United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF THE MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE.
6, 2016, Freddie Gunn (“Plaintiff”) filed a
complaint (Doc. 1) alleging that the Elmore County Board of
Education (“Defendant”) discriminated against him
because of his race when he was overlooked for the position
of Shop Foreman. Pending before the court is
Defendant's Motion for Summary Judgment (Doc. 29) and its
Brief in Support (Doc. 30) thereof; Plaintiff's Response
in Opposition to Defendant's Motion for Summary Judgment
(Doc. 32) and his Brief in Support (Doc. 33) thereof; and
Defendant's Reply (Doc. 35). Defendant's motion is
ripe for recommendation to the United States District
Judge. For the reasons that follow, the
undersigned finds that Defendant's motion for summary
judgment is due to be GRANTED.
STANDARD OF REVIEW
Rule 56(a) of the Federal Rules of Civil Procedure, a
reviewing court shall grant a motion for “summary
judgment if the movant shows 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.” Fed.R.Civ.P.
56(a). Only disputes about material facts will
preclude the granting of summary judgment. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). “An
issue of fact is ‘genuine' if the record as a whole
could lead a reasonable trier of fact to find for the
nonmoving party. An issue is ‘material' if it might
affect the outcome of the case under the governing
law.” Redwing Carriers, Inc. v. Saraland
Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting
Anderson, 477 U.S. at 248).
Rule 56, summary judgment is appropriate “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.” Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). The party asking for summary judgment
“always bears the initial responsibility of informing
the district court of the basis for its motion, and
identifying those portions of ‘the pleadings,
depositions, answers to interrogatories, and admissions on
file, together with the affidavits, if any, ' which it
believes demonstrates the absence of a genuine issue of
material fact.” Id. at 323. The movant can
meet this burden by presenting evidence showing there is no
dispute of material fact, or by showing the non-moving party
has failed to present evidence in support of some element of
his case on which he bears the ultimate burden of proof.
Id. at 322-23.
the movant has satisfied this burden, the non-moving party
must “go beyond the pleadings and by his own
affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file, ' designate
‘specific facts showing that there is a genuine issue
for trial.'” Id. at 324. In doing so, and
to avoid summary judgment, the non-movant “must do more
than simply show that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). The
parties must support their assertions “that a fact
cannot be or is genuinely disputed” by “citing to
particular parts of materials in the record, including
depositions, documents, electronically stored information,
affidavits or declarations, stipulations, admissions,
interrogatory answers, or other materials” or by
“showing that the materials cited do not establish the
absence or presence of a genuine dispute, or that an adverse
party cannot produce admissible evidence to support the
fact.” Fed.R.Civ.P. 56(c)(1)(A) & (B).
nonmovant “fails to properly address another
party's assertion of fact” as required by Rule
56(c), then the court may “consider the fact undisputed
for purposes of the motion” and “grant summary
judgment if the motion and supporting materials- including
the facts considered undisputed-show that the movant is
entitled to it.” Fed.R.Civ.P. 56(e)(2) & (3).
determining whether a genuine issue for trial exists, the
court must view all the evidence in the light most favorable
to the non-movant. McCormick v. City of Fort
Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003).
Likewise, the reviewing court must draw all justifiable
inferences from the evidence in the nonmoving party's
favor. Anderson, 477 U.S. at 255. However,
“mere conclusions and unsupported factual allegations
are legally insufficient to defeat a summary judgment
motion.” Ellis v. England, 432 F.3d 1321, 1326
(11th Cir. 2005) (per curiam). Furthermore, “[a] mere
‘scintilla' of evidence supporting the opposing
party's position will not suffice; there must be enough
of a showing that the jury could reasonably find for that
party.” Walker v. Darby, 911 F.2d 1573, 1577
(11th Cir. 1990); see also Anderson, 477 U.S. at
249-50 (“If the evidence [on which the nonmoving party
relies] is merely colorable, or is not significantly
probative, summary judgment may be granted.”) (internal
reviewing court is restrained during summary judgment
proceedings from making the sort of determinations ordinarily
reserved for the finder of fact at a trial. See
Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 54
(11th Cir. 2012) (citations and quotations omitted)
(“Credibility determinations, the weighing of the
evidence, and the drawing of legitimate inferences from the
facts are jury functions, not those of a judge, whether he is
ruling on a motion for summary judgment or for a directed
verdict.”). After the nonmoving party has responded to
the motion for summary judgment, the court must grant summary
judgment if there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.
See Fed. R. Civ. P. 56(a).
STATEMENT OF FACTS
1999, Plaintiff, a black male, started working for Defendant
in the transportation department with six other mechanics,
four of whom were white and two of whom were black. Doc. 31-1
at 19:11-12; 20:13-20; 132:6-9. Specifically, Plaintiff
worked as a bus mechanic and as a bus driver. Id. at
19:18-20. During his employment with Defendant, Plaintiff
applied for the position of bus Shop Foreman on three
occasions, and applied for the last time in May
2014. Id. at 124:18-125:22; Doc. 31-3
at 32:17-23. Plaintiff and Frank Hysmith, a white male, were
the only candidates who interviewed for the job. Doc. 31-4 at
6:10-21; Doc. 31-2 at 35:2-3:36:8-10.
2014 interviews were conducted by a panel of four
interviewers: (1) Ray Mullino (white male), who currently
serves as the Transportation Coordinator for Defendant; (2)
Gary Gregory (white male) who was the maintenance department
supervisor; (3) Nick Townsend (black male) who was an
assistant principal; and (4) Gina Sanders (black female) who
was an elementary school principal. Id. Doc. 31-2 at
7:4-14; 36:11-17; 46:17-47:16; Mullino Aff. (Doc. 31-3) at
¶ 1, 6. All interviewers scored Hysmith higher than
Plaintiff. Doc. 31-12. Hysmith was subsequently selected as
the candidate to be recommended for hire. Doc. 31-2 at
Hysmith was promoted to bus Shop Foreman, Plaintiff filed an
EEOC charge alleging racial discrimination on October 14,
2014. Doc. 13. In his EEOC charge, Plaintiff states that he
was overlooked for the Shop Foreman position twice, and the
position was filled by white males who either did not possess
the required certifications or had violations within their
personnel file. Doc. 31-13.
resigned from his job with Defendant in April 2015 and
started working at Montgomery Public Schools. Doc. 31-1 at
37:21-38:1; 6:6-7; 7:11-12; see also Gunn
Resignation Letter (Doc. 31-5). Plaintiff testified that it
is possible that he told other people he was leaving his job
with Defendant because he could make more money in
Montgomery. Doc. 31-1 at 85:23-86:3. In his resignation
letter he stated: “While I have enjoyed working with
the Transportation Department, I feel like I must move into a
new phase in my life. I wish you and the Elmore County Board
of Education continued success.” Doc. 31-5.
amended complaint sets forth a claim of race-based
discrimination in violation of Section 703(a) of Title VII.
See Doc. 12 at 4. Plaintiff states that Defendant
discriminated against him on the basis of his race when they
did not promote him to Shop Foreman, even though he was
qualified for the position, and instead promoted a white
male, Hysmith, who was not qualified for the position.
Id. Plaintiff also alleges that the claim of
discrimination is based upon Defendant's decision to
promote a white male that was racially biased to supervise
black employees, and for retaliating against Plaintiff after
he complained of the discrimination. Id. at 4-5.
it is not exactly clear to the undersigned, the amended
complaint may also be attempting to set forth a claim for
retaliation. Plaintiff's complaint states that Defendant
retaliated against him by accusing him of wrongdoing and
placing negative statements in his personnel file for doing
the same actions that white employees were allowed to do.
Id. at 4. Plaintiff alleges that these actions
occurred after he complained of discrimination and different
treatment of black employees to his supervisor. Id.
undersigned turns to address both claims against
Defendant's motion for summary judgment.
Plaintiff's race-based ...