MARSHALL v. NICHIHA USA INC
Filing
53
ORDER GRANTING 29 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 7/21/2016. (tlh)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
CHARLES E. MARSHALL,
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Plaintiff,
v.
NICHIHA USA, INC.,
Defendant.
CIVIL ACTION NO. 5:14-CV-411 (MTT)
ORDER
Plaintiff Charles Marshall, an African-American male, brings this action against
Defendant Nichiha USA, Inc., alleging violations of 42 U.S.C. § 1981 and Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. The Defendant has moved for
summary judgment. (Doc. 29). The motion is GRANTED.
I.
BACKGROUND
The Defendant manufactures fiber cement products at its facility in Macon,
Georgia.1 (Doc. 29-2 at ¶ 2). The Plaintiff worked at this facility from March 27, 2012,
until he was injured on April 5, 2014. (Doc. 29-2 at ¶¶ 3, 17). During his employment,
the Plaintiff applied for a promotion eight times. (Doc. 29-2 at ¶ 25). He received one
1
This fact is “denied” by the Plaintiff, although he does not say why. (Doc. 42-2 at ¶ 2). He “objects” to
the fact because it is supported by the declaration of Herb Kraft, the Defendant’s Human Resources
Manager, and the information was not previously provided in response to the Plaintiff’s interrogatories
about Kraft’s knowledge. (Doc. 42-2 at ¶ 2). This objection is overruled. Kraft’s declaration, which simply
contains historical information culled from the Defendant’s files, is entirely consistent with what is stated in
the interrogatory responses about the extent of his knowledge. Compare (Doc. 33), with (Doc. 42-9 at 4).
Accordingly, this fact and others “not specifically controverted by specific citation to particular parts of
materials in the record” are deemed admitted. M.D. Ga. L.R. 56; Fed. R. Civ. P. 56(e).
promotion but was demoted four months later. (Doc. 29-2 at ¶¶ 158, 172). He now
claims he was demoted and did not receive the other promotions because of his race.
A.
Maintenance Operation Specialist (“MOS”)
The MOS position was created in October 2012 and “combined the specialties of
machine operators and mechanics into one position.”2 (Doc. 29-2 at ¶ 26). The
Plaintiff, who worked mostly as a machine operator, applied for the MOS position five
times between October 2012 and February 2014. (Doc. 29-2 at ¶¶ 3, 33, 172). Hiring
was conducted in waves, and for each wave there were several open positions. (Docs.
29-2 at ¶ 26; 33 at ¶ 12). A hiring committee selected candidates for interviews based
on their job bid forms and resumes,3 as well as on any knowledge the committee
members had about a candidate. (Docs. 32 at 66:22-67:6; 34 at ¶¶ 4-5; 35 at ¶ 4; 37 at
¶¶ 4-5). The hiring committee consisted of Tracy Thomas, a Caucasian male, King
Brumdage, an African-American male, and Jay Knighten, a Caucasian male. (Docs.
29-2 at ¶¶ 7, 27, 29; 42-2 at ¶ 27). The Plaintiff applied for the first wave of MOS
positions on October 9, 2012. (Docs. 29-2 at ¶ 40; 33 at ¶ 13). Based on his job bid
form and resume, the Plaintiff was selected for an interview. (Doc. 29-2 at ¶ 45).
Everyone on the hiring committee knew the Plaintiff’s race before the interview. (Docs.
34 at ¶ 6; 35 at ¶ 9; 37 at ¶ 6).
2
The Plaintiff “objects” to this fact because it is supported by the declarations of Tracy Thomas, Jay
Knighten, and King Brumdage, and it was not previously provided in response to the Plaintiff’s
interrogatories about their knowledge. (Doc. 42-2 at ¶ 26). This objection is overruled. Again, the
declarations are consistent with what is stated in the interrogatory responses about the extent of their
knowledge. Compare (Docs. 34; 35; 37), with (Doc. 42-9 at 4-5).
3
Human Resources created a job posting for the position that instructed those interested to fill out a form
and listed the following qualifications: “ability to operate and repair all maintenance equipment; 2-3 years
of mechanical experience preferred; basic knowledge of controls and operation of equipment (forming,
cutting, raw material and autoclave, startup and cleanup); ability to troubleshoot pneumatics and
hydraulics preferred; experience changing bearings and repairing pumps and valves; experience with
welding (MIG stick), cut, bend and fabricate preferred; basic electrical experience preferred; must be able
to work any shift and work overtime with short notice.” (Docs. 29-2 at ¶ 31; 32 at 157).
-2
In their declarations, Thomas, Brumdage, and Knighten all say the Plaintiff’s
resume suggested he had the experience and skills required for an MOS position.
(Docs. 34 at ¶ 6; 35 at ¶ 8; 37 at ¶ 6). In fact, Thomas testified in his deposition that the
Plaintiff’s resume showed more mechanical experience than the resumes of at least
nine candidates who were eventually selected for an MOS position over the Plaintiff.4
(Doc. 32 at 95:17-25, 102:3-7, 107:3-14, 111:1-6, 115:11-17, 122:12-16, 128:4-10,
133:3-7, 136:19-23, 144:19-24). They were not impressed, however, by the Plaintiff’s
interview. (Doc. 34 at ¶ 10). The hiring committee asked all of the candidates “basically
the same types of questions,” including “basic maintenance questions such as bearing,
spindle and sprocket changes.” (Docs. 34 at ¶ 7; 37 at ¶ 7). Thomas, Brumdage, and
Knighten all say the Plaintiff did not answer many of the basic questions correctly and
did not seem to have the same mechanical and maintenance knowledge as the other
candidates. (Docs. 34 at ¶¶ 7-8; 35 at ¶ 10; 37 at ¶¶ 7-8).
Brumdage specifically says in his declaration that the Plaintiff “did not know how
to handle problem solving situations that we presented him with,” and “he stumbled
through the steps when explaining how to change a bearing” and “skipped right over the
basic safety necessity of lock-out tag-out.” (Doc. 35 at ¶ 10). Knighten says he seemed
“very nervous” and “studdered [sic] through a lot of the answers or second guessed
himself.” (Doc. 37 at ¶ 7). Thomas testified that when he asked the Plaintiff about how
to change a bearing, the Plaintiff answered that he “would take the bearing off and put a
new bearing on.” (Doc. 32 at 70:4-71:4). When Thomas asked the Plaintiff “to walk
4
Come to find out, the Plaintiff appears to have misrepresented his professional experience on his
resume. Although he lists “maintenance mechanic” as his title at Industrial Air Inc., the Plaintiff admitted
in his deposition that his title was never maintenance mechanic and he “misstated that.” (Doc. 31 at
50:2-4, 52:19-22, 60:18-20, 337).
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[him] through the steps of how to do that,” the Plaintiff did not give him an answer.
(Doc. 32 at 71:4-17). Thomas testified that the Plaintiff similarly did not give him an
answer to his question about how to change a sprocket, and when Thomas asked the
Plaintiff about how to replace a spindle, the Plaintiff answered that he had never done it
before and did not know. (Doc. 32 at 72:1-73:10). According to Thomas, the hiring
committee discussed the Plaintiff’s interview after he left, and everyone agreed he was
“not prepared to be an MOS.” (Doc. 32 at 80:19-81:10).
After the hiring committee conducted all of the interviews, which Brumdage
approximated to be between 17 and 20, they discussed the candidates and then
decided whom to hire. (Docs. 34 at ¶ 9; 35 at ¶¶ 5, 7; 37 at ¶ 9). Thomas, Brumdage,
and Knighten all agreed the Plaintiff “lacked the same skill set as the other
interviewees.” (Docs. 34 at ¶ 10; 35 at ¶ 11; 37 at ¶ 10). They “jointly” decided not to
offer the Plaintiff an MOS position. (Docs. 34 at ¶ 10; 35 at ¶ 11; 37 at ¶ 10). Instead,
one African-American and three Caucasian candidates were awarded an MOS position
in the first wave of hiring. (Doc. 33 at ¶ 14). Unlike the Plaintiff, each had worked as a
maintenance mechanic for the Defendant. (Docs. 33 at ¶ 14; 37 at ¶ 11). According to
Knighten, “[i]t is easier to turn a mechanic into an operator than vice versa.” (Doc. 37 at
¶ 11).
The Plaintiff tells a dramatically different story. He says he correctly answered all
of the questions he was asked during his interview. (Doc. 42-3 at ¶¶ 11, 15). He
specifically says in his declaration that he “answered the questions concerning bearings
and sprocket changing correctly” and that the “correct way to change a bearing depends
on what type of bearing you are changing[;] [n]ot all bearings are changed the same
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way.” (Doc. 42-3 at ¶¶ 7, 12). In his deposition, the Plaintiff testified that he thought
Knighten asked him the question about how to change a bearing and that he gave a
detailed answer. (Doc. 31 at 140:15-142:25). Indeed, the Plaintiff testified that after he
gave his answer, Knighten said, “Well, I see you know how to change a bearing.” (Doc.
31 at 142:25-143:4). The Plaintiff says he received similar praise and accolades from
Thomas and Brumdage. According to the Plaintiff, Thomas approached him after his
interview and said, “I’m not sure what they’re going to do with these jobs, but I just
wanted to shake your hand. You had one hell of an interview.” (Doc. 31 at 146:5-13).
Thomas testified that he did not tell the Plaintiff he had “one hell of an interview.” (Doc.
32 at 87:13-88:5). The Plaintiff likewise testified that Brumdage approached him two or
three days after the interview and “objected to giving all the MOS positions to the
maintenance guys because the jobs was brought [sic] and created for the forming line.”5
(Doc. 31 at 156:23-158:18). Based on this comment, the Plaintiff says he did not
believe that Brumdage failed to select him for an MOS position because of his race.
(Doc. 31 at 158:22-24; 220:21-222:8).
The Plaintiff submitted bids for an MOS position during four more waves of hiring
but was only selected for two more interviews. (Docs. 29-2 at ¶¶ 95, 120; 33 at ¶¶ 15,
21, 26, 28). Thomas, Brumdage, and Knighten all say the Plaintiff’s resume was again
impressive, and they thought “he may have gained experience since the last interview.”
(Docs. 34 at ¶ 11; 35 at ¶ 12; 37 at ¶ 12). Thomas says they “thought he deserved
another shot at an interview.” (Doc. 34 at ¶ 11). But according to all of them, both
interviews “went almost exactly like his first one,” and the Plaintiff “was not on the same
level of skills as compared to the other interviewees.” (Docs. 34 at ¶ 11; 35 at ¶ 12; 37
5
The Plaintiff worked as a machine operator in the forming department. (Doc. 29-2 at ¶ 4).
-5
at ¶ 12). The Plaintiff testified that in his second interview he was asked questions that
were “something along the lines of … the first interview” and that his responses were
“[p]robably something along the lines” of the responses he gave in his first interview.
(Doc. 31 at 163:15-24). He testified that he was asked the same basic questions in his
third interview, but he did not recall what his responses were. (Doc. 31 at 167:2-8).
The hiring committee again discussed the Plaintiff and the other candidates, again
found him “lacking in comparison,” and again jointly decided not to select him for an
MOS position. (Docs. 34 at ¶ 12; 35 at ¶ 13; 37 at ¶ 13).
Thomas, Brumdage, and Knighten all say that the decisions on whom to select
for the MOS positions were “always based on who we thought was the most qualified
for the position,” and Thomas and Knighten say the Plaintiff “was not comparably
qualified to the individuals that were selected for the positions.” (Docs. 34 at ¶ 13; 35 at
¶ 15; 37 at ¶ 15). In his deposition, Thomas specifically addressed most of the
candidates who were awarded an MOS position and testified that they answered their
interview questions correctly and better than the Plaintiff. (Doc. 32 at 96:1-4, 101:2-19,
122:5-25, 113:25-114:2, 115:6-10, 119:16-24, 131:19-132:7, 133:8-16, 126:14-19,
128:11-17, 135:14-23, 136:24-137:5, 139:2-7, 107:15-22, 110:9-111:13,
150:16-151:10). Brumdage adds,
[The Plaintiff] always ranked at the bottom of the list (as in he was the
least impressive with the least amount of skills and knowledge). In fact, I
would rank [him] at the bottom of the list for all of the interviews I
participated in. I would also rank him at the bottom of a list for employees
that ever worked for me in general.
(Doc. 35 at ¶ 15).
-6
Ultimately, two African-American and two Caucasian candidates were awarded
an MOS position in the wave of hiring that the Plaintiff bid for on April 23, 2013. (Doc.
33 at ¶¶ 15-16). One African-American and three Caucasian candidates were awarded
an MOS position in the wave of hiring that the Plaintiff bid for on July 16, 2013. (Doc.
33 at ¶¶ 21-22). One African-American and one Caucasian candidate were awarded an
MOS position in the wave of hiring that the Plaintiff bid for on August 27, 2013. (Doc. 33
at ¶¶ 26, 27). Finally, one African-American candidate was awarded an MOS position in
the wave of hiring that the Plaintiff bid for on February 20, 2014. (Doc. 33 at ¶¶ 28-29).
B.
Saw Blade Sharpener
The Plaintiff applied for a saw blade sharpener position on August 7, 2013. (Doc.
31 at 169:8-16). Kenichi Saiya, who is Asian-American, selected the Plaintiff for an
interview and awarded him the position. (Doc. 29-2 at ¶¶ 155-57). The Plaintiff started
on October 4, 2013, and received a pay increase of approximately $3.00 an hour. (Doc.
29-2 at ¶ 158). As a saw blade sharpener, the Plaintiff was responsible for operating a
machine that sharpens blades for use in the Defendant’s facility. (Doc. 29-2 at ¶ 159).
The Plaintiff worked with Calvin Hollingshed and Willie Chambers, who are both
African-American, and was supervised by Saiya and Hiroki Tsutsumi, who is
Asian-American. (Docs. 29-2 at ¶¶ 160-61; 36 at ¶ 8).
The Plaintiff admits that in a period of 4 months he had at least four “performance
incidents” and damaged several pieces of equipment. (Docs. 29-2 at ¶¶ 163, 167; 42-2
at ¶¶ 163, 167). These included damaging a grinding wheel in December 2013 and a
dress down wheel in January 2014. (Doc. 29-2 at ¶¶ 164-66). There was also an
incident in February 2014 that led to a written warning and a recommendation from
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Saiya that the Plaintiff be removed from the position. (Docs. 29-2 at ¶¶ 168-71; 36 at ¶¶
15-17). The Plaintiff was demoted back to an operator position on February 10, 2014.
(Docs. 29-2 at ¶ 172; 36 at ¶ 17). In his declaration, Saiya says, “[d]uring my time
supervising, I have never had another employee have this many mistakes and
performance issues. I have never had another employee damage
machinery/equipment this many times either.” (Doc. 36 at ¶ 18).
C.
Maintenance Mechanic
The Plaintiff applied for a maintenance mechanic position on February 12, 2014.
(Doc. 33 at ¶ 8). Knighten would have been responsible for interviewing and selecting
candidates; however, the position was delayed in being filled and so no candidates
were hired at that time. (Doc. 33 at ¶ 9). The selection began again in September
2014, and Ray Parker, who is Caucasian, was hired on September 30, 2014. (Docs. 33
at ¶ 9; 42-2 at ¶ 38). At that time, the Plaintiff was not an active employee because he
was not able to work after being injured on April 5, 2014. (Docs. 29-2 at ¶¶ 184-85; 33
at ¶ 9). “Regardless,” according to Knighten, “based on his failed interviews for the
MOS position, I do not believe [the Plaintiff] has the right qualifications or skills to be a
maintenance mechanic at Nichiha.” (Doc. 37 at ¶ 14).
D.
Operation Specialist
Finally, the Plaintiff applied for an operation specialist position on March 17,
2014. (Doc. 29-2 at ¶ 181). Brumdage was responsible for interviewing and selecting
candidates, and two African-American candidates were hired on April 7, 2014. (Doc.
29-2 at ¶¶ 182-83).
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II.
A.
DISCUSSION
Summary Judgment Standard
A court must grant summary judgment “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). A factual dispute is not genuine unless, based on
the evidence presented, “‘a reasonable jury could return a verdict for the nonmoving
party.’” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th
Cir. 1991)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant
may support its assertion that a fact is undisputed by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
56(c)(1)(A).
The burden then shifts to the non-moving party, who must rebut the movant’s
showing “by producing … relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). The non-moving party does
not satisfy its burden “if the rebuttal evidence ‘is merely colorable, or is not significantly
probative’ of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249-50). Further,
where a party fails to address another party’s assertion of fact as required by Fed. R.
Civ. P. 56(c), the Court may consider the fact undisputed for purposes of the motion.
Fed. R. Civ. P. 56(e)(2). However, “credibility determinations, the weighing of the
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evidence, and the drawing of legitimate inferences from the facts are jury functions, not
those of a judge. … The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.
B.
Title VII and 42 U.S.C. § 1981
In the employment context, Title VII and 42 U.S.C. § 1981 “have the same
requirements of proof and use the same analytical framework.” Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1330 (11th Cir. 1998). Although the Plaintiff brings claims
under Title VII and section 1981, he incorporates his arguments under Title VII into his
section 1981 claim. (Doc. 42-1 at 20). Therefore, the Court will analyze both claims
under the Title VII framework.
C.
McDonnell Douglas Framework
A Title VII plaintiff may prove his case directly or circumstantially. Here, there is
no direct evidence of discrimination, so the Plaintiff must rely on circumstantial
evidence. The framework for analyzing circumstantial evidence to establish a prima
facie case of discrimination is provided in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). Pursuant to McDonnell Douglas, a plaintiff must first establish a prima facie
case of discrimination, the test for which differs slightly depending on the nature of the
claim. If a plaintiff establishes a prima facie case of discrimination, the burden of
production, but not the burden of persuasion, shifts to the employer to articulate a
legitimate, nondiscriminatory reason for the employment action. Tex. Dep’t of Cmty.
Affairs v. Burdine, 450 U.S. 248, 254-55 (1981). This burden of production means the
employer “need not persuade the court that it was actually motivated by the proffered
reasons” but must produce evidence sufficient to raise a genuine issue of fact as to
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whether it discriminated against the plaintiff. Kragor v. Takeda Pharm. Am., Inc., 702
F.3d 1304, 1308 (11th Cir. 2012) (emphasis added) (internal quotation marks and
citation omitted).
A plaintiff then has the opportunity to show that the employer’s stated reason is in
fact pretext for discrimination. “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.’” Id. (quoting Burdine, 450 U.S. at 256). Put another way, “[a] plaintiff may
… survive summary judgment by ‘presenting evidence sufficient to demonstrate a
genuine issue of material fact as to the truth or falsity of the employer’s legitimate,
non-discriminatory reasons.’” Freeman v. Perdue Farms Inc., 496 F. App’x 920, 925
(11th Cir. 2012) (quoting Evans v. McClain of Ga., Inc., 131 F.3d 957, 965 (11th Cir.
1997)). “If the employer proffers more than one legitimate, nondiscriminatory reason,
the plaintiff must rebut each of the reasons to survive a motion for summary judgment.”
Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th Cir. 2007) (citation
omitted).
The plaintiff’s burden at the pretext stage merges with her “‘ultimate burden of
persuading the court that she has been the victim of intentional discrimination.’”
Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015) (quoting
Burdine, 450 U.S. at 256); see also Alvarez v. Royal Atl. Developers, Inc., 610 F.3d
1253, 1265 (11th Cir. 2010). Thus, the critical decision “is whether the plaintiff has
‘create[d] a triable issue concerning the employer’s discriminatory intent.’” Flowers, 803
F.3d at 1336 (alteration in original) (quoting Smith v. Lockheed–Martin Corp., 644 F.3d
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1321, 1328 (11th Cir. 2011)). “[A] plaintiff’s prima facie case, combined with sufficient
evidence to find that the employer’s asserted justification is false, may permit the trier of
fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson
Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); cf. St. Mary’s Honor Ctr. v. Hicks, 509
U.S. 502, 517 (1993) (“[P]roving the employer’s reason false becomes part of (and often
considerably assists) the greater enterprise of proving that the real reason was
intentional discrimination.”). In fact, it will be a “rare case[] where, despite the existence
of a prima facie case and sufficient evidence of pretext, no rational jury could conclude
that the [employer’s action] was discriminatory.” Motley v. Fulton Cty., Ga., 815 F.3d
733, 734 (11th Cir. 2016) (per curiam).
1. Failure to Promote
The Plaintiff argues the Defendant failed to promote him to the MOS,
maintenance mechanic, and operation specialist positions because of his race. (Doc.
42-1 at 3-4). For a failure-to-promote claim, a plaintiff can establish a prima facie case,
“and thus raise an inference of discriminatory intent,” by demonstrating that “(i) he or
she belonged to a protected class; (ii) he or she was qualified for and applied for a
position that the employer was seeking to fill; (iii) despite qualifications, he or she was
rejected; and (iv) the position was filled with an individual outside the protected class.”
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 767 (11th Cir. 2005). Where an
employer does not hire anyone for the plaintiff’s coveted position, the fourth element
can be satisfied by showing that “after his rejection, the position remained open and the
employer continued to seek applicants.” Walker v. Mortham, 158 F.3d 1177, 1186 (11th
Cir. 1998) (quoting McDonnell Douglas, 411 U.S. at 802).
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The Defendant argues the Plaintiff cannot establish the fourth element of his
prima facie case for the MOS and operation specialist positions because they were filled
with individuals who are African-American. (Doc. 29-1 at 14-15). The Defendant
argues the Plaintiff cannot meet his prima facie case for the maintenance mechanic
position because the hiring process was placed on hold after he applied and did not
begin again until almost six months after he ceased being an active employee. (Doc.
29-1 at 13). Without distinguishing between the MOS, operation specialist, and
maintenance mechanic positions, the Plaintiff argues that “people outside of [his] class
were given the job positions he applied for.” (Doc. 42-1 at 4). Notably, the Plaintiff does
not dispute that hiring for the MOS positions was conducted in waves or that someone
within his protected class was awarded the position in each wave. (Docs. 42-2 at ¶¶ 26,
76, 98, 123, 137, 143).
When an employer chooses one African-American applicant over another, it is
“implausible, if not logically impossible, for the decision to have been racially
discriminatory.” Howard v. Roadway Express, Inc., 726 F.2d 1529, 1534 n.4 (11th Cir.
1984). This is not necessarily fatal to a prima facie case, and a plaintiff can still
establish that he was rejected “under circumstances which give rise to an inference of
unlawful discrimination.” Id. at 1534 (citation omitted); see Gibbons v. Cty. Bd. of Educ.
of Richmond Cty., 454 F. App’x 720, 722 (11th Cir. 2011) (considering whether the
decision “was a pretextual device specifically designed to disguise an act of
discrimination”); Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995)
(requiring courts to “consider whether the fact that a minority was hired overcomes the
inference of discrimination otherwise created by the evidence presented by the
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plaintiff”). The Plaintiff, however, does not present any evidence regarding the hiring
committee’s decisions to award the other African-American candidates the promotions
he applied for. He does not even acknowledge, much less address, the Defendant’s
arguments. Accordingly, the Plaintiff has clearly failed to establish his prima facie case
for the operation specialist position and the MOS position he bid for on February 20,
2014, which were both awarded only to African-American candidates. Moreover, the
Plaintiff has failed to establish his prima facie case for the maintenance mechanic
position because it is undisputed that hiring was placed on hold, and when it resumed
he was not an active employee that could have been promoted. See Oliver v. Nat’l Beef
Packing Co., LLC, 294 F. App’x 455, 458 (11th Cir. 2008) (noting that “a plaintiff must
have been employed by the defendant employer to bring a failure to promote claim”).
Although the hiring committee awarded MOS positions to African-American
candidates and candidates outside of the Plaintiff’s protected class in the remaining four
waves of hiring, this likely does not make it any less implausible that the Defendant’s
decisions were racially discriminatory. In effect, the Plaintiff says he can establish his
prima facie case because the hiring committee (which had an African-American
member) did not award all of the open MOS positions to African-American candidates.
However, “when the plaintiff applies for a position for which there are a number of
openings, it is often impossible to determine which successful applicant for the position
actually got the ‘plaintiff’s’ berth for purposes of comparing class status.” Walker, 158
F.3d at 1186 n.19. The Eleventh Circuit has held that “[i]n such a situation, it is
sufficient to identify any successful applicant for the position.” Id. (emphasis in original).
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Accordingly, the Court will assume that the Plaintiff has established a prima facie case
for these MOS positions.6
The Defendant has met its burden of articulating legitimate, nondiscriminatory
reasons for its actions: the hiring committee determined that the Plaintiff did not
interview well and that he was not the most qualified for the MOS positions. (Doc. 29-1
at 15, 20). To establish pretext, the Plaintiff essentially makes two points. First, he
says that Thomas admitted his resume was better than the other candidates. (Doc.
42-1 at 13). It is interesting that the Plaintiff makes this point. While Thomas admitted
that the Plaintiff’s resume was better than the other candidates (and that this is why he
got the interviews in the first place), the Plaintiff admitted in his deposition that he
“misstated” his professional experience on his resume. It is not surprising, then, that
each member of the hiring committee believed the Plaintiff did not appear in his
interviews to have the same knowledge or skill set as the other candidates. In any
event, the fact that the Plaintiff’s resume was impressive does not rebut the Defendant’s
proffered nondiscriminatory reasons.
Second, the Plaintiff argues that his recollection is that he did well in the
interviews; indeed, so well that, according to him, one of the hiring committee members
wanted to shake his hand to congratulate him for his stellar performance. (Doc. 42-1 at
12-16). In his view, the hiring committee members “could not have honestly believe[d]
[he] didn’t have the skills for the MOS or Maintenance positions” because “[he]
answered all the questions correctly during the interview.” (Doc. 42-3 at ¶ 15). But the
6
The Defendant does not move for summary judgment on the ground that these claims are not actionable
because they did not arise within 180 days prior to the filing of the EEOC charge. See, e.g., Bennett v.
Chatham Cty. Sheriff Dep’t, 315 F. App’x 152, 161 (11th Cir. 2008); E.E.O.C. v. Joe’s Stone Crabs, Inc.,
296 F.3d 1265, 1271-72 (11th Cir. 2002); (Doc. 17 at 5).
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“inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs and, to
be blunt about it, not on reality as it exists outside of the decision maker’s head.”
Alvarez, 610 F.3d at 1266. Even assuming that the Plaintiff has created an issue of fact
as to whether he did well in his interviews, he has not rebutted the Defendant’s
evidence that the hiring committee unanimously felt that others had done much better.
Therefore, the Plaintiff has failed to meet this “reason head on and rebut it.” Alvarez,
610 F.3d at 1266.
The Plaintiff has failed to demonstrate “such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could find them unworthy of
credence.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).
Moreover, the question is not “whether the employer selected the ‘most’ qualified
candidate, but only whether it selected the candidate based on an unlawful motive.”
Denney v. City of Albany, 247 F.3d 1172, 1188 (11th Cir. 2001). Here, the Plaintiff has
failed to create “a triable issue concerning the employer’s discriminatory intent.”7 See
Flowers, 803 F.3d at 1336. Accordingly, the Defendant is entitled to judgment as a
matter of law on the Plaintiff’s failure to promote claims.
7
The Plaintiff also argues that he can show pretext because the Defendant allegedly violated its own
policies when some Caucasian employees were awarded positions within six months of being moved into
another position and without submitting a job bid. (Doc. 42-1 at 18). The Plaintiff makes this claim based
on his counsel’s review of these employees’ personnel files, which led counsel to conclude that there was
no job bid form in the files of Brooks Nesmith, James Bateman, Justin Christensen, and Brian Hopson.
(Doc. 42-4). In its reply, the Defendant attached a supplemental declaration of Kraft, who says the files
do contain job bid forms and produces copies of those forms. (Docs. 48-1; 33 at 53). Kraft also says the
Defendant did not violate its own policies by awarding positions to Bateman and Tommy Higdon.
Compare (Doc. 42-2 at ¶¶ 81, 123), with (Docs. 48-1 at ¶¶ 4, 6). Even if the Plaintiff is correct that the
Defendant violated its own policies, he has not shown pretext. See, e.g., Kidd v. Mando Am. Corp., 731
F.3d 1196, 1211 n.18 (11th Cir. 2013) (“Indeed, ‘even where preselection violates corporate personnel
policies, it does not necessarily indicate’ that the employer based a promotion decision on impermissible
characteristics.” (citation omitted)).
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2. Demotion
The Plaintiff alleges in his amended complaint that the Defendant demoted him
from the saw blade sharpener position because of his race. Although the Plaintiff failed
to respond to the Defendant’s motion for summary judgment on this claim, courts
“cannot base the entry of summary judgment on the mere fact that the motion was
unopposed, but, rather, must consider the merits of the motion.” United States v. One
Piece of Real Prop. Located at 5800 74th Ave., Miami, Fla., 363 F.3d 1099, 1101 (11th
Cir. 2004). The Plaintiff has failed to show that the Defendant’s articulated reasons for
demoting him were false. In fact, he admits he had at least four “performance incidents”
and damaged several pieces of equipment. (Docs. 29-2 at ¶¶ 163, 167; 42-2 at ¶¶ 163,
167). Accordingly, the Defendant is entitled to judgment as a matter of law on this
claim.
III.
CONCLUSION
For the foregoing reasons, the Defendant’s motion for summary judgment (Doc.
29) is GRANTED.
SO ORDERED, this 21st day of July, 2016.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT
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