Summary
In Rowlin, the court analyzed the claim as a failure to transfer claim, and determined that a question of fact had been created as to whether there was an adverse employment action because there was evidence from which a jury could find that the positions for which the plaintiff applied were prestigious and held out the possibility of extra overtime and paid travel.
Summary of this case from Smith v. Ala. Dep't of Corrs.Opinion
Civil Action 00-D-580-N
May 22, 2001
MEMORANDUM OPINION AND ORDER
Before the court is a Motion For Summary Judgment, which was filed March 15, 2001 on behalf of Defendants Mike Hulak and the Department of Public Safety. Plaintiff Samuel Rowlin, Jr., filed a Response April 4. Defendants issued a Reply April 11, and Plaintiff filed a Sur-Reply April 20. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendants' Motion is due to be granted in part and denied in part.
I. JURISDICTION MID VENUE
The court exercises subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331 (federal question jurisdiction) and 42 U.S.C. § 1483 (civil rights jurisdiction) The parties do not contest personal jurisdiction or venue.
II. SUMMARY JUDGMENT STANDARD
The court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). At this juncture, the court does not "weigh the evidence and determine the truth of the matter," but solely determines whether there is more than "some metaphysical doubt" about whether there is a genuine issue for trial. See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986) (citations omitted); Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
III. INTRODUCTION
In March 1999, the Department of Public Safety ("the Department" or "DPS") filled four vacancies with candidates other than Plaintiff Rowlin. The Department considered all of the candidates' qualifications and determined that Rowlin, who is a black male, was not the most qualified. Rowlin brings this suit, mainly alleging that all of his problems can be traced to the fact that a lieutenant allegedly told him in 1989 that he should stop dating a white woman. Rowlin also points to scattered comments, incidents, and accidents to support the claim that he has labored in a hostile work environment. Except for one claim involving one position, all of Rowlin's charges are due to be dismissed.
IV. DISCUSSION
Trooper Rowlin has worked in the Highway Patrol Division his entire career. The division has three relevant units: the Motor Carrier Safety Unit ("MCSU"), the weight detail unit, and the Autauga County patrol unit. The Department hired Rowlin in 1985. He was brought into MCSU in March 1989 and worked out of the Troy substation. At his request, he left MCSU in February 1992 and went into the Autauga unit. Rowlin resides in Prattyille, which is north of Montgomery.
In March 1999, the Department rejected Rowlin's applications to return to the MCSU or the weight detail units. Rowlin applied for two MCSU positions (one in Montgomery and one in Selma) and two weight detail positions (one in Montgomery and one in Selma). Selma is 50 miles west of Montgomery, and the Selma positions would have involved patrolling as far away as the Mississippi border.
In making its decisions, the Department brass looked at various factors. Among others, these factors included the applicants' certification levels, seniority, work ethic, relevant work experience, disciplinary history, and (for the Selma position) residential proximity to Selma. (Hulak's Dep. at 48-49, 53, 59-66, 69-82.)
The hiring process involves layers of recommendations, each of which are passed along the chain-of-command. Basically, the unit chief takes input from the unit's sergeants and the like. The unit chief then considers the applications and either makes a recommendation or forwards the names without recommendation to the acting chief of the entire division. The division chief recommends candidates to the promotion board, which consists of all division chiefs and the assistant director of the entire Department of Public Safety. The assistant director chairs the promotion board. He then relays the board's recommendation to the director of the Department. (Hulak Aff.; Sutton Aff. (Def. Ex. 17, 19)).
In March 1999, the chain-of-command ran as follows: Lt. Mike Hulak headed up the MCSU. He made recommendations to division chief Maj. Cary B. Sutton. Sutton "relied heavily" on Hulak's advice and forwarded Hulak's recommendations to the promotion board, which was chaired by Lt. Col. Charles Andrews. Andrews then passed them on to Acting Director Mike Sullivan. (Id.).
The Department selected Ralph Drinkard, who is white, and Elaine Otey, who is black, for the two MCSU positions. The Department selected John Driggers, who is white, and Gregory Scott, who is black, for the two weight detail positions. Rowlin was not chosen for any of these four spots.
Before he passed over Rowlin's application, Hulak looked through Rowlin's personnel file. The file had at least four disciplinary slips for matters linked to Rowlin's employment with MCSU in the late 1980s and early 1990s. The first is a letter of reprimand, which states that Rowlin was to come on duty around 8 a.m. on November 8, 1999, and had been verbally warned to stay in contact with headquarters, but could not be reached by telephone or radio until 9:30 a.m. The second is a 3-day suspension, which stemmed from an investigation's finding that Rowlin changed the work schedule on August 28, 1990 and then reported late to work. The third is a 5-day suspension, which stemmed from Rowlin's absence from his assigned territory on July 23, 1991. The fourth is a recommendation that Rowlin be transferred from the MCSU because he took unscheduled leave from December 23-27, 1991.
All of these disciplinary recommendations were signed by Rowlin's close supervisor, Corpl. C.D. Dukes. The recommendations were concurred with by Sgt. David C. Kyser, Lt. T.E. Mesaris and Maj. G.H. Jones. (Rowlin's Dep. Ex. 3-5; Rowlin Aff. Ex. D.) Letters from department supervisors accompany both of the suspensions. The letters informed Rowlin that he had five days to petition for a hearing to contest the reprimand and suspensions. Rowlin never did so. (Rowlin's Dep. at 132.)
The contents of the fourth and final document are in dispute. Rowlin states that he never saw the document until some time after March 1999. Rowlin maintains that he was not transferred out of MCSU because of disciplinary reasons. (Rowlin Aff. ¶ 5.) Rowlin's evidence goes as follows: Dukes recalled seeing Rowlin's leave slips, although Rowlin does not maintain that Dukes recalled the precise dates for which he was excused. (Rowlin's Dep. at 70-72.) Rowlin asked for a meeting with the department chiefs. Maj. Jones was there. Rowlin relies on hearsay for the proposition that Jones once said that if Rowlin "didn't stop screwing this white girl over in Eufaula," he would be in trouble. (Id. at 48.) Jones denied making this statement. (Id.) In any event, the race question never surfaced during the meeting. Rowlin recalls a supervisor saying that there was "an obvious problem with you and Corporal Dukes," and asking whether Rowlin wanted to work in Autauga County, where his son lived. (Id. at 73-75.) Because Rowlin wanted to be near his son, he requested a transfer in February 1992, and he got it. (Id. at 24-25.)
Time passed. Lots of time. About seven years, in fact, and nothing material to this lawsuit happened. Except for the fact that Rowlin performed work similar to that performed by MCSU personnel only one time, when he pulled over a truck in Prattville. (Id. at 32-33.) Then the MCSU and weight detail positions opened up in early 1999. It was up to Hulak to recommend filling the vacancies. Hulak spoke with Kyser at some point before making his recommendations.
The parties present different accounts of what Kyser and Hulak said to each other. Resolving these differences in favor of Rowlin, the record shows that Kyser told Mesaris that Rowlin should get one of the four vacant positions. In Kyser's words, "Lieutenant Hulak asked me what had happened to Trooper Rowlin when he was in Motor Carrier Safety the last time. I told Lt. Hulak that Lt. Mesaris and Lt. Patrick (who had been a sergeant while Trooper Rowlin was in the Unit) had been on Trooper Rowlin's case about a white woman that Trooper Rowlin supposedly had been seeing, and that I had recommended that Trooper Rowlin be taken out of the unit before they ended up firing him." (Kyser Aff. ¶ 16) (abbreviations inserted).
Though Hulak disagrees, Kyser states that he did not tell Hulak that "Rowlin had had disciplinary problems in the Unit, that he had been suspended, and that he had been transferred for disciplinary reasons . . . . I did not mention the suspensions, nor did I say that Trooper Rowlin had had disciplinary problems or that Trooper Rowlin could not work well without supervision. I also did not say that Trooper Rowlin was transferred for disciplinary reasons; rather, I explained that I had initiated the transfer to protect (Rowlin] from Lt. Mesaris and Lt. Patrick. Also, Lt. Hulak did not ask me why I had signed the disciplinary forms (in Rowlin's file] and I did not tell Lt. Hulak that I had only signed the disciplinary forms because I feared retaliation." (Id. ¶ 17.)
Hulak called Mesaris. The two met, and Mesaris said Rowlin "was transferred out of motor carrier safety on a disciplinary," that Rowlin "couldn't work well independently," "had to be closely monitored," and "wouldn't report to work on time." (Hulak's Dep. at 75.) Hulak then went and looked at Rowlin's personnel file. The file verified most of Mesaris's comments. Hulak further noted that Kyser had signed off on Rowlin's discipline slips.
Hulak also looked at computer records, which indicated that Rowlin had not done any significant work related to motor carrier safety while he was at Prattville. (Id. at 77, 80.) Furthermore, the records showed that Rowlin was not certified to perform "level one" vehicle testing. (Powell Aff. (Def. Ex. 18.)) Rowlin claims these records were in error but acknowledges that each trooper has a duty to inspect his personnel file and see that it is kept current. (Rowlin's Dep. at 136.)
Six months after he was passed over, Rowlin filed an EEOC charge. He brought this lawsuit thereafter, alleging disparate treatment and hostile work environment. (Rowlin's Dep. Ex. 6; Compl. ¶¶ 17-25.) The claims are now before the court on a Motion For Summary Judgment.
V. DISCUSSION
At the outset, the court restates several basic rules that govern review of any motion for summary judgment. Courts may never rely on hearsay to prove the matter asserted. See Macuba v. DeBoer, 193 F.3d 1316, 1323-25 (11th Cir. 1999). Likewise, the non-moving party may not defeat a properly documented motion merely by verifying his own conclusory allegations. See Fullman v. Graddick, 739 F.2d 553, 557 (11th Cir. 1984). Finally, proffers of tepid, ubiquitous evidence cannot support any claim. An employee's subjective belief of "discrimination in the air" is not enough; the allegations must be brought home with concrete proof.See Williams v. Hager Hinge Co., 916 F. Supp. 1163, 1175 (M.D. Ala. 1995).
The court now takes care of several housekeeping matters, which can be addressed from the face of the Rowlin's Complaint. The Complaint lists three counts. Count I is a Title VII "race discrimination" claim against the Department. Count II is a Section 1983 Equal Protection claim against Hulak in his official capacity. Count III is a Section 1981 "race discrimination" claim against Hulak in his official capacity. The court construes the phrase "race discrimination" as alleging disparate treatment and hostile work environment. See FED. R. CIV. P. 8(f).
Counts II and III merge. In addition, because Hulak plainly is not a policymaker or final decisionmaker at DPS, (Andrews Aff. (Def. Ex. 24)), DPS may not be held liable on any derivative theory. Moreover, the isolated incident complained of does not amount to an unofficial custom of departmental discrimination. See Hamilton v. Montgomery County Bd. of Educ., 122 F. Supp.2d 1273, 1290 (M.D. Ala. 2000) ("[o]ne alleged adverse employment decision made prior to that point does not establish a custom.") Thus, these Counts are due to be dismissed.
A. Hostile Work Environment
With that business done, the court turns to substantive law. The first issue is whether Rowlin labored in a hostile work environment. Hostile work claims rarely go to the jury, given that "Title VII prohibits only the type of severe or pervasive sexual harassment that 'alters the conditions of the victim's employment.'" EEOC v. Charoen Pokphand USA, Inc., 133 F. Supp.2d 1237, 1250 (M.D. Ala. 2001) (quoting Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998)). The community has the right to determine the matter only if the misconduct involves "'patters or allegations of extensive, long lasting, unredressed, and uninhibited . . . threats or conduct that permeated the plaintiffs' work environment.'" Id. (quoting Gupta v. Florida Bd. of Regents, 212 F.3d 571, 586 (11th Cir. 2000)).
The court has carefully reviewed the record and has construed the facts in the light most favorable to the plaintiff. Having done so, the court finds that the alleged harassment is not actionable. The conduct amounts to isolated incidents that are a far cry from the pervasive or intolerable behavior contemplated by Congress. Accordingly, the Department's motion for summary judgment on this claim is due to be granted. Compare Wright v. Department of Corr., 31 F. Supp.2d 1336, 1344-46 (M.D. Ala. 1998) (granting summary judgment) and Ellis v. Wal-Mart Stores, Inc., 952 F. Supp. 1522, 1526-27 (M.D. Ala. 1996) (same)with Dees v. Johnson World Serv., Inc., 168 F.3d 417, 418-19 (11th Cir. 1999) (denying summary judgment) and Dinkins v. Charoen Pokphand 133 F. Supp.2d 1254, 1257-61 (M.D. Ala. 2001) (same).
B. Disparate Treatment 1. Continuing violation and statutes off limitation
All of Rowlin's claims reasonably stem from his EEOC charge. Thus, the second issue is whether Rowlin can support his disparate treatment claims by challenging DPS's consideration of incidents that allegedly occurred in the late 1980s and early 1990s. As to Rowlin's Section 1983 claim, the 2-year statute of limitations bars events transpiring prior to May 7, 1998. See Anderson-Free v. Steptoe, 970 F. Supp. 945, 953 (M.D. Ala. 1995). As to Rowlin's Title VII claim, the 180-day EEOC charge limitation bars events transpiring prior to mid-March 1999. See Title VII, 42 U.S.C. § 2000e(5).
In arguing that he can reach back and hold DPS liable for alleged discrimination by Mesaris, which supposedly led to Rowlin's non-transfer in March 1999, Rowlin tries to shoehorn his claim into Title VII's "continuing violation" exception. Rowlin argues that his claim is saved because: (1) DPS breathed new life into Mesaris's conduct when Hulak spoke to Mesaris and looked at the disciplinary records that he signed; and (2) DPS was on notice that the records were tainted. The court finds this argument untenable for two reasons. First, Rowlin has slept on his rights and has not made out a "continuing violation" as defined by the courts. Second, nobody put Hulak on notice that Mesaris's recommendations possibly were suspect.
Any statute of limitations sets up an arbitrary date after which the value of finality trumps the value of redressing injury. All injuries have a beginning and an ending, and an aggrieved plaintiff cannot sleep on his rights. Sometimes, though, the plaintiff can't tell when he's been injured, and other times, the injury begins and continues over a long period of time before coming to rest. If an employer injures in a pervasive and systemic fashion, rather than discretely and sporadically, then the employee can sue to correct the entire wrong, provided that he brings suit within the time frame when a person would have discovered the injury with reasonable diligence. That, in a nutshell, is the theory behind the continuing violation doctrine. See Webb v. Indiana Nat'l Bank, 931 F.2d 434, 436 (7th Cir. 1991) (Posner, C.J.); see also Smith v. Department of Corr., 131 F. Supp.2d 1318, 1320-21 (M.D. Ala. 2001);Brewer v. Alabama, 111 F. Supp.2d 1197, 1205 (M.D. Ala. 2000); Malone v. K-Mart Corp., 51 F. Supp.2d 1287, 1301 (M.D. Ala. 1999); Lane v. Ogden Enter., Inc., 13 F. Supp.2d 1261, 1271 (M.D. Ala. 1998).
Things get a little trickier when an employer relies on evidence of an old, discrete act (like the disciplinary actions here) and reopens old wounds as a result. The old events are resurrected and given new life.See Stoller v. Marsh, 682 F.2d 971, 978-79 (D.C. Cir. 1982) (Skelly Wright, J.) But the legal principles at play remain the same: if the employee had notice the first time around, he does not get a chance to redress things the second time.
Employees have a duty to join in the fight against discrimination. See Lunde v. Big B. Inc., 117 F. Supp.2d 1275, 1281 (M.D. Ala. 2000) (quotingCoates v. Sundor Brands, Inc., 164 F.3d 1361, 1366 (11th Cir. 1999)). That is why an employer is shielded from liability resulting from past evaluations and events, even if they come back to haunt the employee, if the employee had reasonable notice and an opportunity to challenge or correct his personnel file. See Stoller, 682 F.2d at 979 ("the employing organization may protect itself from Title VII liability by establishing procedures to allow employees to screen their personnel files and to remove damaging, discriminatory information.")
In this case, Rowlin complains that Hulak relied on an old reprimand and two suspensions in which Mesaris supposedly had a role. Rowlin's complaint goes nowhere, because at the time he was disciplined, he clearly harbored doubt about Mesaris's commitment to a race-neutral workplace, yet he never availed himself of DPS's reasonable grievance process on these three occasions. Therefore, the court finds that DPS had a right to rely on these three personnel write-ups when it made performance evaluations.
Even without the three earlier write-ups, Rowlin contends that he still has a case, given that he was told that his transfer from MCSU to Autauga County was a voluntary transfer, not a disciplinary transfer, as the fourth document in his file suggests. Rowlin says that Kyser put Hulak on notice that any documents connected to Mesaris were bad, and Rowlin citesArna v. Northwestern Univ., 640 F. Supp. 923, 927 (N.D. Ill. 1986), for the proposition that an employee raises an inference of discriminatory intent if a decisionmaker knows that an employee's file is tainted but relies on it anyway. Because Hulak spoke with Mesaris, Rowlin believes he has created raised a triable issue about the legitimacy of Hulak's recommendations.
Assuming, without deciding, that there is merit to the notion that fairness dictates that the employer should reasonably investigate charges of discrimination in older personnel records, the court finds that Kyser's cryptic and ambiguous comments to Hulak were legally insufficient to notify Hulak about any forbidden animus by Mesaris. After casting away the inadmissible hearsay, it is plain that Kyser told Hulak only that "Lt. Mesaris and Lt. Patrick (who had been a sergeant while Trooper Rowlin was in the Unit) had been on Trooper Rowlin's case about a white woman that Trooper Rowlin had been seeing, and that I recommended that Trooper Rowlin be taken out of the unit before they ended up firing him. . . . I explained that I had initiated the transfer to protect [Rowlin] from Lt. Mesaris and Lt. Patrick." (Kyser Aff. ¶¶ 16-17.)
Determining whether an employer is on notice about possible discrimination seems no different from determining whether: (1) an employee has engaged in statutorily-protected activity sufficient to trigger Title VII's provisions against retaliation; or (2) an employee has given sufficient notice to her employer to trigger the duty of prevent and correct workplace harassment. While there are no magic words, the statements must be fairly calculated to alert a reasonable person of the issue at hand. As the court has previously explained: "An employee must articulate her complaint in a manner reasonably calculated to trigger the supervisor's duty of care. Factors to consider include the time, place, and manner of the complaint . . .". Dinkins, 133 F. Supp.2d at 1252; see also Pearson v. Prime Healthcare Corp., 2000 WL 33224801 at *6 (M.D. Ala. 2000) (finding no evidence of retaliation because employee merely told mid-level supervisor that she felt supervisor had been "unfair" in actions); Velascruez v. Goldwater Mem'l Hosp., 88 F. Supp.2d 257, 264 (S.D.N.Y. 2000) (finding that employee's statement that "[m]y understanding is that you hire(d] me because I can communicate in Spanish with Spanish speaking patients who cannot communicate in English," was not protected protest of national origin discrimination).
In this case, Kyser did not say much of anything. He did not tell Hulak that Mesaris never meddled in the personal relationships of other troopers. Nor did he tell Hulak that Mesaris meddled in Rowlin's relationships because of race. For this and other reasons, the court finds no evidence that Hulak should have known that Mesaris's recommendations allegedly were made with discriminatory intent. Accordingly, the Department did not possibly violate Title VII by relying on the Mesaris-related records and recommendations. Furthermore, even assuming that Hulak had reason to believe Mesaris's recommendations were questionable, the court finds that, for the most part, Rowlin has not met his burden of showing that DPS acted on the basis of forbidden criteria rather than legitimate race-neutral reasons. See infra Part V.B.2.
2. The 2999 MCSU and weight detail positions
There is sufficient evidence to find that the Department higher-ups rubberstamped Hulak's personnel recommendations. The issue, then, becomes whether a jury could find that Hulak acted with discriminatory intent.See Hamilton, 122 F. Supp.2d at 1283-86. The court finds genuine factual disputes with respect to the selection of Driggers. In all other respects, Defendants' Motion is due to be granted.
There is no direct evidence of discrimination, so the McDonnell Douglas framework applies. In transfer cases, the plaintiff must first raise an inference of discrimination by showing that: (1) he belongs to a protected class; (2) he was qualified for the job; (3) he suffered an adverse employment action; and (4) the position went to someone outside his protected class. See Hinson v. Clinch County Bd. of Educ., 231 F.3d 821, 828 (11th Cir. 2000). If the plaintiff meets this burden, then the employer must proffer one or more race-neutral reasons. Summary judgment is mandatory unless the employee meets those reasons head on and rebuts them with evidence that creates more than "a weak issue of fact."See Chapman v. AI Transp., 229 F.3d 1012, 1025 n. 11 (11th Cir. 2000) (en banc).
First, the court analyzes Rowlin's prima facie case. Nobody contests the first two elements. As for the third element, the court disagrees with the Department's argument that Rowlin suffered no adverse employment action. Purely lateral transfers are not materially adverse; however, Title VII bars race-related reassignments to positions with significantly different responsibilities or significant changes in benefits. See Dinkins, 133 F. Supp.2d at 1263-64. A jury could find that the positions for which Rowlin applied were prestigious and held out the possibility for extra overtime and paid travel. (Rowlin Aff. ¶ 9; Kyser Aff. ¶ 25.) Although everything that makes an employee unhappy is not illegal, see, e.g., Malone, 51 F. Supp.2d at 1308 (no adverse action when employer ignored employee); Hanley v. Sports Auth., 120 F. Supp.2d 1353, 1368 (S.D. Fla. 2000) (same when supervisor yelled at employee and told her to "shut up"), DPS's alleged decisions implicate the statute. See Dinkins, 133 F. Supp.2d at 1264, 1270 (adverse employment action includes failure to transfer employee from "a difficult position that is perceived as the plant's dumping ground" to "positions with significantly different responsibilities.")
Thus, the court turns to the fourth element. The court finds that Rowlin cannot raise an inference of discrimination on two of the four positions, because they were filled by members of Rowlin's race. Accordingly, summary judgment is warranted as to the positions filled by Otey and Scott.
At the same time, Rowlin has raised an inference of discrimination with respect to the positions filled by Drinkard and Driggers. The Department proffers a long list of reasons justifying its choices. Hulak looked "first and foremost" at whether the candidates had attended the North American Standard training school. (Hulak's Dep. at 47.) He also preferred candidates who already were within the CVE program. (Id. at 48.) He considered discipline problems, but only if someone's prior bad acts were brought to his attention. Id. at 52.) Though Kyser said that Rowlin didn't deserve the suspensions he received circa 1990, Hulak noticed that Kyser had signed the suspensions, and he didn't believe Kyser's later statements. (Id. at 70.) Drinkard had completed hundreds of MCSU inspections, and his personnel records were all in order. Rowlin did almost nothing for almost seven years, and his record were not up to date. (Powell Aff. (Def Ex. 18.))
Rowlin contests the merits of his discipline and personnel records. However, when an employer has no firsthand knowledge of prior events, such as what transpired in 1989-92, he may act according to his best lights. See Sweeney v. Alabama ABC Bd., 117 F. Supp.2d 1266, 1272-74 (M.D. Ala. 2000). Arguments of pretext typically fail if the candidate does not meet the employer's stated criteria. The employee cannot demonstrate pretext by quarreling with the wisdom of the choices or by criticizing the firm's employment practices. Courts are not super-personnel boards. See Chapman, 229 F.3d at 1030; Smith v. Homer, 839 F.2d 1530, 1538 (11th Cir. 1988).
Rowlin has not cast doubt on Hulak's proffered reasons for preferring Drinkard, and summary judgment is appropriate. Even assuming that Hulak had notice that Mesaris's actions were bad, one of Hulak's reasons for preferring Drinkard was that Drinkard's file said he was certified to perform level one tests and had considerable experience doing weight detail inspections. (Hulak Aff. (Def. Ex. 17.)) Drinkard had completed roughly 974 such inspections, while Rowlin had not reported doing any. (Powell Aff. (Def. Ex. 18.)) These are objective, neutral facts independent of anything tied to Rowlin's 1992 transfer or Mesaris's alleged machinations. Rowlin had opportunities to perform such work since he has been in Autauga County. Even if he did not, and if this can be traced to his transfer from MCSU, the transfer is "merely an unfortunate event in history which has no present legal consequences." United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977); see also Womack v. Shell Chem. Co., 514 F. Supp. 1062, 1103-04 (S.D. Ala. 1981). Because Rowlin cannot knock down all of DPS's reasons, no rational jury could find that DPS's selection of Drinkard was based on race. See Chapman, 229 F.3d at 1037 (citing Combs, 106 F.3d at 1543).
A jury could find, however, that race substantially motivated Hulak's recommendation of Driggers over Rowlin. Hulak testified that he did not typically look into disciplinary records unless he was alerted of possible problems. If he heard of such bad acts, however, Hulak said it would be a serious strike against the applicant, regardless of when the misconduct occurred. (Hulak's Pep. at 49, 51-52, 59-61.)
Hulak had personal knowledge of Driggers's prior misconduct, including suspensions, but he nonetheless chose Driggers over Rowlin. Hulak states that he distinguished between this duo on the basis that Rowlin's discipline occurred within MCSU while Driggers's did not. (Hulak Aff. (Def. Ex. 17.)) He also notes that nobody has ever transferred from MCSU and been re-hired.
These explanations are perfectly legitimate. But they might be rejected by the jury, given that Hulak said dishonest employees are bad for the Department, period. (Hulak's Dep. at 51-52.) The court believes that DPS's pleadings have confused the plaintiff's burden of raising an inference of discrimination via a similarly-situated employee and his burden in showing pretext for discrimination. At some point, an employer's weak explanation becomes incredible. If an employee is dishonest or cannot work well independently, a jury could find that he was not qualified to work in the MCSU or the weight detail positions, that DPS did not "bracket" such considerations, and that DPS summarily approved a race-based recommendation. The court need not establish any bright line rule based on this factual record to find that summary judgment as to this position is due to be denied. See Shuford v. Alabama St. Bd. of Educ., 968 F. Supp. 1486, 1507-09 (M.D. Ala. 1997), aff'd, 152 F.3d 935 (11th Cir. 1998) (table).
VI. ORDER
It is CONSIDERED and ORDERED that Defendants' Motion For Summary Judgment be and the same is hereby GRANTED IN PART and DENIED IN PART as follows:
(1) The Motion is DENIED on Count I as to the Montgomery weight detail position filled by John Driggers and GRANTED in all other respects; and
(2) The Motion is GRANTED on Counts II and III in all respects.