United States District Court, W.D. Tennessee, Western Division
MONETTA HAMPTON, LATAUSHA BLAIR, WILLIE MAE FLOOD, PATRICIA WRIGHT, and LORNA GRIGGS, Plaintiffs,
CITY OF MEMPHIS, Defendant.
ORDER GRANTING DEFENDANT CITY OF MEMPHIS' MOTION FOR SUMMARY JUDGMENT
S. THOMAS ANDERSON, District Judge.
Before the Court is Defendant City of Memphis' Motion for Summary Judgment (D.E. # 42), filed on May 21, 2014. Plaintiffs filed a Response in Opposition (D.E. # 43), to which the Defendant filed a Reply (D.E. # 44). For the reasons set forth below, Defendant's Motion is GRANTED.
Plaintiffs allege that Defendant discriminated against them on the basis of their race and their gender in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the Tennessee Human Rights Act ("THRA").
I. Factual Summary
The following material facts are undisputed for purposes of summary judgment unless otherwise noted. Each of the plaintiffs is a black female who, at the time of the Complaint, had over five years of continuous service as a police radio dispatcher for the City of Memphis (the "City"). (Pls.' Compl. ¶¶ 6-10). On or about May 25, 2011, the City announced a promotional process for the position of Dispatch Supervisor, and qualified applicants were invited to apply. (Def.'s Statement of Undisputed Facts ¶ 1). The posted requirements for the Dispatch Supervisor position stated "High School graduate or equivalent and five (5) years' experience as a Police Radio Dispatcher...; or any combination or experience and training which enables one to perform the essential job junctions of the job." ( Id. ¶ 14).
The promotion process entailed an interview during which the applicants answered 16 questions from a four-member interview panel. ( Id. ¶ 3). The panel members individually scored the applicant's answers to the questions and then compiled the scores to give the applicant an overall score. ( Id. ¶ 4). Approximately 30 qualified applicants interviewed for the position, including the Plaintiffs. ( Id. ¶ 2). After compilation, the Plaintiffs' overall scores ranked 17th, 19th, 24th, 26th, and 30th among the candidates, and none were selected for promotion to Dispatch Supervisor. ( Id. ¶ 8). Instead, four other applicants were chosen. The City states that the four successful applicants were those with the highest consensus interview scores. ( Id . ¶ 6). Plaintiffs claim that the City discriminated on the basis of race and gender in the promotion process when the Plaintiffs were treated less favorably than similarly situated whites and males. (Pls.' Compl. ¶¶ 26-29). One such person is Mr. Sean Lovejoy, a white male whom the four-member panel promoted to Dispatch Supervisor. (Def.'s Statement of Undisputed Facts ¶ 14). More generally, they allege that the City "follows a practice of filling vacant supervisor positions with individuals of the same race and gender irrespective of whether the individuals are eligible for the job." (Pls.' Compl. ¶ 27). In other words, the City fills open positions with applicants of the same race and gender as the outgoing employee.
The Plaintiffs also filed a statement of additional facts,  which the Defendant does not dispute for the purposes of this Motion. Plaintiffs' additional undisputed facts begin by stating details that intend to convey the subjectivity of the interviewers and the interview questions. (Pls.' Statement of Add'l Facts ¶¶ 16-30). The Plaintiffs also state that Stephanie Berryman, one of the interviewers, changed several of her grades for the applicants' individual responses during the interviews, including some grades of the individuals who were ultimately hired as Dispatch Supervisors. ( Id. ¶¶ 74-80).
II. The Parties' Arguments
Defendant argues that it is entitled to judgment as a matter of law on Plaintiffs' claims for race and gender discrimination in employment. Defendant sets out the two theories for employment discrimination-disparate impact and disparate treatment-and argues that the Plaintiff has failed to provide evidence to support a genuine issue of material fact with regard to Plaintiffs' claims based on either theory, and Plaintiffs now concede that they do not rely on a theory of disparate impact. Next, Defendant argues that Plaintiffs cannot prove their prima facie case that Defendant discriminated against them because of their race or gender. Plaintiffs presented no direct evidence of disparate treatment. Instead, Plaintiffs allege that Mr. Sean Lovejoy, a white male who was ultimately promoted to the position of Dispatch Supervisor, was allowed to participate in the interview despite his lack of five years' experience as a dispatcher. Defendant presents undisputed evidence that the posted requirements for the job of Dispatch Supervisor included five years' experience as a dispatcher or "any combination of experience and training which enables one to perform the essential functions of the job." Plaintiffs present no evidence that Mr. Lovejoy did not possess such experience or training. Defendant contends that this lack of evidence is insufficient to survive summary judgment.
Defendant then argues that, assuming Plaintiffs have established a prima facie case under a theory of disparate treatment, Defendant has provided a legitimate, non-discriminatory reason for not promoting Plaintiffs. Defendant argues that the promotional process and interview questions were designed to promote the most qualified applicants, and the applicants with the highest scores were promoted. Plaintiffs did not have the highest scores from the interview, and thus they were not the most qualified. Finally, Defendant argues that even if Plaintiffs have stated a prima facie case for race or gender discrimination, they cannot show that the City's legitimate reason for not hiring the Plaintiffs was pretext. Defendant contends that the Plaintiffs' subjective beliefs-absent evidence-that the City made its decision based on race or gender discrimination are not enough to survive summary judgment.
Plaintiffs responded in opposition. They argue that Mr. Lovejoy did not meet the requirements of the job posting, and yet he was still allowed to participate in the interview. Furthermore, Plaintiffs argue that Mr. Lovejoy received access to a database that gave him helpful information, unavailable to the Plaintiffs, relating to the interview. They also emphasize that the four interviewers were not qualified and that several interviewers changed their handwritten scores of certain applicants' responses to reflect higher scores, including those of the two successful white candidates-Mr. Lovejoy and Ms. Terrie Leborgne. Presumably, Plaintiffs are arguing that the changed scores reflect racial or gender discrimination. In a similar fashion, the Plaintiffs argue that the set of interview questions was not job-related to the supervisor position, but was instead subjective. Plaintiffs primarily point to the changed interview scores and the subjectivity of the interview scoring to prove discrimination.
In its reply brief, Defendant makes two objections to evidence presented in Plaintiffs' Response. First, Defendant objects to the Court's consideration of a line of discrimination cases cited in Plaintiffs' response as irrelevant. Second, Defendant objects on two grounds to the Court's consideration of Plaintiffs' Expert Report. Defendant argues that the Plaintiffs have failed to present any evidence of intent to discriminate-a burden borne by the Plaintiff. Even assuming that the questions were not job-related and the interviewers unqualified, Defendant argues that such conduct does not equal discrimination, especially since all 30 applicants answered the same interview questions.
Defendant asserts that the subjectivity of the questions asked during the interview is also insufficient to infer discrimination. Then, Defendant addresses Plaintiffs' assertions that certain applicants' scores were changed, calling such assertions disingenuous. Defendant argues that the Plaintiffs provide no evidence that the individual panel members' scores were "later" changed to match the consensus scores, and it also points out that the interviewer who allegedly adjusted the two successful white applicants' scores upward is a black female-a member of the protected classes to which the Plaintiffs belong. Furthermore, Defendant explains, several of the two successful white applicants' scores were also adjusted downward. In fact, ...