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McQueen v. Alabama Department of Transportation

United States District Court, M.D. Alabama, Northern Division

June 30, 2017

CLAUDE MCQUEEN, Plaintiff,
v.
ALABAMA DEPARTMENT OF TRANSPORTATION, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          DAVID A. BAKER UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Claude McQueen, claims racial discrimination and retaliation against his employer, Alabama Department of Transportation, and three individual supervisors. He filed this lawsuit in October 2014, and the operative complaint is Plaintiff's Second Amended Complaint filed in June 2015. (Docs. 1, 33). This matter is before the court on the Defendants Sharon Ellis, Jason Boothe, Mike Griffin, and Alabama Department of Transportation's construed Motion for Summary Judgement and Memorandum Brief in Support (Docs. 56, 57).[1] The parties have had an opportunity to fully brief the issues. For the reasons stated herein, Defendants' construed motion (Doc. 56) is granted.

         Also before the court is Defendants' Motion to Strike Jennifer McLeod's Declaration. (Doc. 79). The McLeod Declaration (Doc. 78-2 at 7-8) was submitted by Plaintiff to support his response in opposition to the Defendants' summary judgment motion. Plaintiff has failed to respond to the motion to strike and thus the motion is deemed unopposed. However, to the extent that any fact in the Declaration conflicts with other evidence, the facts are construed in the light most favorable to Plaintiff as the non-moving party. Because the court concludes on this record in a light most favorable to the Plaintiff that Defendants are entitled to final summary judgment in their favor, Defendants' motion to strike the Jennifer McLeod Declaration (Doc. 79) is denied as moot.

         I. JURISDICTION

         McQueen's claims for retaliation and discrimination are based on race under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., as amended by the Civil Rights Act of 1991, 42 U.S.C. § 1981 by and through 42 U.S.C. § 1983, 42 U.S.C. § 1981a, and the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States Constitution. All claims arise under federal law, and the court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and 1343. The parties do not dispute venue or personal jurisdiction, and there are adequate allegations in Plaintiff's Second Amended Complaint to support both. On March 22, 2017, the parties consented to Magistrate Judge Jurisdiction for all matters pursuant to Rule 73, Fed. R. Civ. P., and 28 U.S.C. § 636(c), and an order was entered reassigning the case to the undersigned as the presiding judge. (Docs. 67, 69).

         II. SUMMARY JUDGMENT STANDARD OF REVIEW

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In ruling on a motion for summary judgment, the Court construes the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). However, when faced with a “properly supported motion for summary judgment, [the nonmoving party] must come forward with specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M. Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997).

         Summary judgment is mandated “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). “Summary judgment may be granted if the non-moving party's evidence is merely colorable or is not significantly probative.” Sawyer v. Southwest Airlines Co., 243 F.Supp.2d 1257, 1262 (D. Kan. 2003) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51 (1986)).

         “[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry is ‘whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of law.'” Sawyer, 243 F.Supp.2d at 1263 (quoting Anderson, 477 U.S. at 251-52).

         III. BACKGROUND AND FACTS

         The matters set forth here are either undisputed or stated, as they must be for purposes of the present motion, in the light most favorable to Plaintiff Claude McQueen (“McQueen” or “Plaintiff”), the non-moving party. McQueen, an African-American male, began working for the State of Alabama on February 8, 1993. (Doc. 58-1 at 16:1; 25:20-23). He was born in 1959. Id. at 11:2. His first job with the State was as a Highway Maintenance Technician I. Id. at 40:17-18; (Doc. 58-2 at 41:13-16). He worked in this position for eighteen years. (Doc. 58-2 at 41:5-6). He did not do any electrical work during this time. Id. at 41:17-19. He got his commercial driver's license eight or nine years after starting work for the State. (Doc. 58-1 at 15:20-16:5). His duties as a highway maintenance worker included patching roads, cutting grass, weed eating, and maintaining the highways. Id. at 41:1-4.

         In February 2008, McQueen applied for the position of Traffic Signal Technician with the Alabama Department of Transportation (“ALDOT”). (Doc. 78-1 at 2-4). The position is full-time and involves “technical electrical work in installing and maintaining highway traffic control devices.” Id. at 6. McQueen was awarded the position effective December 1, 2009. Id. at 8. At the time McQueen applied, the minimum requirements for the position were either: (1) completion of tenth grade and two years of work experience performing electrical and/or signal work; or (2) completion of two years in a vocational, trade or technical school in the electronics or electrical field. Id. at 6. McQueen graduated from Alabama State University with a degree in criminal justice and a minor in psychology. (Doc. 58-1 at 15:3-5). He had some electrical experience with other companies before becoming a State of Alabama employee. (Doc. 58-2 at 44:6-46:19).

         By 2011 the State Personnel Department added certification through International Municipal Signal Association (IMSA) as a third way an applicant can qualify for the Traffic Signal Technician Level I position, but IMSA certification is not a requirement for the position. (Doc. 78-1 at 10, 13). McQueen has taken the IMSA test five times since 2010 but has not passed the test. (Doc. 58-2 at 66:1-68:20).

         The salary range for Traffic Signal Technician is $27, 806.40-$46, 615.20. (Doc. 78-1 at 13). In September 2016, McQueen testified he earns $40, 413.00. (Doc. 58-5 at 182:8). McQueen alleges the Traffic Signal Technicians who are his comparators are Donald Dansby, Marcus Sanders, Josh Grissett, and Justin Sanders, all of whom are white. (Doc. 77 at 7). Salaries in 2014 for these individuals were as follows: $39, 933.32 for McQueen; $32, 638.69 for Donald Dansby; $8, 953.80 for Marcus Sanders; $31, 942.38 for Josh Grissett; and $26, 423.79 for Justin Sanders. (Doc. 60-5). Although McQueen is paid a higher salary, he contends this is due to his longer tenure as a State employee. (Doc. 58-5 at 181:1-17). He asserts he was denied step raises while his white comparators were not. Id. at 180:7-17. He testified his white male supervisor, Defendant James Boothe (“Boothe”), took his step raise away because he did not pass the IMSA test and therefore did not obtain IMSA certification. Id. at 189:5-192:15.

         McQueen, who is the only African-American member of his crew, testified that his racial discrimination claim is based on mistreatment by his fellow crew member, Josh Grissett (“Grissett'). (Doc. 58-3 at 94:2-4, 94:20-95:5). On April 22, 2014, McQueen was riding in a State truck with Grissett. (Doc. 58-3 at 111:4-20). Grissett is a white male who is a Traffic Signal Technician Senior in the Troy area office. (Doc. 77 at 8). Grissett was driving; McQueen was in the passenger seat. (Doc. 58-3 at 111:14-15). As they were going down the road, Grissett's hard hat fell off the truck, and McQueen and Grissett heard it hit the ground. Id. at 111:15- 16. McQueen sat up in his seat to look in the side mirror to see what had fallen. (Doc. 58-4 at 1-10). According to McQueen, Grissett said to him. “Sit back Goddamn it. Sit back MF.” (Doc. 58-3 at 112:2). McQueen claims Grissett called him a “Goddamned Motherfucker” and shoved or pushed him back into his seat. (Doc. 77 at 8; 58-4 at 123:3-5). Grissett cursed him “very loud in a nasty way.” (Doc. 58-4 at 122:20-22). When they arrived at the jobsite, McQueen reported the incident to senior crew leader Jimmy Barron. (Doc. 58-3 at 112:10-12; 114:8-10).

         Both Barron and McQueen wrote the incident up. Id. at 112:13. The next day McQueen gave a copy of his incident report to maintenance engineer Sherry Ellis (“Ellis”), and left copies of the report on the desks of traffic engineer Boothe and division engineer Mike Griffin (“Griffin”). Id. at 112:14- 18; 114:13-16. Two weeks later Boothe called McQueen about the need to resolve the incident. Id. at 114:21-115:4. A week or two after that, McQueen met in Boothe's office with Grissett, Boothe, and Brenda Kirkland. Id. at 115:4-8. McQueen testified they discussed the incident. Id. at 115:9-23. Grissett denied shoving or cursing McQueen, but admitted he said “damn” and may have touched Grissett. Id. Grissett apologized to McQueen; McQueen did not accept his apology. Id.

         Before the incident in the truck, McQueen told Boothe on several occasions that he was having a problem with Grissett and did not need to be around him. Id. at 116:5-23. McQueen testified Boothe did nothing about it and told McQueen that he and Grissett had to work it out. Id. at 117:1-4. McQueen testified that Grissett belittled him at the job site saying he did the work incorrectly.[2] Id. at 117:11- 118:7. McQueen did not like the tone Grissett used with him or the way Grissett treated him as a person. Id. He heard from Donald Dansby and Justin Sanders that Grissett said he hated McQueen. Id. at 119:10-120:9. Grissett did not curse McQueen prior to or after the April 2014 incident. (Doc. 58-4 at 124:2-6).

         McQueen filed a charge of discrimination with the Birmingham District Office of the Equal Employment Opportunity Commission (“EEOC”) on May 20, 2014. (Doc. 78-2 at 12-13). By letter dated May 23, 2014, the EEOC acknowledged receipt of the charge, advised him ...


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