Opinion
Civil Action No. 12–0184–CG–N.
2013-05-29
Linda JOHNSON–MOSLEY, Plaintiff, v. ALABAMA UNIFIED JUDICIAL SYSTEM, Administrative Office of Courts, and the Juvenile Court of Mobile County, Alabama, Hon. Edmond Naman and Lawrence Battiste, Defendants.
Ronnie L. Williams, Mobile, AL, for Plaintiff. Benjamin Howard Albritton, Office of the Attorney General, Montgomery, AL, for Defendants.
Ronnie L. Williams, Mobile, AL, for Plaintiff. Benjamin Howard Albritton, Office of the Attorney General, Montgomery, AL, for Defendants.
ORDER
CALLIE V.S. GRANADE, District Judge.
This matter is before the court on the motion for summary judgment (Doc. 40) filed by the defendants, the Alabama Administrative Office of Courts (the “AOC”), the Juvenile Court of Mobile County, Alabama (the “Juvenile Court”), Judge Edmond Naman (“Judge Naman”), and Lawrence Battiste (“Battiste”) (collectively, the “defendants”). The court has reviewed the parties' briefs in support and opposition (Docs. 40, 44, 45, 50, 51) and the matter is now ripe for resolution. For the reasons stated below, the defendants' motion for summary judgment is due to be GRANTED.
Plaintiff's motion for leave to file a sur-reply, (Doc. 51), to which the Defendants have not objected, is GRANTED. Plaintiff's motion to strike Defendants' reply and to strike the accompanying Affidavit (Doc. 52) is DENIED AS MOOT.
I. FACTUAL BACKGROUND
The plaintiff, Linda Johnson–Mosley (“Mosley”) is a 60–year–old African–American female who has been employed by the Juvenile Court as a Juvenile Probation Officer for over 37 years. Doc. 24 at 3. She has over 40 years of experience in the fields of psychology and counseling and holds a B.A. degree in Psychology, an M.A. degree in Counseling and Guidance, and an Ed.D. in Counseling and Counseling Psychology. Doc. 45 at 1–2, 7.
During her tenure with the Juvenile Court, Mosley performed a variety of supervisory roles and received several noteworthy appointments and awards. Doc. 45–1 at 1–4. She served on the Governor's Advisory Council on Juvenile Justice and the Children's Policy Council. Id. at 4. In 2002 she was recognized as the Probation Supervisor of the Year and was named Employee of the Year for Region III of the State of Alabama in 1993. Id. More recently, she was selected to participate in Leadership Mobile for the Class of 2010. Id.
Throughout her career, Mosley received “Excellent” and “Outstanding” ratings on her performance evaluations. Id. at 5. On her most recent evaluation, performed on October 6, 2009, Larry Harris, the outgoing Chief Juvenile Probation Officer (“CJPO”), rated Mosley “outstanding” (35 out of 35). Id. at 7.
Mosley alleges the “atmosphere” at the Juvenile Court changed in early 2009, after she complained to Judge Naman about racially insensitive remarks directed toward her by a white supervisor, Pat Cannedy, at a conference in February 2009. Id. at 5. In a written complaint addressed to Judge Naman shortly thereafter, Mosley voiced two complaints. First, she complained that Cannedy referred to her as a “slave driver.” Doc. 45–7. Second, she complained that Cannedy improperly disclosed the identity of a Juvenile Court Referee and made comments which, in Mosley's opinion, left the group with a negative impression of the Referee. Id. Mosley contends that Judge Naman did not acknowledge her written complaint as evidenced by the fact that he appointed Cannedy and other white supervisors to a Leadership Team for the Juvenile Court shortly after receiving Mosley's letter. Doc. 45–1 at 5. Cannedy was also appointed to the Probation Reform Team, which was responsible for “completely restructuring and overhauling the entire Probation Department.” Id. Mosley states that she met with Judge Naman to discuss her concern that the Leadership Team consisted of all white supervisors who, in Mosley's opinion, had less education and experience than she did. Id.
Several months later, in August 2009, Mosley learned that the CJPO was due to retire, and met with Judge Naman to discuss her interest in the position. Id. at 5–6. In late September 2009, the Juvenile Court posted a job vacancy announcement for the newly-vacated CJPO position. Doc. 40–8 at 14. Mosley applied, but was not selected. Doc. 45–1 at 7. Instead, the Juvenile Court hired Lawrence Battiste, a black male with a Bachelor's degree in human resources management and an extensive law enforcement background. Doc. 40–2 at 4.
The court refers to Mosley's version of the job vacancy announcement (Doc. 45–5).
On February 7, 2010, Mosley filed a grievance with the Administrative Office of the Courts (“AOC”) alleging that Judge Naman had retaliated against her by refusing to interview her for the CJPO position. Doc. 45–1 at 8. The next day, she filed a formal complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”) (the “2010 EEOC Charge”) alleging sex and age discrimination. Doc. 45–6 at 1.
Additionally, Mosley contends that Naman and Battiste retaliated against her for filing the 2010 EEOC Charge by promoting Cannedy to the position of Deputy Chief Probation Officer without posting public notice of the vacancy; by relocating her office to a less desirable location; by reducing the number of Juvenile Probation Officers she supervised from ten to zero; by adding to her workload; and ultimately informing her on March 31, 2011, that she was being laid off due to administrative restructuring in the Juvenile Court. Doc. 45–1 at 9–10.
On April 4, 2011, believing that her termination was retaliatory, Mosley filed anotherEEOC charge against the Juvenile Court (“2011 EEOC Charge”) alleging sex and age discrimination and retaliation. Doc. 45–6 at 2. Additionally, Mosley appealed the layoff decision to the AOC on April 15, 2011. Doc. 45–8. In June 2011, the Appeals Board ordered that Mosley be reinstated with benefits and back pay, and placed in a comparable position to the nearest classification to the one that had been abolished as part of the administrative restructuring. Doc. 40–4 at 1.
On December 21, 2011, the EEOC declined to file suit on Mosley's behalf, but issued her a right to sue letter for her 2010 EEOC Charge. Doc. 45–4 at 1. Mosley filed suit on March 13, 2012, but later filed an amended complaint (Doc. 24) on October 24, 2012, after receiving notice of a right to sue with respect to the 2011 EEOC Charge. Mosley asserts claims for sex-based discrimination and retaliation under Title VII, § 1981, and § 1983. See Doc. 24 at 12–13.
II. SUMMARY JUDGMENT STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment shall be granted “if the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law.” The trial court's function is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “The mere existence of some evidence to support the non-moving party is not sufficient for denial of summary judgment; there must be ‘sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.’ ” Bailey v. Allgas, Inc., 284 F.3d 1237, 1243 (11th Cir.2002) (quoting Anderson, 477 U.S. at 249, 106 S.Ct. 2505). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249–250, 106 S.Ct. 2505. (internal citations omitted).
The basic issue before the court on a motion for summary judgment is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” See Anderson, 477 U.S. at 251–252, 106 S.Ct. 2505. The moving party bears the burden of proving that no genuine issue of material fact exists. O'Ferrell v. United States, 253 F.3d 1257, 1265 (11th Cir.2001). In evaluating the argument of the moving party, the court must view all evidence in the light most favorable to the non-moving party, and resolve all reasonable doubts about the facts in its favor. Burton v. City of Belle Glade, 178 F.3d 1175, 1187 (11th Cir.1999). “If reasonable minds might differ on the inferences arising from undisputed facts, then a court should deny summary judgment.” Hinesville Bank v. Pony Exp. Courier Corp., 868 F.2d 1532, 1535 (11th Cir.1989) (citing Mercantile Bank & Trust v. Fidelity & Deposit Co., 750 F.2d 838, 841 (11th Cir.1985)).
Once the movant satisfies her initial burden under Rule 56(a), the nonmoving party “must make a sufficient showing to establish the existence of each essential element to that party's case, and on which that party will bear the burden of proof at trial.” Howard v. BP Oil Co., 32 F.3d 520, 524 (11th Cir.1994)(citing Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Otherwise stated, the non-movant must “demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991). The non-moving party “may not rely merely on allegations or denials in its own pleading; rather, its response .... must be by affidavits or as otherwise provided in this rule be set out specific facts showing a genuine issue for trial.” Vega v. Invsco Group, Ltd., 432 Fed.Appx. 867, 870 (11th Cir.2011). “A mere ‘scintilla’ of evidence supporting the [non-moving] party's position will not suffice; there must be enough of a showing that the jury could reasonably find for that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.1990) (citation omitted). “[T]he nonmoving party may avail itself of all facts and justifiable inferences in the record taken as a whole.” Tipton v. Bergrohr GMBH–Siegen, 965 F.2d 994, 998 (11th Cir.1992). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (internal quotation and citation omitted).
III. LEGAL ANALYSIS
A. Claims Against Individual Defendants
Counts Three and Four of Mosley's second amended complaint allege that the AOC, the Mobile County Juvenile Court, and Judge Naman violated Mosley's Title VII rights. Doc. 24 at 12–13. The defendants argue that Mosley “cannot maintain an action” against either Naman or Battiste in their individual capacities because their employer, the AOC, is also a named defendant. Doc. 40 at 7–8 ( citing Taylor v. Alabama, 95 F.Supp.2d 1297, 1309 (M.D.Ala.2000)). This argument is somewhat misplaced.
First, the court notes that Battiste is not named in any of the Title VII counts. Mosley only brought individual capacity Title VII claims against Judge Naman. See Doc. 24 at 12–13. Secondly, Mosley concedes in her opposition brief that she only wants to proceed against Naman and Battiste as individuals under § 1981. Doc. 45 at 5, 6, 16 n. 4. Thus, although the defendants are correct in that Mosley cannot maintain a Title VII claim against Judge Naman, they are incorrect to argue flatly that she cannot maintain an action against him at all.,
The court notes in passing that individual capacity suits under Title VII are inappropriate, generally. Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir.1991).
The defendants also urge that “any Title VII claims against Judge Naman or Mr. Battiste that are not prohibited would be barred as untimely.” Doc. 40 at 9. For the reasons stated, supra, the court finds this argument to be moot.
Accordingly, the defendants' motion for summary judgment is granted in part with regard to Mosley's Title VII claims against Judge Naman in his individual capacity (Counts Three and Four). The court will address the remainder of Counts Three and Four, as well as Mosley's § 1981 claims against Judge Naman and Battiste, in greater detail, infra.
B. § 1983 Claims (Counts One and Two)
Mosley alleged claims for violation of her due process rights under the 5th and 14th Amendments of the United States Constitution, brought via 42 U.S.C. § 1983. Doc. 24 at 12 (Counts One and Two). However, Mosley's opposition to summary judgment contains no mention of these claims. The only claims she discussed in her brief relate to her allegations of discrimination and retaliation pursuant to Title VII and § 1981. See Doc. 45. Therefore, Counts One and Two are deemed abandoned, and summary judgment is due to be granted in favor of the defendants on these counts. See Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (holding that a claim included in a complaint but not raised at summary judgment is deemed abandoned). See also Shamburger v. City of Mobile, 2008 WL 2874363 at *1 (S.D.Ala.2008) (“grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”) ( citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.1995)).
C. Discrimination Claims (Counts Three and Five)
1) Statement of the Law
Mosley's discrimination claims are brought pursuant to Title VII and 42 U.S.C. § 1981. Title VII prohibits an employer from discriminating against a person based on a protected factor such as race, color, sex, religion, or national origin. 42 U.S.C. § 2000e–2(a)(1). Likewise, § 1981 prohibits intentional discrimination in the making and enforcement of public and private contracts, including employment contracts. See, e.g., Johnson v. Railway Express Agency, 421 U.S. 454, 95 S.Ct. 1716, 44 L.Ed.2d 295 (1975) (holding unequivocally that § 1981 protects against racial discrimination in private employment).
The test for intentional discrimination in suits under Title VII and § 1981 is the same. Ferrill v. Parker Group, 168 F.3d 468 (11th Cir.1999). The plaintiff has the burden of establishing a prima facie case of employment discrimination by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). This prima facie case can be established in any one of three ways: (1) by presenting direct evidence of discriminatory intent; (2) by presenting circumstantial evidence of discriminatory intent through the McDonnell Douglas test; or (3) by demonstrating through statistics a pattern of discrimination. Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir.1990).
Where, as here, the plaintiff wishes to prove a claim of race or sex discrimination through circumstantial rather than direct evidence, the court evaluates the claims using the burden-shifting framework established by the Supreme Court in McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817. As stated, supra, under this framework the plaintiff must satisfy the initial burden under the statute by establishing a prima facie case of intentional discrimination. Smith v. Lockheed–Martin Corporation, 644 F.3d 1321, 1324–25 (11th Cir.2011). For claims of race or sex discrimination, the plaintiff must show that (1) she is a member of a protected class (here, female and African–American); (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) her employer treated her less favorably than similarly situated individuals outside of her protected class. Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.2010). With respect to this last showing, “the individuals must be similarly situated in all relevant respects besides race, since different treatment of dissimilarly situated persons does not violate civil rights laws.” Jackson v. BellSouth Telecommunications, 372 F.3d 1250, 1273–1274 (11th Cir.2004) (internal citations and quotation omitted).
If a plaintiff establishes the prima facie elements of the claim, she raises a presumption that her protected status (i.e., race or sex) motivated her employer to treat her unfavorably. Smith v. Lockheed–Martin Corporation, 644 F.3d 1321, 1325 (11th Cir.2011) ( citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The defendant then has an opportunity to articulate a legitimate, non-discriminatory reason for the challenged employment action as an affirmative defense to liability. Id. This burden of rebuttal is “extremely light.” Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1495 (11th Cir.1989). If the defendant employer meets its burden, then the presumption of discrimination raised by the plaintiff's prima facie case is rebutted and thus disappears. Smith, 644 F.3d at 1325–26.
The plaintiff must then provide evidence that creates a genuine issue of material fact that the defendant's articulated, nondiscriminatory reasons are, instead, a pretext for unlawful race or sex discrimination. See Brooks v. County Comm'n of Jefferson County, 446 F.3d 1160, 1163 (11th Cir.2006) (internal quotation marks and citation omitted) (plaintiff shows pretext by “demonstrat[ing] that the proffered reason was not the true reason for the employment decision[,]” and by “introduc[ing] significantly probative evidence ... that the asserted reason is merely pretext for discrimination.”). An employer's reason is not pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason.” Id. at 1163 (emphasis in original) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)). As part of the pretext inquiry, the court “must evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable fact finder could find them unworthy of credence.” Jackson v. State of Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir.2005) (internal quotation marks and citations omitted). “A plaintiff is not allowed to recast an employer's proffered nondiscriminatory reasons or substitute his business judgment for that of the employer. Provided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir.2000).
2) Mosley's Prima Facie Case
In order to establish a prima facie case of failure to promote, Mosley must show that: “(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 (11th Cir.2004). “Demonstrating a prima facie case is not onerous; it requires only that the plaintiff establish facts adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1561–62 (11th Cir.1997) (citations omitted).
The defendants argue that Mosley cannot establish that she suffered an adverse employment action because the CJPO position for which she applied was statutorily exempted from Title VII's coverage by virtue of the “personal staff exemption” contained in 42 U.S.C. § 2000e(f). Doc. 40 at 11–13. This statute states that, for purposes of Title VII, “the term ‘employee’ shall not include any person elected to public office in any State or political subdivision of any State by the qualified voters thereof, or any person chosen by such officer to be on such officer's personal staff, or an appointee on the policy making level or an immediate advisor with respect to the exercise of the constitutional or legal powers of the office....” 42 U.S.C. § 2000e(f) (emphasis added). Unsurprisingly, Mosley disputes that the CJPO position falls within this exemption. Doc. 45 at 11–12.
“[A] plaintiff's status as an employee under Title VII is a question of federal, rather than of state, law; it is to be ascertained through consideration of the statutory language of the Act, its legislative history, existing federal case law, and the particular circumstances of the case at hand.” E.E.O.C. v. Reno, 758 F.2d 581, 584 (11th Cir.1985). However, “state law is relevant only so far as it describes the Title VII plaintiff's position, including duties and supervision.” Clark v. Tarrant Cty., Tex., 798 F.2d 736, 742 (5th Cir.1986). The relevant factors pertinent to determining whether an employee falls within the Title VII personal staff exemption are: (1) whether the elected official has plenary powers of appointment and removal, (2) whether the employee is personally accountable only to that elected official, (3) whether the person represents the elected official in the eyes of the public, (4) whether the elected official exercises considerable control over the position, (5) the level of the position in the organization's chain of command, and (6) the actual intimacy of the working relationship between the elected official and the employee. Laurie v. Alabama Court of Criminal Appeals, 88 F.Supp.2d 1334, 1338 (M.D.Ala.2000) ( citing Teneyuca v. Bexar County, 767 F.2d 148, 151 (5th Cir.1985)).
Construing the facts in the light most favorable to Mosley, the court cannot find as a matter of law that the CJPO is a member of Judge Naman's personal staff. In support of their motion, the defendants attach copies of the Alabama state statutes, which they contend statutorily determine several of the Teneyuca factors. Doc. 40–8. However, there is no evidence before the court proving the intimate work relationship required under Teneyuca, other than the defendants' passing statement that the CJPO “works intimately with the Judge on an almost daily basis.” Doc. 50 at 7. Similarly, while the Alabama state statute does designate the person holding CJPO position as serving “at the pleasure of the appointing juvenile court judge,” Ala.Code 12–5A–8(3), without more, the Court cannot be sure whether the CJPO is accountable only to the juvenile court judge, and thus cannot determine whether the second Teneyuca factor is satisfied. As for the fourth Teneyuca factor, there is minimal evidence that the juvenile judge exercises “considerable” control over the position; indeed the statute suggests the juvenile court, and not the judge, directs the CJPO. Id. (indicating that the CJPO shall administer juvenile probation services “under the direction of the juvenile court.”) Mosley has also raised a dispute as to whether the CJPO position is the same position as described in the statute. Doc. 51 at 6. Additionally, the job announcement cited by the defendants states that the position requires the employee to “exercise considerable initiative, judgment and independent decision-making,” which weighs against the position being one afforded “personal staff” status. Doc. 41–1 at 1. Based on the present record, the defendants have not presented sufficient evidence for the court to find as a matter of law that the CJPO position falls within the “personal staff” exception of Title VII. Accordingly, the defendants are not entitled to summary judgment based upon the “personal staff” exception.
Mosley has satisfied the remaining elements of a prima facie case of sex discrimination. Having served as a Juvenile Probation Officer for over 37 years, with multiple advanced degrees, including an Ed.D. in counseling, it is undisputed that Mosley was qualified for the position. Doc. 45–1 at 1. It is also undisputed that she applied and was rejected for the position. Id. at 7. Finally, Judge Naman ultimately appointed Battiste, a man outside of Mosley's protected class who had less relevant education and less experience than Mosley, to fill the position. Id.
Although the second amended complaint makes oblique references to racial discrimination, Mosley did not present any such argument in her opposition to summary judgment. Therefore, the court finds that Mosley has abandoned this claim. Shamburger v. City of Mobile, 2008 WL 2874363 at *1 (S.D.Ala.2008) ( “grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”) ( citing Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.1995)). Even if the court did not deem Mosley's race discrimination claim to be abandoned, it would find that she cannot establish a prima facie case of race discrimination because she cannot show that Judge Naman, the AOC, or the Juvenile Court treated similarly-situated workers outside of her protected class. Battiste, who was hired as the new CJPO, is African–American, and obviously not outside of Mosley's protected class for purposes of her race discrimination allegations.
3) The Defendants' Legitimate and Nondiscriminatory Reasons
The defendants argue that Battiste was selected due to a number of factors, including: “his administrative and management background; his willingness to follow the Judge's direction concerning needed changes in the program, and his understanding and abilities to relate with, and oversee and manage other employees.” Doc. 40–6 at 1. This is a perfectly legitimate, nondiscriminatory reason for having hiring Battiste over Mosley. Therefore, the court finds the defendants have satisfied their light burden of rebuttal. See Tipton, 872 F.2d at 1495. Accordingly, the burden now shifts to Mosley to demonstrate that these reasons were merely pretext for sex discrimination.
4) Pretext
As evidence of pretext, Mosley claims that the former CJPO “made it clear” that Judge Naman was doing “whatever he could do” to avoid giving the CJPO position to Mosley. Doc. 45–1 at 8. She also states that she had been warned by two unidentified white juvenile probation officers, on separate occasions, “to be careful because ‘there was a target on [her] back.’ ” Id. Neither of these hearsay statements are admissible because Mosley has not established that either the former CJPO nor the two juvenile probation officers had personal knowledge of Judge Naman's intentions. See id. To be considered on summary judgment, affidavits or declarations must be based on personal knowledge, cannot be conclusory, and must contain information that can be reduced to admissible form at trial. See, e.g., Corwin v. Walt Disney Co., 475 F.3d 1239, 1249 (11th Cir.2007) (“Even on summary judgment, a court is not obligated to take as true testimony that is not based upon personal knowledge.”); Rowell v. BellSouth Corp., 433 F.3d 794, 800 (11th Cir.2005) (“On motions for summary judgment, we may consider only that evidence which can be reduced to an admissible form.”); Leigh v. Warner Bros., Inc., 212 F.3d 1210 (11th Cir.2000) (“This court has consistently held that conclusory allegations without specific supporting facts have no probative value.”) (citation omitted).
As further evidence of pretext, Mosley also claims that a white male probation officer, Kenneth Brutkiewicz, told Mosley that Judge Naman had introduced Cannedy to a local group as his next CJPO. Id. at 5–6. This statement is rank hearsay, and Mosley has not identified a hearsay exception which would make the statement otherwise admissible. Macuba v. DeBoer, 193 F.3d 1316, 1322–24 (11th Cir.1999) (discussing proper application of hearsay rule to motions for summary judgment). Furthermore, even if Brutkiewicz's statement were admissible, it does not tend to prove pretext because it tends to show that Judge Naman was open to the possibility of hiring a woman, thus undermining Mosley's assertion of sex discrimination.
Mosley further argues that her experience, lack of a disciplinary record, and high evaluations establish that the defendants' proffered nondiscriminatory reasons are pretextual. Doc. 45 at 16. The court disagrees. Courts “are not in the business of adjudging whether employment decisions are prudent or fair. Instead, our sole concern is whether unlawful discriminatory animus motivates a challenged employment decision.” Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1361 (11th Cir.1999) ( citing Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir.1984)). The fact that the defendants cited Battiste's experience as the Chief of Police in Prichard and as a Lieutenant in the Mobile County Sheriff's office is consistent with the defendants' assertion that the new CJPO would be required to perform extensive managerial and administrative duties. Simply pointing out Mosley's own credentials, as impressive as they are, does not by itself rebut the defendants' nondiscriminatory reason. Therefore, the court concludes that Mosley has failed to show that the disparities between her qualifications and Battiste's 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.” Brooks, 446 F.3d at 1163.
Plaintiff disputes the job vacancy announcement offered by defendants, (Doc. 40–1 at 1–2) and submits an announcement she claims was the actual advertisement (Doc. 45–5 at 2). Both postings are identical for the most part. Because Mosley is the non-movant, the court must resolve questions of fact in her favor and therefore refers to her job vacancy announcement. (Doc. 45–4).
Accordingly, the court finds that the defendants' motion for summary judgment is due to be granted as to Mosley's Title VII failure to promote claim (Counts Three) and her remaining allegations of sex and race discrimination (Title Five).
D. Retaliation Claims (Counts Four and Five)
1) Statement of the Law
As with discrimination claims, a Title VII retaliation claim based on circumstantial evidence is analyzed according to the McDonnell Douglas framework. See McDonnell Douglas Corp., 411 U.S. at 802–04, 93 S.Ct. 1817;Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1336 (11th Cir.1999) (applying McDonnell Douglas-type analysis to retaliation claims). The plaintiff bears the initial burden of establishing a prima facie case of retaliation, which she may do by demonstrating that (1) she engaged in statutorily-protected activity; (2) she suffered a materially adverse employment action; and (3) there was some causal relation between these two events. Dixon v. The Hallmark Companies, Inc., 627 F.3d 849 (11th Cir.2010). The Eleventh Circuit construes the “causal link” element broadly, so as “to require merely that the plaintiff establish that the protected activity and the adverse action were not wholly unrelated.” Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d 1261, 1286 (11th Cir.2008) ( quoting Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985)).
Once a plaintiff has established the prima facie elements of the claim, the defendant has an opportunity to articulate a legitimate, nonretaliatory reason for the challenged employment action as an affirmative defense to liability. Smith v. Lockheed–Martin Corporation, 644 F.3d 1321, 1324–25 (11th Cir.2011). The plaintiff must then prove by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited retaliatory conduct. Id. However, “ ‘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.’ ” Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir.2001) (citation omitted). Furthermore, as the Supreme Court has held, a reason is not pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason.” St. Mary's Honor Center v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742 (emphasis in original); accord Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d 1344, 1349 (11th Cir.2007) (“A plaintiff must show not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by race.”) (citations and internal quotation marks omitted). In the context of a promotion, “a plaintiff cannot prove pretext by simply arguing or even by showing that he was better qualified than the [person] who received the position he coveted. A plaintiff must show not merely that the defendant's employment decisions were mistaken but that they were in fact motivated by race.” Id. (additional citations and quotation omitted).
2) Prima Facie Case
Plaintiff's retaliation claims stem from several incidents, including (1) not being promoted to the CJPO position in retaliation for lodging complaints of perceived racial discrimination; (2) the alleged denial of an opportunity to compete for the unadvertised position of Deputy Chief Probation Officer; (3) Mosley's alleged demotion and reduction in work duties; and (4) Mosley's alleged termination. Doc. 45 at 6, 16. The court addresses each allegation in turn.
First, Mosley contends that she was passed over for promotion to the CJPO position in retaliation for numerous informal complaints of discrimination she made. Id. at 6. Mosley's affidavit supports her claim that she complained about perceived racial discrimination, including a written complaint against Cannedy for making allegedly racially insensitive remarks as well as the appointment of an all-white Probation Reform Team. Doc. 45–1 at 5. Complaints of discrimination directed to one's supervisor certainly qualify as protected expression. Rollins v. Florida Dep't of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989) (internal complaints of discrimination are statutorily protected conduct). Furthermore, it is undisputed that Mosley was passed over for the CJPO position four to six weeks later. Doc. 45 at 9. This constitutes an adverse employment action within close temporal proximity to Mosley's complaints of discrimination. See Gupta v. Florida Board of Regents, 212 F.3d 571, 587 (11th Cir.2000)abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). Therefore, the court finds that Mosley has established a prima facie case of retaliation against the AOC and the Mobile County Juvenile Court with regard to her not being hired for the CJPO position.
The same cannot be said for Mosley's allegation that she was denied the opportunity to compete for the newly created position of Deputy Chief Probation officer. This allegation is devoid of any citation to evidence which would support the claim. See Doc. 45 at 17; Doc. 45–1 at 9. See also Pace v. Capobianco, 283 F.3d 1275, 1278–79 (11th Cir.2002); Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1217 (11th Cir.2000) (“This court has consistently held that conclusory allegations without specific supporting facts have no probative value”). Accordingly, the court finds that Mosley has failed to establish a prima facie case regarding this allegation.
Mosley has also failed to establish that her allegations of demotion and reduction in work duties constitute adverse employment actions. For one thing, Mosley has not alleged that she suffered a decrease in pay or benefits; therefore, her use of the term “demotion” to describe her situation is more editorial than objective. See Doc. 45; Doc. 45–1. Furthermore, while Mosley contends the number of probation officers she supervised was reduced from ten to zero, she has cited no case law to support the notion that this constitutes an adverse employment action. Doc. 45 at 19. In fact, the Eleventh Circuit has stated that “courts have been reluctant to hold that changes in job duties amount to adverse employment action[s] when unaccompanied by any tangible harm” such as a reduction in salary. Davis v. Town of Lake Park, Florida, 245 F.3d 1232, 1244 (11th Cir.2001).
Lastly, Plaintiff's claim that she was terminated in retaliation for filing the 2010 EEOC complaint is unsupported by any evidence suggesting a causal connection. Doc. 45 at 19. In fact, this portion of Mosley's opposition brief is almost totally devoid of citations to the record. Id. The one piece of record evidence to which Mosley did point is her own April 15, 2011, letter to the AOC, in which she characterizes her lay off as retaliation. Doc. 45–8. But this conclusory statement has no probative value. See Pace, 283 F.3d at 1278–79;see also Leigh, 212 F.3d at 1217. Furthermore, Mosley was informed of her “lay off” March 31, 2011—almost 14 months after she filed her the 2010 EEOC Charge (dated February 8, 2010). Doc. 45–1 at 10. This period of time is too remote to satisfy Mosley's burden of causation based upon temporal proximity, alone. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007) (“A three to four month disparity between the statutorily protected expression and the adverse employment action is not enough.”) ( citing Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 273, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001)).
Accordingly, the court finds that the only retaliation claim for which Mosley has established a prima facie case is her allegation that she was not promoted to the CJPO position in retaliation for her numerous informal complaints of discrimination. Doc. 45 at 6. The defendants' summary judgment motion is due to be granted with regard to the remaining retaliation allegations.
3) The Defendants' Legitimate, Non–Retaliatory Reasons
The defendants argue that Battiste was selected for the CJPO position because Judge Naman was “particularly impressed with the extensive administrative and management experience that Mr. Battiste held that far exceeded any other applicants.” Doc. 40 at 15. The defendants argue further that Battiste's experience was significant to Judge Naman because the CJPO “is required to perform extensive managerial and administrative duties pursuant to the direct instructions of the judge.” Id. at 15–16. This is a legitimate, non-discriminatory reason for hiring Battiste over Mosley. Therefore, the court finds the defendants have satisfied their light burden of rebuttal. See Tipton, 872 F.2d at 1495. Thus, the burden now shifts to Mosley to demonstrate that these reasons were merely pretext for retaliation.
4) Pretext
Mosley argues that the defendants' proffered non-retaliatory reasons are pretextual because she has superior professional credentials and experience in working with juvenile offenders. Doc. 45 at 12–13. Citing only Battiste's resume and application, she argues that Battiste “cannot point to any experience working with juveniles or counseling such individuals,” and argues further that “[Battiste's] resume and application do not reflect any, much less ‘considerable knowledge’ or experience in counseling, juvenile probationary activities, or social and psychological forces relating to juvenile delinquency.” Id. at 13 (emphasis in original).
Instead of pointing to additional record evidence to support her argument, Mosley engages in rank speculation, arguing without citation that given the disparity in experience, the human resources professionals on the CJPO search committee “had to have been forewarned about Defendant Naman's preference for the job,” and asserting (again, without citing facts in the record) that “it was predetermined that Mosley would not be referred for an interview.” Id. But the disparity between Battiste's and Mosley's education and experience alone do not support this conclusion. At best, Mosley's argument suggests that Judge Naman may have made a bad employment decision, which does not establish pretext. Judge Naman was entitled to hire Battiste over Mosley for “a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a [retaliatory] reason.” Nix v. WLCY Radio/Rahall Comm's, 738 F.2d 1181, 1187 (11th Cir.1984). Without more, Mosley's pretext argument falls short.
Accordingly, the court finds that summary judgment is due to be granted with regard to Mosley's retaliation claims (Counts Four and Five).
IV. CONCLUSION
The defendants' motion for summary judgment is GRANTED as to all counts.
ORDER
This matter is before the court on the motion for reconsideration filed by the plaintiff, Linda Johnson–Mosley (“Mosley”). Doc. 60. For the reasons stated below, the court finds that the motion is due to be DENIED.
I. RECONSIDERATION STANDARD
Reconsideration is considered to be an “extraordinary” remedy which is to be employed “sparingly.” Gougler v. Sirius Products, Inc., 370 F.Supp.2d 1185, 1189 (S.D.Ala.2005) ( citing United States v. Bailey, 288 F.Supp.2d 1261, 1267 (M.D.Fla.2003)); Pennsylvania Ins. Guar. Ass'n v. Trabosh, 812 F.Supp. 522, 524 (E.D.Pa.1992); Spellman v. Haley, 2004 WL 866837, *2 (M.D.Ala. Feb. 22, 2002) (“litigants should not use motions to reconsider as a knee-jerk reaction to an adverse ruling”). “A motion for reconsideration should raise new issues, not merely readdress issues litigated previously.” PaineWebber Income Props. Three Ltd. P'ship v. Mobil Oil Corp., 902 F.Supp. 1514, 1521 (M.D.Fla.1995).
Generally, courts have recognized three grounds which justify the reconsideration of an order: (1) an intervening change in controlling law; (2) the availability of new evidence; and (3) the need to correct clear error or manifest injustice. Summit Medical Center of Alabama, Inc. v. Riley, 284 F.Supp.2d 1350, 1355 (M.D.Ala.2003).
Here, Mosley argues that the court committed multiple errors of law and fact in its summary judgment order. Doc. 60 at 1. A motion to reconsider based upon clear error is appropriate “when the Court has patently misunderstood a party ... or has made a mistake, not of reasoning, but of apprehension.” Wendy's Int'l, Inc. v. Nu–Cape Constr., Inc., 169 F.R.D. 680, 684 (M.D.Fla.1996). The opposite side of this coin is that “[a] motion to reconsider is not a vehicle for rehashing arguments the Court has already rejected or for attempting to refute the basis of the Court's earlier decision.” Lamar Advertising of Mobile, Inc. v. City of Lakeland, Fla., 189 F.R.D. 480 (M.D.Fla.1999). Nor does a motion for reconsideration provide an opportunity to simply reargue—or argue for the first time—an issue the Court has once determined. Court opinions “are not intended as mere first drafts, subject to revision and reconsideration at a litigant's pleasure.” Quaker Alloy Casting Co. v. Gulfco Indus., Inc., 123 F.R.D. 282, 288 (N.D.Ill.1988). Thus, “[t]he burden is upon the movant to establish the extraordinary circumstances supporting reconsideration.” Mannings v. Sch. Bd. of Hillsborough Cnty., 149 F.R.D. 235, 235 (M.D.Fla.1993).
II. § 1983 CLAIMS (COUNTS ONE AND TWO)
In its summary judgment order, the court noted that Mosley's opposition to summary judgment contained no mention of her 1983 claims and thus deemed them to be abandoned, granting summary judgment on Counts One and Two in the defendants' favor. Doc. 58 at 8–9 ( citing Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1322 (11th Cir.2001) (other citations omitted)).
Mosley now argues that the court erred in reaching this conclusion because “the [d]efendants do not challenge Counts One and Two of her 2nd Amended Complaint. They offered no arguments or evidence contesting Dr. Mosley's claims brought pursuant to the 5th and 14th Amendments to the United States Constitution.” Doc. 60 at 1–2 (emphasis in original). Thus, according to Mosley, her claims were not abandoned and should not have been dismissed because Wilkerson, supra, does not require a plaintiff to address at summary judgment a claim raised in the complaint but not attacked by the moving party at summary judgment. Doc. 60 at 3. Mosley also cited Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 592 (11th Cir.1995), for the same purpose, i.e., where the defendant does not raise an issue in its motion for summary judgment, then the plaintiff has nothing to respond to in its opposition brief. Doc. 60 at 3–4. Mosley's discussion of Wilkerson and Resolution Trust Corp. are correct but beside the point because the defendants did, in fact, attack her § 1983 claims.
A. Due Process Claim (Count One)
With regard to Count One, Mosley alleged a violation of her property rights in her job as a merit system employee without due process of law. Doc. 24 at 12. In their summary judgment brief, the defendants stated that:
[Mosley] alleges that she was not placed back into the position that she held prior to being laid off, due to abolishment of her merit system class because of significant budget concerns within the state's judicial system, and subsequently reinstated upon appeal ... it is undisputed that [the] Employee's Appeal Board ordered [Mosley] to be reinstated and paid back pay, which was done, the order specifically stated that she was to be reinstated to [a] merit system position “comparable [to the] position in the next nearest class to the one abolished.” She was.
Doc. 40 at 5, 16 ( citing the Alabama Unified Judicial System Employee Appeals Board decision, Doc. 40–4). This assertion of undisputed fact, which was stated twice in the defendants' motion for summary judgment, challenges Mosley's claim that she was deprived of a property right in her job as a merit system employee by pointing to the fact that Mosley was reinstated and received back pay. This was sufficient to put plaintiff on notice that the substance of her due process claim was being attacked. It also runs contrary to Mosley's assertion in her motion for reconsideration that the defendants offered no arguments or evidence regarding her 5th and 14th Amendment claims. See Doc. 60 at 1–4. Accordingly, Mosley's motion with regard to Count One is due to be denied.
B. Equal Protection Claim (Count Two)
With regard to Count Two, Mosley alleged a violation of her equal protection rights as a result of alleged employment discrimination based upon the fact that she is a black female. Doc. 24 at 12. In the first paragraph of the legal argument section of their summary judgment brief, the defendants stated that “[Mosley] brings claims under both Title VII and 42 U.S.C. 1981 and 1983. In cases where § 1983 is employed as a remedy for the same conduct attacked under Title VII, ‘the elements of the two causes of action are the same.’ ” Doc. 40 at 6. ( citing Cross v. State of Alabama, 49 F.3d 1490, 1508 (11th Cir.1995)). What followed was the defendants' argument concerning Mosley's Title VII and § 1981 claims. See Doc. 40. The language which the defendants placed at the beginning of their argument put Mosley on notice that their attack upon her Title VII claims was also an attack upon her § 1983 claims where the same conduct, i.e., employment discrimination, was at issue. Thus, the court finds that Mosley's motion for reconsideration is due to be denied as to Count Two.
In any event, the question of whether Mosley abandoned her § 1983 equal protection claims is moot because the court dismissed her discrimination and retaliation claims under Title VII and § 1981. Doc. 58 at 19, 26. This dismissal would have also applied to her § 1983 equal protection claims, even absent a finding of abandonment. Thus, Mosley's motion for reconsideration is due to be denied as to Count Two.
III. DISCRIMINATION CLAIMS (COUNTS THREE AND FIVE)
A. The Court's Statement of the Law and Analysis of Mosley's Prima Facie Case
Mosley argues that the court misstated the protected factors covered by Title VII. Doc. 60 at 4. She is incorrect. In its order, the court stated that “for claims of race or sex discrimination, the plaintiff must show that (1) she is a member of a protected class (here, female and African–American); (2) she was qualified for the position she held; (3) she suffered an adverse employment action; and (4) her employer treated her less favorably than similarly-situated individuals outside of her protected class.” Doc. 58 at 10 ( citing Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.2010)). This is an accurate statement of the protected factors under Title VII discrimination law, and the same factors that Mosley cited herself. See Doc. 45 at 15.
What Mosley highlights as an inaccurate statement of the law by the court is actually an excuse to offer a belated citation to case law which Mosley neglected to put forth in her summary judgment brief. That case, Jefferies v. Harris County Community Action Association, 615 F.2d 1025 (5th Cir.1980), states unequivocally that “when a Title VII plaintiff alleges that an employer discriminates against black females, the fact that black males and white females are not subject to discrimination is irrelevant and must not form any part of the basis for a finding that the employer did not discriminate against the black female plaintiff.” Id. at 1034. Mosley's citation to Jefferies does not compel any change in the court's disposition of the case.
First, as suggested, supra, the court notes that the time for Mosley to cite Jefferies and point out its extensive discussion of the “sex plus” theory of discrimination was in her summary judgment brief, not in a motion to reconsider. Jefferies is most certainly not new law, having been issued by the old 5th Circuit in 1980. Additionally, the court notes that Mosley herself titled the portion of her summary judgment brief dealing with her Title VII discrimination claims as “TITLE VII SEX DISCRIMINATION CLAIM (AOC only).” Doc. 45 at 15. Mosley also summarized the requirements for establishing “a prima facie case of sex discrimination” without referring to race and sex as a separate subset of discrimination, as called for by Jefferies. Id. A motion for reconsideration does not represent an opportunity for Mosley to refine her legal argument and add 33–year–old citations which she could have and should have included in her brief from the beginning.
Secondly, the court's discussion and ultimate disposition of Mosley's sex discrimination claim would have been the same even if it had been cast and analyzed as a “race and sex claim” as envisioned by Jefferies. The court found that Mosley had established a prima facie case of discrimination. Doc. 58 at 15. Moving on to the next step of the McDonnell Douglas analysis, the court found that the defendants proffered legitimate, non-discriminatory reasons. Id. at 16–17. The court then found that Mosley failed to prove pretext by a preponderance of the evidence. Id. at 17–19. Thus, Mosley's belated citation to Jefferies is moot.
B. Pretext
Mosley also seeks to expand on her summary judgment argument with regard to the defendants' proffered legitimate, non-discriminatory reasons by contending that “the defendants' legitimate nondiscriminatory reason for Dr. Mosley's non selection has to specifically relate to why her name was not sent out of committee for an interview with the judge.” Doc. 60 at 7. Mosley offers a number of new citations for the first time, including 42 U.S.C. § 2000e–2(a)(2), Connecticut v. Teal, 457 U.S. 440, 448, 102 S.Ct. 2525, 73 L.Ed.2d 130 (1982), and Patrick v. Ridge, 394 F.3d 311 (5th Cir.2004), among others. Id.
Unfortunately for Mosley, none of this constitutes grounds for reconsideration of the court's summary judgment order because it is precisely the sort of “rehashing [of] arguments the Court has already rejected” which is not appropriate on a motion for reconsideration. See Lamar Advertising, supra. Mosley already raised this issue in her opposition brief, where she cited only two cases to support her argument that the defendants' proffered reasons should have addressed her failure to advance beyond the screening committee. Doc. 45 at 14, 16. Neither of the cases Mosley cited at summary judgment supported her argument, and waving new citations in the court's face in an attempt to take a “second bite at the apple” constitutes an abuse of the Rule 59(e) motion. DeGidio v. Pung, 125 F.R.D. 503, 505 (D.Minn.1989).
Mosley quoted Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir.2000) for the premise that “evidence that an employer hired (or referred for interview and consideration) a less qualified applicant over the plaintiff may be probative” of pretext. Doc. 45 at 14. In doing so, Mosley inserted the phrase “or referred for interview and consideration” into the quote, thus warping the citation so that it appeared more supportive to her case than it actually is. The actual quote from Lee states that “evidence showing an employer hired a less qualified applicant over the plaintiff may be probative of whether the employer's proffered reason for not promoting the plaintiff was pretextual.” 226 F.3d at 1253. Mosley did the same thing in her citation of Bass v. Board of County Com'rs, Orange County, Fla., 256 F.3d 1095, 1107 (11th Cir.2001). See Doc. 45 at 14. Mosley inserted the words “or referring” into the Eleventh Circuit's language so that case appeared to state that “[h]iring (or referring) a less qualified person can support an inference of discriminat[ion].” Thus, Mosley cited no legal authority at summary judgment which supported her argument on this point.
Additionally, the court notes that Mosley's attempted refinement is no more convincing than her original argument because it ignores her own underlying allegations of discrimination. Mosley alleged a prima facie case of discrimination by claiming that, inter alia, “the position was filled by Defendant Battiste, a male who is outside Mosley's protected group.” Doc. 45 at 15; see also Doc. 24 at 12–13. The defendants proffered a legitimate, non-discriminatory reason for this allegation—i.e., for hiring Battiste—and thus directly addressed and rebutted Mosley's allegation. Doc. 40 at 15. That Mosley was unsuccessful at summary judgment in expanding the scope of her discrimination allegation is by no means an example of “clear error or manifest injustice” justifying reconsideration of the court's order. See note 1 supra.
IV. RETALIATION CLAIMS (COUNTS FOUR AND FIVE)
A. CJPO Vacancy
On the subject of Mosley's retaliation claims, the defendants argued at summary judgment that “the Plaintiff has not presented sufficient evidence to support any claim that any other action by the defendants rises to the level of a Title VII violation.” Doc. 40 at 14. The court disagreed, and found that Mosley had established a prima facie case of retaliation with regard to the CJPO position. Doc. 58 at 22. The court then found that Mosley failed to prove pretext by a preponderance of the evidence, and held that summary judgment was due to be granted. Id. at 25–26.
With a wave of the hand, Mosley dismisses the court's pretext discussion as irrelevant, and instead fixates on the defendants' earlier, unsuccessful argument as to the prima facie elements, asserting that she was not required to proceed further than that point. Doc. 60 at 9. The court's review of the cases Mosley cited—Wilkerson, 270 F.3d at 1322;Celotex v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); or Clark v. Coats, 929 F.2d 604, 608 (11th Cir.1991)—reveals no support for this argument. Accordingly, the court finds no clear error or manifest injustice with regard to Mosley's allegation of retaliation concerning the CJPO position.
B. Other Retaliation Claims
The court also wrote that Mosley's allegation that she was denied the opportunity to compete for the new position of Deputy Chief Probation officer was “devoid of any citation to evidence which would support the claim.” Doc. 58 at 22. Mosley now contends that this is incorrect because she “provides testimony about the newly created position of Deputy Chief Probation Officer in her second declaration with exhibits, as part of her sur-rebuttal to defendants' Reply.” Doc. 60 at 10.
However, Mosley's second declaration and accompanying exhibits were not part of her sur-reply. See Doc. 51–1. Rather, they are submitted for the first time in her motion for reconsideration. See Doc. 60–1. Mosley purports to explain that she did not attach the exhibits with her sur-reply because she was “awaiting permission to file the document.” Doc. 60 at 10, n. 2. Nowhere can the court find an example of a party waiting to submit attachments and exhibits to an underlying motion until after the motion for leave has been granted. Mosley made no mention in her motion for leave that she was awaiting the court's permission before filing the cited attachments. She attached the proposed sur-reply to the motion for leave, but there were no exhibits included with the proposed document. See Doc. 51. Thus, the court's determination that there was no evidence to support Mosley's claims was not incorrect, because the documents Mosley now relies upon at reconsideration were not part of the record evidence at summary judgment. “[W]here a party attempts to introduce previously unsubmitted evidence on a motion to reconsider, the court should not grant the motion absent some showing that the evidence was not available during the pendency of the motion.” Cumulus Media, Inc. v. Clear Channel Communications, Inc., 304 F.3d 1167 (11th Cir.2002) (quotation omitted). Mosley has not argued that her second declaration and accompanying exhibits were unavailable during the summary judgment phase, and therefore, the court declines to consider them. Thus, the only error in this instance is attributable to plaintiff's counsel for failing to timely file the supporting documents.
Finally, the court finds no error with regard to its conclusions about Mosley's claims of retaliatory demotion, reduction in work duties, and retaliation for her 2010 EEOC Charge. Accordingly, reconsideration of the court's summary judgment order on Counts Four and Five is inappropriate.
V. CONCLUSION
For the reasons discussed above, the court finds that Mosley's motion for reconsideration is due to be and hereby is DENIED.