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Morgan v. Birmingham Board of Education

United States District Court, N.D. Alabama, Southern Division

October 1, 2019

ROBERT A MORGAN, Plaintiff,
v.
BIRMINGHAM BOARD OF EDUCATION, et al., Defendants.

          MEMORANDUM OPINION

          ANNEMARIE CARNEY AXON, UNITED STATES DISTRICT JUDGE

         Before the court is Defendant Birmingham Board of Education’s (“the Board”) motion for summary judgment. (Doc. 34).

         Plaintiff Robert Morgan, a Caucasian man, filed this lawsuit against the Board, alleging that (1) the Board engaged in race and color discrimination, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Count One”); (2) the Board engaged in race and color discrimination, in violation of 42 U.S.C. § 1981 (“Count Two”); (3) the Board retaliated against him, in violation of Title VII, based on his complaints of discrimination (“Count Three”); and (4) the Board retaliated against him, in violation of § 1981, based on his complaints of discrimination (“Count Four”). (Doc. 1 at 7–16).

         The court WILL GRANT the Board’s motion for summary judgment and WILL ENTER SUMMARY JUDGMENT in favor of the Board and against Mr. Morgan because he has not presented evidence from which a reasonable jury could find that the Board engaged in race or color discrimination, nor has he presented evidence that the Board declined to interview or hire him based on his engaging in a protected activity.

         I. BACKGROUND

         On a motion for summary judgment, the court “draw[s] all inferences and review[s] all evidence in the light most favorable to the non-moving party.” Hamilton v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation marks omitted).

         Robert Morgan began working for the Birmingham Board of Education in 1997. (Doc. 36-5 at 2 ¶ 3). By 2016 he was working as the Director of the Capital Improvement Projects (“CIP”) Department. (See doc. 36-1 at 8, 84; doc. 36-3 at 37). The CIP Department employed four people: Mr. Morgan (the Director of the department), Cecil Eric Love (a project manager), Julian Woods (a project manager), and Lauren Gardner (a project manager). (Doc. 36-3 at 37). Mr. Love, Mr. Woods, and Ms. Gardner are all African-American. (Id.). In total, the salaries and benefits of all four department employees amounted to about $384, 163.05 per year. (Doc. 36-6 at 3).

         In this lawsuit, Mr. Morgan challenges as discriminatory and retaliatory three separate aspects of his employment with the Board: a demotion after the Board eliminated the CIP Department; a failure to interview him for another Director position; and the decision to hire an African-American who Mr. Morgan asserts is less qualified than him for that Director position. (See Doc. 1 at 7–15).

         1. The Demotion

         In 2015 and 2016, the CIP Department was working on a renovation of Norwood Elementary School. (See Doc. 36-1 at 92). The general contractor, A.G. Gaston Construction Company (“A.G. Gaston”), was founded by a famous African-American (see doc. 46 at 11), and employed “minority subcontractors” (doc. 47-4 at 85). At some point, Mr. Morgan complained to his supervisors about the quality and timeliness of work done by A.G. Gaston and its subcontractors. (Doc. 36-1 at 20– 22). In January 2016, A.G. Gaston’s vice president asked to meet with Mr. Morgan at the work site and insisted that he and Mr. Morgan sit inside a car while leaving their cell phones on top of the car. (Id. at 17–18). He told Mr. Morgan that he had just left a meeting with A.G. Gaston’s president and the superintendent and that although Mr. Morgan had “been good to work with, . . . there will be changes on this project.” (Id.).

         The next day, Mr. Morgan’s supervisor issued him a letter of reprimand blaming him for the failure to complete the Norwood renovation on time. (Doc. 36-1 at 22, 90–91). Mr. Morgan responded with a letter of rebuttal, stating that he was not responsible for the failure to complete the project on time. (Id. at 92).

         About a month later, the superintendent recommended eliminating the CIP Department, and the Board approved that recommendation. (Doc. 36-5 at 3 ¶ 4). Mr. Morgan contends that the elimination of the department was a pretext to retaliate against him for complaining about the minority-owned A.G. Gaston and its subcontractors. (Doc. 46 at 37–38). The superintendent, however, testified that she recommended eliminating the CIP Department as a way to save money for the school district because the Norwood renovation “was, if not the last, it was one of the last projects in the [capital projects] campaign. And we were trying to see how could we prevent having to go into the general fund to continue to pay for capital needs as those capital funds were running out.” (Doc. 36-2 at 7, 11). She also testified that she could not remember Mr. Morgan criticizing the general contractor or any subcontractors working on the Norwood project. (Doc. 36-9 at 3–4).

         The Board approved the superintendent’s recommendation to eliminate the CIP Department. (Doc. 36-5 at 3 ¶ 4). The Board terminated the two probationary employees, Mr. Woods and Ms. Gardner (doc. 36-3 at 37; Doc. 36-5 at 4 ¶ 4; Doc. 36-6 at 4–5), but it offered to “transfer” the two most senior members of the Department, Mr. Morgan and Mr. Love, into the Facilities and Maintenance Department, which had openings for two project managers (doc. 36-5 at 3–4 ¶ 4). Mr. Love, who had been working as a project manager for the CIP Department, accepted the transfer, retaining the same salary.[1] (Doc. 36-5 at 3 ¶ 4). Mr. Morgan, whose position would change from director to project manager, involving a reduction in his salary from $89, 947 to $72, 331 (doc. 36-1 at 84), contested the proposed demotion. (Doc. 36-5 at 5 ¶ 5).

         On November 9 and 21, 2016, the Board held an evidentiary hearing on Mr. Morgan’s challenge to his demotion. (Doc. 36-5 at 5 ¶ 5). On November 9, Mr. Morgan testified that he believed the superintendent had recommended his demotion because he had complained about the work done by “minority subcontractors being used by A.G. Gaston.” (Doc. 47-4 at 85, 95).

         After the hearing, the Board voted to approve Mr. Morgan’s transfer. (Doc. 36-5 at 5 ¶ 5; Doc. 36-6 at 10). Mr. Morgan administratively appealed the Board’s decision, and a hearing officer affirmed the demotion to the position of project manager with the Facilities and Maintenance Department. (Doc. 36-5 at 5; Doc. 36-6 at 11–12). Mr. Morgan did not appeal the hearing officer’s decision. (Doc. 36-5 at 5).

         After the Board eliminated the CIP Department, it contracted with a company called BLOC Global to consult on capital projects. (Doc. 36-5 at 4 n.4). From January to November 2016, the Board paid BLOC Global “just over $53, 000” out of funds allocated to the capital improvement ...


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