Opinion
Civil Action No. 00-T-1703-N
December 26, 2001
Joseph (Jay) Brady Lewis, John Eric Barnett, Eileen L. Harris, Law Offices of Jay Lewis, Montgomery, Al, for plaintiff.
Margaret L. Fleming, William H. Pryor, Jr., William P. Clifford, III, Office of the Attorney General Alabama State House, Montgomery, Al; Stephen K. Simpson, Alabama Department of Rehabilitation Services, Montgomery, Al; Neva C. Conway, Real Estate Appraisers Board, Montgomery, Al, for defendants.
OPINION
Plaintiff Antoinette Jones, an African-American woman formerly employed by the Alabama Department of Revenue as an attorney, brings this lawsuit naming various Alabama state officials and departments as defendants and seeking damages and equitable relief for employment discrimination and retaliation claims arising under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 1981a, 2000e through 2000e-17, and under 42 U.S.C.A. § 1981 as merged into 42 U.S.C.A. § 1983. Jones alleges that after she was discharged from the Revenue Department, she remained eligible for employment with the State of Alabama, but the defendants failed to hire her for over 20 open attorney positions both because she is black and in retaliation for the race-discrimination complaint she filed while she was employed in the Revenue Department. She properly invokes the jurisdiction of the court pursuant to 28 U.S.C.A. §§ 1331, 1343, and 42 U.S.C.A. § 2000e-5. The matter is now before the court on the defendants' motion for summary judgment. For the reasons that follow, the motion will be granted.
I. BACKGROUND
Jones was hired by the Alabama Department of Revenue as an attorney in February 1994. In August 1998, she complained to the chief of her division that she was being denied a promotion to an open position of attorney III because of her race. She filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) on September 29, 1998.
Jones was promoted to attorney III on April 7, 1999. In July 1999, she filed a federal lawsuit charging ongoing racial discrimination. Jones v. Department of Revenue, et al., civil action no. 99-T-600-N (M.D. Ala.). On August 2, 1999, she was constructively discharged from the department, but was certified for inclusion on the state re-employment register for attorney I/II. The re-employment register is a list of persons formerly employed by the State of Alabama who are eligible for re-employment at a designated job description and level.
Although she requested reinstatement to her job, Jones was not re-hired by the department and her position was filled by a new attorney around September 1999. On April 5, 2000, she entered into a settlement agreement with the defendants in her civil action.
Since the date of her constructive discharge, Jones has been placed on the state open competitive registers for attorney I/II and attorney III. She has received written notice that she was considered by various state departments for employment over 20 times, but was rejected each time. The open positions included new hires, promotions within departments, and conversions of deputy attorneys general to merit system positions. Jones did not submit separate applications for some of these positions, but was considered for them because she was listed on the open registers.
Jones filed an EEOC charge of retaliation on September 6, 2000, naming Alabama Governor Don Siegelman as respondent.
II. LEGAL STANDARDS A. Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment is appropriate where "then is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter of law." Once the party seeking summary judgment has informed the court of the basis for its motion, the burden shifts to the non-moving party to demonstrate why summary judgment would be inappropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553 (1986); see also Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115-17 (11th Cir. 1993). In making its determination, the court must view all evidence and any factual inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356 (1986).
B. The Statutes
Title VII, § 1981, and § 1983 all prohibit an employer from discriminating against its employees on the basis of race. 42 U.S.C.A. § 2000e-2(a)(1), 42 U.S.C.A. § 1981, and 42 U.S.C.A. § 1983. In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817 (1973), the Supreme Court established the allocation of the burden of production and an order for the presentation of proof in discrimination and retaliation cases. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506, 113 S.Ct. 2742, 2746 (1993). Under the McDonnell Douglas approach, a plaintiff has the initial burden of establishing a prima-facie case of unlawful race discrimination or retaliation by a preponderance of the evidence. 411 U.S. at 802, 93 S.Ct. at 1824. A prima-facie case requires "evidence adequate to create an inference that an employment decision was, based on and [illegal] discriminatory [or retaliatory] criterion)"Teamsters v. United States, 431 U.S. 324, 358, 97 S.Ct. 1843, 1866 (1977).
The Eleventh Circuit Court of Appeals has explained that, for the usual disparate-treatment case where direct evidence is not present, "a plaintiff establishes a prima facie case of race discrimination under Title VII by showing: (1) he belongs to a racial minority; (2) he was subjected to adverse job action; (3) his employer treated similarly situated employees outside her classification more favorably; and (4) he was qualified to do the job. 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, 1561-1562 (11th Cir. 1997) (citations omitted).
The Eleventh Circuit has established similarly broad standards for a prima-facie case of retaliation. "To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is some causal relation between the two events."Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998) (citations omitted). "The causal link element is construed broadly so that "a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.'" Pennington v. City of Huntsville, 261 F.3d 1262 (11th Cir. 2001) (citations omitted).
However, the Supreme Court recently held that there is a limit on how broadly the causation element may be construed. In Clark County Sch. Dist. v. Breeden, 532 U.S. 268,___, 121 S.Ct. 1508, 1511 (2001), the Court warned that "[t]he cases that accept mere temporal proximity between an employer' s knowledge of protected activity and an adverse employment action as sufficient evidence of causality to establish a prima facie case uniformly hold that the temporal proximity must be `very close.'" Citing cases in which a three-month and four-month period was insufficient, the Court went on to hold that "[a]ction taken (as here) 20 months later suggests, by itself, no causality at all." Id. at 1511.
If the plaintiff establishes a prima-facie case of race discrimination or retaliation, the burden then shifts to the employer to rebut the presumption by articulating legitimate, non-discriminatory and non-retaliatory reasons for its employment action. Holifield, 115 F.3d at 1564; Olmsted, 141 F.3d at 1460. "This intermediate burden is `exceedingly light.'" Holifield, 115 F.3d at 1564 (citing Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994)). The employer has the burden of production, not of persuasion, and thus does not have to persuade a court that it was actually motivated by the reason advanced. See McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1824; Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253-55, 258, 101 S.Ct. 1089, 1093-94, 1096 (1981).
Once the employer satisfies this burden of production, "the presumption of discrimination [and retaliation] is eliminated and "the plaintiff has the opportunity to come forward with evidence, including the previously produced evidence establishing the prima facie case, sufficient to permit a reasonable factfinder to conclude that the reasons given by the employer were not the real reasons for the adverse employment decision'"Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (citations omitted). The establishment of a prima-facie case does not in itself entitle a plaintiff to survive a motion for summary judgment.Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987); Pace v. Southern Ry. System, 701 F.2d 1383, 1389 (11th Cir. 1983). After an employer proffers nondiscriminatory and nonretaliatory reasons for its actions, "[i] n order to avoid summary judgment, a plaintiff must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer' s proffered nondiscriminatory [and nonretaliatory] reasons is pretextual." Chapman, 229 F.3d at 1037.
III. DISCUSSION
The court assumes that Jones has established prima-facie cases of racial discrimination and retaliation in all but two cases, and focuses its analysis on two issues: first, the court considers whether the state defendants have met their burden to articulate nondiscriminatory reasons for not hiring Jones for the open positions. Second, the court considers whether Jones has produced sufficient evidence to conclude that the defendants proffered nondiscriminatory reasons are pretextual. Where Jones plainly cannot establish her prima-. facie cases, the court has so noted.
In evaluating whether the reasons provided by the state defendants for not hiring Jones are pretextual, the court is guided by the Eleventh Circuit's recent decision in Denney v. City of Albany, 247 F.3d 1172 (11th Cir. 2001). In that case, a group of white firefighters challenged their employer' s decisions not to promote them, claiming that they were more. qualified than two black firefighters who were promoted instead. The court held in part that the plaintiffs had not established that the reasons asserted by their supervisor for promoting the black firefighters were pretext for intentional discrimination against whites. Id. at 1190.
The Denney court stated that "[o]ur precedent . . . requires a strong shoving of a disparity in qualifications in order for an inference of discrimination to." Id. at 1187. The court then cited Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253-54 (11th Cir. 2000), which held that "In a failure to promote case, a plaintiff cannot prove pretext by simply showing that she was better qualified than the individual who received the position that. she wanted. . . . `[D]isparities in qualifications are not enough in and of themselves to demonstrate discriminatory intent unless those disparities are' so apparent as virtually to jump off the page and slap you in the face.'" Id. at 1253-54 (citations omitted).
Like the white firefighters in Denney, Jones alleges that the defendants' failure to hire her resulted from intentional discrimination and retaliation, and that she was at least if not more qualified than each of the attorneys who were actually hired or promoted.
As background, Jones received an undergraduate degree in education from the University of Nebraska. She attended Jones School of Law in Montgomery, Alabama, graduating with an overall grade-point average of 3.22 on a scale of 4.0. Jones has not disputed the defendants' assertion that she received no undergraduate or law school honors; has published no articles in any legal journals; and did not participate in a law review, moot court, or any other law school activities. After law school, Jones was employed as a deputy district attorney in Montgomery County for 18 months, during which she tried two criminal jury cases, and at the Alabama Department of Revenue for five and a half years. Since leaving the Department. of Revenue, she has become a certified mediator and is in the private practice of law. She has not worked for a law firm or held a judicial clerkship. She testified at her deposition in this case that she has never tried a civil jury case or taken a deposition in a civil case.
Keeping in mind the requirement of a strong showing of disparities in qualifications, the court considers in turn each position for which Jones was not hired. The court first addresses the positions for which new attorneys were hired, and then turns to positions in which attorneys were promoted. or converted from deputy attorneys general to merit system appointments.
1. New Hire, Department of Industrial Relations: On May 8, 2000, Shirley Brown was appointed as attorney III in the Alabama Department of Industrial Relations. Like Jones, Brown is an African-American female. The Eleventh Circuit has established that in a failure-to-hire case, the plaintiff's prima-facts case must include evidence that other equally or less qualified employees who are not members of her race were hired. Bass v. Bd. of County Commissioners, 256 F.3d 1095, 1104 (11th Cir. 2001) (citing Taylor v. Runyon, 175 F.3d 861, 866 (11th Cir. 1999) and Wu v. Thomas, 847 F.2d 1480, 1483 (11 Cir. 1988)). Thus, Jones has not established a prima-facie case of discrimination for the defendants' failure to hire her for this position. Jones also has not satisfied the causation requirement of her retaliation claim for this position, in accordance with Clark County School Dist. v. Breeden. Jones engaged in two statutorily protected actions before Brown was hired: she filed her first EEOC charge in July 1998 and her civil lawsuit in July 1999. Thus, at least nine months passed between Jones "s most recent statutorily protected action in July 1999 and the appointment of Shirley Brown in May 2000. There is no evidence that the Department of Industrial Relations or its executive director, Frank D. Marsh, had actual knowledge of Jones's civil lawsuit. Even assuming, as Jones argues, that they had imputed knowledge of the lawsuit, this time period is well outside the window of temporal proximity recognized by the Supreme Court in Breeden.
2. New Hire, Department of Public Health: On June 5, 2000, Greg Lochlier was appointed as attorney I/II by the Alabama Department of Public Health. Lochlier is a white male. The defendants have stated that John Wible, general counsel. for the department, did not interview all applicants on the register, but instead considered only those applicants who had expressed an interest, in working with the Department of Public Health. Jones had written to other state departments, but had not made her interest directly known to the Department of Public Health. Lochlier graduated from Troy State University in 1987 with a business degree, and received his J.D. from Jones School of Law in 1994. His resume shows several law school awards and activities, including an award for the highest grade-point average in the graduating class. The defendants assert that Lochlier was recommended for the job because he possessed significant experience in the preparation and trial of civil cases. Jones admitted at her deposition in this case that she had never tried or taken a deposition in a civil case. The defendants also state that Lochlier submitted writing samples and evinced excellent skills in research, electronic research, and brief writing, whereas Jones did not submit a writing sample.
3. New Hire, Alabama Crime Victims' Compensation Commission: On June 15, 2000, Kim Ziglar was appointed as attorney I/II by the Alabama Crime Victims' Compensation Commission (ACVCC). Ziglar is a white female. Defendant Martin Ramsay, executive director of the ACVCC, stated that he selected candidates to interview based on their relative education and experience. Ramsay stated that he bad no personal knowledge of Jones other than the information stated on her employment application; Jones did not make her interest in employment with the ACVCC known to Ramsay. Ramsay also stated that he chose Ziglar based on her display of initiative, assertiveness, and a desire to pursue a career working for state government and with crime victims, as well as her prior employment with a Dothan attorney whom he believed to be reputable. Ziglar obtained an undergraduate degree in criminal justice from Troy State University in 1996. Her undergraduate honors included the President's List, Dean's List, and a leadership scholarship. She was also an officer of the Criminal Justice Honor Society. She received a J.D. from Cumberland Law School in 1999. She received a Certificate of Merit for a memorandum of law prepared while at Cumberland. After law school, she was employed as an associate in a private law firm in Dothan, doing criminal defense, juvenile and domestic relations, and civil, trial work. Although Ziglar is a more recent law school graduate with fewer years of work experience than Jones, Ziglar's academic honors and activities, interview performance, and specialty in criminal justice are clearly legitimate and' nondiscriminatory reasons to hire her. Her qualifications are not so disparate from Jones's' as to jump off the page.
4. New Hire, Attorney General's Office: On July 29, 2000, Terri Tompkins was appointed as attorney I/II in the attorney general's office. Tompkins is a white female. The attorney general's office has stated that in making its hiring decisions, it considers factors including education; relevant work experience; effective research, writing, and oral communication skills; evidence of work ethic, honesty, and integrity; previous work history with the office of the attorney general; and the particular demands of the position being filled. Tompkins graduated with a degree in English. from the University of Alabama in 1995. Her undergraduate honors included membership in Phi Beta Kappa, the University Honors Program, Signa Tau Delta (English Honor Society), Cardinal Key, and Phi Kappa Phi. She received her J.D. from the University of Alabama in 1999. Her law school honors and activities included the Alabama Law Review, John A. Campbell Moot Court Board, Jessup International Moot Court Team and Bench and Bar Legal Honor Society. After law school, Tompkins clerked for Justice Champ Lyons, Jr., on the Alabama Supreme Court. These are clearly legitimate and nondiscriminatory reasons to choose Tompkins for the open position, and Jones has not refuted them with evidence that they were pretextual.
5. New Hire, Attorney General's Office: On August 12, 2000, Claudia Kennedy was appointed as attorney III in the attorney general's office. Kennedy is a white female. The attorney general' s office has asserted that like Terri Tompkins, Kennedy's educational and employment background made her the top choice among applicants for this position. Kennedy, a 1990 graduate of Spring Hill College, received undergraduate honors including membership in the Political Science Honor Society and the Sociology Honor Society. She graduated from Cumberland School of Law in 1993. Her law school honors and activities included Dean's List for three semesters, membership on the Henry Upson Sims Moot Court Board, and Justice Janie Shores Moot Court Finalist. After law' school, she clerked for Judge Charles Price of the Fifteenth Judicial Circuit of Alabama. She then worked in the constitutional litigation division of the Attorney General's Office and for the Alabama Department of Mental Health. Like Terri Tompkins and Kim Ziglar, Kennedy has fewer years. of legal experience than Jones, but also has significant educational and career achievements. Jones has not produced. any evidence which would support an inference of pretext in the decision to hire these candidates over her.
6. New Hire, Department of Mental Health: On September 8, 2000, Tamara Pharrams was appointed as a mental health attorney II in the Alabama Department of Mental Health. Pharrams is an African-American female; thus, Jones cannot make a prima-facie case of racial discrimination in the decision to hire Pharrams. For the same reasons as shown in the Department of Industrial Relations's decision to hire Shirley Brown, Jones also cannot show that Pharrams's appointment was temporally proximate to her discrimination charge, and thus she has not established a prima-facie case of retaliation. Jones was personally interviewed by Courtney Tarver, general counsel for the Department of Mental Health, for this position. Tarver asserted additional concerns relating to Jones' s interview performance and her interpersonal skills in his decision not to hire her.
7 New Hire, Department of Mental Health: On December 18, 2000, David Jackson was appointed to a second open position of mental health attorney II in the Department of Mental Health. Jackson is a white-male. General counsel Courtney Tarver stated that he reviewed the qualifications, job applications, and appropriate job references, including former employers, of persons interviewed. Tarver and others conducted face-to-face interviews of applicants. Tarver stated that for this position, there was an experienced field of candidates, and that Jones did not score high enough to reach the interview cutoff level for the second pool of candidates. He stated that Jackson, the candidate selected, had more legal experience overall, more policy-development and implementation experience, demonstrated more specific knowledge of the substantive area "of mental illness in general, and had more recent and specific knowledge and experience in working with the department on issues related to implementation of [a legal settlement concerning mental health services and treatment whose implementation is" the department' a "number one priority over the next three years".]
8. New Hire, Real Estate Appraisers' Board: On October 3, 2000, Neva Conway was appointed as attorney I/II to the Real Estate Appraisers' Board. Conway is a white female. J.W. Holland, board director, interviewed eight of the 112 applicants on the employment register. He interviewed applicants who had either "taken the initiative" to contact him about the position or had been referred to him. No one referred Jones to him, nor did she contact him directly. Holland selected Conway because she had extensive experience in real estate matters, criminal and civil litigation, and administrative hearings. Conway received an undergraduate degree in mathematics from Auburn University at Montgomery in 1984, and her J.D. from Jones School of Law in 1984. When she submitted her resume, Conway had been engaged in the private practice of law for 15 years, including an extensive real estate practice. In contrast, Jones's legal experience included no practice of real estate law.
9. New Hire, Department of Youth Services: On January 24, 2001, Jan Schroeder-Grant was appointed as attorney I/II in the Alabama Department of Youth Services. Bill Samford, chief legal counsel for the department, had received recommendations for Schroeder-Grant from Sue Bell Cobb, associate judge on the Alabama Court of Criminal Appeals, and John Davis, former judge of the family court division of the circuit court for the fifteenth judicial circuit of Alabama — Samford was also personally aware of Schroeder-Grant's reputation as an accomplished trial lawyer. She had tried over 200 cases in her 15 years of experience in the private' practice of law and as an assistant district attorney, including extensive juvenile court work and six years of prosecuting sexual abuse cases. Samford van particularly interested in her experience prosecuting sexual offenders because the Youth Services Department administers programs for juvenile delinquent sexual offenders. Schroeder-Grant had also served in juvenile court as a guardian ad litem and as an instructor in the field of juvenile law. Samford reviewed no other candidate with such extensive trial experience and, thus, he recommended Schroeder-Grant for the open position. Samford testified that he did not know anything about Jones or her qualifications and that at the time he recommended Schroeder-Grant to the appointing authority, no verbal recommendations or comments concerning Jones had been made to him by anyone.
10. Promotions and Conversions, Various Offices: Of the other 14 appointments for which Jones was notified that she was not chosen, eight were promotions of already-employed' attorneys in various departments to higher-paying positions, and six were conversions of deputy attorneys general to merit system positions. The defendants assert in their motion for summary judgment that in those 14 cases, Jones was not a candidate for promotion or conversion because she was not employed by any of the defendants at that time. Thus, the defendants argue, Jones was not similarly situated to any of the 14 candidates and cannot establish a prima-facie case of discrimination or retaliation.
Jones does not explicitly refute the assertion that she was not as qualified for these particular appointments as the attorneys who were promoted or converted. Instead, she points out that whether she was truly considered for promotion or conversion, she was listed on a register that entitled her to compete for these positions. She argues that by certifying but failing to consider her, the defendants violated the rules they are required to follow under the Alabama Merit System Act. This claim may or may not be valid, but the issue here is not whether the defendants fulfilled their obligations under state law. of course, if there were evidence that the defendants' so-called failure to comply with state had a discriminatory application, the court would have to look further into their actions, "but there is no such evidence.
Rather, to prove her claim of intentional discrimination and retaliation, Jones must produce sufficient evidence for a reasonable factfinder to conclude that each of the employer' s proffered nondiscriminatory and non-retaliatory reasons is pretextual. Here, the defendants have met their burden to refute the inference of discrimination or retaliation for these appointments. It is clearly a legitimate business decision to choose candidates for promotion or conversion who are already employed in the state departments over someone who was not employed there. Jones has offered no evidence to show that the defendants' reasons for promoting or converting the 14 employees were pretextual, or that her qualifications were markedly disparate from theirs.
IV. CONCLUSION
For the reasons given' above, this court holds the defendants are entitled to summary judgment. An appropriate judgment will be entered in favor of the defendants and against Jones.