 1194 (11th Cir. 2010); Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d
1333, 1340-41 (11th Cir. 2003); see also Fed. R. Evid. 702. The proponent of the expert
testimony “bears the burden of showing, by a preponderance of the evidence, that the
testimony satisfies each prong.” Hendrix, 609 F.3d at 1194.
West seeks to exclude the expert opinion testimony of the EEOC’s expert witness,
Dr. Tate, a speech pathologist who assessed Roberts’s speech intelligibility and concluded
that his speech and accent pose no barrier to his ability to communicate effectively and
that his speech patterns would not have changed since his interview with West absent
professional intervention. West argues that Dr. Tate’s testimony should be excluded on
each of the three prongs relevant to admitting expert opinion testimony – qualifications,
methodology, and helpfulness. Although the bulk of the parties’ arguments focuses on the
first two prongs, the court finds the third prong to be dispositive and that, with the exception
of one narrow issue discussed below, expert testimony is not helpful in this case.
Therefore, it is not necessary to address the first two prongs at this time, and the court
addresses only the third factor, that is, whether the testimony will assist the trier of fact.

10

The Daubert factors useful in determ ining whether expert testim ony is reliable include whether a
theory or technique can be or has been tested, whether it has been subjected to peer review or publication,
whether it has gained widespread acceptance within a relevant com m unity of experts, and consideration of
the known or potential rate of error of a technique. See 509 U.S. at 593-94. These factors are a
nonexhaustive list of potential considerations that m ay shape the trial judge’s flexible Rule 702 inquiry; they
are not a “definitive checklist.” Id. at 594.

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The advisory committee notes to Rule 702 describe this as a “common sense inquiry,”
requiring consideration of “whether the untrained layman would be qualified to determine
intelligently and to the best possible degree the particular issue without enlightenment from
those having a specialized understanding of the subject involved in the dispute.” Fed. R.
Evid. 702 (advisory committee notes) (internal marks omitted). Opinions that are unhelpful
are “therefore superfluous and a waste of time.” Id. (internal marks omitted). “Expert
testimony helps the jury ‘if it concerns matters that are beyond the understanding of the
average lay person.’” Tardiff v. Geico Indem. Co., Slip Op. No. 11-15450, 2012 WL
2924042, at * 2 (11th Cir. Jul. 19, 2012) (quoting United States v. Frazier, 387 F.3d 1244,
1261 (11th Cir. 2004) (en banc)) (unpublished).
Consideration of these principles leads to the conclusion that expert testimony on
the issue of speech intelligibility is not helpful in this case. Determining whether Roberts’s
speech was intelligible is the type of common-sense determination that an untrained
layman is qualified to make intelligently without the aid of an expert. The ultimate issue
here is whether West intentionally discriminated against Roberts or made a legitimate
nondiscriminatory business judgment that his speech would be difficult to understand in
a telephone customer service conversation. There is no contention that Roberts had a
speech disorder of some type that would require expert testimony or specialized
knowledge, nor is it necessary to understand the technical peculiarities of a Jamaican
accent or speech pattern in order for a layman to determine whether the sound of a
person’s accent so obstructed the intelligibility of his speech that it was a legitimate reason
not to hire him for a CSR position. In other words, whether an accent or culturally
distinctive speech pattern is sufficiently intelligible for the average person to understand
is a matter squarely within the competency of the average juror.11 Therefore, the court

11

The Eleventh Circuit recently reversed a district court’s decision to exclude expert testim ony on
grounds that it was unhelpful in Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190 (11th Cir. 2011), reh’g en
banc denied, 682 F.3d 1320 (11th Cir. 2012); but the facts of that case are distinguishable. There, a slip and
fall case, the court reversed because the plaintiff’s negligence theory (that the defendant failed to choose an
adequate flooring surface for a particular area) involved an issue of the slip resistance and surface friction of
a particular flooring, which was a proper subject for an expert. Id. at 1193. Here, by contrast, the issue is one
of intentional discrim ination and whether an accent was difficult to understand, which does not involve a
scientific or technical question outside the experience of the jurors. The dissent from the denial of rehearing
en banc in Rosenfeld characterized the issue in that case as m erely requiring a determ ination of whether the

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concludes that Dr. Tate’s opinions regarding the issue of speech intelligibility are not
admissible, and thus West’s motion to exclude this testimony will be granted both for
purposes of this summary judgment motion and trial.
The court, however, finds that Dr. Tate’s expert opinion that Roberts’s speech
pattern or accent would not likely have changed in the intervening years since his interview
with West is an appropriate subject for expert testimony in this case and would be helpful
to the jury. As to this narrow issue, the court must then examine Dr. Tate’s qualifications
and experience to determine whether she is qualified to offer this opinion. The Eleventh
Circuit has explained that these are separate inquiries and emphasized that “‘[i]f the
witness is relying solely or primarily on experience, then the witness must explain how that
experience leads to the conclusion reached, why that experience is a sufficient basis for
the opinion, and how that experience is reliably applied to the facts.’" Frazier, 387 F.3d at
1261 (quoting Fed. R. Evid. 702, advisory committee notes, and commenting that
admissibility is not “established merely by the ipse dixit of an admittedly qualified expert).
The court is not in a position to make a final ruling on the admissibility of this narrow
opinion on the existing record without a hearing, but finds that a decision on this issue is
not necessary to the court’s summary judgment ruling.12 The court reserves ruling on
whether Dr. Tate’s education and professional experience render her qualified to offer the
opinion that Roberts’s speech patterns or accent would not have changed during the
intervening time period since his interview with West.

The parties may submit

supplemental briefing on the issue fourteen days prior to the pretrial conference, with any
responsive supplemental briefing due no later than seven days prior to the pretrial
conference.

floor was wet or dry, and concluded that in such a situation, expert testim ony was not needed, because where
the issue involves “a com m on sense observation” or “som ething a typical juror would have known as a m atter
of everyday life experience,” expert testim ony typically is not required or allowed. Rosenfeld, 682 F.3d at 1331
(Tjoflat, Circuit Judge, dissenting from the denial of rehearing en banc). W hile Judge Tjoflat’s dissenting
characterization of the fact at issue did not prevail am ong the circuit judges in that instance, his observations
are instructive nonetheless: W here “the analysis lies within com m on sense . . . expert testim ony on the
subject will not assist the trier of fact to understand anything m ore than he already does.” Id.
12

As discussed below, m aterial issues of fact exist outside of this issue that require the denial of
sum m ary judgm ent. It is not necessary to consider the expert testim ony when ruling on the sum m ary
judgm ent m otions.

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West designated Dr. Smiljanic as a rebuttal expert, and the EEOC has moved to
exclude her testimony. Her report and testimony appear to be limited to rebutting the
methodology underlying Dr. Tate’s opinions regarding speech intelligibility tests, which the
court has excluded; as such, the motion to exclude her testimony will be denied as moot.
But, to the extent her testimony is relevant to rebut Dr. Tate’s testimony on the narrow
issue on which the court has reserved ruling, the court will likewise reserve ruling as to Dr.
Smiljanic’s expert opinion and will address the issue at the pretrial conference.
Plaintiff moves to strike West’s declaration of Penny Majeski, West’s Vice President
of Employee Relations, who alleged that during a conference call in which she participated
with Arlene Gorcey, the EEOC investigator, Gorcey admitted that she and her director had
to ask Roberts to repeat information on several occasions during their investigation, but
that they ultimately were able to understand him, and that the EEOC had not interviewed
anyone at West or any other witnesses prior to making the cause determination. Plaintiff
argues that this evidence is inadmissible because the statements were made during the
EEOC investigatory or conciliation process, and thus, they are within the scope of the
agency’s deliberative process privilege or are protected as work product privilege pursuant
to EEOC statutory and regulatory protections. West argues that the statements are
admissible because they were made voluntarily to a West representative, so any assertion
of privilege has been waived and the statements are admissible as statements against
interest. West asserts that the statement regarding Roberts being difficult to understand
directly contradicts the EEOC’s position that Roberts could clearly communicate, and West
asserts it has the right to use these voluntarily made statements to rebut any inference the
jury may draw that the case is meritorious simply because it is brought by the EEOC after
an agency investigation.
For purposes of summary judgment, the court will not consider the EEOC
investigator’s statements to Majeski. The issue on summary judgment is whether there is
direct or sufficient circumstantial evidence of intentional discrimination on the part of West
to allow the case to go to the jury. Statements by the EEOC investigator are not probative

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of West’s intent to discriminate in the hiring process.13 Therefore, because the court finds
this evidence is not relevant to the summary judgment determination, the court will deny
the motion to strike the declaration of Penny Majeski as moot at this stage of the
proceedings, but the denial is without prejudice to the issue being raised in a motion in
limine and addressed prior to trial.
Summary Judgment Standard
When reviewing more than one motion for summary judgment, the court views the
facts in the light most favorable to, and draws inferences in favor of, the non-moving party
with respect to each motion. See Am. Bankers Ins. Group v. United States, 408 F.3d
1328, 1331 (11th Cir. 2005). Summary judgment is appropriate “if the movant shows that
there is no genuine dispute as to any material fact and the movant is entitled to judgment
as a matter of law.” Fed. R. Civ. P. 56(a). See Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[T]he substantive law will identify which facts are material” and which are
irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is
material if it is a legal element of the claim under the applicable substantive law which
might affect the outcome of the case. See id.
At the summary judgment stage, a court’s function is not to weigh the evidence to
determine the truth of the matter, but to determine whether a genuine issue of fact exists
for trial. See Anderson, 477 U.S. at 249. A genuine issue exists only if sufficient evidence
is presented favoring the nonmoving party for a jury to return a verdict for that party. See
id. “If reasonable minds could differ on the inferences arising from undisputed facts, then
a court should deny summary judgment.” Miranda v. B & B Cash Grocery Store, Inc., 975
F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust Co. v. Fidelity & Deposit
Co., 750 F.2d 838, 841 (11th Cir. 1985)). Although the court must view all the evidence,
and all factual inferences reasonably drawn from the evidence, 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), the court is not obliged to deny summary judgment for the moving party when
13

To the extent this evidence would support the legitim acy of W est's nondiscrim inatory reason for
not hiring Roberts, the EEOC bears the burden of dem onstrating pretext at this stage of the proceedings, and
the court finds below that there is a question of fact as to pretext. Therefore, sum m ary judgm ent will be
denied without a need to consider this evidence.

Page 14 of 20

the evidence favoring the nonmoving party is “merely colorable” or “is not significantly
probative,” Anderson, 477 U.S. at 249. A mere scintilla of evidence in support of the
nonmoving party’s position will not suffice to demonstrate a material issue of genuine fact
that precludes summary judgment. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.
1990) (citing Anderson, 477 U.S. at 252).
Defendant West’s Motion for Summary Judgment
West asserts that the EEOC has failed to present direct or circumstantial evidence
of discrimination to survive summary judgment. As the Eleventh Circuit has explained,
direct evidence of discrimination is “evidence, which, if believed, proves the existence of
a fact in issue without inference or presumption.

Evidence that only suggests

discrimination, or that is subject to more than one interpretation, does not constitute direct
evidence.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (internal
marks and citations omitted). In order to constitute direct evidence, the evidence must
“reflect[ ] a discriminatory or retaliatory attitude correlating to the discrimination or
retaliation complained of by the employee.” Van Voorhis v. Hillsborough Cnty. Bd. of Cnty.
Com'rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (internal marks omitted) (finding direct
discrimination of age discrimination based on the allegation that an interviewer said he
“didn’t want to hire any old pilots”). “[O]nly the most blatant remarks, whose intent could
be nothing other than to discriminate on the basis of [race], . . . constitute direct evidence
of discrimination.”

Id. (Internal marks omitted).

“Evidence that merely suggests a

discriminatory motive is, by definition, circumstantial evidence.” Hawthorne v. Baptist
Hosp. Inc., 448 Fed. Appx. 965, 967 (11th Cir. 2011) (unpublished) (citing Burrell v. Bd. of
Trustees of Ga. Military Coll., 125 F.3d 1390, 1393-94 (11th Cir. 1997)).
Under Eleventh Circuit precedent, a direct and discriminatory comment on a job
applicant's accent can be direct evidence of national origin discrimination. See Akouri v.
State of Fla. Dep't of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (finding direct evidence
where a supervisor turned down a Lebanese plaintiff for a promotion, stating the white co
workers were "not going to take orders from you, especially if you have an accent"). On
the other hand, relying on authority from other circuits, the Eleventh Circuit has also
explained that “an employee’s heavy accent or difficulty with spoken English can be a

Page 15 of 20

legitimate basis for adverse employment action where effective communication skills are
reasonably related to job performance.” Tseng v. Fla. A&M Univ., 380 Fed. Appx. 908, 909
(11th Cir. 2010) (unpublished)14 (finding remarks by supervisors that a Taiwanese
professor's accent was difficult to understand or that he needed to work on his English
skills were not direct evidence of discrimination where no disparaging remarks were made
about Taiwanese generally and none of the statements specifically referred to Tseng’s
nationality), cert. denied, 131 S. Ct. 2161 (2011); see also Fragante v. City and Cnty. of
Honolulu, 888 F.2d 591, 596-97 (9th Cir. 1989) (“There is nothing improper about an
employer making an honest assessment of the oral communications skills of a candidate
for a job when such skills are reasonably related to job performance.”) (cited with approval
by the Eleventh Circuit in Tseng), cert. denied, 494 U.S. 1081 (1990). In the present case,
as in Tseng, although the interviewer, Henry, denied employment in part because of
Roberts’s “thick accent,” there is no indication Henry made any disparaging remarks about
Jamaicans and his one comment about Roberts’s accent did not explicitly refer to his
nationality. In light of the whole context and the job requirements for a CSR, requiring a
clear and distinct voice to help resolve customer complaints by telephone, the court finds
the EEOC has "failed to identify any ‘blatant remarks or actions whose intent could be
nothing other than to discriminate." Tseng, 380 Fed. Appx. at 910 (internal marks omitted);
see also Van Voorhis, 512 F.3d at 1300. Thus, the EEOC has not presented direct
evidence of discrimination.
Because the comment is subject to more than one interpretation, however, the court
must consider whether the plaintiff has created a prima facie case of discrimination under
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). “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.,

14

W hile unpublished opinions are not considered binding precedent, they m ay be considered as
persuasive authority. See 11th Cir. R. 36-2; see also United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir.
2000).

Page 16 of 20

644 F.3d 1321, 1325 (11th Cir. 2011); see also Crawford v. Carroll, 529 F.3d 961, 970
(11th Cir. 2008). In order to do so, the plaintiff must establish the following four elements:
(1) he is a member of a protected class; (2) he applied for and was qualified for the
position; (3) despite his qualifications, he was rejected; and (4) the position was filled with
an individual outside the class who was equally or less qualified or the position remained
open. See Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999); Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 768 & n.3 (11th Cir. 2005) (also emphasizing that the
McDonnell Douglas burden-shifting framework is one method of proving discrimination by
circumstantial evidence, but not the only method). 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. See Smith, 644 F.3d
at 1325-26. If the employer meets this burden,15 the plaintiff must present evidence
tending to show that the proffered legitimate reason is a mere pretext for unlawful
discrimination.

See id. at 1326.

The plaintiff can show 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. Cnty. Comm’r of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)
(internal marks omitted). With respect to the latter, “the plaintiff must demonstrate such
weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable fact finder could
find them unworthy of credence.” Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004)
(internal marks omitted), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S.
454, 457 (2006); see also Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)

15

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 determ 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. S. 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 17 of 20

(en banc). “If the proffered reason is one that might motivate a reasonable employer, a
plaintiff cannot recast the reason but must meet it head on and rebut it.” Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004). Also, the Eleventh Circuit has
clearly stated that “the plaintiff will always survive summary judgment if he presents
circumstantial evidence that creates a triable issue concerning the employer's
discriminatory intent.” Smith, 644 F.3d at 1328.
It is undisputed for purposes of summary judgment that the plaintiff is in a protected
class, was objectively qualified,16 and suffered an adverse employment action of being
rejected for employment. West argues that the EEOC has not set forth a prima facie case
of discrimination because there is no evidence that an equally or less qualified applicant
outside of his protected class was hired for the position of CSR. This case presents a
close call. The EEOC has identified candidates who were hired despite showing weakness
in answers regarding computer skills and customer service comparable to the weaknesses
identified by West in answers given by Roberts. The EEOC identified four candidates who
were rejected for a lack of skills or knowledge as well as communication difficulties, such
as being soft spoken. Unlike Roberts, the candidate disposition forms for these candidates
indicate clearly that the candidate could reapply or reinterview within six or twelve months,
whereas Roberts claims he was not told this nor is it reflected on the interviewer’s notes
or his candidate disposition form. The only other candidate identified as having been
rejected for poor communication skills and who, like Roberts, had no notation that the
candidate could reapply in six or twelve months, was a candidate who had recently moved
to the Unites States from Puerto Rico. Viewing these facts in the light most favorable to
the EEOC, the facts show that the interviewer expressly commented on Roberts’s “thick
accent” without inviting him to reapply or reinterview when others who were soft spoken but
did not have accents appear to have been given this courtesy. The court finds that the

16

Roberts had a high school diplom a and som e custom er service experience, although his answer
to question 3B was disapproved by the interviewer; and he had passed the initial com puter screening test,
though he told the interviewer he was still learning his way around com puters. W est argues that Roberts was
not qualified because he did not com m unicate using a clear and distinct voice, but W est acknowledges that
this is a subjective consideration, which is not considered at the prima facie stage. See Vessels, 408 F.3d
at 768-69.

Page 18 of 20

EEOC has set forth a prima facie case of discrimination.17
West asserts that the refusal to hire Roberts was based on legitimate
nondiscriminatory reasons, including that he was difficult to understand and the job
required him to speak clearly over the telephone with already frustrated customers, he
lacked the requisite computer skills, and he offered a weak answer to the question
designed to demonstrate his customer service skills or experience. To survive summary
judgment, the EEOC must demonstrate evidence of pretext. The EEOC asserts that a
reasonable juror could find the nondiscriminatory reason to be a pretext because West
gave false, shifting and inconsistent explanations of its employment decision at various
times. Viewing the evidence in the light most favorable to EEOC, the court agrees. Henry
and Fowler testified that Henry had to ask Roberts to repeat answers to questions and
Fowler had difficulty understanding Roberts, yet Roberts testified that he was never asked
to repeat an answer and never before had been told he was difficult to understand. A
reasonable juror could find that this explanation was false based on Roberts’s testimony
and a common-sense evaluation of his speech. Also, West’s records reasonably support
an inference that Roberts was treated differently than others who were rejected for
communication deficits because written comments indicate others were invited to reapply
but Roberts, like the applicant from Puerto Rico, was not. The EEOC identified additional
inconsistencies as well. Regarding computer skills, West admits Roberts was objectively
qualified and determined that his computer skills were adequate through an online test, his
computer skills appear to have been comparable to others who were hired, and Henry
testified he would not have refused to hire Roberts because of his computer skills alone;
yet, a lack of computer skills was referenced as a reason for not hiring Roberts. Regarding
customer service experience or skills, Henry said he weighed heavily Roberts’s answer
regarding how he handled a difficult customer (question 3B), but Majeski, a West
representative, stated by deposition that question 3A had been significant, in which
Roberts failed to identify a time when he went above and beyond what was expected to

17

Even if these other applicants are not considered sufficiently sim ilarly situated in all relevant
respects to give rise to the McDonnell Douglas inference, the court finds alternatively that the circum stantial
evidence as a whole raises a reasonable inference of discrim inatory intent in this case.

Page 19 of 20

offer good customer service. While the inconsistencies cited by the EEOC appear minor
in isolation, the court must view the facts in the light most favorable to the nonmoving party,
and when taken together with the totality of the circumstances, most notably the fact that
there is a dispute regarding whether Roberts’s accent interferes with his ability to be
understood clearly and that only Roberts and the Puerto Rican applicant received no
notation that they were invited to reapply, the record presents a question of material fact
on the issue of pretext. Admittedly, this case presents a close call factually, “but on
summary judgment, close calls go to the non-moving party.” Russaw v. Barbour Cnty. Bd.
of Educ., No. 2:11cv611, 2012 WL 3733368, at *11 (M.D. Ala. Aug. 28, 2012). Therefore,
West’s motion for summary judgment will be denied.
Plaintiff EEOC’s Motion for Partial Summary Judgment
EEOC moves for partial summary judgment on West’s first affirmative defense, in
which West claims that Roberts failed to mitigate damages. The EEOC argues it is
undisputed that Roberts searched for alternate employment. West contends that Roberts
failed to mitigate damages because he did not seek jobs that were comparable to the CSR
position. Viewing the evidence in the light most favorable to the non-moving party, which
in this instance is West, the court concludes that questions of fact exist as to whether the
jobs can be considered comparable. Accordingly, the EEOC’s motion for partial summary
judgment will be denied.
Accordingly:
1.

Plaintiff’s motion for partial summary judgment (doc. 100) is DENIED.

2.

Defendant’s motion for summary judgment (doc. 110) is DENIED.

3.

Defendant’s motion to exclude the report and testimony of Dr. Shurita

Thomas-Tate (doc. 111) is GRANTED, consistent with this order; and Plaintiff’s motions
to exclude or to strike the Supplemental Declaration of Rajka Smiljanic (docs. 105 & 125)
are DENIED as moot, but without prejudice.18
18

This order excluding the expert testim ony of Dr. Tate applies to her opinions regarding speech
intelligibility. As to the narrow issue on which the court has reserved ruling– that is, whether Roberts’s speech
pattern or accent would have changed in the intervening period of tim e – the parties will be perm itted to
present this issue through supplem ental briefing or m otions in lim ine to be addressed at the pretrial hearing.
Likewise, the parties will be perm itted to revisit the adm issibility of Dr. Sm iljanci’s testim ony at that tim e to
determ ine the extent to which it is relevant to rebut any portion of Dr. Tate’s opinion testim ony found to be

Page 20 of 20

4.

Plaintiff’s motion to strike the Declaration of Penny Majeski (doc. 123) is

DENIED as moot, but without prejudice.
5.

Defendant’s objections to Plaintiff’s sealed evidence submitted in support of

its opposition to Defendant’s motion for summary judgment (doc. 128) are overruled,
consistent with this order.
6.

Trial and a pretrial conference date will be set by separate order.

7.

The parties may submit motions in limine or supplemental briefing regarding

outstanding issues no later than fourteen (14) days prior to the pretrial conference, with any
responses or responsive supplemental briefing due no later than seven (7) days thereafter.
DONE and ORDERED this 26th day of September, 2012.

M. Casey Rodgers
M. CASEY RODGERS
CHIEF UNITED STATES DISTRICT JUDGE

adm issible.
Case No. 3:10cv378/MCR/CJK