Gray v. City of Montgomery

756 F.Supp.2d 1339

Gwendolyn GRAY, Plaintiff,

v.CITY OF MONTGOMERY, Defendant.

Civil Action No. 2:09cv520–MHT.

United States District Court,M.D. Alabama,Northern Division.

Dec. 9, 2010.

Ann Carroll Robertson, Henry Wallace Blizzard, III, Wiggins Childs Quinn & Pantanzis, P.C., Birmingham, AL, for Plaintiff.Stacy Lott Reed, City Attorney's Office, Montgomery, AL, for Defendant.

OPINION

MYRON H. THOMPSON, District Judge.

Plaintiff Gwendolyn Gray brings federal employment-discrimination claims against defendant City of Montgomery, Alabama. Gray charges that, on two occasions, the city discriminated against her because she is an American of African descent, when it chose not to promote her to the position of Emergency Communications Sergeant I (“ECS I”). She further charges that, after she engaged in protected activities by filing an administrative charge of discrimination as well as the instant lawsuit, the city retaliated on five occasions, including another instance where the city again chose not to promote her to the ECS I position.

Gray asserts these claims pursuant to Title VII (Title VII of the Civil Rights Act of 1964, as amended and as codified at 42 U.S.C. §§ 1981a, 2000e to 2000e–17) and § 1981 (the Civil Rights Act of 1866, as amended, as codified at 42 U.S.C. § 1981, and as enforced through 42 U.S.C. § 1983). This court has original jurisdiction over the Title VII claims under 42 U.S.C. § 2000e–5(f)(3) and the § 1981 claims pursuant to 28 U.S.C. § 1343.

The City of Montgomery now moves for summary judgment in its favor on all claims. For the reasons that follow, the city's motion will be granted.

I. SUMMARY–JUDGMENT STANDARD

“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment 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.” Fed.R.Civ.P. 56(a). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. FACTUAL BACKGROUND

The City of Montgomery hired Gray in December 2006 as an Emergency Communications Officer in the Communications Department. Gray challenges three instances where the city chose not to promote her to the ECS I position.

A. March 2008 Promotion of S. Payton

In March 2008, the city chose to promote Stacy Payton, over Gray, to the ECS I position.

When the Communications Department had a vacancy, it sent a ‘position fill request’ to the City and County Personnel Department, which then created a register of eligible individuals who met the minimum qualifications for the position. Once a register was created, the Personnel Department could preserve the register for up to two years or it could declare it to be ‘exhausted’ before the two year period ended, with two possible results: the register, and any names remaining on it, could be discarded completely or any names left on it could be transferred to the new register. As long as the Personnel Department preserved a register or transferred names to a new register, it was not necessary for applicants currently listed to reapply for a new opening. However, when the Personnel Department discarded a register, individuals previously listed on the register needed to reapply in order to be considered for a new opening.

In January 2007, Gray applied for an open ECS I position. The minimum qualifications for the ECS I position were set forth in the job announcements as follows:

“Applicants must have at least two (2) years of E–911 call-taking or dispatching experience in a public safety organization. Must have at least one (1) year of experience dispatching in an E–911 Communication Center equal in programmatic and geographical size to the City of Montgomery; or equivalent combination that provides the necessary skills and abilities to perform the job.”

Def.'s Mot. Summ. J. Exs. 5, 8, 12 (Doc. Nos. 15–5, 15–8, 15–12.). Gray met these qualifications and was placed on the register as a qualified applicant. Another candidate, however, was promoted to the position.

In December 2007, the Communications Department submitted a ‘position fill request’ for another ECS I position. The Personnel Department chose to ‘exhaust’ and discard the previous register (which still had Gray's name on it from her earlier application) and then provided the Communications Department with the names of three individuals from a new register. Gray did not submit an application for the new register. In March 2008, the Communications Department promoted Payton, a white person, to the ECS I position.

Personnel Director Barbara Montoya testified in an affidavit that because “Gray did not submit an application to the Personnel Department for this job posting[,] ... her name was not qualified as a candidate and her name did not appear on the register to be considered for the position.” Def.'s Mot. Summ. J. Ex. 9 at 3 (Doc. No. 29–1.). There is no evidence that the city notified Gray that her name had been removed from the register.

B. June 2008 Promotion of J. Routon

In April 2008, the Communications Department submitted another ‘position fill request’ for the ECS I position. Gray applied this time, and her name was placed on the register. However, Johanna Routon, a white person, was promoted in June to the position. In a letter recommending Routon, Communications Department Chief Larry Fisher stated that “all candidates were highly qualified and the selection process was difficult” but that Routon had “over seven (7) years as a 9–1–1 call taker and radio dispatcher, including law and fire knowledge.” Pl.'s Resp. Def.'s Mot. Summ. J. Ex. 27 (Doc. No. 50–30.) Fisher added that Routon had “experience as a Communications Training Instructor and ha[d] acted as an On–Duty Shift Supervisor.” Id. Finally, Fisher emphasized that Routon “was elected by her peers to represent them on the City of Norfolk Employee Relations Committee.” Id.

Chief Fisher and Communications Department Deputy Chief J.M. Dillard have also stated in affidavits that Routon was chosen over Gray for the position because of the “seven (7) years and four (4) months of current experience she had compared to the two (2) years and nine (9) months of experience Ms. Gray had up to 1991 and the approximately 1 and 1/2 years while at the Montgomery Department of Communications.” Def.'s Mot. Summ. J. Exs. 6 at 3, 10 at 1–2 (Doc. No. 15–6; Doc. No. 15–10.) They also mentioned Routon's involvement with her previous employer's Employee Relations Committee as a reason for her selection, and they further noted that Gray's personnel file “had a number of disciplinary issues within the last year.” Def.'s Mot. Summ. J. Exs. 6 at 3, 10 at 2 (Doc. No. 15–6; Doc. No. 15–10.)

C. April 2010 Promotion of M. Smith

Another ECS I position was posted in January 2010. Although Gray also applied for this position, Montsho Smith, an African–American, was promoted to the position. In his deposition, Deputy Chief Dillard could not recall why Smith was selected. However, the record shows that Smith had 13 years of experience as a dispatcher with the city at the time she was promoted.

III. DISCUSSION

A. Race Discrimination

Gray brings two claims of race discrimination. She asserts that the City of Montgomery discriminated against her when it failed to promote her to the ECS I position in March 2008 (when Payton was selected) and again in June 2008 (when Routon was selected). Under both Title VII and § 1981, it is generally illegal for an employer to discriminate against its employees because of their race. 42 U.S.C.A. § 2000e–2(a)(1); 42 U.S.C.A. § 1981.

As a threshold issue, the city argues that Gray's Title VII claims are time barred. “Before a potential plaintiff may sue for discrimination under Title VII, she must first exhaust her administrative remedies.” Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir.2001). To exhaust her remedies, the plaintiff must file a timely charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). Id. For a charge to be timely in a non-deferral state such as Alabama, the EEOC charge must be filed within 180 days of the last discriminatory act. 42 U.S.C. § 2000e–5(e)(1).

Because Gray did not file her EEOC charge until January 15, 2009 (more than 180 days after the alleged acts in her race-discrimination claims), her Title VII claims are time barred. However, because the city has not argued that Gray's § 1981 claims are outside of the statute of limitations, her race-discrimination claims, to the extent they rest on § 1981, are not time barred and will be reviewed on the merits.

This § 1981 case is governed by the familiar burden-shifting analysis of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1330 (11th Cir.1998) (“Both [Title VII and § 1981] have the same requirements of proof and use the same analytical framework[.]”). Under the McDonnell Douglas approach, a plaintiff has the initial burden of establishing a prima-facie case of unlawful employment discrimination by a preponderance of the evidence. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir.1988). If the plaintiff establishes a prima-facie case, the burden then shifts to the defendant to rebut the presumption by articulating a legitimate, non-discriminatory reason for its employment action. Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000). The defendant has the burden of production, not of persuasion, and thus need not convince a court that the reason advanced actually motivated its actions. See, e.g., Texas Dep't...