United States District Court, S.D. Alabama, Southern Division
K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE
matter is before the Court on the Board's motion for
summary judgment (Docs. 39), Mouton's motion for summary
judgment (Doc. 41), defendants' evidentiary submissions
(Doc. 40), Plaintiffs responses (Docs. 46-59, 64) and
defendants' replies (Doc. 59, 61); and Mouton's
motion to strike (Doc. 60) and Plaintiffs opposition (Docs.
Findings of Fact 
6, 2016, Plaintiff Felice Howard (Howard) initiated a race
and sex pattern and practice discrimination case against her
employer Defendant Mobile County Board of School
Commissioners (the Board) and Defendant Larry Mouton
follows: Count I - under Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000 et seq. and Section
1981, against the Board; and Count II - equal protection
claims under 42 U.S.C. § 1983 in violation of the
Fourteenth Amendment, against the Board and Mouton. (Doc. 1).
Howard asserts that she, an African American female, was
treated differently than a Caucasian male in 2013-2014 when
she was not promoted to Supervisor of Agriscience, Technical
Education and Career Technologies.
is currently employed by the Board as a Cooperative Education
Coordinator Teacher (Co-Op Teacher), and coordinates with
businesses and industries in the community to coordinate
student placement and support. (Doc. 1 at 3). In the early
1990s, Howard was briefly employed by the Mobile County
School System as a Title I Aide and a Migrant Co-Op
Coordinator in Alba, and was transferred to LeFlore to work
as a Marketing Education Coordinator. (Doc. 40-1 (Dep. Howard
at 20-22)). From 1993 to 1997, Howard obtained her MBA and
completed her marketing certification. (Id. (Dep.
Howard at 23)). In 1997, Howard returned to the school system
as a teacher at Satsuma, teaching for the next 13 years until
Satsuma left the system. (Doc. 40-1 (Dep. Howard at 27)). In
2012, Howard was assigned to Theodore High School and was
directed to establish a Co-Op program (for which she would
recruit students, parents and businesses to participate).
Howard was successful in building the program with 20-30
students each semester, each with a different assigned work
site. Howard established a Distributive Education Clubs of
America (DECA) chapter at the school. Howard also served as
the Career Technical Department Chair for 8 years, supervised
8-10 teachers in her department and served as Acting
Principal for the 2005 and 2007 Summer school terms.
October 2013, Supervisor of Agriscience, Technical Education
and Career Technologies, Steve Boykin (Boykin), announced his
plans to retire. (Doc. 40-1 (Dep. Howard at 38-39); Doc. 40-2
(Dep. Prine at 83-84); Doc. 40-1 (Dep. Mouton at 41-42)). On
October 28, 2013, Mouton notified HR that he needed someone
for the position. (Doc. 40-1 (Dep. Mouton at 41)). In October
Howard was told by a colleague that Mouton had already
promised Boykin's job to Richard Allen Merryman
(Merryman), a Caucasian male. (Doc. 40-1 (Dep. Howard at 38, 45)). At
that time, there was no notice or posting of the vacancy by
the Board because Boykin had not yet officially retired.
(Id. (Dep. Howard at 38-39)). However, Merryman
testified that he never told anyone that Mouton promised him
the position. (Doc. 40-2 (Dep. Merryman at 37)).
November 2013, Boykin officially announced his retirement.
(Doc. 40-2 (Dep. Prine at 83-84); Doc. 40-1 (Dep. Mouton at
41-42); Doc. 48-1 (Aff Howard)). On November 22, 2013, Boykin
officially retired, and Nancy Prine assumed his
responsibilities. (Doc. 40-2 (Dep. Prine at 84)). In November
2013, Merryman asked Mouton for a letter of recommendation
for Boykin's position. (Doc. 40-2 (Dep. Merryman at
100)). Committee member Prine also provided a letter of
recommendation to Merryman for the position. (Doc. 40-2 (Dep.
Prine at 85)).
1, 2014, the Board posted the vacancy for the position. (Doc.
40-1 at 2; Doc. 40-1 (Dep. Howard at 99-100)). The hiring
process is as follows:
-HR posts the job announcement/opening, screens applicants,
verifies applicant qualifications and then provides a
qualified applicant list to hiring managers.
-For the job announcement, HR pulls up the last job
description posted, sends it to the supervisor, and asks if
the supervisor wants any changes. Any needed changes are made
and posted, unless those changes would violate some policy.
-After qualified candidates are interviewed, the department
head makes a recommendation to either HR or the
superintendent as to which candidate should be hired, but the
Board actually makes the decision.
-When hiring for a supervisory position, there is also a
screening/interview committee. At least three (3) people must
be interviewed for open positions. Applications for
supervisory positions are received through HR and are vetted
to make sure the applicants meet the minimum qualifications.
Then, HR makes a list of applicants, noting which meet the
basic requirements and which do not. The interview committee
is formed by the hiring manager and uses a uniform list of
questions which are asked of all the applicants.
(Doc. 40-2 (Dep. Hack at 9, 36-37, 42-43, 46-47, 50-51, 53,
57-58); Doc. 40-2 (Dep. Powell at 8-10, 28); Doc. 40-2 at
76-104 (Procedural Guide for Supervisors)). The procedure for
applying for a position is also set out in the Job
Announcement. (Doc. 40-1 at 2). Current employees were
instructed to submit an Application for Advertised Vacancy
form to HR. (Id.) An HR employee then processes the
application and determines whether an applicant meets the
minimum qualifications for the posted position, then those
qualified names are submitted to the Department
Head/Principal who establishes a screening committee and
ultimately forwards a recommendation to HR. (Doc. 40-2 (Dep.
Hack at 43, 46, 50-51); Doc. 40-2 (Dep. Powell at 8-9, 12)).
1, 2014, Howard discussed her interest in the position with
Mouton, who seemed surprised it was posted, "claimed
ignorance" and "abruptly disengaged from the
conversation." (Doc. 40-1 (Dep. Howard at 99-100)).
Howard applied for the position. (Doc. 1).
9, 2014, the posting for the Supervisor position was edited
as "it was apparently an old advertisement they used
that had some obvious errors on it" and then
re-posted, which is not unusual. (Doc. 40-1 (Dep. Mouton at
36-38, 55, 69-70); Doc. 40-1 (Dep. Howard at 100); Doc. 40-2
(Dep. Hack at 78, 84)). For example, the job posting required
3-5 years of classroom experience, which would infer 3, 4, or
5 years of classroom experience only, suggesting that anyone
with 6 years of classroom experience would not be qualified.
(Doc. 40-1 (Dep. Mouton at 36-38, 55, 69-70); Doc. 40-2 (Dep.
Hack at 78, 84)). The posting also indicated that the job
required a Master's Degree in Career & Technical
Education, which is "very, very rare" as such a
degree is something from 40 years ago that only a few
universities actually still offer. So, rather than taking the
job posting down, it was corrected on-line. (Id.)
16, 2014, HR issued a memorandum to Mouton with a list of
three (3) qualified candidates including Howard and Merryman.
(Doc. 40-1 at 26-27; Doc. 40-2 (Dep. Hack at 80; Doc. 40-1
(Dep. Mouton at 47)). Mouton selected individuals for a
committee to interview those qualified candidates. (Doc. 40-2
(Dep. Moore at 27); Doc. 40-2 (Dep. White at 14-15); Doc.
40-2 (Dep. Ardis at 26)). The committee included Nancy Prine
(Caucasian female), Melody Ardis (Caucasian female), Terria
Moore (African American female), Thomas Reed (African
American male) and William White (African American male).
(Doc. 40-2 (Dep. Prine. 85); Doc. 40-2 (Dep. Moore at 25,
27); Doc. 40-2 (Dep. Ardis at. 26); Doc. 40-2 (Dep. White at
15)). Committee members received score sheets and each
candidate's resume. (Doc. 40-2 (Dep. Moore at 30); Doc.
40-2 (Dep. White at 15); Doc. 40-2 (Dep. Prine at 87-88,
100); Doc. 40-2 (Dep. Ardis at 29)). The committee's
purpose was to "provide a quality objective review of
the questions and the responses [of each candidate] and to
score them." (Doc. 40-2 (Dep. Moore at 28); Doc. 40-2
(Dep. White at 15)). "[T]o ask questions, listen to the
answers, and rate each applicant based on how.. .they
answered the question." (Doc. 40-2 (Dep. Ardis at 26)).
20, 2014, the committee interviewed the three (3) qualified
candidates and scored them as follows based on their
responses to the same 10 questions:
(Doc. 40-1 at 7-24, 29; Doc. 40-2 (Dep. Prine at 91-92, 113);
(Doc. 40-1 (Dep. Howard at 45); Doc. 40-1 (Dep. Mouton at
51)). During each interview, committee members scored each
candidate's answers from 1 to 5 (5 being the best), and
once all the interviews were completed, turned the scores
into Mouton. (Doc. 40-1 (Dep. Mouton at 47, 50, 54); Doc.
40-2 (Dep. Ardis at 26); Doc. 40-2 (Dep. Prine at 92); Doc.
40-2 (Dep. Moore at 28-30). Candidates were also given two
(2) opportunities to tell the committee more about
themselves, experience and/or information that was not
covered by the questions asked. (Doc. 40-1 (Dep. Mouton at
51-52)). Mouton attended the interviews and asked questions
of the candidates, but did not score them: "I wanted
[the scores] to be independent of my input...." (Doc.
40-1 (Dep. Mouton at 48-50, 52); Doc. 40-2 (Dep. Moore at
28); Doc. 40-2 (Dep. Merryman at 109)). According to Mouton,
"the interview scores were the sole criteria to
determine who would be offered the position and Merryman
received the highest overall score. (Doc. 40-1 (Dep. Mouton
members did not have full discussions about the interviews as
a committee after each interview was completed, but some
members did make "comments." (Doc. 40-2 (Dep. Moore
at 28); Doc. 40-2 (Dep. Prine at 92)). Comments were made
about Howard after her interview - how long she had been in
career tech and surprise that she did not have more
knowledge. (Doc. 40-2 (Dep. Prine at 92); Doc. 40-2 (Dep.
Ardis at 31)).
committee members Ardis and Prine testified to
"surprise" at Howard's inability to answer
questions during her interview, given her years of
experience. (Doc. 40-2 (Dep. Ardis 31, 33-34); Doc. 40-2
(Dep. Prine at 89, 93, 118-119)). They also found her answers
vague and demonstrated a lack of Career Tech knowledge and
experience. (Id.) Specifically, Committee member
Prine testified that she thought Howard's answers to the
questions were shorter than expected, "very, very
brief...I was just surprised" as she answered the
questions but did not expand or say anything indicating her
levels of experience and knowledge. (Doc. 40-2 (Dep. Prine at
89)). Committee member Ardis testified that she was
"personally surprised at her inability...she did not
answer questions as well as I thought she would have with her
years of experience in career tech." (Doc. 40-2 (Dep.
Ardis at 31)). "[S]he did not do as well as she could
have[, ]" as she was "vague on things where she
should have been specific" and did "not [have]
enough knowledge in some of the areas we asked her
about[.]" (Id. (Dep. Ardis at 33-34)). Howard
testified that she did not perform research or prepare for
the interview. (Doc. 40-1 (Dep. Howard at 136-137, 139)).
comparison, committee member Ardis testified that Merryman
was prepared and his answers were more clear and concise than
the other candidates. (Doc. 40-2 (Dep. Ardis 31, 33-34); Doc.
40-2 (Dep. Prine at 89, 93, 118-119)). Also, Committee member
Ardis found Merryman "more prepared" and "his
answers were more clear and concise than the others."
(Doc. 40-2 (Dep. Ardis at 35)). Merryman testified that he
prepared for every type of career tech question. (Doc. 40-2
(Dep. Merryman at 109)).
committee member Moore scored Merryman and Howard very
closely (34 Merryman, 34.5 Howard), Prine, Ardis and
Reed's scores show a significant disparity between the
two (2) candidates. The scores were totaled by Mouton, and
Merryman received the highest overall score (189). (Doc. 40-1
(Dep. Mouton at 47, 50, 54).
21, 2014, Mouton e-mailed HR, recommending Merryman, the
highest scorer, for the promotion. Mouton relied on
"just the scores on the interview, " adding the
work experience and education was considered in the interview
through questions. (Doc. 40-1 (Dep. Mouton at 50-51)). Mouton
testified: "[t]he recommendation [to him] is the
scores....[a]nd then I make a recommendation...to HR, which
goes to the superintendent, who recommends to the
board." (Doc. 40-1 (Dep. Mouton at 53)). Mouton
testified that he did not hold the position for Merryman, nor
did he tell Merryman he was going to give him the position:
"[a]bsolutely not. The position is determined by the
scores in the interview." (Doc. 40-1 (Dep. Mouton at
47)). On May 22, 2014, HR issued a recommendation request
form for Merryman to receive the position, with a start date
of June 5, 2014. (Doc. 40-1 at 5). On May 30, 2014, Howard
was notified that her application for the position had been
Howard's failure to promote case alleges a pattern and
practice of discrimination. Howard alleges individual claims
and her action was not brought as a class action nor has a
class been certified. "A private litigant cannot
maintain a pattern and practice claim unless it is brought as
a class action and the class is ultimately certified."
Galbreath v. Hale Cty, Ala. Comm., 2017 WL 457197,
*19 (S.D. Ala. Feb. 1, 2017). See also Shaw v. Mobile
Cty. Public School Sys., 84 F.Supp.3d 1303, (S.D. Ala.
2015) (same). As such, to the extent Howard asserted a
pattern and practice claim it is DISMISSED.
the Complaint cites 42 U.S.C. § 1985(3) (Doc. 1 at 1).
Section 1985(3) prohibits "two or more persons...[from]
conspir[ing]...[to] depriv[e], either directly or indirectly,
any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the
laws." Howard does not allege a conspiracy to interfere
with a civil rights claim, nor does she use the word
"conspiracy" in the Complaint. The record also
indicates that Howard has not litigated this claim and Howard
does not reference Section 1985(3) in her response. To the
extent asserted, Howard is deemed to have abandoned this
claim, such that it is DISMISSED.
Plaintiff alleges a Title VII, Section 1981 and Section 1983
claim against the Board, and a Section 1983 claim against
a Title VII claim is based on the same facts as a Section
1981 and/or 1983 claim, "the analysis is the same under
all theories of liability, and the claims need not be
analyzed separately." Lindsey v. Board of School
Com'rs of Mobile Cty., 491 Fed.Appx. 8, 9
(11th Cir. 2012). See also e.g., Richardson v.
Leeds Police Dep't 71 F.3d 801, 806 (11th
Cir. 1995) (with "disparate treatment, in which §
1983 is employed as a remedy for the same conduct attacked
under Title VII, the elements of the two causes of action are
the same"); Abel v. Dubberly, 210 F.3d 1334,
1338 (11th Cir. 2000) (same); Butts v. County
of Volusia, 222 F.3d 891, 893-894 (11th Cir.
2000) (same). See also King v. Butts Cty., 576
Fed.Appx. 923, 931 (11th Cir. 2014) (same). As
such, the claims are analyzed together.
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). Rule 56(c) provides as
(1) Supporting Factual Positions. A party asserting
that a fact cannot be or is genuinely disputed must support
the assertion by:
(A) citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations
(including those made for purposes of the motion only),