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Potts v. City of Bessemer

United States District Court, N.D. Alabama, Southern Division

August 25, 2017

LISA POTTS, Plaintiff,



         This 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").

         This 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[1], the Motion To Strike will be DENIED as moot.

         I. STANDARD

         Under 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 trial. Id.

         The 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.

         How the 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).

         For 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.

         II. FACTS[2]

         A. The Organization of the Public Works Department of the City of Bessemer

         Because 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.

         At all 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[3] within the Public Works Department, including: Construction; Grass and Clean-up; and Garbage and Trash (which also includes recycling and animal control).[4] Within each sub-department there are Labor Supervisors, who report to the Public Works Supervisor over that sub-department.[5]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.

         B. The Position at Issue

         A 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).[6] 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).

         The 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.[7]

         C. The Candidates

         1. Strother[8]

         Strother 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 headwalls.

         From 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)).

         At the 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), 35(134-136)).

         At the 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.

         D. The Interview Process and Decision

         After 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, 6).[9]

         After 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 5(16)-6(17)).

         Strother 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)). Strother testified:

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)).

         Following 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 writing:

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).

         After receiving Hatter's recommendation, McLaughlin submitted his own recommendation to Mayor Gulley which stated, in pertinent part:

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).

         Mayor 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)).[10] Later, he stated that he also reviewed the past disciplinary histories of both candidates (doc. 23-1 at 10(34))[11], 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 candidate.

         As far 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.

         The 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 recommendation.

         Mayor 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)).

         E. Strother Was Promoted into a Different Position than the One for ...

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