Walton v. Cives Corporation

Filing 41

ORDER granting 26 Motion for Summary Judgment. Ordered by Judge Hugh Lawson on December 22, 2011. (mbh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
CARL WALTON,

:
:
Plaintiff,
:
:
v.
:
:
CIVES CORPORATION, d/b/a CIVES
:
STEEL COMPANY,
:
:
Defendant.
:
___________________________________

Civil Action No.
No. 7:10-cv-87

ORDER
Before the Court is Defendant’s Motion for Summary Judgment (Doc. 26).
For the reasons stated below, the Motion is granted.
I.

Background
Cives Corporation (“Cives”) is in the business of structural steel and plate

fabrication. (Defendant’s Statement of Material Facts (“DSMF”) ¶ 1.1) Located in
Thomasville, Georgia, Cives employs approximately eighty-nine workers as
material handlers, machine operators, layout fitters, welders, painters, shippers,
and receivers. (DSMF ¶ 2.) Plaintiff Carl Walton (“Plaintiff”) was hired by Cives
as a welder in 1999. (DSMF ¶ 7.) Plaintiff was originally employed as a thirdclass welder, but during his tenure at Cives, he was promoted through the ranks
to first-class, the highest class of welder. (DSMF ¶ 8.) Promotions only occur

1

All citations to the Defendant’s Statement of Material Facts refer to facts
that have been admitted by the Plaintiff.

when there is an opening in a higher class. (Hicks 32.) Cives employees work in
three shifts. (DSMF ¶ 3.) Plaintiff has worked the weekend shift, Friday through
Sunday, 5 a.m. to 6 p.m., throughout his employment, declining offers to change
his shift. (DSMF ¶ 8; Doc. 38, p. 4.)
Employees report directly to supervisors on each shift. Supervisors are
responsible for overseeing the work of the employees, ensuring that they are on
task, that the quality of their work is up to standards, and that any issues that
may arise are dealt with promptly. (DSMF ¶ 10, 11.) The supervisors report to the
Shop Superintendent, who in turn reports to the General Manager. (DSMF ¶ 4.)
At the time relevant to this lawsuit, Plaintiff’s direct supervisor was Jack
Bachman. (DSMF ¶ 9.) The Shop Superintendent was Steve Hicks and the
General Manager was Craig Alderman. (DSMF ¶ 5.)
Cives allows employees who are interested in a promotion or transfer to
submit a promotion request form expressing interest in a new position. (DSMF
¶14; Hicks p. 70.) Submitting this form is not a prerequisite for a promotion;
instead, it is a way to ensure that management is aware of an employee’s
interest in being promoted. An employee who does not submit a memo can still
be considered by the Shop Superintendent and the General Manager if the
employee has the potential to be a good candidate for a promotion. (DSMF ¶ 15.)
The Cives Employee Handbook lists the following factors as considerations in
promotion and transfer decisions: skill, ability to perform the work, attendance,
previous experience based on company records, prior work record with the
2

company, safety record, and other factors pertinent to satisfactory performance.
(DSMF ¶ 16.) In addition to these factors, Sue Wilson, the head of Human
Resources, testified that other factors considered in promotion decisions included
“ability, work ethic … leadership skills, willingness to go a little bit above and
beyond, if [the candidate] was respected by their peers.” (Wilson 25.) The
seniority of a candidate does not play a major role in promotion decisions at
Cives. Recent candidates who have been promoted to supervisory positions
have had a range of experience that varies from less than a year to thirteen
years. (DSMF ¶¶ 19-22.)
In late 2007, two supervisor positions came open. (DSMF ¶ 24.) According
to Cives, four candidates were considered for the two open positions:2 Tommy
Barner, Ken Bass, Tim Swymer, and Plaintiff. 3 (DSMF ¶ 25.) Plaintiff and Barner
had previously submitted a memo to management asking to be considered for

2

Plaintiff denies that these four candidates were actually considered by
Cives. Plaintiff alleges that the promotion decision was made without any
deliberation, and all evidence of any conversation about who to promote has
been fabricated by Cives in an attempt to disguise discrimination. There is a
memo from November 12, 2007 that Hicks wrote regarding the promotions, but
Plaintiff contends that this memo was contrived by Cives after Plaintiff filed his
complaint with the EEOC. Aside from Plaintiff’s allegations, there is no evidence
on the record that the memo is inauthentic, or that Cives invented any evidence
in an attempt to mislead the Court. Therefore, the Court dismisses any
allegations of fabrication as being without merit.
3
In addition to these four men, Hicks, the General Manager, also asked
John Choice and Richard Marchant if they would like to be considered for a
promotion. Both declined. (DSMF ¶27.)
3

promotions.4 (Hicks 79.) Tim Swymer (“Swymer”) verbally indicated that he
wanted to be considered for any available supervisor positions. (DSMF ¶ 29.)
Hicks evaluated the candidates based on personal knowledge and
feedback from the employees’ supervisors. (Hicks 82.) Hicks recalled that Bass’
supervisor called him a “good hard worker” who was interested in the company
and needed little supervision. (Hicks 82.) Likewise Swymer’s supervisor
recommended him for a promotion. (Hicks 83.) However, neither Barner’s
supervisor nor Plaintiff’s supervisor gave a positive recommendation. (Hicks 84.)
In November 2007, Hicks drafted a memo with his recommendation that
Ken Bass (“Bass”) and Swymer, both white males, be promoted to the supervisor
positions. (Hicks 75, 78.) Both men began training for the supervisor position
shortly thereafter. Plaintiff continued his job as a first-class fitter, and later filed a
charge of discrimination with the Equal Employment Opportunity Commission
(“EEOC”), claiming he was denied the promotion because of his race.
II.

Summary Judgment
Summary judgment is appropriate when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and … the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322,
106 S.Ct. 2548, 2552 (1986). A genuine issue of material fact arises only when

4

Hicks was unable to recall whether Bass submitted a promotion request

form.
4

“the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct.
2505 (1986).
When considering a motion for summary judgment, the court must
evaluate all of the evidence, together with any logical inferences, in the light most
favorable to the nonmoving party. Id. at 354-55. The court may not, however,
make credibility determinations or weigh the evidence. Id. at 255; see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150, 120 S.Ct. 2097
(2000).
The party seeking summary judgment “always bears the initial
responsibility of informing the district court of the basis for its motion, and
identifying those portions of the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, which it
believes demonstrate the absence of a genuine issue of a material fact.” Celotex
Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548 (1986) (internal quotation
marks omitted). If the moving party meets this burden, the burden shifts to the
nonmoving party to go beyond the pleadings and present specific evidence
showing that there is a genuine issue of material fact, or that the nonmoving
party is not entitled to judgment as a matter of law. Id. at 324-26. This evidence
must consist of more than mere conclusory allegations. See Avirgan v. Hull, 932
F.2d 1572, 1577 (11th Cir. 1991). Under this framework, summary judgment
must be entered “against a party who fails to make a showing sufficient to
5

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, 477 U.S. at 322.
III.

Analysis
Plaintiff has brought his claim for discrimination under Title VII, alleging

that he has been discriminated against on the basis of race. See 42 U.S.C. §
2000e et seq. Specifically, Plaintiff asserts that the decision to promote Swymer
to a supervisory position over Plaintiff was motivated by racial discrimination.
Discrimination claims based upon the failure to promote can be
established through either direct or circumstantial evidence. See Wilson v. B/E
Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). A claim based on direct
evidence requires “the most blatant remarks, whose intent could mean nothing
other than to discriminate.” Id. (citing Rojas v. Florida, 28 F.3d 1339, 1342 n. 2
(11th Cir. 2002)). Any evidence that merely suggests discrimination, but does not
conclusively establish it, is considered circumstantial evidence. Id. In this case,
Plaintiff argues that circumstantial evidence establishes his claim of racial
discrimination in the failure to promote context.
A.

Discrimination Claims in the Failure to Promote Context

A three-step analysis is employed to evaluate failure to promote
discrimination claims based on circumstantial evidence. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25 (1973). The
plaintiff must first demonstrate the four elements necessary to establish a prima
facie case: “(1) he is a member of a protected class; (2) he was qualified and
6

applied for the promotion; (3) he was not promoted; and (4) someone outside his
protected class was promoted.” Walker v. Mortham, 158 F.3d 1177, 1186 (11th
Cir. 1998).5
Next, if the plaintiff is able to establish these four elements, the burden of
production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its actions. Id. The employer is not charged with persuading the court
that it was actually motivated by the stated reasons. Id. (citing Tex. Dept. of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089 (1981)). Instead, if
the employer “articulat[es] one or more reasons, then the presumption of
discrimination is rebutted.” Id. (citing Wilson, 376 F.3d at 1087).
Finally, if the defendant offers a non-discriminatory reason justifying the
employment action, the burden of production shifts to the plaintiff to produce
sufficient evidence to permit a factfinder to determine that the reasons offered by
5

There is an intracircuit split in the Eleventh Circuit as to whether the fourth
element of the prima facie case for a failure to promote claim requires the plaintiff
to demonstrate that the employee who received the promotion was equally or
less qualified than the plaintiff.
The requirement of showing that the employee was equally or less
qualified was first recognized in Perryman v. Johnson Prods. Co., 698 F.2d 1138,
1142 n.7 (11th Cir. 1983). Prior to Perryman, Eleventh Circuit courts relied on
Crawford v. Western Elec. Co., 614 F.2d 1300, 1315 (5th Cir. 1980), which only
required that plaintiffs demonstrate that someone outside the protected class was
promoted. The Eleventh Circuit exhaustively discussed the split in Walker v.
Mortham and adopted the Crawford rule under the “earliest case” principle,
noting that “we have found no explanation for why the Perryman court decided to
alter the prima facie case.” 158 F.3d 1177, 1186, 1187 (11th Cir. 1998).
Despite the Walker Court’s instruction, courts within the Eleventh Circuit
have continued to apply both Perryman and Crawford. Nevertheless, this Court
finds, based on Walker’s reasoning, that Crawford is the appropriate precedent,
and the standard articulated in that case controls here.
7

the employer are mere pretext. Chapman v. A.I. Transp., 229 F.3d 1012, 1024
(11th Cir. 2000). The plaintiff can do so by either “directly 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.”
Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.
2005). If the plaintiff does not offer sufficient evidence to create a genuine issue
of material fact about whether the employer’s stated reasons are pretextual, then
the employer is entitled to summary judgment on the plaintiff’s claim. Chapman,
229 F.3d at 1025.
In this case, Plaintiff can establish a prima facie case for discrimination for
failure to promote; however, Plaintiff fails to show that the reasons stated by
Cives for the promotion are pretext. The three steps of the failure to promote
framework as articulated in McDonnell Douglas Corp., 411 U.S. at 802-04, are
analyzed below.
1.

Plaintiff’s prima facie case

The plaintiff in a failure to promote action bears the initial burden of
establishing a prima facie case of discrimination. McDonnell Douglas Corp., 411
U.S. at 802. The first element of the prima facie case is that a plaintiff must show
that she is a member of a protected class. Walker, 158 F.3d at 1186. In this case,
Plaintiff is African-American, which is considered a protected class. Thus, the first
element of the prima facie case is satisfied.

8

Next, a plaintiff must demonstrate that he applied and was qualified for the
promotion. Walker, 158 F.3d at 1186. To demonstrate that he applied, a plaintiff
must show that he actually submitted an application in compliance with formal
application procedures. Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768
(11th Cir. 2005). If informal procedures are used for the application process, “a
plaintiff must only demonstrate that the employer had some reason to know of his
interest in the position.” Id. To show that he was qualified, a plaintiff at the prima
facie stage only needs to show that he met the employer’s objective criteria. Id.
at 769.
In this case, Plaintiff wrote a memo to management expressing his interest
in a promotion. This memo demonstrates that Plaintiff applied for the promotion.
However, to establish the prima facie case, Plaintiff must also show that he was
qualified for the promotion. Cives argues that Plaintiff was not qualified for the
promotion because “he had to be ‘pushed’ to stay on task, frequently left his work
station, and pulled other employees off-task with his chatting.” (Doc. 26-2, p. 13.)
However, Defendant admits that Plaintiff was one of four candidates being
considered for the promotion. (DSMF ¶ 25.) Defendant’s consideration of Plaintiff
as a candidate for a promotion shows that Plaintiff was objectively qualified for
the position. Thus, Plaintiff satisfies the second element of the prima facie case.
Third, Plaintiff must show that he was not promoted. Walker, 158 F.3d at
1186. In this case, Plaintiff is still employed at Cives as a first-class fitter, which

9

means that he was not promoted, and therefore, the third element of the prima
facie case is met.
Finally, a plaintiff bringing a failure to promote claim must establish that
someone else outside the protected class was promoted. Walker, 158 F.3d at
1186. Here, Swymer, a white male, received a promotion. Thus, the fourth
element is satisfied.
Therefore, all elements of the prima facie case have been met.
2.

Cives’ legitimate reasons for its employment decision

If a plaintiff bringing a failure to promote claim can establish a prima facie
case for discrimination, then the burden of production shifts to the defendant to
articulate a legitimate reason for its employment decision. McDonnell Douglas
Corp., 411 U.S. at 802-03. Here, Cives gives three reasons for its decision to
promote Swymer ahead of Plaintiff: 1) Swymer’s leadership skills, work ethic, and
attitude, 2) Swymer’s previous supervisory experience in the steel fabrication
industry, and 3) Swymer’s workplace behavior.
The Court finds that these reasons are sufficient to discharge BASF’s
burden of proof at this stage, and Plaintiff’s claim of discrimination is rebutted.
3.

Plaintiff’s arguments that Cives’ reasons are pretext

If the defendant in a failure to promote case articulates legitimate reasons
for its allegedly discriminatory action, the burden shifts back to the plaintiff to
demonstrate that the reasons stated by the defendant are pretext. McDonnell
Douglas Corp., 411 U.S. at 804. In this case, Plaintiff has established a prima
10

facie case of discriminatory failure to promote, but summary judgment in favor of
Cives is still appropriate because Plaintiff has failed to raise a genuine issue of
material fact as to whether Cives’ reasons for not promoting Plaintiff are pretext.
In the failure to promote context, pretext can be established by revealing
“weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in
[the defendant’s] proffered legitimate reasons for its action.” Springer v.
Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007).
However, a plaintiff cannot prove pretext “by simply arguing or even by showing
that he was better qualified than the [person] who received the position he
coveted.” Id. (citing Alexander v. Fulton Co., 207 F.3d 1303, 1339 (11th Cir.
2000)). A plaintiff must go further than merely claiming that the defendant’s
reasons for promoting someone else were wrong; instead, the plaintiff must show
the defendant’s actions were actually motivated by discriminatory intent. Id.
Comparing qualifications will be sufficient to establish pretext only when
“the disparity in qualifications is so apparent as virtually to jump off the page and
slap you in the face.” Ash v. Tyson Foods, Inc., 546 U.S. 454, 456, 126 S.Ct.
1195 (2006) (quoting Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004)
(overruled on other grounds)). “[A]sserting baldly that she was better qualified
than the person who received the position at issue” will not be adequate. Wilson,
376 F.3d at 1090. Essentially, comparing qualifications will only be effective to
show pretext when the disparity between applicants is so great that no
reasonable person would have chosen the candidate that was selected over the
11

plaintiff. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160,
1163 (11th Cir. 2006).
In this case, Cives has articulated several non-discriminatory reasons to
support its decision to promote Swymer to supervisor instead of Plaintiff. The
reasons stated by Cives include: 1) Swymer’s leadership skills, work ethic, and
attitude, 2) Swymer’s previous supervisory experience in the steel fabrication
industry, and 3) Swymer’s workplace behavior. These reasons are discussed
below.
a. Swymer’s leadership skills, work ethic, and attitude
Cives first argues that Swymer’s leadership skills, work ethic, and attitude
qualified him for the promotion over Plaintiff. Plaintiff responds by contending that
Cives should be precluded from making this argument because it is too
subjective to merit the Court’s consideration. Plaintiff argues that while subjective
reasons can sometimes be considered by the court, these reasons must have a
factual basis and provide enough specificity to allow for objective evaluation.
Plaintiff argues that leadership capacity, work ethic, and attitude are not objective
standards and, further, Cives has not developed the underlying factual basis
necessary to establish that these subjective criteria are fit for judicial evaluation.
Eleventh Circuit jurisprudence recognizes that subjective criteria like
personal qualities do factor heavily into employment decisions. See Chapman,
229 F.3d at 1034 (“traits such as common sense, good judgment, originiality,
ambition, loyalty, and tact often must be assessed primarily in a subjective
12

fashion, yet they are essential to an individual’s success in a supervisory or
professional position”) (internal citations omitted). However, the Eleventh Circuit
has carefully noted that despite the recognized role that subjective traits play in
the employment process, a defendant’s explanation of its subjective reasons
must be clear and specific. Id. “A subjective reason is a legally sufficient,
legitimate, nondiscriminatory reason if the defendant articulates a clear and
reasonably specific factual basis upon which it based its subjective opinion.” Id.
Therefore, the court is limited to considering only those subjective reasons that
are well-supported by fact.
In this case, leadership skill, work ethic, and attitude may be subjective
measures, but Cives supports these reasons with a sufficient factual basis. Cives
does not discuss these qualities generally or abstractly, but instead gives specific
examples to explain why Plaintiff lagged behind Swymer in these areas. Tim
Donaldson, a Cives supervisor, noted that Plaintiff was not prepared to take on
the leadership role of a supervisor. (Donaldson 50.) Donaldson testified that
although Plaintiff was a good welder and was never written up or formally
disciplined, Swymer was a better candidate. (Donaldson 30.) When asked why
Plaintiff would not be a good supervisor, Donaldson responded “[m]aybe
because of the talking,” referring to Plaintiff’s tendency to leave his work station
and talk to the other workers. (Donaldson 50.) Further, Alderman stated that
“[Plaintiff] was a good welder, but he was a bit of a wanderer. He was not the
most diligent worker so was not perceived as having those attributes that would
13

make him stand out as a supervisor candidate.” (Alderman 42-43.) Hicks testified
that Plaintiff’s former supervisor, Jack Bachman, told him that “he ha[d] to push
[Plaintiff] to work, that [Plaintiff] does not stay at his work station, and that
[Plaintiff] does a lot of gossiping.” (Hicks 82.) These specific facts demonstrate
that Cives had a sufficient basis for using subjective factors as legitimate criteria
for making the decision to promote Swymer.
After reviewing the record, the Court concludes that there is sufficient
evidence of Swymer’s leadship skill, work ethic, and attitude, as well as Plaintiff’s
lack thereof, to support Cives’ promotion decision. Based on the evidence, the
decision to promote Swymer was reasonable and does not indicate any type of
veiled discriminatory intent.
b. Swymer’s previous supervisory experience
Cives further states that another reason for promoting Swymer ahead of
Plaintiff was Swymer’s experience in the steel fabrication industry. At the
beginning of his career, Swymer was an ironworker who was a member of the
local steelworkers union, working for a company named Raytheon. (Swymer 1112.) In 1999, he formed Swymer Steel Erectors with his brother, and their
business operated from 2000-2004. (Swymer 14-16.) Swymer’s resume reflects
that he went to work at Stewart County Road Shop as the shop foreman in 2004.
(Swymer 18.)
Hicks, who initially interviewed Swymer, was immediately impressed with
Swymer’s past experience. After conducting Swymer’s interview, Hicks indicated
14

in his notes that Swymer would be a good candidate for a supervisor role one
day. (Hicks 52, 79.) He stated that Swymer impressed him because “he had his
own company and he had other men working for him and he was experienced in
supervising other employees.” (Hicks 65.) Further, Hicks recalled that he thought
Swymer would be a good supervisor because “he was familiar with structural
steel, the proceses, how to do it, these types of things.” (Hicks 61.) Alderman, the
General Manager, said that Swymer was “a stand-out individual as far as he
knew the business when we hired him. So, he worked his way quickly through
the ranks. He showed a willingness to want to help in various departments,
wanted to learn different departments … The men respected him. He’s a very
hard worker.” (Alderman 14.)
In contrast, Plaintiff did not have any previous supervisory work in the steel
industry. Plaintiff did supervise seven soldiers in Fort Knox, Kentucky during his
ten-year stint in the Army. (Walton 12.) However, Plaintiff’s experience was not in
the steel industry, like Swymer’s.
In his response to Cives’ Motion for Summary Judgment, Plaintiff draws
attention to the fact that Swymer was incarcerated from 2004-2006,6 and that
Stewart County Road Shop, listed on Swymer’s resume, was actually a prison
shop where inmates worked. However, Cives asserts that no one at the company
was aware of Plaintiff’s prior incarceration, and that no questions were asked

6

Swymer was released from prison just ten days before he began working
at Cives. (Swymer 19.)
15

about Stewart County Road Shop in the interview. (Hicks 28-29, 51; Wilson 17.)
Plaintiff claims that the fact that no one at Cives knew about the incarceration
demonstrates one of two things: “either Hicks is lying and he did know that
Swymer was an ex-con … or Swymer’s previous employment was not really
relevant to the decision to hire him and similarly promote him.” (Doc. 35, p. 14.)
The Court disagrees with Plaintiff’s reasoning on both counts.
First, there is no evidence in the record to support Plaintiff’s contention that
Cives had reason to know that Swymer had previously been incarcerated.
Wilson, the Human Resources manager, testified that it was not company policy
to perform background checks. (Wilson 20.) Further, Hicks and Swymer both
confirm that Swymer’s prison time never came up during his interview. (Hicks 2829, Swymer 66.) Detailed questions about Stewart County Road Shop were
likewise not a point of discussion during Swymer’s interview. (Wilson 17, Hicks
51, Swymer 64-65.) Further, Donaldson stated that he did not know about
Swymer’s prison sentence until after Swymer was promoted to supervisor, and
then he found out only because “people in the shop [were] talking.” (Donaldson
13.) Based on the record, there is no evidence that anyone in charge of hiring
and promoting knew about Swymer’s incarceration.
Second, the record does not contain any evidence that supports Plaintiff’s
claim that Swymer’s past experience was “not really relevant.” To the contrary,
Swymer’s experience made him stand out to those people who interviewed him.
(Hicks 52, 65; Alderman 14, 37-38.) It is illogical to argue that simply because
16

Cives’ interviewers did not ask about Stewart County Road Shop, it should be
deemed unimportant. Apart from speculation and conjecture, Plaintiff has not
presented any evidence to dispute the claim that many people at Cives were
impressed with Swymer’s past experience in the steel industry.
Therefore, Cives’ claim that Swymer was more qualified because of his
prior experience in the steel industry is valid reason for an employment decision
and does not reveal any pretext.
c. Swymer demonstrated better workplace behavior than Plaintiff
Cives argues that Swymer had a better workplace record than Plaintiff.
Swymer’s attendance record was nearly perfect (Wilson 30), with Alderman
commenting that “his attendance was impeccable” (Alderman 14). Swymer’s
safety record was also good. (Hicks 110.) Further, there is no evidence on the
record that Swymer’s supervisors ever mentioned any problems with his
performance. On the other hand, the record reflects that Plaintiff’s supervisors
complained about him to Hicks (Hicks 101) and had reservations about him in a
supervisory role (Donaldson 30, 50; Alderman 42-43; Bachman Aff., ¶¶ 7-8).
Taken with the statements from Plaintiff’s supervisors about his difficulty
staying at his work station and his inability to be serious about his work, the Court
finds that there is sufficient factual basis to conclude that Cives’ contention that
Swymer had a better workplace record is well-founded and does not demonstrate
pretext for discrimination.

17

IV.

Conclusion
“As a factfinder, the district court must ultimately ‘decide which party’s

explanation of the employer’s motivation it believes.’” Moulds v. Wal-Mart Stores,
Inc., 935 F.2d 252 (1991) (citing Hill v. Seaboard Coast Line R. Co., 885 F.2d
804, 811 (11th Cir. 1989)).
In this case, testimony from Cives is consistent throughout the record and
demonstrates that management is in agreement that Swymer was a better
qualified candidate for myriad reasons, none of which are discriminatory. The
Court therefore finds that Plaintiff has established a prima facie case for
discrimination, but is unable to demonstrate that the reasons stated by Cives for
the hiring decision were pretext. Therefore, summary judgment in favor of Cives
is appropriate.
SO ORDERED, this 22nd day of December, 2011.

/s/ Hugh Lawson
HUGH LAWSON, SENIOR JUDGE

ebr

18