The opinion of the court was delivered by: C. Clifford Shirley, Jr. United States Magistrate Judge
This case is before the undersigned pursuant to 28 U.S.C. § 636(c), Rule 73(b) of the Federal Rules of Civil Procedure, and the consent of the parties, for all further proceedings, including entry of judgment. [Doc. 52]. On August 13, 2007, the parties appeared before the Court for a motion hearing on Defendants'*fn1 Second Motion for Partial Summary Judgment. [Doc. 61] Attorney John Slater appeared on behalf of Defendants. Attorney Linda G. Welch appeared representing Plaintiff Anthony Dobbins ("Plaintiff"). At the conclusion of the hearing the Court took the matter under advisement and it is now ripe for adjudication.
In their second motion for summary judgment, Defendants challenge the merits of Plaintiff's claim that he was subjected to race discrimination and reprisal when he was not selected for a Level III Facilities Management Technician position (the "Position") in January, 2003. This claim was not challenged on its merits in Defendants' first motion for summary judgment. [Doc. 35] Defendants contend that Plaintiff cannot establish a prima facie case of discrimination, nor of retaliation. Defendants further argue that even if Plaintiff could establish a prima facie case, they have presented a legitimate, non-discriminatory reason in support of their hiring decision, that Plaintiff did not score as highly during the selection process as the selected candidates. Plaintiff opposes the motion, arguing that the motion is untimely and that he has established a prima facie case of discrimination and retaliation. Plaintiff further argues that he has presented sufficient evidence to show that Defendants' alleged legitimate, non-discriminatory reason in support of their decision is merely a pretext for discrimination.
As the Court is required to do in reviewing a motion for summary judgment, all facts will be viewed in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Plaintiff, an African-American male, was employed by TVA from 1977 to 2004. [Doc. 31 at ¶¶ 6, 43] Plaintiff held various positions during his employment with TVA, but beginning in 1995, and for all times relevant to this action, he worked as a General Building Mechanic ("GBM"). [Id. at ¶ 7] Plaintiff was the only African-American GBM in TVA's Facilities Services department in Knoxville, and one of only two African-American employees in TVA's entire Facilities Management division. [Id. at ¶ 8] No African-American has ever been hired in the Position in Knoxville. [Doc. 67, Exhibit 2 at 16, Exhibit 3 at 6] Plaintiff worked for seven years as the sole pipefitter on his shift before applying for the Position. [Doc. 31 at ¶ 10; Doc. 67, Exhibit 4 at 13] Prior to applying for the Position, Plaintiff had filed several EEOC complaints concerning his employment with TVA, including, but not limited to: inability to work on the day shift when he had seniority; difficulty in participating in journeyman training because others refused to attend class with Plaintiff; and difficulty in receiving training from co-workers. [Doc. 67, Exhibit 6 at ¶¶ 5-7] Defendants admit that Plaintiff's TVA personnel file contained no negative service reviews or reprimands. [Doc. 7 at ¶ 9]
On August 5, 2002, TVA and the Trades and Labor Council, which represented the union Plaintiff belonged to, entered into a Memorandum of Understanding ("MOU") concerning the reclassification of trades and labor positions. [Doc. 67, Exhibit 7] The MOU indicated that some employees would not be selected for the new classifications and that union ratios would be attained as employees "attritioned." [Id.] In conjunction with the MOU, TVA restructured its trades and labor workforce into three classifications: Property Maintenance Worker (Level I), General Maintenance Worker (Level II), and Facilities Maintenance Technician (Level III). [Doc. 62-15 at ¶ 4] These positions were to be filled from the existing Facilities Management workforce, with "existing Laborers," being reclassified into Level I, while the Level II and Level III positions were posted for competition. [Doc. 62-16 at ¶ 5] Selection for a Level III position would result in a five percent raise in pay. [Doc. 62-2 at 27]
A three-part selection process, consisting of a written test, an interview, and a management assessment, was designed for filling the Level II and Level III positions. [Doc. 62-16 at ¶ 6] The written test consisted of fifty questions, worth two points each, for a maximum possible test score of 100. [Id.] The interview consisted of ten questions, worth a maximum of ten points each, for a maximum possible interview score of 100. [Id.] To ensure impartiality, the interviews were to be conducted by four individuals from outside the applicant's region, with the same group of interviewers interviewing all of the applicants in that region. [Doc. 62-18 at 27; Doc. 67, Exhibit 2 at 8] Each interviewer would score each applicant independently, then the interviewers were to discuss each applicant and could change the score they had given the applicant based upon the consensus of the interviewers. [Doc. 67, Exhibit 12 at 7-11] Each candidate's total interview score was determined by averaging the scores given by each of the four interviewers. [Doc. 63 at 4]
The management assessment was performed by the candidate's regional manager and evaluated nine areas: dependability; attitude; planning and organization skills; commitment to customer focus; certifications; flexibility; support for safety and environmental goals; work ethic; and technical performance. [Id.] The first eight subjects of the assessment were worth a maximum of ten points each, while the area of technical performance was worth a maximum of twenty points, for a maximum possible assessment score of 100. [Id.] Each of the three parts received equal weight, thus, each candidate received a final numerical score equal to the sum of the candidate's scores on the written test, the interview, and the management assessment. [Id.] The candidates with the highest scores were to be selected for the competed positions. [Doc. 62-3 at 31]
Plaintiff applied for the Position in TVA's Facilities Service Division in Knoxville in January, 2003, but was denied.*fn2 [Doc. 31 at ¶ 34] During the January, 2003, selection process, a total of ten applicants, including Plaintiff, competed for five openings in the Position. [Doc. 62-16 at ¶ 7] The four interviewers for this process were: James Knowles, J.R. Watson, David Thompson, and Ronnie Nanney. [Doc. 62-3 at 37] Mr. Watson was from the Knoxville region, but from a different division of that region. [Id.] Mr. Watson was not originally selected to be on the interview panel, but was chosen to replace Jeff Butler, who was from outside the East area, because Mr. Butler had an illness in his family. [Id.; Doc. 62-14 at 7] Before the interviews were conducted, Mr. Watson met with Karen Henry and Danny Shropshire regarding the selection process. [Doc. 67, Exhibit 12 at 4]
The management assessments at issue were performed by Mr. Shropshire, the East area Operations and Maintenance manager. [Doc. 62-18 at 4, 27] Mr. Shropshire did not directly supervise Plaintiff, but Plaintiff's supervisors reported to Mr. Shropshire. [Id. at 5] Mr. Shropshire was also responsible for approving the yearly evaluations of Plaintiff performed by Plaintiff's supervisors. [Id. at 9] Mr. Shropshire would not have allowed Plaintiff to stay on a shift by himself for years unless he was qualified to perform the job. [Id. at 28] Prior to the selection process, Mr. Shropshire assumed Plaintiff could perform the job safely without any assistance. [Id.] There is no documentation indicating that Plaintiff made frequent mistakes. [Id. at 29]
There is no formal documentation of customer complaints concerning Plaintiff's work. [Id. at 11] However, in May, 2002, Mr. Shropshire did ask Mr. Register, one of Plaintiff's co-workers and one of the individuals selected for the Position, to provide Mr. Shropshire with a written report describing problems Mr. Register had noticed with Plaintiff's work. [Id. at 22-23; Doc. 67, Exhibit 17 at 3] Mr. Shropshire stated that he was not directing Mr. Register to report on Plaintiff, but that Mr. Register was "checking up" on Plaintiffs work. [Doc. 62-18, at 22-23] At the time of the "checking up," Mr. Shropshire was aware that Mr. Register and Plaintiff had previously had difficulties. [Id. at 22] Mr. Register had previously had problems with Plaintiff because of Plaintiff's "jive talk," which Mr. Register associated with African-Americans and found offensive, bur Mr. Shropshire was unaware of these problems. [Id.; Doc. 67, Exhibit 11 at 11-15] Mr. Shropshire also asked Mr. Frost, another of Plaintiff's co-workers, to document comments Mr. Frost had made regarding Plaintiff's work, but Mr. Frost refused. [Doc. 62-18 at 26]
Mr. Shropshire agreed that other TVA employees made mistakes and that sometimes someone other than the original worker had to correct those mistakes. [Id. at 29] Mr. Shropshire did not rely on any of the applicants' prior performance evaluations when performing the management assessment during the selection process. [Id. at 30] Mr. Shropshire was aware that Plaintiff had filed EEOC complaints prior to the selection process. [Id. at 29]
David Campbell, a foreman who supervised Plaintiff, stated that, as early as 1995, Mr. Shropshire asked Mr. Campbell to "document events on [Plaintiff] which would aid in [Plaintiff's] dismissal," but Mr. Campbell refused. [Doc. 67, Exhibit 16 at ¶ 3] Mr. Campbell further stated that Jim Miller, another foreman, "told [Mr. Campbell] on numerous occasions neither he nor his crew wanted to work with [Plaintiff]," and that Mr. Miller said to Mr. Campbell that "I've got to get rid of him." [Id. at ¶ 4] Mr. Campbell said that Mr. Miller referred to Plaintiff as a "nigger" during the conversation. [Id.] Mr. Campbell also stated that in 1995 Fate Evans, one of Plaintiff's co-workers and one of the individuals selected for the Position, was supposed to train Plaintiff, but refused, saying "I ain't working with a stinking nigger." [Id. at ¶ 8] Mr. Campbell also stated that, based upon his supervision of Plaintiff, Plaintiff was a good worker. [Id. at ¶ 9]
With respect to the testing process, the ten applicants, ranked according to total score, received the following scores:
RankApplicantMgmt. AssessmentWritten Test*fn3InterviewTotal Score