ORDER

WILLIAM STEELE, District Judge

This matter is before the Court on defendant CSA Equipment Company LLC's Motion for Summary Judgment (doc. 45) as well as defendant's Motion to Strike (doc. 60) portions of plaintiff's response in opposition to the Motion. Both Motions have been briefed extensively, and are now ripe for disposition.

I. Nature of this Action.

On May 27, 2005, plaintiff Rufus English filed a Complaint (doc. 1) against CSA Equipment Company LLC ("CSA") alleging that CSA had discriminated against him in employment decisions on the basis of his race (black) and age (60 at the inception of this suit), in violation of Title VII of the Civil Rights Act of 1963, 42 U.S.C. §§ 2000e et seq. ("Title VII"); 42 U.S.C. § 1981 ("Section 1981"); and the Age Discrimination in Employment Act, 29 U.S.C. §§ 621 et seq. ("ADEA"). In addition to the federal statutory claims, English proffers a state law claim for outrage in which he alleges that CSA's pattern of race and age discrimination constitutes extreme and outrageous conduct which caused him severe emotional distress.

The Complaint is centered on an employment decision in March 2004, wherein CSA passed over English's application for a promotion from an on-call "Free Lance Clerk" position to a full-time "Company Clerk" position. Although the Complaint also mentions a January 2002 employment decision in which CSA laid off English and another January 2002 employment decision in which CSA re-hired a less senior furloughed white employee without calling back English, a plain reading of the Complaint reflects that those are mere background allegations, and not the basis of any substantive claims. Numerous passages in the Complaint confirm this construction. Indeed, the "Preliminary Statement" characterizes this case as a "hybrid hire/promotion case" because English was "an on call replacement worker seeking a permanent position." (Complaint, at 1.) This language necessarily excludes the 2002 layoff. Moreover, in the "Exhaustion of Administrative Remedies" section, English refers only to the 2004 employment decision and his exhaustion of remedies pertaining to same. ( Id., ¶ 5.) The body of the Complaint discusses the 2004 decision at length, as compared to a single paragraph devoted to the 2002 decisions. ( Id., ¶¶ 17, 26-34.) Finally, in the causes of action themselves, the Complaint focuses exclusively on the 2004 hiring decision. ( Id., ¶¶ 39-40, 50-51, 61-62, 65.) Under no reasonable reading does the Complaint state discrimination claims against CSA relating to the January 2002 decisions.

Unfortunately, both parties lose sight of this fact in briefing the Motion for Summary Judgment. Plaintiff claims that "[i]t is the employment decision to lay him off in the first instance, and the continuing refusal to rehire him, which are the focus of English's plea for relief." (Plaintiff's Brief (doc. 54), at 2.) Notwithstanding the liberal pleading standard for civil complaints under Rule 8(a)(2), Fed.R.Civ.P., a brief opposing summary judgment is not a proper mechanism for amending a complaint. Had CSA objected to English's de facto amendment of the Complaint in his summary judgment opposition brief, this claim likely would have been rejected outright pursuant to the foregoing principles. Far from objecting, however, CSA echoes plaintiff's description of his claims, which it summarizes as follows: "English claims that CSA released him from his job as a company clerk in January 2002, failed to hire him as CSA's Assistant Chief Clerk shortly thereafter, and failed to hire him as a company clerk in March 2004, because of his race and age." (Defendant's Brief (doc. 50), at 17.) The law is clear that "issues not raised in the pleadings may be treated as if they were properly raised when they are tried by express or implied consent of the parties." Steger v. General Elec. Co., 318 F.3d 1066, 1077 (11^th Cir. 2003); see also Price v. MH Valve Co., 2006 WL 897231, *11 n. 7 (11^th Cir. Apr. 7, 2006) (dismissing claim raised by plaintiff for first time in summary judgment opposition brief, but only because defendant objected on that basis). Defendant's failure to object to the de facto amendment of the Complaint to include claims arising from the January 2002 incidents, and its acknowledgment that those claims are at issue in this action, constitutes implied consent to having them be tried in these proceedings; therefore, the Gilmour/ Hurlbert line of authority is inapplicable, and the Court will consider plaintiff's substantive claims predicated on the 2002 employment decisions, notwithstanding their omission as substantive claims in the Complaint, as well as those arising from the 2004 hiring decision.

II. Defendant's Motion to Strike.

At the close of the summary judgment briefing, CSA filed a hotly contested Motion to Strike (doc. 35), in which it sought to excise portions of plaintiff's opposition brief as well as excerpts from plaintiff's declaration. Because any summary judgment evaluation necessarily hinges on the type and nature of facts in the record and on the arguments that may be considered, and because the Motion to Strike calls into question which facts and arguments are properly before the Court, resolution of that Motion is the appropriate analytical starting point.

A. Request to Strike Portions of Plaintiff's Opposition Brief.

Defendant first requests that multiple sections of plaintiff's opposition brief be stricken pursuant to Rule 56(e), Fed.R.Civ.P., and Rules 602 and 802, Fed.R.Evid. The crux of this component of the Motion to Strike is CSA's disagreement with plaintiff's arguments, in response to which it offers various merits-based counterarguments of its own. In particular, CSA balks at plaintiff's contention that CSA engaged in a "pattern and practice" of discrimination, and cites legal authorities in support of its position. Additionally, CSA does not dispute plaintiff's contention that defendant historically hired only white superintendents, but contends that the statement should be stricken anyway because English has established few occasions where blacks applied for those positions and has not shown "the number of superintendent positions filled over the years (a relatively small number), the number of blacks who applied for superintendent jobs, or the comparative qualifications of those who did apply." (Motion to Strike, at 4.) Further, CSA challenges as speculative plaintiff's argument that black employees have not been selected as CSA superintendents because CSA has not solicited their applications. And CSA decries plaintiff's characterizations of its hiring practices concerning African-Americans and plaintiff's theories for the paucity of African-Americans in certain jobs.

There are two insuperable defects with CSA's position. First, this portion of CSA's Motion to Strike reads like a supplemental merits brief articulating defendant's reasons why the Court should not adopt plaintiff's summary judgment arguments. But the Court has already received more than 45 pages of merits-based briefing from defendant, and does not require further briefing to elucidate and distill the Rule 56 issues. To the extent that CSA's Motion merely reiterates defendant's legal arguments presented elsewhere, it is redundant and unhelpful. To the extent that it offers brand new arguments for why CSA believes its Rule 56 Motion should be granted, the Motion to Strike impermissibly expands the summary judgment briefing beyond the parameters outlined by this Court and will not be entertained.

Second, even if every one of CSA's arguments presented in the Motion to Strike is correct and every one of English's challenged arguments is incorrect, defendant makes no showing why the draconian step of striking plaintiff's arguments is appropriate. A summary judgment brief is not evidence; rather, it is simply the argument of counsel. In the overwhelming majority of cases, the proper judicial response to a factually unsupported or legally defective argument is simply not to credit it. The Court perceives no reason under the circumstances presented here why the extraordinary measure of striking portions of English's brief might be appropriate. That defense counsel may disagree with plaintiff's counsel's statements is not a proper justification for a Motion to Strike even if plaintiff's counsel is wrong at every turn. Plaintiff's counsel is entitled to make arguments in his brief, and to present his take on the record evidence. If a defendant disputes the legitimacy of those arguments or their factual or logical predicate, then its remedy is to file a reply brief (which defendant has done) explaining how plaintiff is in error, not to file a motion seeking to blot the offending arguments from the record. The Court will not strike a portion of the plaintiff's brief simply because an argument expressed therein may suffer from a logical or factual defect.

Accordingly, to the extent that the Motion to Strike attacks the summary judgment arguments of plaintiff's counsel, it is denied as overreaching and lacking in legal foundation.

B. Request to Strike Portions of Plaintiff's Declaration.

Next, defendant's Motion to Strike seeks to strike no fewer than ten (10) passages from the Declaration of Rufus English (doc. 54, at Exh. D).

First, CSA takes issue with English's statement that "[h]istorically, company clerks have been exclusively white" in the stevedoring industry in the Port of Mobile. (English Decl., at 4.) The Declaration documents a factual basis for this statement, to-wit: English's observations in his 20+ years of experience in the industry. The Court understands that CSA disagrees with English and offers certain elaborating facts; however, CSA's facts do not preclude English from testifying about his experiences and observations. This objection is overruled.

Second, CSA objects to English's statement that "I was to learn later that" a white freelance clerk named George Bru had dropped his application for a regular clerk position in 1997 so that CSA's predecessor "would do the right thing and hire [English as] their first black clerk." (English Decl., at 5.) This statement is obviously hearsay and is not subject to any of the exceptions to the prohibition on admissibility of hearsay; besides, the circumstances of English's hiring many years before the events in question in this litigation have no bearing on the factual and legal issues presented on summary judgment. This objection is sustained and the cited sentence concerning Bru is stricken from the English Declaration.

Third, CSA contests English's characterization of the "custom of the industry" as being that if a company clerk is laid off for lack of business "you would be called back in the order of your company seniority." (English Decl., at 7.) According to CSA, this statement is hearsay and it conflicts with CSA's evidence. Again, English had spent more than two decades working in the stevedoring industry in the Port of Mobile, including experience as president of the local union for a time. Logic and common sense strongly suggest that such experience would give him first-hand insights into the industry customs at the Port of Mobile concerning layoff and recall of company clerks; therefore, while the Court cannot definitively resolve the question at this stage, it appears likely that the challenged testimony can be reduced to admissible form at trial once a bit more predicate is laid. Moreover, the existence of a discrepancy between English's testimony and that of CSA agents is obviously not a valid basis for striking the former. This objection is overruled.

Fourth, CSA protests English's assertion that he "later learned that CSA claimed that it had laid [him] off during the months of July to September, 2000." (English Decl., at 7.) A CSA summary judgment filing (that has since been modified) states that English "was laid off sometime before mid-July 2000" and that "sometime before mid-September 20000 . . . he returned to his job as a CIS `company' clerk." (Doc. 45, Proposed Undisputed Facts and Conclusions of Law, at 4.) As defendant presents and admits to facts not materially different from the evidence which it seeks to have stricken, this objection is overruled as much ado about nothing.

Fifth, CSA points to English's contention that he learned that Pam Harper had trained him inadequately on the Clipper Lines account so that CSA would keep her on the job. (English Decl., at 7-8.) Plaintiff acknowledges (as he must) that this evidence is rank hearsay and offers no indication that he can reduce it to admissible form at trial. Accordingly, this objection is sustained and the sentence of English's declaration in which he says he "later learned" that Harper was training him incorrectly to secure a job-related benefit for herself is stricken.

Sixth, CSA takes issue with English's assertions that another employee, John Hayes, was called back as Assistant Chief Clerk in January 2002, that the Assistant Chief Clerk job had never previously been filled because there was no need to fill it, that English was not considered for the position, and that industry custom directed that he should have been offered the job. (English Decl., at 8.) CSA's semantic quibble with English's use of the term "called back" rather than "rehired" (CSA's preferred term) just three days after being laid off is not a colorable basis for striking the testimony. CSA's objection to English's reference to industry custom is likewise unfounded given his extensive first-hand experience and observations in that industry. And certainly English can testify that, to the best of his knowledge, the Assistant Chief Clerk position had lain vacant for some time, that he was aware of no need to fill it, and that he was never approached about the job. This multi-part objection reads far too much into English's statement and is overruled.

Seventh, CSA challenges English's statement that the Union did not approve of Hayes' hiring as Assistant Chief Clerk because the Union acts only through its membership or its Executive Committee. (English Decl., at 9.) Although CSA maintains that English is not competent to testify about this matter, surely a veteran Union member and past Union president can testify as to his understanding of what steps the Union must follow to approve a hiring, and his understanding of whether those steps were followed in a particular case. Besides, there is abundant record evidence as to the Union's actions before Hayes received the Assistant Chief Clerk position. Such evidence is generally consistent with English's understanding, so CSA's dissatisfaction with this aspect of the English Declaration will not meaningfully impact the summary judgment record. ( See Bowden Dep., at 94-97.) This objection is overruled.

Eighth, CSA invokes the "sham affidavit" rule to attack English's statement that he first learned on April 12, 2004 that the company clerk positions for which he had applied had been filled by Forrest duBruyne and Gerry Givens. See McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11^th Cir. 2003) ("Under the law of this Circuit, we may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when that affidavit is directly contradicted by deposition testimony."). According to CSA, this portion of English's declaration "contradicts [his] unambiguous deposition testimony . . ., his sworn answers to interrogatories . . ., and his own written grievance, all of which state that English was told by Union Vice President Hayes on April 9, 2004 that duBruyne and Givens had been hired." (Motion to Strike, at 9.) In fact, however, none of those items so state. In the cited deposition excerpt, English directly addressed this issue as follows:

"Q: Was it subsequent to April 9th that you learned that Mr. Given had been hired over you?

"A: Subsequent to the 9th?

"Q: Yes.

"A: It was somewhere around the 9th that I learned that. "

(English Dep., at 285 (emphasis added).) Given this equivocal exchange, the Court cannot agree with CSA that this testimony unambiguously states that he received this information on exactly April 9. And the answers to interrogatories merely state that English learned of the hiring decision "[s]everal days after [he] placed [his] application for either of the two positions." (English Interrog. Resp., at #7.) Such an amorphous reference could apply to April 12 just as easily as it could to April 9. Finally, the grievance itself is an unsworn document listing the date April 19, which is crossed out and replaced with April 12, which is crossed out and replaced with April 9. It is obviously not a clear, unambiguous sworn statement, as might trigger the sham affidavit rule. In short, CSA overstates the facts by a substantial margin in characterizing the April 12 date in English's declaration as "contradict[ing], without explanation, previously given clear testimony." (Motion to Strike, at 9.) It does no such thing. Defendant's "sham affidavit" objection is unfounded and is therefore overruled.

Ninth, CSA objects to a statement in the English Declaration that English did not believe Givens was on the call out list, that he concluded Givens could have been selected over him only if race discrimination was at work, and that he assumed CSA wanted to keep the clerk staff all white. (English Decl., at 9.) Statements of speculation or personal belief are generally not proper and are not considered on summary judgment. See, e.g., Pace v. Capobianco, 283 F.3d 1275, 1278-79 (11^th Cir. 2002) ("an affidavit stating only that the affiant `believes' a certain fact exists is insufficient to defeat summary judgment by creating a genuine issue of fact about the existence of that certain fact"); see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11^th Cir. 1996) ("For factual issues to be considered genuine, they must have a real basis in the record."); Stagman v. Ryan, 176 F.3d 986, 995 (7^th Cir. 1999) (explaining that statements that are conclusory or based on conjecture do not satisfy Rule 56(e)). These statements plainly fall within the zone of evidence proscribed by these authorities; therefore, the objection is sustained and the three sentences on page 9 of the English Declaration beginning with phrase "I didn't believe" and ending with "company all white" are stricken.

Tenth, and finally, CSA insists that English must be speculating when he testifies that certain CSA managers could not have observed his performance because they were housed in a building located a mile from the docks where English worked and they never came down to the docks to observe his work. (English Decl., at 10.) It is certainly not conjecture for English to testify to his understanding of where the managers' offices were located, how far that building was from the docks, and whether he ever saw the managers at the docks while he was working. This objection is overruled. III. Background Facts. A. Plaintiff's Employment History in the Stevedoring Industry until 1997.

In 1980, plaintiff Rufus English began working as a "freelance clerk" for various stevedoring companies at the Alabama State Docks at the Port of Mobile, Alabama. (English Decl., at 2.) In that capacity, he did not work full-time at the docks; rather, his name was on a "call out" list and he was contacted from time to time to perform clerking work for the stevedoring companies. ( Id.; English Dep., at 31, 34.) Freelance clerks are essentially day laborers who are called out in order of seniority on a day-to-day, as-needed basis; by contrast, company clerks are regular full-time employees who perform similar duties as freelance clerks, but who have steady work with a particular company. (English Decl., at 4.) In performing this work, English became a member of International Longshoreman's Association, Local Union 1459 (the "Union"), which represents "clerks and checkers" and which had collective bargaining agreements in place with various stevedoring companies during the time period at issue. (English Dep., at 30; Wilkins Decl., ¶¶ 2, 4.) At particular times, English held positions of leadership within the Union, including the offices of secretary, treasurer, and president. (English Dep., at 34-35.)

Freelance clerks typically perform duties that involve checking or tallying cargo that is loaded or unloaded from vessels, delivered by or received from carriers, or placed in warehouses. (Wilkins Decl., ¶ 12.) Sometimes freelance clerks will be assigned to "bookman/clerk-in-charge" duties, which involve additional responsibilities in excess of checker work, including completion of paperwork and direction of other clerks in the loading or unloading of a vessel. ( Id.) English's freelance clerk assignments gradually increased and he was assigned to work as "bookman/clerk-in-charge" from time to time. (English Decl., at 2-3.)

From the late 1980s through 1997, English worked a variety of clerking jobs at the docks. The record reflects that he served as assistant bookman or bookman for several vessels during this period, and that he worked as checker or bookman/clerk-in-charge on numerous piers at the Port of Mobile. (English Decl., at 3.) As succinctly stated by English, "[t]here is no non administrative clerking job on the pier that [he has] not performed." ( Id.) English frequently performed bookman/clerk-in-charge duties during the 1990s. (Costell Decl., ¶ 7.) In completing these duties, English never lost, damaged or misallocated cargo, and was never disciplined or warned for poor job performance. (English Decl., at 4.)

B. English's Work History from 1997 to 2002.

In February 1997, English was hired into a full-time job of company clerk (effectively a promotion from the on-call freelance position he had held previously) by Cooper/T. Smith Stevedoring Co., Inc. ("CTS"), which was a predecessor of defendant CSA Equipment Company, LLC ("CSA"). (English Dep., at 63; English Decl., at 4; Wilkins Decl., ¶ 1.) English, who at that time was the Union president, was the first black company clerk hired by CTS, and prior to that time there were no black company clerks working for any of the Mobile stevedoring companies, to the best of English's knowledge. (English Decl., at 4-5.) As a company clerk for CTS, English booked ships approximately once every two weeks, just as CTS's other company clerks did. ( Id. at 5.) This working arrangement continued in largely uninterrupted fashion until mid-2000. ( Id. at 5-6; English Dep., at 63.)

In the summer of 2000, the transformation of CTS into CSA took place, with CSA commencing operations in September 2000. English's name was omitted from a July 2000 list of CTS company clerks to be hired by CSA; however, the omission was remedied in August 2000, and English's name was added to the list. (Smith Dep., at 47; English Dep., at 67; Plaintiff's Exhs. F, G, I.) In September 2000, English began working for CSA as a company clerk in the warehouse division. (English Decl., at 7.) However, English was no longer assigned bookman responsibilities, but instead worked deliveries of wood pulp and steel by truck. ( Id.) On July 1, 2001, a published seniority list for CSA placed English tenth out of eleven employees, with only Forrest duBruyne ranking below him. (Plaintiff's Exh. K.)

In approximately October 2001, CSA assigned English to the Clipper Line account as assistant bookman to an employee named John Hayes, who was not listed on CSA's July 2001 seniority roster at all. ( Id.) Because his predecessor, Pam Harper (who had worked the Clipper Line in the transition), failed to train English on that account's computer system, English encountered some problems with data entry on that system. ( Id. at 7-8.) Aside from that issue, however, English found the Clipper Line to be no more difficult than any other line. ( Id. at 8.)

C. The January 2002 Employment Decisions.

CSA lost the Clipper Line account on December 31, 2001, at which time both English and Hayes returned to the warehouse. (English Decl., at 8.) Just four days later, on January 4, 2002, CSA announced that it would "reduce [the] number of clerks according to company seniority" because of the loss of the Clipper Line account, and that English, Forrest duBruyne, and Hayes had been selected for layoff because they were "the three lowest personnel on this list." (English Dep., at Exh. 9; English Decl., at 8.) Both duBruyne (age 50 at that time) and Hayes (age 41) are white, and younger than English. The announcement stated that "this decision is based solely on economic conditions." (English Dep., at Exh. 9.) As a result, English continued working for CSA, albeit as a freelance clerk, a role he continued to perform for CSA through the filing of this lawsuit in 2005. (English Decl., at 8; English Dep., at 126, 152.)

On January 7, 2002, a mere three days after laying off English, duBruyne and Hayes, CSA rehired Hayes for the position of Assistant Chief Clerk. (English Dep., at Exh. 10.) The Assistant Chief Clerk is responsible for assigning clerks to available work. (English Decl., at 8.) That position had been vacant during the first months of CSA's operations before Hayes was selected to fill it, and English was aware of no reason why CSA needed to fill the position at that time. ( Id.) Moreover, CSA never apprised English of the availability of the Assistant Chief Clerk job and never invited him to apply, and it was weeks after the fact before English became aware that Hayes had been hired for that slot. ( Id.)

CSA Stevedoring Division Operations Manager Bobby Smith testified that Hayes was tapped for the Assistant Chief Clerk position because he "was the best candidate, the best person to fill the slot, because he had booking experience, he's headed up piers in the past, he has great working knowledge of cargoes, he has good communications skills with customers and other employees, . . . [and he is the] single best individual on overseeing other individuals under his direction." (Smith Dep., at 159.) Meanwhile, Smith testified, CSA did not feel that English "could do as good a job" as Hayes in these areas. ( Id.) Smith admitted that if CSA had done the January 2002 layoffs and rehiring as one step instead of two ( i.e., if one existing company clerk was "relocated," or if only two company clerks had been furloughed), that decision would have been made by virtue of company seniority. ( Id. at 160.) Because English had higher company seniority than both DuBruyne and Hayes, Smith acknowledged, he would have kept his job in that scenario. ( Id.) D. The March 2004 Hiring Decisions.

On March 10, 2004, CSA informed the Union that it intended to hire two new company clerks because of current and potential increases in CSA's business at the Port of Mobile. (English Dep., at Exh. 13.) CSA requested that the positions be posted for 10 working days to allow Union members to apply in writing, and formally sought a list of interested candidates from the Union. ( Id.)

Five Union members applied for the two vacancies during the designated time period, to-wit: Anthony Costell (white, 56 years old), duBruyne (white, 52 years old), English (black, 58 years old), Paul Smith (white, 31 years old), and Gerry Givens (white, 46 years old). (English Exh. Q; Holifield Decl., ¶ 5.) The Union forwarded all five names to CSA, and on March 31, 2004 CSA announced its selection of duBruyne and Givens for the subject positions, effective April 5, 2004. (English Exh. R.) For his part, however, English did not learn that the positions had been filled by two other applicants until April 12, 2004. (English Decl., at 9.) English was upset with Givens' selection, given his understanding that Givens "had very little waterfront seniority and no company seniority," and that "[e]xcept for a limited period in 2000-01 he had worked sparingly on the docks." ( Id.) In discovery responses, CSA stated that Givens was hired, despite having less seniority than English, because "he had superior ability and qualifications to perform traditional `bookman' or `clerk-in-charge' duties." (CSA Interrog. Resp., #14.) CSA also stated in discovery that it "did evaluate the skills and qualifications of the three senior clerks on the promotion list, including Givens and English," and concluded based on that evaluation that Givens' qualifications were superior. (CSA Resp. to Req. for Admissions, at #13.) The decisionmaker, Operations Manager Smith, explained that he "thought Gerry Givens was more self-motivated than Rufus English, dealt with customers problem solving and knew the industry better. And not to say anything negative about Rufus, but that Gerry Givens was better qualified." (Smith Dep., at 219.) When pressed about how Givens was more self-motivated or had more industry knowledge or worked better with customers than English, Smith was unable to provide specifics; however, Smith emphasized that he placed heavy weight on the recommendations of CSA managers who had direct dealings with both men. ( Id. at 221-23.)

In addition to contesting Givens' relative qualifications, English asserts that CSA's failure to hire him in March 2004 violated the "well known custom in the industry that it [ sic] you worked for one company, as company clerk, and there was a lay off due to loss of business, you would be called back in the order of your company seniority. The company would call back employees rather than hire new employees off the board." (English Decl., at 7.) Plaintiff also points to a July 13, 2000 letter in which CSA agreed "to work under port `past practices and customs' recognized by employers and both locals. " (Plaintiff's Exh. F, at 2 (emphasis added).) However, plaintiff offers no evidence that this rehire custom might qualify as a "past practice or custom" recognized as such by stevedoring companies and relevant union locals.

English filed a grievance with the Union to contest the hiring of Givens for the company clerk position. (English Decl., at 10.) On the same day, English attended a grievance hearing at which, he testified, Bobby Smith "said that CSA was looking at younger employees and he didn't hire Paul Smith because he was too young or something like that, he said. I'm not sure of the facts." (English Dep., at 207.) Upon further questioning, English confirmed that Smith had "[m]ade the statement that CSA was looking for younger employees" during the May 2004 grievance hearing. ( Id. at 208.) The grievance was ultimately denied.

On October 7, 2004, English filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") in which he declared under penalty of perjury that he had applied for a regular clerk position, only to learn on April 12, 2004 that he had not been selected. Based on these facts, English alleged that CSA had discriminated against him on the basis of his race (black) and his age (58), in violation of Title VII and the ADEA. (English Dep., at Exh. 19.) On March 2, 2005, the EEOC provided English with a Dismissal and Notice of Suit Rights, and this Complaint ensued on May 27, 2005.

During the pendency of this litigation, CSA has elevated English to the position of company clerk. The uncontroverted evidence is that defendant hired plaintiff as a company clerk effective May 29, 2006. (Smith Supp. Decl., ¶ 3.) Thus, it appears that English has recently been selected for, and is currently performing, the very job that he claims to have been wrongfully denied for discriminatory reasons in 2004.

IV. Summary Judgment Standard.

Summary judgment should be granted only if "there is no 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). The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11^th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make `a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11^th Cir. 1992) (internal citations and quotations omitted). However, the mere existence of any factual dispute will not automatically necessitate denial of a motion for summary judgment; rather, only factual disputes that are material preclude entry of summary judgment. Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11^th Cir. 2004).

The Eleventh Circuit has expressly rejected the notion that summary judgment should seldom be used in employment discrimination cases because they involve issues of motivation and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11^th Cir. 2004). Rather, "the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale." Id. at 1086 (citation omitted).

V. Legal Analysis.

In a nutshell, defendant's position on summary judgment is that plaintiff's Title VII and ADEA claims are barred for failure to exhaust administrative remedies in a timely fashion, that his § 1981 race discrimination claims fail for lack of evidence of pretext, and that his state law claim of outrage is legally insufficient as a matter of law.

A. Limitations Issues.

A plaintiff may not sue under Title VII or the ADEA unless he first exhausts administrative remedies by filing a timely charge of discrimination with the EEOC. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11^th Cir. 2001) (Title VII); Jones v. Dillard's, Inc., 331 F.3d 1259, 1263 (11^th Cir. 2003) (ADEA). In a non-deferral state such as Alabama, the deadline for filing is 180 days after the alleged discriminatory act. See Ledbetter v. Goodyear Tire and Rubber Co., 421 F.3d 1169, 1178 (11^th Cir. 2005) (explaining that Alabama is a non-deferral state, such that only unlawful practices occurring within 180 days of the operative EEOC charge can yield Title VII liability); Jones, 331 F.3d at 1263 (finding that in states without state equivalent to EEOC, such as Alabama, ADEA requires charge to be filed within 180 days). Defendant maintains that English has failed to satisfy this threshold 180-day filing requirement with respect to either his 2002 claims or his 2004 claims.

1. Title VII and ADEA Claims Regarding 2002 Personnel Decisions. As discussed supra, the parties are in agreement that English is pursuing race and age discrimination claims under Title VII, the ADEA, and § 1981 arising from his layoff in January 2002 and CSA's subsequent decision not to hire English for the Assistant Chief Clerk position, also in January 2002. It is uncontroverted, however, that plaintiff never filed an EEOC Charge of Discrimination pertaining to the alleged incidents of race and age discrimination in 2002. Accordingly, plaintiff's Title VII and ADEA claims relating to the 2002 personnel decisions are properly dismissed for failure to exhaust administrative remedies in a timely manner. See, e.g., Wilkerson, 270 F.3d at 1317 ("Before a potential plaintiff may sue for discrimination under Title VII, she must first exhaust her administrative remedies.").

With regard to the 2004 company clerk positions, the timeliness issue is a bit different. It is undisputed that plaintiff did in fact file an EEOC Charge on October 7, 2004 relating to CSA's failure to hire him as a company clerk. Defendant's position is that the Charge was filed more than 180 days after English was notified of his non-selection, rendering it untimely and barring plaintiff's Title VII and ADEA claims relating to that event. (Defendant's Brief, at 29.) Certainly, there is evidence in the record that might support an inference that English learned that he had been passed over for the company clerk job on April 9, 2004, or 181 days before he filed his EEOC Charge. However, there is also credible evidence that English first received this information on April 12, 2004, or 178 days before he filed the Charge. ( See English Decl., at 9; EEOC Charge, at 1.) The Court cannot definitively resolve this factual discrepancy at the Rule 56 stage. The record in the light most favorable to plaintiff supports a reasonable inference that English first became aware that he had not been hired as a company clerk on April 12, 2004, such that he filed his EEOC Charge within 180 days after acquiring that knowledge. Accordingly, the Motion for Summary Judgment is denied to the extent that it seeks to jettison plaintiff's Title VII and ADEA claims pertaining to the March 2004 hiring decision on limitations or exhaustion grounds.

B. The McDonnell Douglas Burden-Shifting Framework.

Absent direct evidence of discrimination, English must make a showing of circumstantial evidence which satisfies the test set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this familiar, tripartite burden-shifting analysis, plaintiff is required to make out a prima facie case of race and age discrimination. If he does so, that showing "creates a rebuttable presumption that the employer acted illegally." Underwood v. Perry County Com'n, 431 F.3d 788, 794 (11^th Cir. 2005). At that point, "the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for [the adverse employment action]. . . . If the employer does so, the burden shifts back to the plaintiff to introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination." Zaben v. Air Products Chemicals, Inc., 129 F.3d 1453, 1457 (11^th Cir. 1997) (citations omitted). A plaintiff may establish pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." Brooks v. County Com'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11^th Cir. 2006) (quotation omitted); see also Wilson, 376 F.3d at 1088 (similar). The ultimate burden of persuasion remains with the plaintiff. See E.E.O.C. v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11^th Cir. 2002). Thus, "[i]f the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1024-25 (11^th Cir. 2000) ( en banc).

Here, English complains of race and age discrimination by CSA in hiring and layoff decisions. To establish a prima facie case of discriminatory denial of promotion or failure to hire under federal anti-discrimination statutes, a plaintiff must show that (i) he belongs to a racial minority (or is in the protected age class); (ii) he was qualified for and applied for a position the employer was trying to fill; (iii) he was denied the position; and (iv) others who were not members of the protected class (or who were substantially younger than plaintiff) were hired, or the employer continued to seek applicants with the plaintiff's qualifications. See Vessels v. Atlanta Independent School System, 408 F.3d 763, 768 (11^th Cir. 2005); Underwood, 431 F.3d at 794; Wilson, 376 F.3d at 1089. "A plaintiff does not shift the burden to the defendant under McDonnell Douglas merely by stating that he was fired or treated unfavorably. McDonnell Douglas requires the plaintiff to establish a prima facie case which includes identifying an individual who replaced him or was treated better than he was who was not a member of his protected class." Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11^th Cir. 2005); see also Underwood, 431 F.3d at 794 (finding that Title VII plaintiff in failure-to-hire context must show that successful applicant was not within his protected class). "Only after the plaintiff has made his prima facie case does the burden shift to the defendant." Morris, 402 F.3d at 1082. C. The 2002 Layoff Decision.

English's first discrimination claim is a § 1981 cause of action alleging that CSA laid him off in January 2002 because of his race. CSA contends that plaintiff cannot establish a prima facie case of discrimination on this claim and that, even if he could, CSA has articulated a legitimate nondiscriminatory reason which plaintiff cannot show to be pretextual.

In the layoff context, the Eleventh Circuit has imposed an additional element, above and beyond the standard requirements (all of which are clearly satisfied here) of showing protected class, qualifications, and occurrence of an adverse employment action. To show a prima facie case of race discrimination in a reduction in force setting, a plaintiff must also "produce some evidence that an employer has not treated [race] neutrally, but has instead discriminated based upon it. Specifically, the evidence must lead the factfinder reasonably to conclude either that the defendant (1) consciously refused to consider retaining or relocating a plaintiff because of his [race], or (2) regarded [race] as a negative factor in such consideration." Rowell v. BellSouth Corp., 433 F.3d 794, 798 (11^th Cir. 2005) (citation omitted); see also Jameson v. Arrow Co., 75 F.3d 1528, 1532 (11^th Cir. 1996) (similar). It is this last factor to which defendant's summary judgment argument is directed in the first instance.

To shoulder his burden on this point, English proffers two arguments. First, he acknowledges that Rowell "is a correct statement of current Eleventh Circuit jurisprudence," but urges this Court to "jettison" its formulation of the prima facie case as inconsistent with other authorities. (Plaintiff's Brief, at 22.) This the Court cannot and will not do. Second, plaintiff likens this case to Jameson, in which the Eleventh Circuit held that an inference of discrimination was permissible and the prima facie elements were satisfied where the employer failed to hire the plaintiff into available vacancies during a reduction in force, but instead hired persons outside the protected class to fill those slots. 75 F.3d at 1532-33. The analogy is apt, as English's evidence is that CSA engaged in the same kind of process ( i.e., laying off a protected class worker and simultaneously hiring a comparable non-protected class worker into another position) that was found to satisfy the prima facie test in Jameson. As such, plaintiff has satisfied his prima facie obligations with respect to the 2002 layoff, and the burden of production therefore shifts to CSA to come forward with a legitimate nondiscriminatory reason for its decision to lay off English.

Defendant responds that English was laid off because of the loss of Clipper Lines, a significant account on which English was working full-time in the fourth quarter of 2001, as a customer to a non-union stevedore effective January 1, 2002. (Hirsch Decl., ¶ 14.) When the Clipper Lines business was lost, the overall level of CSA's work declined, prompting CSA to release three company clerks. ( Id., ¶¶ 15-16.) Having chosen to conduct a small reduction in force, CSA turned to its Working Agreement with the Union for the proper procedures shaping execution of that decision. ( Id., ¶ 15.) Under that Agreement, "[c]ompany seniority shall determine the order of layoff of regular clerks under the principal [ sic] of `last in, first out.'" (English Dep., at Exh. 2, ¶ 7(e)(2).) To satisfy its contractual obligations to the Union, then, defendant was bound to carry out the layoff by terminating the three company clerks with the least company seniority. (Hirsch Decl., ¶ 15.) In order of seniority (from most to least senior), CSA employees English, Forrest duBruyne and John Hayes were the three least senior company clerks at that time, so they were designated for layoff. ( Id.) This showing plainly satisfies defendant's burden of production.

Defendant having met its burden, "the employee must come forward with evidence sufficient to permit a reasonable fact finder to conclude that the legitimate reasons given by the employer were not its true reasons, but were a pretext for discrimination." Vessels, 408 F.3d at 771. "This evidence must reveal such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence." Id. (citations omitted). Plaintiff's pretext argument is not delineated with as much clarity as one might hope; however, he apparently challenges the need to conduct a layoff at all in January 2002 (Plaintiff's Brief, at 9), and further argues that the parties' history ( e.g., initially leaving English's name off the July 2000 hire list, not assigning English bookman duties that he had performed previously, not giving English adequate training on the Clipper Lines computer system, not hiring a black employee named Carlis Howze in 2000) establishes that the January 2002 layoff was part of a lengthy sequence of discriminatory actions directed at English. ( Id. at 28-29.)

CSA's decision to lay off three company clerks in January 2002 was a business decision following close on the heels of the loss of an account. As a general proposition, a plaintiff cannot establish pretext simply by disputing the wisdom of that business decision. See Rowell, 433 F.3d at 798-99 (explaining that "[i]t is by now axiomatic that we cannot second-guess the business decisions of an employer"); Chapman, 229 F.3d at 1030 (in showing pretext, "employee cannot succeed by simply quarreling with the wisdom of that reason"). The uncontroverted evidence is that CSA lost an account, that it immediately decided to trim its ranks of company clerks by three, and that it executed that decision in strict compliance with the applicable collective bargaining agreement. Any contention by plaintiff that no layoff was necessary, that fewer than three company clerks should have been released, or that the layoff should have been conducted in a manner other than that prescribed by the collective bargaining agreement is just the sort of armchair-quarterbacking which the Eleventh Circuit has steadfastly refused to indulge in the context of the pretext analysis. Likewise, plaintiff's argument that at other times in other places CSA has treated black employees less favorably is unpersuasive because it rests on perceived slights that were promptly corrected ( e.g., the exclusion of English from the July 2000 hire list), business decisions pertaining to assignment and allocation of labor ( e.g., the relative non-use of English as a bookman), or employment decisions pertaining to other workers whose circumstances are attenuated from those at issue here.

"[T]o avoid summary judgment [the plaintiff] must introduce significantly probative evidence showing that the asserted reason is merely a pretext for discrimination." Clark v. Coats Clark, Inc., 990 F.2d 1217, 1228 (11^th Cir. 1993) (citation omitted). Considering plaintiff's pretext evidence and arguments in their entirety, the undersigned is of the opinion that English has failed to meet this burden as to the January 2002 reduction in force. Accordingly, defendant's Motion for Summary Judgment is granted as to the § 1981 claim arising from the 2002 layoff.

D. The 2002 Assistant Chief Clerk Hiring Decision.

Plaintiff's next claim is a § 1981 race discrimination cause of action arising from CSA's decision to hire Hayes, and not English, for the Assistant Chief Clerk position. Defendant correctly concedes that plaintiff has produced sufficient evidence to establish a prima facie case (Defendant's Brief, at 22); therefore, the Court will move straight to the second and third steps of the McDonnell Douglas analysis.

Defendant explains its decision not to hire English as Assistant Chief Clerk in the following terms: The Working Agreement between CSA and the Union authorized CSA to select an Assistant Chief Clerk "with the consent of the Union without regard to seniority." (English Dep., at Exh. 2, ¶ 7(a).) Being at liberty to select anyone they wished, so long as the Union consented, and not being bound by seniority, CSA managers decided to hire Hayes, based on their assessment that "he had booking experience, he's headed up piers in the past, he has great working knowledge of cargoes, he has good communications skills with customers and other employees," and he is the "single best individual on overseeing other individuals under his direction." (Smith Dep., at 159.) After consultation among those managers, CSA elected not to hire English for this job because its assessment was that he did not rank as highly on those indices as did Hayes. ( Id.) This evidence certainly establishes a legitimate nondiscriminatory reason for the personnel decision at issue.

Again, plaintiff's pretext argument is largely camouflaged within his brief; however, the Court understands his position to be that CSA's qualifications-based explanation for hiring Hayes is pretextual because (a) English had far more company seniority than Hayes; and (b) CSA decision makers had only limited familiarity with English's job performance. The former point is irrelevant, because the uncontroverted evidence is that CSA did not (and was not required to) base its hiring decision on company seniority. It being undisputed that seniority was not a selection criterion, the relative standing of English and Hayes on that factor is of no consequence. See Cofield v. Gold Kist, Inc., 267 F.3d 1264, 1269 (11^th Cir. 2001) (declining to second-guess employer's decision to rely on qualifications rather than length of service in making personnel decision, inasmuch as courts do not sit as super-personnel departments to re-examine business decisions).

As for the latter point, the record viewed in the light most favorable to the plaintiff is that CSA management observed both Hayes and English in the performance of their duties for CSA in the fall of 2001. ( See, e.g., Hirsch Decl., ¶¶ 14, 17, 18.) Plaintiff may feel that he was more qualified than Hayes. He may think that the hiring decision should have been founded on seniority, rather than subjective factors. He may believe that it was unfair for the company not to hire him when it had engaged in only limited appraisal of his abilities. He may believe that the company's glowing assessment of Hayes' qualifications is just plain wrong. But such subjective beliefs do not satisfy a plaintiff's burden of establishing pretext. A plaintiff "cannot prove pretext by asserting baldly that she was better qualified than the person who received the position at issue." Wilson, 376 F.3d at 1090; see also Brooks, 446 F.3d at 1163 (similar). Instead, for a plaintiff to satisfy pretext based on relative qualifications, the "disparities in qualifications must be 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." Ash v. Tyson Foods, Inc., ___ U.S. ___, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006); see also Cooper v. Southern Co., 390 F.3d 695, 732 (11^th Cir. 2004) (same). English clearly has not satisfied that threshold. Nor does it suffice to demonstrate pretext for English to argue that CSA's decision was unwise or unfair because CSA should have conducted further evaluation of his job performance first. See Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11^th Cir. 2001) ("a plaintiff employee may not establish that an employer's proffered reason is pretextual merely by questioning the wisdom of the employer's reason," as long as "the reason is one that might motivate a reasonable employer"); Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11^th Cir. 1999) ("We are not in the business of adjudging whether employment decisions are prudent or fair.").

"The heart of the pretext inquiry is not whether the employee agrees with the reasons that the employer gives for the discharge, but whether the employer really was motivated by those reasons." Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1333 (11^th Cir. 1998). After careful review of plaintiff's evidence and arguments, the Court finds that no reasonable factfinder could conclude that CSA's stated reasons for selecting Hayes as Assistant Chief Clerk were not the true reasons and that race discrimination was the real reason. The uncontroverted evidence is that CSA managers unanimously evaluated Hayes as an outstanding performer in the various competencies valued in an Assistant Chief Clerk, and that based on limited observations those same managers did not rank English as highly. On this record, a reasonable fact finder could not find that CSA's qualifications assessments were not made honestly and in good faith or that CSA's stated reasons are otherwise unworthy of credence. Because English is unable to satisfy the third prong of the McDonnell Douglas test, his § 1981 claim arising from the January 2002 decision not to hire him as Assistant Chief Clerk is due to be, and the same hereby is, dismissed. E. The 2004 Company Clerk Hiring Decision.

Plaintiff's final federal claim alleges race and age discrimination pursuant to Title VII, § 1981, and ADEA with respect to defendant's decision not to hire him for a company clerk position in March 2004. Once again, defendant properly acknowledges that plaintiff has established a prima facie case of discrimination as to this cause of action. (Defendant's Brief, at 27.) There being no dispute as to whether a prima facie showing has been made, this analysis focuses on defendant's stated reason for the decision, and plaintiff's ability to demonstrate that such reason was a pretext for unlawful discrimination.

According to defendant, the selection process for the 2004 company clerk hiring was governed by the collective bargaining agreement between CSA and the Union. The operative Working Agreement delineates the following three-step process for selection of new company clerks: (a) CSA informs the Union of its need and requests applications from persons on the seniority list; (b) applicants may be eliminated for just cause; and (c) CSA "may select any one of the three (3) remaining senior-most applicants." (English Dep., at Exh. 3, ¶ 7(e)(4).) The three senior-most applicants for the company clerk job who were not disqualified for just cause were, in order of decreasing company seniority, English (black, 59 years old), Paul Smith (white, 31 years old), and Gerry Givens (white, 46 years old). Although Givens had the least seniority of these candidates, CSA management determined that he was the most qualified person for the job. At a 45-minute meeting, Hirsch, Rogers and Roberts all recommended to Smith that Givens be selected over English. (Smith Dep., at 214-16.) None of these managers criticized English's job performance or qualifications; however, the prevailing sentiment was that Givens was more self-motivated than English, was more proficient at dealing with customers and problem-solving, and had better knowledge of the industry. ( Id. at 216-19.) In particular, Givens was lauded for his performance on the Clipper Line account during the transition period of fall 2000 through fall 2001, and was deemed to have done an excellent job in handling a very difficult account. ( Id. at 225.) By contrast, the CSA decisionmakers viewed English as a "capable clerk," but one who had neither distinguished himself nor demonstrated the skill, initiative and ability that Givens had shown as bookman/clerk-in-charge on the Clipper Lines account. (Hirsch Decl., ¶ 13; Roberts Decl., ¶ 3.) In Hirsch's words, Givens was considered to be "heads and shoulders above" the other two applicants, English and Paul Smith (who was white and younger than both Givens and English). (Hirsch Decl., ¶ 22.) CSA plainly has produced evidence of a legitimate nondiscriminatory reason for the contested hiring decision.

Yet again, it is a struggle to glean plaintiff's pretext argument from his 30-page memorandum of law. Among the apparent bases for English's pretext claim which the Court has plucked from scattered locations in his brief are the following: (a) Smith's lack of knowledge of English's bookman experience and skills; (b) English's higher seniority level than Givens, the self-professed "bottom man in the union"; (c) CSA's alleged lack of knowledge of Givens' bookman work on the Clipper Line account, and Hirsch's reliance on hearsay in evaluating Givens' work; (d) the violation of English's alleged recall rights by hiring Givens; (e) Smith's alleged comment at the grievance hearing regarding younger employees; and (f) CSA's history with respect to black employees generally, and English specifically. (Plaintiff's Brief, at 10, 13, 18, 23, 26-29.) Considered individually and collectively, these contentions do not furnish the requisite "significantly probative evidence showing that the asserted reason is merely a pretext for discrimination." Clark, 990 F.2d at 1228.

Plaintiff's assertion that CSA managers lacked personal knowledge of English's and Givens' respective skills and abilities is unsupported by the evidence, and is in fact directly contradicted by the well-developed record on summary judgment. Smith's relative lack of personal knowledge on this topic is unremarkable, given his testimony that he relied on the recommendations and observations of other managers in making the hiring decision. (Smith Decl., ¶ 2; Hirsch Decl., ¶ 22.) And Hirsch's Declaration expressly avows personal knowledge of the work of both Givens and English. (Hirsch Decl., ¶¶ 10, 12, 13.) English may wish that CSA had researched the applicants further before making this hiring decision. Perhaps it would have been prudent or advisable for CSA to do so; however, this Court is not here to decide whether defendant's decision to hire Givens was wise or prudent, or whether he had been sufficiently vetted before that hiring decision was made. See Chapman, 229 F.3d at 1030 (one "reasonably may disagree about whether an employer acted correctly or fairly, but such potential disagreement does not, without more, create a basis to disbelieve the employer's explanation").

Likewise, plaintiff's argument that he was more qualified than Givens because he possessed more seniority than Givens in no way signifies pretext. CSA's unchallenged evidence is that the hiring decision in question was not based on straight seniority, and that seniority was "not as significant as demonstrated job performance with regard to bookman/clerk-in-charge jobs." (Hirsch Decl., ¶ 23; Smith Decl., ¶ 2.) English may well disagree with CSA's relative weighting of seniority and performance in the hiring calculus, but such disagreement, without more, cannot demonstrate pretext. See Cofield, 267 F.3d at 1269 (refusing to second-guess employer's decision to emphasize qualifications over length of service).

On the topic of recall rights, English contends that there was an industry practice under which employees laid off due to loss of business would be called back in order of seniority, rather than being supplanted by new employees. (English Decl., at 7.) Because Givens was chosen instead of him, English reasons, his recall rights were violated, which in and of itself raises an inference of discrimination. There is no evidence, however, that CSA ever ascribed to, adopted or honored that purported "industry practice." CSA managers, and Union officials, emphatically denied that the company had ever followed such a recall procedure. (Hirsch Decl., ¶ 15; Smith Dep., at 198-99; Bowden Dep., at 25-26, 78-79.). At his deposition, English himself could not name a single instance in which a CSA company clerk had ever been recalled, and there were several examples to the contrary (including both English and a white clerk, Forrest duBruyne). (English Dep., at 335-37.) Absent evidence that CSA ever adopted or followed this purported "industry practice," its failure to do so in English's case is not probative of pretext.

Next, English asserts that a statement made by Smith during the grievance hearing could prompt a reasonable factfinder to conclude that CSA's stated reasons for not hiring English for the company clerk position were a pretext for age discrimination. According to English, Smith said "that CSA was looking at younger employees and he didn't hire Paul Smith because he was too young or something like that, he said. I'm not sure of the facts." (English Dep., at 207.) Age-related comments made by a decisionmaker close in time to a challenged personnel decision and relating to that decision may constitute a sufficient showing of discrimination. See, e.g., Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5^th Cir. 2003) (under stray remarks doctrine, comment provides sufficient evidence of discrimination if it is "(1) age related, (2) proximate in time to the termination, (3) made by an individual with authority over the termination, and (4) related to the employment decision"). The problem is this: English's account of Smith's statement is too nebulous, too ambiguous, too indefinite, and too amorphous to cast doubt on CSA's stated reason for hiring Givens. To say that CSA was "looking at younger employees" in some generic sense is not the same as saying that English is too old or that the 46-year old Givens was hired because he was younger than the 58-year old English. Besides, English says that Smith immediately followed up this comment by stating that the 31-year old Paul Smith was "too young," which suggests that, if anything, the company was slanted against under-40 employees. To further confound matters, English followed up this testimony with a backpeddling disclaimer, "I'm not sure of the facts." Even accepting English's testimony as 100% true, the fuzzy, ill-defined evidence of Smith's statement at the grievance hearing is far too slender a reed to support a pretext finding.

Finally, plaintiff maintains that CSA's history of unfavorable treatment to English and its hiring history with respect to black company clerks generally is evidence from which a reasonable factfinder could disbelieve the company's stated reason for not hiring English as a company clerk in March 2004. But nothing in CSA's treatment of English over time is indicative of race or age discrimination. He was hired as a company clerk in September 2000, when CSA commenced operations in Mobile. He and two white company clerks were laid off in January 2002 based on lost business, and the layoff was conducted in strict accordance with the Union Working Agreement. He continued working as a freelance clerk and was considered for company clerk vacancies in June 2002 and March 2004. He was hired as a company clerk in May 2006. Nothing in this history is indicative of a pattern and practice of invidious discrimination directed at English. As to CSA's history more globally, English makes much of the fact that no other black company clerks have been hired; however, he identifies only one other African-American (Carlis Howze) who has ever applied for a company clerk position at CSA. Although that individual was rejected, there is no evidence before this Court from which a reasonable factfinder could conclude that CSA's treatment of Howze was in any way discriminatory on the basis of his race. These arguments do not show pretext.

For all of these reasons, plaintiff's § 1981, Title VII, and ADEA claims arising from the March 2004 hiring decision are due to be, and the same hereby are, dismissed for lack of evidence that such decision was predicated on unlawful age or race discrimination.

F. The State Law Outrage Cause of Action.

Although he omits mention of it in his summary judgment filings, plaintiff also brings a state-law claim of outrage against CSA.

While Alabama courts do recognize this tort, they have deemed it a "very limited cause of action that is available only in the most egregious circumstances." Thomas v. BSE Indus. Contractors, Inc., 624 So.2d 1041, 1044 (Ala. 1993) (noting that the Alabama Supreme Court "has held in a large majority of the outrage cases reviewed that no jury question was presented"); see also House v. Corporate Services, Inc., 882 F.Supp. 161, 165 (M.D. Ala. 1995) ("the Alabama Supreme Court is not predisposed to recognize that tort of outrage claims present jury questions"). So circumscribed, in fact, is the reach of the tort of outrage that the Alabama Supreme Court has allowed such claims only in three limited circumstances: "cases having to do with wrongful conduct in the context of family burials; cases where insurance agents employed heavy-handed, barbaric means to coerce a settlement; and cases involving egregious sexual harassment." Carter v. Harris, 64 F. Supp.2d 1182, 1194 (M.D. Ala. 1999) (citing Thomas, 624 So.2d at 1044).

A plaintiff attempting to prove the tort of outrage bears a heavy burden. See Ex parte Crawford Co., 693 So.2d 458 (Ala. 1997). To withstand summary judgment, the plaintiff must make a showing that the defendants engaged in conduct "so outrageous in character and so extreme in degree as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized society." American Road Service Co. v. Inmon, 394 So.2d 361, 365 (Ala. 1980). Alabama courts have strictly enforced the Inmon test.

Thus, a plaintiff claiming outrage must show: "(1) that the defendant's conduct was intentional or reckless; (2) that it was extreme and outrageous; and (3) that it caused emotional distress so severe that no reasonable person could be expected to endure it." Crawford, 693 So.2d at 460. Plaintiff has failed to come forward with evidence and argument to support any of these elements. He has not shown that CSA passed over him in March 2004 with the intent to cause him emotional distress. He has not presented any argument or authority that Alabama law might deem the failure to hire a freelance clerk into a regular clerk position for nondiscriminatory reasons to constitute the sort of egregious circumstances necessary to support a claim of outrage. And he has offered not one scrap of evidence that English sustained emotional distress as a result of not being hired in March 2004. This Court will not make the plaintiff's arguments for him. On this showing, no reasonable finder of fact could enter a determination in English's favor on his outrage claim. See generally Wyant v. Burlington Northern Santa Fe R.R., 210 F. Supp.2d 1263, 1295 (N.D. Ala. 2002) (granting employer's motion for summary judgment on outrage claim in sex discrimination context where there was no evidence that defendants intended to cause plaintiff severe emotional distress, the alleged discriminatory conduct was not sufficiently outrageous to support a claim, and she had not shown requisite level of emotional distress). Accordingly, the outrage cause of action is dismissed.

VI. Conclusion.

For all of the foregoing reasons, the Court finds that there are no genuine issues of material fact and that defendant is entitled to entry of judgment in its favor as a matter of law. As such, the Motion for Summary Judgment (doc. 45) is granted, and plaintiff's claims are dismissed with prejudice. A separate judgment will enter. The Motion to Strike (doc. 60) is granted in part and denied in part as set forth supra.