United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
A. BAKER UNITED STATES MAGISTRATE JUDGE.
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). The parties have
had an opportunity to fully brief the issues. For the reasons
stated herein, Defendants' construed motion (Doc. 56) is
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
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).
SUMMARY JUDGMENT STANDARD OF REVIEW
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).
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)).
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).
BACKGROUND AND FACTS
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.
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).
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).
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.
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).
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.
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. 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).
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 ...