United States District Court, N.D. Alabama, Southern Division
KENNETH E. DUKES, Plaintiff,
SHELBY COUNTY BOARD OF EDUCATION, et al. Defendants.
DAVID PROCTOR UNITED STATES DISTRICT JUDGE
case is before the court on Defendants' Motion for
Summary Judgment. (Doc. # 18). The parties have fully briefed
the Motion for Summary Judgment (Docs. # 19, 21, 23), and the
Motion is under submission. After careful review, and for the
reasons explained below, the court concludes that the Motion
for Summary Judgment is due to be granted.
employment discrimination action concerns two promotions
granted by Defendant Shelby County Board of Education (the
“Board”) in 2012 and 2014, respectively.
Plaintiff applied for the positions, was qualified for them,
and interviewed for the positions, but was not selected for
either position. He claims the failure to promote him was
discriminatory. The court begins its review of the facts by
discussing Plaintiff's work history and leadership
activities. Then, the court will discuss each promotion, in
Plaintiff's Work History and Leadership
began working for Shelby County Schools (“SCS”)
in 1986 as a substitute bus driver. (Dukes Deposition at
13-14). SCS hired him as a permanent bus driver in
1988. (Id. at 15, 20). Plaintiff also served as a
volunteer football and basketball coach for several years,
before transitioning to an assistant coach in the early
1990s. (Id. at 28). From 1989 to 1994, Plaintiff
worked as a bus driver for Shelby County Area Transportation
during summers and weekends. (Doc. # 20-1 at 61). In that
position, he drove Shelby County residents to various
appointments and transported soccer camp attendees from an
airport to the University of Montevallo. (Dukes Deposition at
the beginning of his career with SCS, Plaintiff has
consistently driven a bus route transporting students to
Montevallo High School. (Id. at 23). Plaintiff also
has driven a morning bus route transporting students from
Montevallo High School and Calera High School to the College
and Career Center in Columbiana, Alabama. (Id. at
23-24, 35). He has transported students from the Career
Center to Montevallo High School each morning as well.
(Id. at 35). Finally, he has driven afternoon routes
that transport elementary, middle, and high school students
in Montevallo to the Wilton community. (Id. at
37-38). Plaintiff has been a bus driver in the same community
for more than twenty years, although he drives different
routes from year to year. (Id. at 38). Plaintiff has
served on a committee of bus drivers who make recommendations
to the SCS administration about “bus routes, bus
equipment and apparatus needs, policies with respect to bus
drivers, and other matters.” (Doc. # 22-2 at 3).
2008, Plaintiff obtained a bachelor's degree from the
Birmingham Easonian Baptist Bible College. (Dukes Deposition
at 16-18). He has served as a pastor at two churches.
(Id. at 31-32). And, he has held the position of
“dean” for an extension of the Birmingham
Easonian Baptist Bible College located in Shelby County.
(Id. at 33-34). As dean, Plaintiff registers
students for classes, manages the facility and secretary, and
helps fundraising for the bible college. (Id.).
addition to his employment positions, Plaintiff has served as
the president of the Shelby County Education Support
Professionals, a division of the Alabama Education
Association for SCS support personnel. (Id. at 49;
Doc. # 22-2 at 1-2). As a union representative, Plaintiff has
helped SCS bus drivers handle problems related to bus
transportation and has been consulted by SCS administrators
about “bus routes, equipment, purchasing, and
policies[.]” (Doc. # 22-2 at 3). As of the date of his
deposition, Plaintiff served as president of the Shelby
County chapter of the NAACP. (Dukes Deposition at 37).
The 2012 Transportation Route Supervisor Promotion
February 22, 2012, the Board posted a notice of vacancy with
two proposed transportation route supervisor positions. (Doc.
# 20-1 at 57). At the time they were posted, neither position
had been budgeted for. (See id.) (mentioning that an
assistant band director position was budgeted for, but not
indicating whether the route supervisor positions were
budgeted for). Thirty-nine candidates, including Plaintiff,
applied for the job. (Doc. # 20-2 at 33-35). In March 2012,
SCS interviewed eleven applications, including Plaintiff, for
the job. (Doc. # 22-11 at 1). The SCS interview panel
considered all eleven candidates to be qualified for the job.
(Doc. # 20-13 at 2). Four SCS employees interviewed the route
supervisor finalists: (1) Kevin Snowden, SCS's
transportation coordinator; (2) Tom Ferguson, a deputy
superintendent; (3) Rick Vines, a transportation supervisor;
and (4) Mary Howard, a human resources coordinator. (Doc. #
20-4 at 16).
job description for a transportation route supervisor
contains five qualifications: (1) a preference for a
bachelor's degree; (2) “a complete understanding of
bus route and safety issues”; (3) at least five years
of school transportation experience; (4) a Class B commercial
driver's license with certain bus driver endorsements,
which could be obtained within six months of hiring; and (5)
computer literacy. (Doc. # 22-16 at 1). A route supervisor
performs several functions related to bus transportation,
1. Assist[ing the] Transportation Coordinator and
Transportation Supervisor in the routing of buses and other
operations of the [SCS] Transportation Department.
2. Mak[ing] recommendations for establishing or changing bus
3. Keep[ing] records and mak[ing] reports as required. . . .
5. Assist[ing] in investigating reports of road hazards.
6. Monitor[ing] and operat[ing] two-way radio equipment in a
7. Assist[ing] in responding to requests on route problems
from bus drivers, parents, and principals.
8. Assist[ing] in training bus drivers.
(Doc. # 22-16 at 1-2).
the interviews, the panelists asked Plaintiff and the other
finalists about their training backgrounds and experiences,
their perceptions about the most important function of the
route supervisor position, and their experiences with
software. (E.g., Doc. # 20-13 at 6-7) (listing
questions asked during the route supervisor interviews). They
asked the applicants to describe what factors should be
considered when reviewing a bus route. (E.g.,
id. at 6). They also asked the applicants to explain
how they would handle certain problems, such as angry or
feuding parents and overcrowded buses. (Id. at 6-7).
The panelists rated the applicants' answers to the
questions on a one to five numerical scale. (See
id.). During Plaintiff's interview, Howard mentioned
Plaintiff's race while confirming his biographical
details. (Dukes Deposition at 94-95). Nevertheless, Plaintiff
does not recall any inappropriate questions asked during the
interview. (Id. at 93).
eleven interviewed applicants, Brian Miller received the
fifth highest interview score at 103.5, and Plaintiff's
interview score of 102 was sixth highest. (Doc. # 20-9 at
11). Plaintiff had the most driving experience among the
interviewed applicants. (See id.) (recording that
Plaintiff had twenty-four years' driving experience as of
March 2012 and that Miller had six years' driving
experience). Yet, in addition to interview performance, the
panelists also considered the applicants' experience and
how they thought the applicants would perform as a route
supervisor. (Docs. # 20-11 at 3; 20-13 at 3; 20-15 at 3). The
panelists ultimately agreed that Miller was the best
candidate because he had worked as a full-time substitute bus
driver for several years and had driven bus routes in several
areas of Shelby County. (Docs. # 20-11 at 3; 20-12 at 3;
20-13 at 3; 20-15 at 3). Vines, the SCS employee who was
responsible for route planning at the time, recalls that he
believed Miller's experience as a substitute driver
“gave [Miller] broader experience than the other
candidates and that his knowledge of more routes in the
County would give him a head start in the Route Supervisor
job.” (Doc. # 20-15 at 3). Significantly, all four
panelists mentioned in their interview notes that Miller had
worked as a permanent substitute bus driver, and three of
those panelists recounted that he had worked in the permanent
substitute position for five years. (Docs. # 20-11 at 8;
20-12 at 6; 20-13 at 8; 20-15 at 8).
SCS policy, the interview panel submits a recommended
applicant for hire to SCS's superintendent without
providing the superintendent information about the
unsuccessful applicants. (Doc. # 20-9 at 3). Thereafter, the
superintendent makes a formal recommendation to the Board.
(Id.). The parties dispute whether the Board
receives information about the unsuccessful applicants.
Plaintiff asserts that the Board must receive such
information because Jimmy Bice, a Board member, once told him
that the Board would consider a black applicant for a
position in the transportation department “if we ever
get a decent resume from a black.” (See Docs.
# 22-1 at 2; 22-2 at 1; 20-7 at 13). To the contrary, Jim
Miller, SCS's assistant superintendent for human
resources, has averred that the Board receives no information
about unsuccessful applicants. (Doc. # 20-9 at 3). Moreover,
Bice has testified that he was unaware of Plaintiff's
applications for the relevant positions because Board members
“were never told who applied unless we asked.”
(Doc. # 20-7 at 12). In April 2012, the Board voted to
approve Miller's promotion from bus driver to route
supervisor. (Doc. # 20-9 at 13-14).
parties have also addressed the question of why SCS chose to
hire one route supervisor, instead of two route supervisors.
According to Defendants, SCS's superintendent chose to
only fill one route supervisor position because SCS needed to
reduce expenses when one of Shelby County's
municipalities, Alabaster, created a separate school
district. (Doc. # 20-10 at 2-3). Ferguson has recalled that
the panel knew there would only be one route supervisor hired
by the date the interviews occurred. (Doc. # 20-11 at 2-3).
In contrast, Plaintiff has averred that members of the
interview panel told him that they were interviewing for two
route supervisors. (Doc. # 22-2 at 1). And, Miller has
recalled a high volume of hiring in 2012. (Doc. # 20-2 at
Plaintiff's Discussion with a Board Member About Lack of
Diversity in SCS's Transportation
Plaintiff failed to obtain the route supervisor position, he
complained to a Board member about the racial makeup of the
Transportation Department. (Doc. # 22-2 at 5). As Plaintiff
explains in his affidavit,
32. While attending a Shelby County event in 2013, I had a
discussion with Aubrey Miller regarding the fact that I was
denied a Route Transportation Supervisor position in 2012,
and regarding the lack of minorities employed in the
Transportation Department. I advised him that there were two
vacancy postings, that the second vacancy was pulled and I
was not hired. Aubrey Miller advised me to let him know when
I applied for a Transportation Supervisor position in the
future and he would keep an eye on it.
33. I advised Mr. Aubrey Miller when I was in the process of
applying for the Transportation Supervisor position in June
(Id.). Bobby Pierson, another SCS bus driver, has
affirmed that the conversation between Plaintiff and Aubrey
Miller occurred. (Doc. # 22-1 at 2). Pierson also recounts
that he discussed “the fact that there are no
minorities in the Transportation Department” with Lewis
Brooks, an SCS assistant superintendent. (Id. at 1).
The 2014 Transportation Supervisor Promotion
2014, the Board posted a vacancy notice for a transportation
supervisor position. (Doc. # 20-8 at 103). Twenty-two
candidates, including Plaintiff, applied for the position.
(Doc. # 20-5 at 17-18). SCS officials chose to interview four
applicants, including Plaintiff, for the position. (Doc. #
20-14 at 2). Two applicants -- Plaintiff and Debra Cummings
-- were interviewed by a panel on June 18, 2014. (Doc. #
22-14). For the other two applicants, the interview panel
decided to rely upon the interviews those applicants had
completed in connection with a different position,
transportation coordinator. (Docs. # 20-9 at 5; 20-10 at 4;
20-14 at 3). Jim Miller has explained that considering a
prior interview for a ...