United States District Court, N.D. Alabama, Southern Division
GEORGE C. MOORE, JR., Plaintiff,
BIRMINGHAM BOARD OF EDUCATION, Defendant.
MEMORANDUM OPINION 
H. ENGLAND, III UNITED STATES MAGISTRATE JUDGE
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.
Standard of Review
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).
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).
Summary Judgment Facts
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).
past,  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. (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)).
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.).
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.).
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.).
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)).
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).
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 ¶
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