United States District Court, N.D. Alabama, Southern Division
DR. FELECIA DAILEY, Plaintiff,
BLUE CROSS BLUE SHIELD OF ALABAMA, Defendant.
MEMORANDUM OPINION AND ORDER
K. KALLON UNITED STATES DISTRICT JUDGE
Dailey brings this action against Blue Cross Blue Shield of
Alabama (“BCBS”), pursuant to Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e et
seq. (“Title VII”), and 42 U.S.C. §
1981 (“section 1981”), alleging race and gender
discrimination and retaliation with respect to four promotion
decisions. Doc. 32 at 1. The court has for consideration
BCBS's motion for summary judgement, doc. 42, which is
fully briefed, docs. 43; 57-1; 59, and ripe for review. For
the reasons stated below, except for the claims related to
Dailey's second application for Application Development
Manager (Counts V and VI), the motion is due to be granted.
STANDARD OF REVIEW
Fed.R.Civ.P. 56(a), summary judgment is proper “if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law.” To support a summary judgment motion,
the parties must cite to “particular parts of materials
in the record, including depositions, documents,
electronically stored information, affidavits or
declarations, stipulations, admissions, interrogatory
answers, or other materials.” Fed.R.Civ.P. 56(c).
Moreover, “Rule 56(c) mandates the entry of summary
judgment, after adequate time for discovery and upon motion,
against a party who fails to make a showing sufficient to
establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The moving party
bears the initial burden of proving the absence of a genuine
issue of material fact. Id. at 323. The burden then
shifts to the nonmoving party, who is required to “go
beyond the pleadings” to establish that there is a
“genuine issue for trial.” Id. at 324
(citation and internal quotation marks omitted). A dispute
about a material fact is genuine “if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986).
court must construe the evidence and all reasonable
inferences arising from it in the light most favorable to the
non-moving party. Adickes v. S. H. Kress &
Co., 398 U.S. 144, 157 (1970); see also
Anderson, 477 U.S. at 255 (all justifiable inferences
must be drawn in the non-moving party's favor). Any
factual disputes will be resolved in the non-moving
party's favor when sufficient competent evidence supports
the non-moving party's version of the disputed facts.
See Pace v. Capobianco, 283 F.3d 1275, 1276 (11th
Cir. 2002) (a court is not required to resolve disputes in
the non-moving party's favor when that party's
version of events is supported by insufficient evidence).
However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary
judgment motion.” Ellis v. England, 432 F.3d
1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th
Cir. 1989)). Furthermore, “[a] mere
‘scintilla' of evidence supporting the opposing
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) (citing Anderson, 477 U.S. at 252).
who is an African-American female, has worked for BCBS for
over nineteen years, beginning initially as a part-time
consultant. Docs. 32 at 2; 44-1 at 4. Dailey became a
full-time employee in 1998 as a Systems Analyst, and moved
into her current role as a Senior Database Administrator in
the Database Administration (“DBA”) Department
also in 1998. Doc. 44-1 at 4-5. In this capacity, Dailey
“work[s] with the application developers reviewing
code” to make sure it is “consistent and adheres
to standards, ” and on data modeling to implement new
database designs to tables, and to ensure that tables and
databases are backed up consistently. Id. at 5.
challenges four selection decisions in this case. According
to Dailey, her experience as a Senior Database Administrator,
her education (a Bachelor of Science in Computer Science,
Masters of Business Administration, and a Doctorate of
Management), doc. 44-4 at 17, and her overall
and life experience made her the best candidate for these
DBA Manager and DBA-IM Manager Positions
January 2013, Dailey submitted applications for DBA Manager
and DBA-Information Management Manager (“DBA-IM
Manager”). Doc. 44-4 at 3, 11-12, 14-16. The DBA
Manager supervises the DBA Department, and the DBA-IM Manager
supervises a focused group of DBA Administrators tasked with
information management. Id. at 2. Both positions
required “success in a leadership role” and
considered “[p]rior management experience” as
“a plus.” Id. at 11-12.
Dorris (the Department Manager of Technology Support and the
supervisor for both positions) and Brice Baumann (the Senior
Recruiting Consultant) interviewed Dailey and three other
applicants selected from sixteen internal candidates.
Id. at 3. At the end of her interview, when Dailey
asked about the next step in the process, Dorris responded
“that it was all about the noise and the Gayles and the
Scotts, that he would repost the position if he needed
to.” Doc. 44-1 at 7. Dailey interpreted this comment to
mean that Dorris preferred white candidates and would not
select her because of her race: “my speculation is that
I did not look like Gail and Scott, so, therefore, I
didn't have an opportunity, Gail being a Caucasian female
and Scott being a Caucasian male.” Id.;
see also doc. 57-1 at 9. Although Dorris denies
making this comment, he testified that Gail Myers and Scott
Davis are Dailey's coworkers and that Scott Davis applied
for the two positions. Doc. 44-5 at 41.
Dorris and Baumann found Dailey qualified technically, but
lacking in interpersonal skills and managerial experience.
Doc. 44-4 at 4. Moreover, because all four finalists met the
required level of technical skills, Dorris asserts that he
decided he wanted someone who would make a good team manager.
Id. at 3. Dorris added that Dailey was not the best
candidate because Dailey lacked management experience at
BCBS, had negative reviews from her previous manager
regarding her interpersonal interactions with team members
and internal customers, and due to Dorris' own
observations of Dailey through customer service complaints he
received and by noticing that Dailey often kept to herself.
Docs. 44-1 at 13; 44-4 at 4, 17-19; 44-5 at 21-25; 44-6 at 3.
purported lack of interpersonal skills is well documented.
Doc. 44-3 at 55-56, 62-63, 69. Despite receiving
“exceeds expectations” overall in her annual
evaluations, Dailey's most consistent critical feedback
centered on the need to improve in her communication and
interactions with customers and coworkers. Id. at
41-44, 55, 62, 69. In performance reviews from July 2001 to
July 2003, for example, Dailey's managers described
Dailey as projecting the impression that she did not like for
customers and coworkers to approach her, and noted that
Dailey needed to improve her communication skills.
Id. Notably, in July 2002, Dailey's then manager
wrote that Dailey had “the lowest [customer surveys] of
the DBA group” and that customers described Dailey as
impatient and “not truly listening” to their
issues. Id. at 62. Dailey disagrees with this
assessment and, in her July 2012-July 2013 performance
evaluation, countered with positive reviews that she has
received from customers. Id. at 45-47.
and Baumann selected David George for the DBA Manager
position based, in part, on his management experience. Doc.
44-4 at 4. George's experience included fourteen years of
hands-on technical experience with desktop applications and
programming, including working in systems analysis,
programming, and IT support. Doc. 44-4 at 4, 24-27. George
also had management experience at BCBS and five years'
experience with a previous employer that included supporting
a 30-site system. Doc. 44-4 at 4, 24-27. In addition to
George's experience, Dorris also selected him because
Dorris previously worked with George when George managed
BCBS's move to a newly built data center, during which
Dorris observed George's work and leadership skills,
including George's positive interactions with the
Database Administrators, successful navigation of the team as
the “day-to-day guy” to solve problems, and
facilitating interactions among divergent groups. Docs. 44-4
at 4; 44-5 at 17-19.
his selection, George became Dailey's manager. In
George's July 2012-2013 performance review of Dailey, he
scored Dailey an overall “Exceeds Expectations, ”
but also reported that Dailey needed development in fostering
teamwork and communicating with customers. Docs. 44-3 at
39-44; 57-1 at 12. George included documentation of customer
feedback in the evaluation, in which multiple customers
described Dailey “as plain difficult, ”
“condescending, ” “just too hard to get
along with, ” “argumentative and difficult,
” and “tiresome to work with.” Doc. 44-3 at
39-52. Dailey wrote a rebuttal to the evaluation, and George
followed up with guidance on how Dailey could improve.
Id. at 45-49. Dailey challenges the accuracy of this
evaluation, and believes that Dorris and George conspired to
ensure she received negative reviews and evaluations in this
area to prevent her from receiving future promotions. Docs.
44-5 at 43; 57-1 at 12-13.
closed the DBA-IM Manager position after determining that
none of the applicants had the necessary skillset. Doc. 44-4
at 5. A second posting in May 2013 generated more applicants,
including Alan Mims to whom BCBS offered the position.
Id. At the time of his selection, Mims held the
Project Director position at BCBS's national healthcare
data warehouse, a position in which he delivered data-driving
information about healthcare trends and best practices.
Id. at 5, 40. In addition to Mims' experience in
analytics, id. at 4, 40-41, Mims' positive
interactions with others, as observed by Dorris, and his role
as Project Director indicated to Dorris that Mims had the
leadership skills for the DBA-IM position. Id.;
see also doc. 44-5 at 33. However, Mims turned down
the offer and the role remained vacant. Doc. 44-5 at 33.
Second DBA-Manager Vacancy
George worked successfully in the DBA Manager role, the Vice
President of Technology Support transferred George into the
vacant DBA-IM Manager position that Mims turned down. Docs.
44-4 at 5-6; 44-5 at 34. As a result, BCBS re-posted the DBA
Manager position. However, BCBS closed the posting because it
deemed none of the candidates viable. Doc. 44-4 at 6. When
Atlee Dinsmore, an Application Development Manager, expressed
interest in the position in October 2013, BCBS transferred
Dinsmore laterally based on his experience as a manager, and
the positive recommendations he received from other
department managers and supervisors. Docs. 44-4 at 6; 44-5 at
38. As a lateral transfer, BCBS only needed upper management
approval of the appointment in lieu of a formal application
process. Doc. 44-4 at 6.
First EEOC Charge
light of the decision to bypass her for these positions,
Dailey filed a charge with the Equal Employment Opportunity
Commission, alleging race and gender discrimination. Doc.
44-1 at 126.
Application Development Manager Position 1
December 2014, after Dailey filed this lawsuit, Dorris, in
his new role as Department Manager of Application
Development, posted an opening for an Application Development
Manager. Docs. 44-4 at 6; 44-6 at 2. The posting listed
management experience as “strongly preferred, ”
because the position had oversight for eighteen employees,
including an employee with a “significant performance
issue” on a performance improvement plan
(“PIP”). Docs. 44-4 at 7, 29; 44-5 at 45. Perhaps
because of the PIP, Dorris explained that he did not feel
comfortable placing a first time manager in this role. Docs.
44-4 at 7; 44-5 at 45. As a result, Dorris asked Baumann to
screen applicants for management experience. Docs. 44-4 at 7;
44-6 at 2.
separated the seventeen applicants into three categories: (1)
managerial experience; (2) no managerial experience
(Dailey's group); and (3) not qualified. Doc. 44-6 at 3.
Dorris, in turn, interviewed the three applicants Baumann
identified as having management experience, and consulted
with an interview panel consisting of five Department
Managers in Application Development to discuss the remaining
candidates. Doc. 44-4 at 7. The panel decided to interview
three additional applicants “to provide them with
interview experience, ” even though the panel
determined they were not viable candidates. Id. The
three individuals in this group “had ...