Conaway v. Gwinnett County, Georgia et al
Filing
113
OPINION & ORDER: The Court OVERRULES Plaintiff's objections 105 andADOPTS the Magistrate Judge's Report and Recommendation 101 . The Court GRANTS Defendant's Motion for Summary Judgment 72 . Signed by Judge Michael L. Brown on 6/25/19. (bjh)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
Bette Conaway,
Plaintiff,
Case No. 1:16-cv-01418
Michael L. Brown
United States District Judge
v.
Gwinnett County, Georgia
and Grant Guess, individually,
Defendants.
________________________________/
OPINION & ORDER
Plaintiff Bette Conaway claims Defendant Grant Guess refused to
promote her to a better position with Gwinnett County because she is a
woman. She sued Defendant Guess and Defendant Gwinnett County for
discrimination. The Magistrate Judge recommends summary judgment
for Defendants. (Dkt. 101.) Plaintiff filed objections to the Magistrate
Judge’s recommendation.
(Dkt. 105.)
The Court overrules those
objections and adopts the Magistrate Judge’s recommendations.
I.
Background
In 2013, the Gwinnett County Parks and Recreation Department
wanted to hire someone for the position of Construction Director. (Dkt.
69 at 56:6–13.) Defendant Grant Guess (Division Director for the Project
Administration Section) was responsible for interviewing candidates and
recommending someone to his supervisor, Phillip Hoskins (Director of
Community Services Development).
(Dkt. 61 at 33:13–17.)
Guess
advertised the job and interviewed about six candidates. (Dkt. 69 at
145:19–146:19.) Plaintiff applied for the job and interviewed with Guess.
(Id. at 145:19–146:19.) At the time, she had been working for the County
for more than twenty years and was a “Planner III,” a role in which she
coordinated the work of contractors, managed projects, and handled
associated paperwork. (Dkt. 71 at 86:4–87:15, 99:16–100:19, 112:13–
18:9.)
Guess and his supervisor offered the position to a man. (Dkt. 69 at
145:23–146:2.) When he turned it down, they offered the job to another
man, someone who had not interviewed for the position but someone
Guess knew from other county projects. (Id. at 147:6–23.) This second
2
man also turned it down. (Id. at 148:2–7.) Guess then left the spot open.
(Id. at 149:1–4.)
The next year, he reposted the position. (Id. at 317–18.) In the
posting, he stated the minimum qualifications: (1) a bachelor’s degree in
construction management, civil engineering, landscape architecture, or
closely related field; (2) three years of construction management
experience; and (3) a valid driver’s license. (Id.) He interviewed six
candidates, including Plaintiff and a man named Glen Boorman. (Id. at
192:10–193:7.) Boorman had applied for the position in 2013 but had not
been selected for an interview. (Id. at 148: 8–17, 193: 2–6.) Boorman had
extensive experience in golf course construction.
(Id. at 239:13–19.)
Guess selected Boorman, who accepted the offer, and Hoskins approved
this decision. (Dkt. 61 at 34:7–35:18.)
Plaintiff sued, alleging she had not received the promotion because
she is a woman. (Dkt. 1.) She brought this suit under both Title VII and
the Equal Protection Clause of the 14th Amendment.
(Id.)
After
discovery, Defendants moved for summary judgment, which the
Magistrate Judge recommended granting.
(Dkt. 101.)
Applying the
three-part framework outlined in McDonnell Douglas Corp. v. Green, 411
3
U.S. 792 (1973), the Magistrate Judge found that Plaintiff brought a
prima facie case of failure-to-promote discrimination and that
Defendants articulated a legitimate, nondiscriminatory reason for not
hiring Plaintiff. (See Dkt. 101 at 16–17.) The Magistrate Judge then
found that Plaintiff failed to show Defendants’ articulated reason for
hiring Boorman, his qualifications, was mere pretext. (Id. at 17–33.)
Plaintiff
objected
to
the
Magistrate
Judge’s
report
and
recommendation (“R&R”) on three bases, arguing the Magistrate Judge
applied the wrong standard for pretext, disregarded compelling evidence
of pretext, and improperly construed several critical facts. (Dkt. 105.)
When viewed all together, these objections protest the Magistrate
Judge’s finding that Defendants’ justifications for hiring Boorman were
not pretextual.
II.
Standard of Review
When a party files objections to an R&R, the district court must
review de novo any part of the Magistrate Judge’s disposition that is the
subject of a proper objection. See FED. R. CIV. P. 72(b); 28 U.S.C. § 636(b).
“Parties filing objections to a magistrate’s report and recommendation
must specifically identify those findings objected to.” Marsden v. Moore,
4
847 F.2d 1536, 1548 (11th Cir. 1988). If an objection fails to identify the
specific findings or a specific basis for the objection, a court need not
consider it. See id.
Rule 56 of the Federal Rules of Civil Procedure provides that a court
“shall 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 genuine if the evidence would allow a
reasonable jury to find for the nonmoving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). A 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.” Allen v. Tyson Foods, Inc., 121 F.3d 642,
646 (11th Cir. 1997).
The party moving for summary judgment bears the initial burden
of showing a court, by reference to materials in the record, that there is
no genuine dispute as to any material fact that should be decided at trial.
Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1260 (11th Cir. 2004)
(citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). A moving party
meets this burden merely by “ ‘showing’ — that is, pointing out to the
5
district court — that there is an absence of evidence to support the
nonmoving party’s case.” Celotex, 477 U.S. at 325. The movant, however,
need not negate the other party’s claim. Id. at 323. In determining
whether the moving party has met this burden, a court must view the
evidence and all factual inferences in the light most favorable to the party
opposing the motion. Johnson v. Clifton, 74 F.3d 1087, 1090 (11th Cir.
1996).
Once the movant has adequately supported its motion, the
nonmoving party then has the burden of showing that summary
judgment is improper by coming forward with specific facts showing a
genuine dispute. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986). Ultimately, there is no “genuine [dispute] for trial”
when the record as a whole could not lead a rational trier of fact to find
for the nonmoving party. Id. But “the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there
be no genuine issue of material fact.” Anderson, 477 U.S. at 247–48. The
court, however, resolves all reasonable doubts in the favor of the nonmovant. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993).
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III. Analysis
A.
Consideration of the facts
Plaintiff argues the R&R does not consider facts or that it construed
facts in a light inappropriately benefitting Defendants. In her objections,
Plaintiff outlines three facts she contends the Magistrate Judge ignored
or misconstrued: long established gender bias, and the denial of a
promotion because of her gender in both 2013 and 2014. The Court
considers the relevancy of these three assertions below.
1.
Long-established gender bias
Plaintiff alleges there was a long-established gender bias in the
Gwinnett County Parks and Recreation Department.1 To support this
claim, Plaintiff points to the testimony of her coworker, Rex Shruder, and
to comments made by two contractors. Shruder testified that a former
boss did not assign Plaintiff large projects because Plaintiff is a woman.
(Dkt. 64 at 28:7–13.)
This testimony is about a former supervisor
Defendants filed a notice of objection to this claim of pervasive gender
bias, to which Plaintiff did not respond. (Dkt. 97.) Local Rule 7.1(B)
provides that “[f]ailure to file a response shall indicate that there is no
opposition to the motion.” Since Plaintiff failed to respond to Defendants’
Notice of Objection, the Court treats it as unopposed. See Welch v. Delta
Air Lines, Inc., 978 F. Supp. 1133, 1136 (N.D. Ga. 1997).
1
7
unrelated to the hiring decision at issue and is thus irrelevant. Holifield
v. Reno, 115 F.3d 1555, 1563–64 (11th Cir. 1997) (“The biases of one who
neither makes nor influences the challenged personnel decision are not
probative in an employment discrimination case.”).
The contractors’ statements also do not show pervasive gender bias.
One contractor told Plaintiff she didn’t know what she was doing because
she “was just a girl.”
(Dkt. 71-1 at 26:16–27:1.)
Plaintiff admits,
however, that her supervisor stepped in and helped her during this
incident.
(Id. at 26:16–27:1.)
The other contractor told Plaintiff he
refused to hire qualified women because he was “not hiring a girl.” (Dkt.
61 at 26:8–15.) The contractor that made this comment was not under
Guess’s command, was not involved in the decision at issue, and was
demoted. (Id.) Since “comments by non-decisionmakers do not raise an
inference of discrimination,” Plaintiff has not alleged sufficient facts to
show a long-established gender bias. See Mitchell v. USBI Co., 186 F.3d
1352, 1355 (11th Cir. 1999).
2.
Defendants denied Plaintiff promotion because of
gender in 2013
Plaintiff claims Defendants did not promote her in 2013 because of
her gender.
During that cycle, Defendants interviewed around six
8
candidates, one of whom was Plaintiff. Guess offered the job to a male
candidate that interviewed and a male candidate that did not interview.
After both candidates turned down the job offer, Guess closed the pool.
As the Magistrate Judge put it, “[t]here is nothing unusual or suspect,
however, about the fact that an employer’s lead candidates for a position
are both men, unless there is additional evidence that female applicants
were excluded from consideration.” (Dkt. 101 at 30.) Guess considered
female candidates, as he interviewed Plaintiff in both 2013 and 2014.
Plaintiff argues Guess should have stayed within the 2013 pool, of
which Boorman was not a part, but the decision to not stay within the
pool does not show gender discrimination for three reasons. First, there
were other men within the pool. Second, after Guess offered the position
to two candidates, he learned the advertisement was incorrect. (Dkt. 69
at 142:3–16.) Third, Guess, as the official in charge of hiring, was entitled
to close the position and begin the hiring process again. Redd v. UPS,
615 F. App’x 598, 604 (11th Cir. 2015) (“[A] plaintiff is not allowed to
recast the employer’s reason or substitute his business judgment for the
employer’s judgment.”).
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3.
Defendants denied Plaintiff promotion because of
gender in 2014
Plaintiff claims Guess also denied her a promotion in 2014 because
of her gender. She bases this conclusion off an exchange she had with
Guess during her interview with him in 2014. During the interview,
Guess and Plaintiff discussed the growing diversity within the County,
focusing on economic, racial, and ethnic diversity. (Dkt. 71-2 at 15:20–
17:17.)
Guess then abruptly switched the topic.
(Id.)
Plaintiff
understands this exchange to be evidence that she was not promoted
because of her gender. The Court disagrees. Plaintiff brings no claim
based on her socio-economic status, race, or ethnicity. This remark, and
the fact that a man made it to a woman, does not show gender
discrimination.
B.
Pretext for discrimination
1.
Applicable framework for Plaintiff’s claims and
the Magistrate Judge’s findings
Plaintiff brings this claim under Title VII and the Equal Protection
Clause. When plaintiffs bring these claims under the same factual basis,
courts “employ the same elements and standards of proof to analyze both
claims.” Cheatham v. DeKalb Cty., Ga., 682 F. App’x 881, 889 (11th Cir.
2017). A plaintiff can prove disparate treatment through either direct or
10
circumstantial evidence. Id. Plaintiff here does not bring direct evidence
of gender discrimination, and so the Court, when analyzing her
circumstantial evidence, applies the three-part framework outlined in
McDonnell, 411 U.S. 792 (1973). See Champ v. Calhoun Cty. Emergency
Mgmt. Agency, 226 F. App’x 908, 909–10 (11th Cir. 2007). Under this
framework, a plaintiff must first make a prima facie case of
discrimination. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266
(11th Cir. 2001).
If made, the defendant can provide legitimate,
nondiscriminatory reasons for why it took the employment action. Id.
Upon the defendant showing these reasons, the plaintiff can show
defendants’ reasons are pretextual. Id.
The Magistrate Judge concluded Plaintiff brought a prima facie
case of failure-to-promote discrimination. A failure-to-promote prima
facie case requires the plaintiff to establish “(1) she is a member of a
protected class; (2) she was qualified and applied for the promotion;
(3) she was rejected despite her qualifications; and (4) other equally or
less qualified employees who were not members of the protected class
were promoted.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1089
(11th Cir. 2004) (citing Lee v. GTE Fl., Inc., 226 F.3d 1249, 1253 (11th
11
Cir. 2000)). Defendants contested only Plaintiff’s qualifications, arguing
she did not have the leadership style Defendants preferred.
The
Magistrate Judge found that Plaintiff had the objective qualifications for
the job, which are all that a prima facie case require. Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005) (“[T]o demonstrate
that he was qualified for the position, a Title VII plaintiff need only show
that he or she satisfied an employer’s objective qualifications.”).
The minimum qualifications for the job were (1) a bachelor’s degree
in construction management, civil engineering, landscape architecture,
or a closely related field; (2) three years of related construction
management experience; and (3) a valid driver’s license. (Dkt. 69 at 317–
18.) The Magistrate Judge accurately found that Plaintiff met these
criteria, as Plaintiff has a degree in urban and environmental planning,
has worked in a position that overlaps with the Construction Manager’s
duties, and has a driver’s license. (Dkts. 71 at 78:3–8, 112:13–115:25; 711 at 1:1–3:7, 96:15–20.) Neither party objected to this portion of the
Magistrate Judge’s reasoning, and upon review, the Court finds Plaintiff
established a prima facie case of failure-to-promote discrimination.
12
The Magistrate Judge also found Defendants offered legitimate,
nondiscriminatory reasons for not promoting Plaintiff. “An employer’s
burden to articulate a nondiscriminatory reason for failing to promote an
employee is a burden of production, not permission.” Vessels, 408 F.3d at
769–70 (citing Texas Dep’t. of Cmty. Affairs v. Burdine, 450 U.S. 248, 254
(1981). Defendants state they selected Mr. Boorman because he was the
most qualified candidate. (Dkt. 81-1 at 12–15.) Defendants point to his
construction management experience, his experience with large-scale
projects, experiences as a supervisor, and his communication and
leadership skills. (Dkt. 69 at 243–244, 252–55, 265.) The Court agrees
with the Magistrate Judge that Defendants met their “exceedingly light
burden” of articulating a legitimate, nondiscriminatory reason for
selecting Mr. Boorman.
Finally, the Magistrate Judge found Defendants’ proffered reasons
were not pretextual.
Plaintiff objects to this finding.
The Court,
accordingly, analyzes de novo whether Defendants’ reasons for hiring
Boorman were pretextual.
13
2.
Objections to the Magistrate Judge’s findings
regarding pretext
i.
Objection to the standard of evaluating
pretext
Plaintiff objects to the standard the Court applied when evaluating
whether Defendants’ articulated reasons for hiring Boorman were
pretextual. The Magistrate Judge first cited Vessels for the standard
that, to show Defendants’ reasons were pretextual, Plaintiff must reveal
“such weaknesses, implausibilites, inconsistencies, incoherencies, or
contradictions in [Defendants’] proffered legitimate reasons for [their]
action[s] that a reasonable factfinder could find them unworthy of
credence.” 408 F.3d at 771. The Magistrate Judge then found that when
comparing Mr. Boorman’s and Plaintiff’s qualifications, Plaintiff had to
show that the discrepancies were “of such weight and significance that
no reasonable person, in the exercise of impartial judgment, could have
chosen the candidate selected over the plaintiff for the job in question.”
Higgins v. Tyson Foods, Inc. 196 F. App’x 781, 783 (11th Cir. 2006).
Plaintiff argues the standard discussed in Higgins applies only if
there is no other evidence of discrimination except the difference in
qualifications. She contends there is other evidence of discrimination,
14
making the Magistrate Judge’s application of the Higgins standard
incorrect. Plaintiff is correct that differences between two candidates’
qualifications must be more distinct for cases that only compare
qualifications than cases with other bases of pretext. Vessels, 408 F.3d
at 772 (“[W]here the qualifications disparity is not the sole basis for
arguing pretext, the disparity need not be so dramatic to support an
inference of pretext.”). It is not clear, however, that the Magistrate Judge
missed or misapplied this distinction. In her analysis, the Magistrate
Judge found that none of Plaintiff’s evidence showed pretext. So, at that
point, the only evidence of pretext was the difference in Plaintiff’s and
Boorman’s qualifications, meaning Higgins would apply. Still, in its de
novo review, the Court is aware and heeds the distinction between cases
that only compare qualifications and cases that have other bases of
pretext.
ii.
The decision not to interview Boorman in
2013
In 2013, Guess interviewed Plaintiff for the position and did not
interview Boorman. Plaintiff argues these interview selections are an
admission by Guess that Plaintiff was more qualified than Boorman.
This argument fails for two reasons. First, Plaintiff admitted Boorman
15
was qualified. (Dkt. 90 at ¶ 15.) Second, Guess testified he did not
interview Boorman in 2013 because there was a more “robust” pool and
he did not know if Boorman’s experience “would be directly portable.”
(Dkt. 69 at 235:10–36:3.)
Guess testified that he learned from the
interview process and realized Boorman’s experience was relevant. (Id.
at 236:4–8.) Learning from an interview process raises no inference
about potential gender discrimination. See Redd, 615 F. App’x at 604
(“As long as the proffered reason is one that might motivate a reasonable
employer . . . the employee cannot succeed by simply quarreling with the
wisdom of that reason.” (internal quotation marks and citations
omitted)). The Court thus dismisses this claim.
iii.
Guess’s criteria for hiring Boorman
Plaintiff claims Guess had criteria for the job search, he
disregarded these criteria, and the departure from these criteria is
evidence of pretext.
Gwinnett County’s Human Resources Manager
asked Guess “what were your requirements for the job (beyond what was
listed on the job posting/ class specification)? How did you determine
what candidates to interview?” (Dkt. 70 at 197.) Guess responded that
he was looking for (1) an engineering license and experience;
16
(2) managerial experience, with specific experience over project
managers or construction managers; (3) experience in overseeing parks
or park-like projects; and (4) Gwinnett County experience or
governmental experience. (Id.)
Plaintiff argues her qualifications judged by these standards are
superior and that this superiority establishes pretext. See Keaton v. Cobb
Cty., Ga., 545 F. Supp. 2d 1275, 1292 (N.D. Ga. 2007) (“[A]n employer’s
deviation from the requirements of a job listing may be evidence of
pretext.”) (citing Mohammed v. Callaway, 698 F.2d 395, 400–01 (10th
Cir. 1983)).
She points to the fact that neither candidate had any
engineering experience, both candidates had managerial experience, and
she had more experience with the County and overseeing park-like
projects. On her read, Guess strayed from his own criteria, and that
deviation was evidence of pretext.
Plaintiff’s argument fails on two accounts. First, her argument
assumes these criteria were the only bases for hiring Boorman. In fact,
Guess testified these criteria were not a finite list of reasons when
deciding whom to recommend. (Dkt. 70 at 165:10–20.) Plaintiff even
admits Guess used other criteria. (Dkt. 90 at ¶¶ 2–4.)
17
If Guess relied exclusively on those criteria, picking Boorman would
not show disregard for the stated criteria. Boorman had experience with
management and with overseeing park-like construction projects. (Dkt.
68 at 111.) Although Plaintiff concludes she was the stronger candidate,
Guess may have preferred Boorman. Plaintiff does not get to “substitute
[her] business judgment for that of the employer . . . [and] cannot succeed
by simply quarreling with the wisdom of [the employer’s] reason.”
Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000); see
Damon v. Fleming Supermarkets of Fl. Inc., 196 F.3d 1354, 1361 (11th
Cir. 1999) (“We have repeatedly and emphatically held that a defendant
may terminate an employee for a good or bad reason without violating
federal law.
We are not in the business of adjudging whether
employment decisions are prudent or fair.” (internal citations omitted)).
The Court rejects this claim.
iv.
Boorman’s
and
qualifications
Plaintiff’s
relative
Plaintiff argues she was more qualified than Boorman, and the
disparity between their qualifications could lead a jury to infer pretext.
The Court disagrees. Plaintiff critiques each of Boorman’s qualifications,
arguing his golf-course development experience is irrelevant because
18
Gwinnett County is not building a golf course; he had no experience in
projects that he would perform as Construction Manager; and he had no
experience working for the government. These arguments, however,
simply insert Plaintiff’s evaluation into the decision, which Plaintiff
cannot do. Chapman, 229 F.3d at 1030.
Furthermore, since this argument compares only the candidates’
qualifications, Plaintiff faces a higher standard. Plaintiff must show the
discrepancies between her qualifications and those of successful
applicants were “of such weight and significance that no reasonable
person, in the exercise of impartial judgment, could have chosen the
candidate selected over the plaintiff for the job in question.” Higgins, 196
F. App’x at 783. It is undisputed that Boorman worked for twenty years
in golf course design and construction, including projects that cost up to
15 million dollars. (Dkt. 68 at 9:13–18, 32:13–34:17.) Given Boorman’s
qualifications, a reasonable person could find him more qualified than
her.
Plaintiff argues that she was more qualified because other
employees considered her an excellent candidate.
But the relevant
question is not what other employees thought; it’s what Guess thought.
19
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)
(“[O]ur inquiry is limited to whether the employer gave an honest
explanation of its behavior.” (internal citations omitted)). This is
especially true given Tina Fleming and David Clark, the leaders of the
Operations and Management Division, thought Plaintiff was not a strong
candidate.
(Dkt. 90 at ¶¶ 25–26.)
Guess wanted the Construction
Manager to serve as a bridge with Fleming and Clark, and he took their
opinion into account when he decided not to hire Plaintiff. (Dkt. 70 at
131:4–132:2.) For these reasons, the Court finds that whatever, if any,
disparity between Boorman’s and Plaintiff’s qualifications shows no
pretext for discrimination.
v.
Supervisory and large-scale experience
Plaintiff argues Defendants justified their hiring Boorman on his
supervisory and large-scale project experience, but both were irrelevant,
making their use as a justification for hiring Boorman pretextual. First,
Plaintiff contends the Construction Manager does little supervising, and
Boorman hasn’t supervised anyone since he began the position. Second,
Plaintiff asserts the justification of large-scale project experience was
pretextual both because Plaintiff had large-scale experience and
20
Boorman’s experience was in designing golf courses, not parks. It is
undisputed that Boorman had supervisory experience, and that being a
supervisor was a part of the job. (Dkts. 69 at 311; 105 at 19–20.) It is
also undisputed that Boorman had more large-scale project experience
than Plaintiff. (Dkts. 90 at ¶ 8; 70 at 44:8–50:5.)
Both of Plaintiff’s arguments seek to show Guess should have
reviewed qualifications differently, but a “plaintiff is not allowed to recast
an employer’s proffered nondiscriminatory reasons or substitute his
business judgment for that of the employer.” Chapman, 229 F.3d at 1030.
Being a supervisor is a part of the Construction Manager job, even if a
small part. Boorman worked on large projects, even if on golf courses.
“Federal courts do not sit as a super-personnel department that
reexamines an entity’s business decisions.” Id. (quoting Elrod v. Sears,
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991)).
The Court,
accordingly, will not reevaluate Guess’s business decision to hire
Boorman.
Plaintiff complains she did not have more large-scale construction
experience because Guess assigned her work. But, even if she had more
experience, Plaintiff would again be asking the Court to compare
21
Boorman’s twenty years in the field to Plaintiff’s increased experience.
This comparison is not the Court’s role. Damon, 196 F.3d at 1361 (“We
are not in the business of adjudging whether employment decisions are
prudent or fair.” (internal citations omitted)).
vi.
Communication skills and ability to get
along with others
Other people complained about Plaintiff’s communication skills,
and Defendants listed her communication skills as a reason for not hiring
her. Although Plaintiff acknowledges these complaints, she argues the
use of these complaints shows pretext either because the complaints were
baseless or Guess didn’t believe them at the time. For instance, Guess
rated Plaintiff’s communication skills highly on evaluations. (Dkt. 69 at
349–50.) Using the complaints as justification shows pretext, Plaintiff
argues, because Guess’s evaluations show he thought Plaintiff had strong
communication skills. Guess, however, testified he didn’t use the reviews
in the hiring process. (Dkt. 70 at 137:3–10). He also testified he wanted
the Construction Manager to be a bridge to the Operations and
Management division, and the leaders of that section, Clark and
Fleming, both complained about Plaintiff’s communication skills. (Id. at
131:4–132:2.)
22
Plaintiff has the obligation to meet Defendants’ reasons “head on,”
and cannot “recast an employer’s proffered nondiscriminatory reasons.”
Chapman, 229 F.3d at 1030. Plaintiff argues against the veracity of
Guess’s testimony and does not challenge Clark’s and Fleming’s
concerns. Plaintiff thus confuses her burden, failing to challenge Guess’s
proffered reason, the concern about communicating with Fleming and
Clark.
Since Plaintiff has not met this reason head on, the Court
dismisses this objection.
Plaintiff also cites positive accounts by her colleagues of her
communications skills, which she claims show Guess did not honestly
believe she had poor communication skills. Plaintiff may be a strong
communicator, but the question here is whether Guess thought she had
the right communication skills for the Construction Manager position.
Alvarez v. Royal Atl. Developers, Inc., 610 F.3d, 1253, 1266 (11th Cir.
2010) (“The 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.” (internal citations omitted)). Other
employees’ opinions about her communications do not impact this
question. Palomino v. Concord Hosp. Enters. Co., 126 F. Supp. 3d 647,
23
656 (D.S.C. 2015) (“[T]he alleged opinions of other employees are not
relevant and the court will not engage in such an inquiry.”).
Plaintiff then challenges the use of five different discrete events
that Defendants cited as examples of Plaintiff’s poor communication.
These five different examples are
(1) in May 2013, a contractor complained to Mr. Guess that
Plaintiff tried to discourage his company from bidding on a
project; (2) in June and November 2013, Ms. Fleming and
O&M section employees complained about Plaintiff’s poor
communication after Plaintiff scheduled asphalt resurfacing
in parks for the same time that run/walk events were
scheduled; (3) in April 2014, Ms. Fleming and Jim Cyrus
complained that Plaintiff inappropriately yelled at Mr. Cyrus
and another employee for allegedly not wearing a hard hat
while work was being done at a softball complex; (4) on two
prior projects, the Executive Director of the Gwinnett
Environmental and Heritage Center complained to Mr. Guess
about Plaintiff’s behavior, claiming that Plaintiff did not keep
him adequately informed, that she was rude to him and his
staff, and that she argued with contractors;
(Dkt. 101 at 27–28 (internal citations omitted)) and (5) Plaintiff was the
project manager for the relocation of a historical home that suffered
water damage during the project. (Dkt. 71-1 at 33–42.)
Plaintiff complains that the list of examples in their position
statement to the EEOC contained only two instances of poor
communication, while at the summary judgment stage, Defendants list
24
five examples of poor communication. Plaintiff claims this growth could
lead a jury to doubt their credible use as a reason for not hiring her.
Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1194 (11th
Cir. 2004) (finding “inconsistent reasons allowed the jury to question his
credibility”). A defendant, however, can “elaborate on its reasons for
taking an employment action.” Keaton, 545 F. Supp. 2d at 1305 (internal
citations omitted). And, an “additional, nonconflicting statement is not
evidence of pretext.” Id. (citing Tidwell v. Carter Prods., 135 F.3d 1422,
1428 (11th Cir. 1998)). The two examples Defendants cited to before the
EEOC depict Plaintiff’s poor communication skills.
The next three
examples depict Plaintiff’s poor communication skills. These examples
are consistent, and thus the additional examples do not show pretext.
Plaintiff goes through each example and argues she was not at
fault. But, as the Magistrate Judge stated, “while Plaintiff certainly has
a different perspective on how to interpret these facts, she has not shown
that any of these facts are untrue or could be a mere pretext for
discrimination.” (Dkt. 101 at 28.) Guess testified he didn’t hire her
because of concerns about whether her communication skills would make
25
her a good fit as Construction Manager. Plaintiff presents no actual
evidence to show this belief to be untrue.
Even if Plaintiff rebutted the communication skills justification,
her claim would still fail. She has the obligation to rebut every reason
Defendants cite for not promoting her. See Crawford v. City of Fairburn,
482 F.3d 1305, 1308 (11th Cir.2007). (“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.”). Plaintiff
failed to rebut Defendants’ justification that Boorman was more
qualified. The Court therefore dismisses this claim.
vii. Convincing
evidence
mosaic
of
circumstantial
Plaintiff also argues that the Magistrate Judge did not consider the
claim under the standard set out in Smith v. Lockheed-Martin, 644 F.3d
1321 (11th Cir. 2011). In Lockheed-Martin, the court explained that the
McDonnell presumption switching method is not the only way to prove
gender discrimination: “establishing the elements of the McDonnell
Douglas framework is not, and never was intended to be, the sine qua
non for a plaintiff to survive a summary judgment motion in an
employment discrimination case.”
Id.
26
at 1328.
In addition to the
McDonnell framework, “[a] triable issue of fact exists in the record,
viewed in the light most favorable to the plaintiff, presents ‘a convincing
mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.’ ”
Id. (quoting
Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th Cir. 2011)).
“A
‘convincing
mosaic’
may
be
shown
by
evidence
that
demonstrates, among other things, (1) “ ‘suspicious timing, ambiguous
statements . . ., and other bits and pieces from which an inference of
discriminatory intent might be drawn,’ (2) systematically better
treatment of similarly situated employees, and (3) that the employer's
justification is pretextual.” Lewis v. City of Union City, 877 F.3d 1000,
1018 (11th Cir. 2017) (quoting Silverman, 637 F.3d at 733-34). Plaintiff
fails to meet these different elements or otherwise present a convincing
mosaic. First, Plaintiff does not point the Court to any suspicious timing
or ambiguous statements. Second, Defendants did not treat similarly
situated employees better than Plaintiff, as two male candidates were not
chosen for the same reasons as Plaintiff. (Dkt. 90 at ¶ 27.) Third, for the
reasons stated above, Defendants’ reasons for choosing Plaintiff are not
pretextual. Plaintiff does not present a “convincing mosaic,” but asks the
27
Court to question Guess’s business judgment. The Court refuses this
invitation, and this objection is dismissed.
C.
Claim against Guess in his individual capacity
Plaintiff brings a 42 U.S.C. § 1983 claim against Guess, arguing
that he discriminated against her because of her gender in his individual
capacity. A plaintiff bringing a § 1983 claim must prove “(1) a violation
of a constitutional right, and (2) that the alleged violation was committed
by a person acting under color of state law.” Holmes v. Crosby, 418 F.3d
1256, 1258 (11th Cir. 2005). For the reasons stated above, Plaintiff has
failed to establish that Defendants violated her constitutional rights.
This claim is thus dismissed.
IV.
Conclusion
The Court OVERRULES Plaintiff’s objections (Dkt. 105) and
ADOPTS the Magistrate Judge’s Report and Recommendation (Dkt.
101). The Court GRANTS Defendant’s Motion for Summary Judgment
(Dkt. 72).
SO ORDERED this 25th day of June, 2019.
28
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