United States District Court, N.D. Alabama, Southern Division
MEMORANDUM OPINION AND ORDER
VIRGINIA EMERSON HOPKINS UNITED STATES DISTRICT JUDGE
employment discrimination civil action is filed by the
Plaintiff, Lisa Potts, against the Defendant, the City of
Bessemer, Alabama ("the City"). The Plaintiff
alleges that the City discriminated against her, based on her
gender, when it denied her a promotion. The Complaint alleges
one count of "Gender Discrimination" in violation
of Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e through 2000e-17 ("Title VII").
case comes before the Court on the City's Motion for
Summary Judgment (doc. 21), and the City's "Motion
to Strike Portions of [the] Plaintiffs Evidentiary
Materials" (doc. 32). For the reasons stated herein, the
Motion for Summary Judgment will be DENIED.
Because resolving the Motion To Strike is not necessary in
order to rule on the Motion for Summary
Judgment, the Motion To Strike will be
DENIED as moot.
Federal Rule of Civil Procedure 56, summary judgment is
proper if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of
law. Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986)
("[S]ummary judgment is proper if the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of
law.") (internal quotation marks and citation omitted).
The party requesting summary judgment always bears the
initial responsibility of informing the court of the basis
for its motion and identifying those portions of the
pleadings or filings that it believes demonstrate the absence
of a genuine issue of material fact. Celotex, 477
U.S. at 323. Once the moving party has met its
burden, Rule 56(e) requires the non-moving party to go beyond
the pleadings in answering the movant. Id. at 324.
By its own affidavits - or by the depositions, answers to
interrogatories, and admissions on file - it must designate
specific facts showing that there is a genuine issue for
underlying substantive law identifies which facts are
material and which are irrelevant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). All reasonable
doubts about the facts and all justifiable inferences are
resolved in favor of the non-movant. Chapman, 229
F.3d at 1023. Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment. Anderson,
477 U.S. at 248. A dispute is genuine "if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party." Id. If the evidence presented
by the non-movant to rebut the moving party's evidence is
merely colorable, or is not significantly probative, summary
judgment may still be granted. Id. at 249.
movant may satisfy its initial evidentiary burden depends on
whether that party bears the burden of proof on the given
legal issues at trial. Fitzpatrick v. City of
Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the
movant bears the burden of proof on the given issue or issues
at trial, then it can only meet its burden on summary
judgment by presenting affirmative evidence showing
the absence of a genuine issue of material fact - that is,
facts that would entitle it to a directed verdict if not
controverted at trial. Id. (citation omitted). Once
the moving party makes such an affirmative showing, the
burden shifts to the non-moving party to produce
"significant, probative evidence demonstrating
the existence of a triable issue of fact." Id.
(citation omitted) (emphasis added).
issues on which the movant does not bear the burden of proof
at trial, it can satisfy its initial burden on summary
judgment in either of two ways. Id. at 1115-16.
First, the movant may simply show that there is an absence of
evidence to support the non-movant's case on the
particular issue at hand. Id. at 1116. In such an
instance, the non-movant must rebut by either (1) showing
that the record in fact contains supporting evidence
sufficient to withstand a directed verdict motion, or (2)
proffering evidence sufficient to withstand a directed
verdict motion at trial based on the alleged evidentiary
deficiency. Id. at 1116-17. When responding, the
non-movant may no longer rest on mere allegations; instead,
it must set forth evidence of specific facts. Lewis v.
Casey, 518 U.S. 343, 358 (1996). The second method a
movant in this position may use to discharge its burden is to
provide affirmative evidence demonstrating that the
non-moving party will be unable to prove its case at trial.
Fitzpatrick, 2 F.3d at 1116. When this occurs, the
non-movant must rebut by offering evidence
sufficient to withstand a directed verdict at trial on the
material fact sought to be negated. Id.
The Organization of the Public Works Department of the
City of Bessemer
the Plaintiff claims that she was denied a promotion into the
position of "Public Works Supervisor" in the City
of Bessemer's Public Works Department, an examination of
the organization of that department is appropriate.
times relevant to this case, Bill McLaughlin was the Director
of the City of Bessemer Public Works Department. The
Assistant Director who reported to him was Lawrence Hatter.
The Public Works Department has several "Public Works
Supervisors" who report to the Assistant Director. Each
Public Works Supervisor has responsibility over a specific
sub-department within the Public Works Department,
including: Construction; Grass and Clean-up; and Garbage and
Trash (which also includes recycling and animal
control). Within each sub-department there are Labor
Supervisors, who report to the Public Works Supervisor over
that sub-department.The Labor Supervisors supervise the
"Laborers" in each sub-department. It is undisputed
that the City's mayor, Kenneth Gulley, has the authority
to make all hiring decisions, including the authority to fill
the position at issue.
The Position at Issue
Public Works Supervisor position became available in the
spring of 2015, after the City terminated the Public Works
Supervisor over the Construction sub-department. (Doc. 23-1
at 12(41)). The job posting for the position describes the
position as: "Public Work Supervisor
(Construction)" and "Public Works Supervisor
(Construction or Sanitation)." (Doc. 29-5 at
2-3). It describes the work as involving
"planning, assigning, supervising and inspecting the
work of several crews engaged in construction, repair and
maintenance of multiple public works projects such as
highway, street, or sidewalk/driveway construction projects,
" and "planning, assigning, supervising, evaluating
and inspecting the work of several crews engaged in
sanitation activities such as refuse collection and disposal,
brush and trash pick up and disposal street sweeping and
other activities through lower level supervisors." (Doc.
29-5 at 2).
City is subject to the same hiring rules as the Personnel
Board of Jefferson County ("PBJC"). Accordingly,
because the position of Public Works Supervisor is a
"classified" position, before filling the position
the City was required to, and did, obtain a list of eligible
applicants certified by the PBJC. The list was sent to
McLaughlin and Hatter to determine which candidates to
interview. They decided to interview Potts and Ronald
Strother, both of whom were already employed by the Public
Works Department and were the only persons from within the
department to be certified.
was initially hired at the City as a temporary laborer on
November 30, 1994, and then hired as a full time laborer on
March 7, 1995. As a laborer, Strother worked in several
areas, including within the construction department in the
chert pit, in the landfill, laying pipe, and fixing
laborer, Strother was promoted to Truck Driver and then to
Heavy Equipment Operator ("HEO"). Strother worked
as an HEO operating a "knuckle boom" (or brush
truck) until he was promoted to Labor Supervisor effective
October 27, 2001. For his first several years as a Labor
Supervisor, Strother was responsible for overseeing a grass
cutting/right of way maintenance crew. Over time, however,
Strother also took on responsibility for overseeing numerous
other types of crews within the Department. Strother has
supervised: garbage service; litter route pick-up; community
service (litter pick-up); and a catch basin, storm water BMP,
and lid crew. (Doc. 23-9 at 4(10), 15(53), 15(55), 15(56);
doc. 23-10). In addition to supervising each of those crews
as a Labor Supervisor, Strother also has supervised: street
sweeper/night crews (doc. 23-9 at 4(10)); stump grinder crews
(doc. 23-9 at 15(54)); animal control (doc. 23-9 at
15(55-56)); training for the Commercial Driver's License
("CDL") exam (doc. 23-9 at 15(55)); and
herbicide/pesticide (doc. 23-9 at 4(11)).
time of the promotion decision at issue in this case,
Strother had only received two written warnings over the span
of his entire employment with the City and had never been
suspended. 2. Potts Potts began working for the City
as a laborer in 1999. She was then promoted to Truck Driver
in 2001. In 2009, the City promoted Potts from Truck Driver
to Labor Supervisor. At that time, Hatter was a Public Works
Supervisor, who supervised Potts and recommended Potts for
the promotion to Labor Supervisor. Prior to the time of the
Public Works Supervisor promotion decision at issue, Potts
almost exclusively had only supervised a cutting crew
(performing right of way maintenance) as a Labor Supervisor.
(See doc. 1 at 3, ¶9; doc. 1 at 4 ¶19). In
addition, as a Labor Supervisor Potts also supervised (1)
garbage service; (2) litter route pick-up; (3) community
service (litter pick-up); and a (4) catch basin, storm water
BMP, and lid crew. The Plaintiff testified that, on three
separate occasions, each for only one or two days on a
fill-in basis, she has also supervised a stump grinder crew,
a tree crew, and a concrete crew. (Doc. 23-6 at 7(24)-8(25),
time of the promotion decision at issue in this case, Potts
had received thirty-three written warnings for violations of
department policy during her employment with the City. Potts
had also been suspended from work for a period of three days
as a result of policy violations.
The Interview Process and Decision
deciding to interview Potts and Strother for the Public Works
Supervisor position, McLaughlin and Hatter brought in both
candidates, together, for an initial meeting. During that
meeting, McLaughlin told the candidates that he was glad to
have two good candidates for the position. Both candidates
were invited to submit a resume, and did so. (Doc. 23-3 at 5,
the preliminary meeting, Hatter and McLaughlin then brought
back each candidate for a separate, individual interview with
them. Potts interviewed on April 6, 2017. McLaughlin
confirmed during his deposition that "[a]t the time Ms.
Potts interviewed for the position that Ronald Strother got,
she was actually interviewing for the construction job that
was previously held by [the employee who had been
terminated], " and that "the interview would have
been questions about the construction-related job."
(Doc. 23-5 at 25(96)). Hatter also stated that at the time of
the interviews they "were asking them questions about
the construction job, " and that the intent [was] to put
them in the construction job." (Doc. 29-1 at
testified that when he interviewed, McLaughlin and Hatter
told him that it was for the Public Works Supervisor position
"under construction." (Doc. 23-9 at 6(18)).
I talked about all my experience and how long I had been
there, and I had brought it out that I had really a lot of
experience in that department. Wherever they needed me, I was
there. I mean, I've been all over that department. There
wasn't nowhere I couldn't fit in.
(Doc. 23-9 at 7(21)).
the interviews, and his review of their files, Hatter
submitted a written recommendation to McLaughlin. In that
recommendation, Hatter stated that he considered both Potts
and Strother to be "very good employees with the City of
Bessemer with a tremendous future ahead of them." (Doc.
23-3 at 3). He then recommended Strother for the position
I have no reservations that Ronald has all the abilities and
qualities which are required to thrive on this level of the
department. He has strong dedication which is evident in the
many hours that he has spent working during emergency
situations. He has the leadership qualities as he displays it
[sic] through inspiring and motivating others to train for
their commercial driver's license and he serves on the
employee relations committee a position elected by employees.
He is a very disciplined employee and requires the same in
all of those assigned to his supervision.
I highly recommend Ronald for the position of Public Works
Supervisor and hope that you will carefully consider this
letter of recommendation for promotion.
(Doc. 23-3 at 3-4).
receiving Hatter's recommendation, McLaughlin submitted
his own recommendation to Mayor Gulley which stated, in
After considering both candidates equally, I found Ronald
Strother to be more qualified by nature of experience. He has
a longer tenure, has been a labor supervisor longer, and has
experience in more areas of operation. I have found him to be
disciplined, self-motivating, and willing and able to
function with little or no supervision.
Therefore, my recommendation would be to promote Ronald
Strother to the position of Public Works Supervisor.
(Doc. 23-3 at 2). In addition to his own recommendation,
McLaughlin also gave the mayor a copy of Hatter's
recommendation (doc. 23-3 at 3), and the resumes submitted by
each candidate (doc. 23-3 at 5, 6).
Gulley reviewed both McLaughlin's and Hatter's
written recommendations and the candidates' resumes. At
one point in his deposition, the mayor testified that, other
than that material that was sent to him by McLaughlin, he did
not go out and look at any other material. (Doc. 23-1 at
5(16)). Later, he stated that he also reviewed
the past disciplinary histories of both candidates (doc. 23-1
at 10(34)), but that disciplinary history was not
"the deciding factor" (doc. 23-1 at 10(3 8)). It is
undisputed that Mayor Gulley did not review the Plaintiffs
application or the performance appraisals of either
as how he makes a decision to promote one candidate over
another, the mayor testified that he relies on the
recommendation of McLaughlin, but that "we also have a
dialogue." (Doc. 23-1 at 6(17)). Indeed, in this case,
after receiving McLaughlin's recommendation, the mayor
also had a further discussion in which he asked McLaughlin to
explain the basis for his recommendation. McLaughlin told
Mayor Gulley that Strother had more seniority both overall as
a City employee and as a Labor Supervisor.
mayor also spoke with Shawn Williams, by phone, who at the
time was the Public Works Supervisor over the Garbage and
Trash sub-department. When asked in his deposition who
Williams recommended, the mayor stated "he may have said
Ronald Strother as well." (Doc. 23-1 at 21 (80)). Mayor
Gulley testified that Williams gave no reason for his
Gully ultimately decided to hire Strother. The mayor
testified that the deciding factor was "[t]he total
recommendation and stuff." (Doc. 23-1 at 11(38). In his
deposition he agreed that Strother was more qualified than
Potts "by nature of experience, " because of
"the scope of all the things that he had done."
(Doc. 23-1 at 13(47)). That included being a heavy equipment
operator, a fact which he learned from Strother's resume,
something which Mayor Gulley agreed was
"important." (Doc. 23-1 at 13(45, 46)).
Strother Was Promoted into a Different Position than the
One for ...