Moore v. Birmingham Board of Education

          MEMORANDUM OPINION ^[1]

          JOHN H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE

         Plaintiff George C. Moore, Jr. (“Moore”) brings this employment action against his former employer, Birmingham Board of Education (“the Board”). (Docs. 1, 33). Moore asserts claims for sex-based discrimination, race-based discrimination, age-based discrimination, and retaliation pursuant to Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et seq.; 42 U.S.C. §§ 1981 & 1983; and the Age Discrimination and Employment Act, 29 U.S.C. §621 et seq. (Doc. 33). The Board has moved for summary judgment, contending there are no disputed issues of material fact and that it is entitled to judgment as a matter of law. (Docs. 50, 51, & 52). Moore opposes the motion. (Docs. 58, 59, & 60). The Board has filed a reply brief in support of its motion. (Doc. 65). The motion for summary judgment is fully briefed and ripe for review. As explained fully below, the Board’s motion for summary judgment (doc. 33) is GRANTED.

         I. Standard of Review

         Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “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.” Rule 56 “mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323. The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

         The Court must construe the evidence and all reasonable inferences arising from it in the light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, (1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the non-moving party’s favor). Any factual disputes will be resolved in Plaintiff’s favor when sufficient competent evidence supports Plaintiff’s version of the disputed facts. See Pace v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes in the non-moving party’s favor when that party’s version of the events is supported by insufficient evidence). 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) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir. 1989)). Moreover, “[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) (citing Anderson, 477 U.S. at 252).

         II. Summary Judgment Facts

         Moore is an African-American male and was over the age of sixty in 2015. (Doc. 60-1 at ¶ 2). He began full-time employment with the Board in 1967, and has been employed in several capacities since then. (Id.). Moore has a bachelor’s degree and master’s degree in Physical Education and holds certifications in Administrative Supervision, Physical Education, and as an Educational Administrator. (Id. at ¶3).

         In the past, ^[2] Moore was the athletic director for the Board, and Sherri Huff worked for him as a program specialist. (Doc. 60-1 at ¶ 4). Huff is a white female who is “many years younger than” Moore. (Id.). During a reduction in force, the athletic department was eliminated.^[3] (Id. at ¶ 5). Moore was moved to program specialist in a school, and Huff was moved to a teaching position. (Id.). While in this position, Huff was permitted to leave her school position for a portion of the day and return to the central office to perform athletic department functions. (Id.). Moore further states the Board issued Huff a cell phone and paid her a $333.00 a month athletic department stipend. (Id.; doc. 60-3 at 3-4 (11:1-13:13)).

         In 2013 or 2014, when the Board reinstituted the athletic department, Moore applied for the athletic director position. (Doc. 60-1 at ¶ 6). When Moore was not selected for the position, he filed an EEOC complaint in 2014, and, thereafter, entered into a settlement agreement with the Board on December 9, 2014. (Id. at ¶ 7). After returning to the EEOC because of a delay in payment, Moore received a settlement check in January or February 2015. (Id.).

         In May 2015, at the request of then Athletic Director Buck Johnson (doc. 52-5 at 1-3), the position of assistant athletic director and a corresponding salary schedule were approved by the Board (id. at 14). The person appointed to the position would work eleven months (224 days) per year as reflected on the approved salary scheduled. (Id.).

         In accordance with Alabama Code §16-22-15, the position was posted for fourteen days from June 12, 2015 to June 26, 2015. Individuals interested in a position with the Board, such as the assistant athletic director position, are required to submit their application through SearchSoft, an electronic application system in which an applicant may complete the standard application and indicate specific positions for which he or she would like to be considered. (Doc. 52-8 at ¶ 3). The Board has utilized SearchSoft since 2011. (Id.). School systems throughout Alabama utilize SearchSoft for posting job vacancies. (Id.).

         The Board has produced a document generated by the SearchSoft application system showing applicants for the assistant athletic director position that was posted from June 12, 2015 to June 26, 2015. (Doc. 52-8 at ¶ 4 & pp. 4-5). The printout indicates twenty-seven individuals applied for the position. (Id.). Moore’s name is not included. (Id.). Moore contends he applied for the assistant athletic director position by submitting an application online through SearchSoft on June 26, 2015. (Doc. 60-1 at ¶ 8). Moore produces two email printouts. One is a single page email dated June 26, 2015 with the subject “Standard Application account recovery at Alabama State Department of Education;” however, the body of the email is not shown. (Doc. 60-1 at 7). The second email is page two of two (first page not included) and includes the header “Athletics – Assistant Athletic Director Middle/K-8 Athletics and Activities.” (Id. at 8). This page contains an anti-discrimination statement, information on the E-Verify program, and a warning about using any of the Board’s published data. (Id.). SearchSoft will send an email to users informing them if their application is incomplete. (Doc. 52-2 at 10 (38:23-39:15)). Moore states he never received an email from SearchSoft informing him that his application was incomplete. (Doc. 60-1 at ¶ 8). However, an application can be “complete, ” but not submitted for a particular job. (Doc. 52-2 at 10 (39:16-23)).

         After the close of the application process, there was an interview process conducted by a diverse, three-member committee. (Doc. 52-2 at 17 (depo. pp. 66, 70)). After interviews were complete, Johnson forwarded his recommendation of Sherri Huff for the position to the Board’s Human Resources Department on July 8, 2015. (Doc. 52-5 at 4). The Board approved Huff’s appointment to the position on July 21, 2015. (Doc. 52-6 at 12).

         On July 9, 2015, after Johnson had forwarded his recommendation to Human Resources, then-Interim Human Resources Officer Amanda Cross received an email from Moore inquiring about whether his application for the assistant athletic director position had been received. (Doc. 52-5 at 5). Upon receipt of Moore’s email, Cross reviewed the applicant pool via SearchSoft (the online application software). (Doc. 52-2 at 19 (73-74); doc. 52-5 at 6). Cross found no evidence that Moore had applied for the position and reported that information to Moore. (Id.). Moore responded that his intentions had been to update his application and apply for the assistant athletic director position. (Doc. 52-5 at 6). Moore stated he submitted the application and printed a copy. (Id.). Moore did not provide Cross (or the court) with this printed copy he refers to. Moore attests that he has searched for the paper copy that he and his wife printed off on June 26, 2015, but has been unable to locate it. (Doc. 60-1 at ¶ 9). The Board has provided Moore’s standard application maintained in the SearchSoft system, which shows an activation date of June 27, 2015. (Doc. 52-1 at 45). Cross testified that she was aware of Moore’s 2014 discrimination claim, although she would not have been a part of the settlement negotiations. (Doc. 52-2 at 37 (147:21-148:10)). Moore asserts that the Assistant Athletic Direction position was the first (and only) position Moore applied for since the 2014 EEOC Complaint and settlement with the Board. (Doc. 60-1 at ¶ 8).

         Cross did not report to anyone that Moore thought he timely applied for the assistant athletic director position. (Doc. 52-2 at 19-20 (74:14-77:9)). Cross testified that, at the time Moore contacted her – July 9, 2015 – a qualified individual had already been selected for the position. (Id.). She further testified that the application pool closed on July 26, 2015, interviews had been held, and there was nothing she could do to get Moore into the pool. (Id.). When asked if anything prevented the position from ...