Howard v. Mobile County Board of School

          ORDER

          KRISTI K. DuBOSE CHIEF UNITED STATES DISTRICT JUDGE

         This 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. 63).^[1]

         I. Findings of Fact ^[2]

         On May 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 (Mouton)^[3] as 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.^[4]

         Howard 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.

         In 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.^[5] (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)).

         In 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)).

         On May 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)).

         On May 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).

         On May 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.)

         On May 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)).

         On May 20, 2014, the committee interviewed the three (3) qualified candidates and scored them as follows based on their responses to the same 10 questions:

	Howard	Merryman	Nelson
Ardis	34	37	15
Moore	34.5	34	19.5
Prine	28	37	19
Reed	26	38	23
White	n/a	43	32

(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).^[6] 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 at 50)).

         Committee 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)).

         Later, 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)).

         In 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)).

         While 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).

         On May 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 rejected.

         II. Preliminary Issues

         First, 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.

         Second, 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.

         Third, Plaintiff alleges a Title VII, Section 1981 and Section 1983 claim against the Board, and a Section 1983 claim against Mouton.^[7] When 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 (11^th Cir. 2012). See also e.g., Richardson v. Leeds Police Dep't 71 F.3d 801, 806 (11^th 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 (11^th Cir. 2000) (same); Butts v. County of Volusia, 222 F.3d 891, 893-894 (11^th Cir. 2000) (same). See also King v. Butts Cty., 576 Fed.Appx. 923, 931 (11^th Cir. 2014) (same). As such, the claims are analyzed together.

         III. 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 follows:

(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), ...