Robinson

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHWESTERN DIVISION

JOE ROBINSON,

Plaintiff,

v. Case No. 3:24-cv-1635-HDM

ALABAMA DEPARTMENT OF

VETERANS AFFAIRS, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Joe Robinson sues Defendants Alabama Department of Veterans

Affairs (“ADVA”), Jeffrey Newton, W. Kent Davis, Timothy Edgil, and Peggy

Williams for racial discrimination in hiring. (Doc. 1). He asserts a Title VII race

discrimination claim against ADVA and Section 1983 race discrimination claims

against Davis, Newton, Edgil, and Williams. Id. This case is before the court on

Defendants’ motion for summary judgment, (doc. 24), which, for the reasons stated

below, the court GRANTS.

BACKGROUND

In September 2023, seven individuals, including Plaintiff Joe Robinson and

the eventual hires, Adam Carter and Gilbert Gutierrez, interviewed for two open

positions with Defendant Alabama Department of Veterans Affairs (“ADVA”). (Doc.

25-1 at 6). The vacancies were both for the position of Assistant Veteran Services

Officer (the “Position”). Id., ¶ 10; (Doc. 25-15 at 53–55).

Carter, a white male, served for over ten years as a jet mechanic in the United

States Air Force where he interacted with pilots and senior leadership. (Doc. 25-2, ¶

3). After his honorable discharge, Carter worked for Navistar, North American

Lighting, and Alabama Stone. Id. At Alabama Stone, Carter frequently interacted

with individuals touring the mill. Id. At the time of his hiring, Carter had also worked

as a Reserve Franklin County Sheriff’s Deputy since 2017, the chaplain for the

Reserves for the past six years, and a youth minister for Branches Church for the

past five years. Id. Candidates were scored by ADVA interviewers Edgil and

Williams, (doc. 25-4, ¶ 11), and Carter’s average interview score of eighty ranked

the highest of all seven interviewees, (doc. 25-16 at 53). Carter’s higher scores

related to his responses concerning interpersonal skills, high pressure situations,

community service, and overall career objectives. Id. at 21–22. Each question was

scored out of seven, and Carter’s lower scores included a four to his response to

work history and educational background questions and a three in response to

whether he had formal training in counseling others on their benefits. Id.

Gutierrez, a Hispanic male, served in the U.S. Army as a Team Leader in

combat engineer missions support from October 2003 until March 2011. Id. at 32.

After his honorable discharge, Gutierrez owned an auto detailing company while

working for four years as a Lead Veteran Advocate/Housing Specialist for WestCare

California, in which position he conducted group and individual counseling sessions

and advocated for veterans. Id. He then worked for the California Department of

Social Services (“California DSS”) as a Job Specialist, providing case management

to assist clients with achieving their goals. Id. Gutierrez’s average interview score of

67.5 ranked the second highest of all seven interviewees. Id. at 53. Gutierrez received

higher scores on questions related to his work history, educational background,

community service, public speaking, and teamwork capabilities. Id. at 28–29.

Gutierrez’s lower scores included threes to his responses on typing skills and

whether he had formal training in counseling others on their benefits. Id.

Mr. Robinson, a seventy-one-year-old black male, holds a high school

diploma, a Bachelor of Science in Urban Planning Studies (1979), and a Master of

Business Administration (2015). (Doc. 25-22 at 25–34; 52–54). He also completed

various military education programs including a Certificate of Accomplishment in

Financial Management, Equal Opportunity coursework, Program Activity Manager

Course Certification, Unit Clerk Course Certification, Unit Administration School,

and Adjutant General coursework. Id. He served in the U.S. Army for twenty years

before retiring with an honorable discharge in 2004. Id. at 30, 53. During his military

tenure, he served as a Non-Commissioned Officer-in-Charge, a Security Officer, Fire

Warden, and a member of the Military District of the Washington Court-Martial

Board. Id. at 52–53. From 1990 to 2004, he served as a Real Estate Non-

Commissioned Officer and Directorate Non-Commissioned Officer-in-Charge in the

U.S. Army, including assignments with the Active, Reserve, and National Guard

components throughout the United States. Id. He also served as a primary advisor

within all U.S. states and territories in relation to real estate issues and related rules,

regulations, and policies. Id.

Following his Army retirement, he spent ten years working as a program

coordinator with Management Support Technology, Inc., a senior analyst with

CALIBRE, a financial analyst with the Defense Threat Reduction Agency, a

resource manager with Defense Group, Inc., and a resource manager with Booz

Allen Hamilton. Id. at 29. For the following seven years, he worked for the Veterans

Benefit Administration of the Federal Department of Veterans Affairs as a financial

administrative specialist, in which role he was responsible for accounting duties

related to general operating expenses, vocational rehabilitation employment

programs, and minor construction funds. Id. He managed three employees. (Doc. 25-

21 at 14). In this role, he also communicated with veterans who came to the intake

department for benefits in direct face-to-face “customer care” and “performed a

variety of different duties to assist veterans with their needs.” Id. at 15. The intake

department often called him to assist with upset, irate, and disorderly individuals. Id.

at 4, 15.

Defendant Newton, who was the Assistant Commissioner of Operations and

the Chief of Staff of the State of Alabama Department of Veterans Affairs, reviewed

each applicant to ensure that applicants met the minimum criteria for an interview.

(Doc. 25-1, ¶ 12; Doc. 25-6, ¶ 12). Seven qualified candidates—five white

individuals, one black individual, and one Hispanic individual—were given

interviews. (Doc. 25-1, ¶ 16; see also Doc. 25-15 at 56–100). These seven candidates

included Carter, Gutierrez, and Mr. Robinson. (Doc. 25-15 at 56–100).

Newton did not personally interview candidates but, instead, delegated that

task to Edgil and Williams. (Doc. 25-1, ¶ 13). Newton believed the interview was

the most important step in filling the Positions because of the necessary customer

service skills. (Doc. 25-6, ¶ 11). Newton gave discretion to Williams and Edgil in

assessing the interviewees’ ability to relate to other people. Id. In preparation for

interviews, ADVA provided Williams and Edgil with questions and a candidate score

sheet. (Doc. 25-1, ¶ 12; Doc. 25-4, ¶ 11). Williams and Edgil scored candidates based

on their responses. (Doc. 25-4, ¶ 11). At the conclusion of the interviews, Williams

and Edgil tallied the scores, ranked the candidates, and sent the application packets,

rankings, score sheets, and recommendations for hire (the top scorers) to Newton.

(Doc. 25-4, ¶¶ 11–12). Newton reviewed Williams’s and Edgil’s math and then

forwarded his recommendation, based on Williams’s and Edgil’s recommendation,

to Davis for his final decision. (Doc. 25-6, ¶¶ 14–15; Doc. 25-17 at 14). Davis read

all of the candidates’ materials, looked them up to see if they had an online presence,

and then approved an offer of employment to the two individuals whom Williams

and Edgil recommended. (Doc. 25-3, ¶ 14). Those two individuals were Carter and

Gutierrez. (Doc. 25-4, ¶¶ 11–13; Doc. 25-16 at 53). Mr. Robinson was ranked third.

(Doc. 25-16 at 53).

On November 28, 2023, Mr. Robinson contacted the EEOC regarding his non-

selection for the Position and his belief that ADVA discriminated against him

because of his age and race. (Doc. 25-22 at 43–46). On March 18, 2024, an EEOC

investigator, Richard Grooms, interviewed Mr. Robinson and created a charge of

discrimination, which Mr. Robinson digitally signed (the “March Charge”). (Doc.

25-25; Doc. 25-22 at 46). The March Charge stated that Mr. Robinson applied for a

position with ADVA, interviewed on September 29, 2023, and received a letter dated

October 10, 2023, informing him of his non-selection. (Doc. 25-22 at 44–46). Mr.

Robinson did not know who ADVA selected but believed he was not hired because

of his age and race. (Doc. 25-25; Doc. 25-22 at 46).

Grooms informed Mr. Robinson of his right to file the charge and explained

that if the EEOC dismissed it, Mr. Robinson would receive a Dismissal and Notice

of Right to Sue permitting him to file a lawsuit in federal court within ninety days

of receipt. (Doc. 25-25). Grooms cautioned Mr. Robinson that failure to file suit

within that ninety-day period would result in the loss of his claim. Id. After receiving

this information, Mr. Robinson elected to proceed with filing the March Charge. Id.

The EEOC issued a Dismissal and Notice of Right to Sue on March 19, 2024, (doc.

25-22 at 48), which Mr. Robinson downloaded that same day, (doc. 25-24).

On April 1, 2024, Mr. Robinson filed and digitally signed a second Charge of

Discrimination (the “April Charge”). (Doc. 25-22 at 52–54). The April Charge

alleged the same discrete act of discrimination as the March Charge, claiming that

Mr. Robinson applied for the Position, interviewed on September 29, 2023, received

a letter dated October 10, 2023, informing him of his non-selection, and that he was

unaware of who ADVA selected but believed he was not hired because of his age

and race. Id. It also stated that Mr. Robinson met all qualifications for the Position,

set forth over a page of Mr. Robinson’s qualifications and relevant educational and

work history, explained the interview process in detail, and noted that Mr. Robinson

had been told he had done very well in the interview and had earned one of the

highest interview scores. Id. Finally, it set forth a statement by an employee of the

Disabled Veterans Outreach Program—a third party—that the ADVA office to which

Mr. Robinson applied had never hired a minority before, and stated that, based upon

information and belief, the two individuals who were hired were not African-

American. Id.

On April 10, 2024, ADVA emailed the EEOC and noted that it had already

issued a Notice of Right to Sue to Mr. Robinson for the March Charge “regarding

the same allegations” as the April Charge. (Doc. 28-3 at 2). ADVA questioned why

the matter was being readdressed and whether the March and April charges were

duplicative. Id. The EEOC corresponded with both Mr. Robinson and ADVA

regarding the matter and Robinson responded that,

The first Charge was drafted and filed by EEOC intake and consisted

of only four sentences which omitted key pieces of evidence such as

Robinson’s overwhelming qualifications, the substance of the interview

process, the direct evidence statement made by Selena Ricks of the

Disabled Veterans Outreach Program in Montgomery that the

Lauderdale County Department of Veterans Affairs had never hired a

minority before. As such, it appears that the initial Charge did not

accurately reflect the underlying facts of the matter and it was never

actually investigated with the RTS Notice being issued within 24 hours

after the Charge was filed.

Id. at 1. Robinson requested that upon his submission of three pages of more detailed

factual allegations, the EEOC reconsider and conduct an investigation into the events

as now “fully” submitted to the agency. Id. Thereafter, the EEOC issued a “[l]egal

review approved” status, (doc. 25-18 at 15), followed by a “[s]upervisor review

approved” status, id. at 17. The EEOC then proceeded with fully processing and

investigating the April Charge, as requested by Mr. Robinson, including conducting

mediation with the parties. Id. at 2–15. The EEOC issued a second Notice of Right

to Sue on August 30, 2024. (Doc. 25-26).

Mr. Robinson filed his Complaint on November 25, 2024. (Doc. 1). The

Complaint asserts five causes of action: (I) a Title VII race discrimination claim

against ADVA; and (II)–(V) Section 1983 race discrimination claims against Davis,

Newton, Edgil, and Williams. Id.

LEGAL STANDARD

Summary judgment is proper “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). “In determining whether the movant has met this burden,

courts must view the evidence in the light most favorable to the non-movant.”

Anthony v. Georgia, 69 F.4th 796, 804 (11th Cir. 2023). A genuine dispute of material

fact exists when “the evidence is such that a reasonable [factfinder] could return a

verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

(1986). The party moving for summary judgment always bears the initial burden of

informing the court of the basis for its motion and identifying those portions of the

pleadings or filings which it believes demonstrate the absence of a genuine issue of

material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

DISCUSSION

There are two main issues in this case. First, did Mr. Robinson timely file his

Title VII claims? And second, are Defendants entitled to judgment as a matter of law

on the merits? Defendants are entitled to summary judgment on each of these issues

and thus on the entire case.

I. Title VII

As to the first of these two issues, because the March Charge, not the April

Charge, started the ninety-day clock—and because he filed outside of that initial

ninety-day window— Mr. Robinson did not timely file his Title VII claims. And the

facts of this case do not justify tolling the ninety-day filing deadline.

A. Plaintiff Did Not Timely File His Title VII Claims

Mr. Robinson’s Title VII claim fails because he filed the Complaint 251 days

after receiving the March 19, 2024, Notice of Right to Sue. (See Doc. 25-22 at 48;

Doc. 1). To bring a viable claim under Title VII in Alabama, a plaintiff must file a

charge of discrimination with the EEOC within 180 days of the alleged unlawful

employment practice and must file a civil action within ninety days of receiving a

right-to-sue letter from the EEOC. 42 U.S.C. §§ 2000e-5(e)(1), (f)(1); Cornett v. Ala.

Dep’t of Transp., 828 F. App’x 565, 567 (11th Cir. 2020); Hipp v. Liberty Nat’l Life

Ins. Co., 252 F.3d 1208, 1214 n.2 (11th Cir. 2001) (noting Alabama is a non-deferral

state where the 180-day deadline applies).

If a plaintiff files multiple EEOC charges resulting in multiple right-to-sue

letters, the date on which the ninety-day time limitation begins to run depends on

whether the EEOC officially revoked and reconsidered its first determination. See

29 C.F.R. 1601.21(b), (d). “The relevant regulations, 29 C.F.R. 1601.21(b) and (d),

contemplate that ‘[i]n cases where the Commission decides to reconsider a dismissal

or a determination finding reasonable cause to believe a charge is true, a notice of

intent to reconsider will promptly issue.’” Gitlitz v. Compagnie Nationale Air

France, 129 F.3d 554, 557 (11th Cir. 1997) (quoting 29 C.F.R. 1601.21(b)(2)). If the

EEOC issues a second Notice of Right to Sue without revoking the first, the second

is invalid. See Stamper v. Duval Cnty. Sch. Bd., 863 F.3d 1336, 1340 (11th Cir. 2017).

This is because “[t]he regulation contemplates the issuance of a new notice of the

right to sue only when the original notice was revoked, which means that the

regulation does not allow the Department of Justice to issue a new notice of the right

to sue when the original notice was not revoked.” Id.

If there was no revocation and notice of reconsideration, “[w]here a plaintiff

files multiple EEOC charges, discriminatory acts alleged by the plaintiff in the later

charge may form the bases of claims, but only if those acts were not mentioned in

the earlier charge.” See Rickard v. Costco Wholesale Corp., No. 1:21-cv-1645-

LMM-JSA, 2023 WL 11959811, at *12 (N.D. Ga. Jan. 30, 2023), report and

recommendation adopted, No. 1:21-cv-1645-LMM, 2023 WL 11959810 (N.D. Ga.

Mar. 17, 2023) (internal quotation marks and brackets omitted). Where the EEOC

issues multiple notices based on two charges involving “exactly the same facts,”

whether an action is “time barred must be determined with reference to only the first

Notice of Right to Sue.” Id. (citing Lo v. Pan Am. World Airways, Inc., 787 F.2d 827,

828 (2d Cir. 1986)). “[A] Title VII plaintiff cannot be permitted to extend the 90-day

period by repeatedly filing broad, duplicative charges with the EEOC and obtaining

multiple right to sue letters.” Callahan v. Emory Healthcare, Inc., No. 1:21-cv-1367-

WMR-JSA, 2022 WL 18927486, at *10 (N.D. Ga. Nov. 10, 2022) (internal brackets

omitted), report and recommendation adopted, No. 1:21-cv-1367-WMR-JSA, 2023

WL 2334987 (N.D. Ga. Feb. 16, 2023), aff’d, No. 23-10604, 2024 WL 3027684

(11th Cir. June 17, 2024).

Here, although the EEOC did consider Mr. Robinson’s April Charge, it never

issued a notice of reconsideration for the March Charge. Nor does the record indicate

that it ever revoked the first Notice of Right to Sue that it issued to Mr. Robinson

following its consideration of the March Charge. The EEOC’s informal email

communications with Mr. Robinson’s counsel are insufficient under Section 1601.21

to constitute reconsideration. See Stamper, 863 F.3d 1336, 1340 (11th Cir. 2017)

(“[T]he regulation does not allow the Department of Justice to issue a new notice of

the right to sue when the original notice was not revoked.”). Thus, the second Notice

could only reset the ninety-day clock if Mr. Robinson’s second EEOC charge alleged

a discrete act that is different from the one Mr. Robinson alleged in his first EEOC

charge. Rickard, 2023 WL 11959811, at *12.

Although the April Charge contains additional information—such as Mr.

Robinson’s employment and educational history, names of interviewers, and a

statement made by a third party regarding ADVA’s hiring history—it is legally

duplicative of the March Charge. This is because both the March and April Charges

allege discrimination based on the same discrete act: ADVA’s failure to hire Mr.

Robinson for either of the Positions in September 2023. (See Doc. 25-22 at 52–54).

According to an internal EEOC email, the April Charge alleged “the exact same fact

pattern and allegations giving rise to [the March Charge].” (Doc. 28-1 at 2 (emphasis

in original)). Because the April Charge lacks alleged discriminatory acts that differ

from the March Charge, it does not put forth a new claim. See Rickard, 2023 WL

11959811, at *12. As such, Mr. Robinson’s Title VII claim is time-barred because

the March 2024 Notice of Right to Sue controls, and Mr. Robinson filed the

Complaint 251 days after receipt of that Notice. Mr. Robinson cannot extend his time

for filing his Complaint by filing multiple charges. See Callahan, 2022 WL

18927486, at *10.

B. Plaintiff is Not Entitled to Equitable Tolling

Mr. Robinson argues that, even if he did not timely file his Title VII claim, the

ninety-day limitation should be equitably tolled, allowing him to proceed with his

claim. (Doc. 27 at 29–34). Eleventh Circuit precedent recognizes “three distinct

situations in which the Title VII limitation periods may be equitably tolled.” Jones

v. Wynne, 266 F. App’x 903, 906 (11th Cir. 2008). Mr. Robinson invokes two of

these: (1) tolling is allowed when a defendant concealed facts that support the

plaintiff’s cause of action, until such time as the plaintiff knew or should have known

of these facts; and (2) tolling is allowed when the EEOC misleads a complainant

about the nature of his rights under Title VII. See id. “[T]he employee bears the

burden of proving that equitable tolling is appropriate.” Jones, 266 F. App’x at 905.

It “is an extraordinary remedy which should be extended only sparingly.” Bost v.

Fed. Express Corp., 372 F.3d 1233, 1242 (11th Cir. 2004).

As to the first of these two situations in which the limitations period may be

tolled, Mr. Robinson argues that ADVA concealed facts regarding the identity, race,

and qualifications of Carter and Gutierrez when it failed to provide Robinson with

his requested open records materials in direct violation of an Executive Order of the

State of Alabama which required production within fifteen to forty-five days. Mr.

Robinson indicates that in so doing, ADVA misled him into allowing his time to

lapse.

There are two issues with this argument. First, although it is true that ADVA

failed to respond to Mr. Robinson’s open records request within the required fifteen

to forty-five days, (see doc. 25-17 at 29–31), ADVA did in fact email Mr. Robinson

on February 1, 2024, stating, “we are preparing items according to your public

records request regarding our Lauderdale County Veteran Service Officer selections.

Please confirm your email address,” (doc. 25-22 at 41). Although this email was sent

to an email address from which Mr. Robinson had previously contacted ADVA, see

id. at 38, Mr. Robinson never responded, see id. at 41; (doc. 25-17 at 30). This was

a full month and a half before the EEOC issued Mr. Robinson its first Notice of Right

to Sue on March 19th. Thus, Mr. Robinson has not met his burden of showing that

it was ADVA’s concealment of facts,1 rather than his own failure of diligence, that

resulted in ADVA not fulfilling his open records request within the EEOC’s ninety-

day window.

Second, Mr. Robinson’s argument—that because of ADVA’s alleged

concealment, the EEOC’s second Notice of Right to Sue should control—falls flat.

Mr. Robinson filed his second EEOC charge on April 1, 2024. This was less than

two weeks after the EEOC issued its first Notice of Right to Sue, and this second

charge still did not contain the information Mr. Robinson requested in his open

records request. Mr. Robinson’s argument that the second Notice should control rests

on the premise that it would be inequitable for the first Notice to control because

ADVA had not provided relevant information at the time that Mr. Robinson created

the first charge. But because ADVA still had not provided that information at the

time that the second charge was filed—and it appears from the record that Mr.

Robinson had made no further attempt to acquire that information before filing the

second charge, (see Doc. 25-22 at 38–42)—it would be no more equitable, on the

1 ADVA disputes that it concealed any facts from Mr. Robinson, contending that fulfillment of Mr.

Robinson’s claim was delayed by several factors: November (the month in which the claim was

filed) is their busiest month; ADVA was undertaking several other large projects, including

building a new veterans’ home and expanding a veterans’ cemetery; the holidays; and several

people within the agency had COVID. See Exhibit P at 30–31.

basis of withheld information, for the second rather than the first Notice to control.

Thus, the first exception—concealment of facts—does not apply.

Based on the second of these two situations in which the limitations period

may be tolled—when the EEOC misleads a complainant about the nature of his

rights under Title VII— Mr. Robinson argues that the EEOC’s communications with

Mr. Robinson misled him into believing that a second Notice of Right to Sue would

govern. (Doc. 27 at 34). This argument is unpersuasive because, generally, “[a]

second Notice tolls the limitation period only if the EEOC issues such Notice

pursuant to a reconsideration on the merits under 29 C.F.R. § 1601.21(b), (d).”

Santini v. Cleveland Clinic Fla., 232 F.3d 823, 825 (11th Cir. 2000). And “[a]s a

matter of law, receipt of a second EEOC Notice does not constitute grounds for

equitable tolling where a party has actual knowledge of the first Notice.” Id. (citing

Ball v. Abbott Advertising, Inc., 864 F.2d 419, 421 (6th Cir. 1988) (noting that

“[a]ctual notice destroys any possible basis for applying the ‘equitable tolling’

doctrine”)).

Here, Mr. Robinson knew of the first Notice of Right to Sue. And the EEOC

had neither revoked the first Notice nor issued a formal notice of reconsideration

before issuing the second Notice. Thus, Mr. Robinson is not entitled to equitable

tolling. Indeed, if issuance of a second Notice of Right to Sue without

reconsideration and revocation under 29 C.F.R. § 1601.21 entitled a plaintiff to

equitable tolling, then Section 1601.21’s reconsideration and revocation

requirements would be rendered meaningless, as would the Eleventh Circuit’s

precedent in Stamper and Gitlitz holding that the first Notice, not the second,

controls for purposes of the ninety-day limitation. See Section I, supra.

Because Mr. Robinson did not timely file his Title VII claims, and because he

is not entitled to equitable tolling, his Title VII claims must be dismissed as a matter

of law.2

II. EPC, Section 1981, and Section 1983 Race Discrimination

Mr. Robinson also sues Edgil and Williams (the interviewers) and Newton

(the supervisor) for race-based discrimination under the Equal Protection Clause of

the Fourteenth Amendment and under 42 U.S.C. § 1981, both by way of 42 U.S.C.

§ 1983. (Doc. 1 at 16–24).3 Mr. Robinson argues that Edgil and Williams directly

discriminated against him by giving him lower interview scores than he deserved,

id. at 20–21, and he argues that Davis and Newton are liable under the theory of

2 Had Robinson timely filed his Title VII claims, they would have been dismissed for the same

reason as his Equal Protection Clause and Section 1981 and 1983 Race Discrimination claims. See

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 n.6 (11th Cir. 2018) (“Employment

discrimination claims against state actors for violation of the Equal Protection Clause are

cognizable under § 1983, and are subject to the same standards of proof and use the same analytical

framework as discrimination claims brought under Title VII of the Civil Rights Act of 1964 and

42 U.S.C. § 1981.”).

3 Mr. Robinson withdrew his Section 1983 claims against Davis in his individual capacity. (Doc.

27 at 44 n.22). But as Mr. Robinson continues to include Davis in various arguments, the court

also includes Davis in its holdings to clarify that those holdings apply to any claims that have not

been withdrawn against him.

“cat’s paw” liability, see Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th

Cir. 1999), because Davis and Newton simply rubber-stamped Edgil and Williams’s

decisions, thus serving as a conduit for their discriminatory animus, (see doc. 27 at

38–39). Without an underlying discriminatory action, of course, Davis and Newton

cannot be liable under a cat’s paw theory, so the court will first address Edgil and

Williams.

For Mr. Robinson’s claims to survive summary judgment, he must present

sufficient facts to permit a reasonable factfinder to rule in his favor, which requires

a showing that ADVA acted with discriminatory intent. See Lewis v. City of Union

City, 934 F.3d 1169, 1185 (11th Cir. 2019) (en banc). Discriminatory intent can be

established in multiple ways. Where, as here, a plaintiff seeks to prove intentional

discrimination through circumstantial evidence of the employer’s intent, the court

generally applies some version of the familiar tripartite burden-shifting analysis

articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973), and its progeny. Alternatively, a plaintiff can prove discriminatory intent

by “present[ing] a convincing mosaic of circumstantial evidence that would allow a

[factfinder] to infer intentional discrimination.” Lewis, 934 F.3d at 1185 (internal

quotation marks and ellipses omitted).

A. McDonnell Douglas Burden-Shifting Framework

Under the McDonnell Douglas burden-shifting framework, the plaintiff has

the initial burden of establishing a prima facie case of discrimination. See Combs v.

Plantation Patterns, 106 F.3d 1519, 1527–28 (11th Cir. 1997). Once a plaintiff

establishes the requisite prima facie case, the defendant has the burden of producing

a legitimate, non-discriminatory reason for the challenged employment action. See,

e.g., Holifield v. Reno, 115 F.3d 1555, 1564 (11th Cir. 1997) (citing Tex. Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248, 101 (1981)), abrogated on other grounds by

Lewis v. City of Union City, 918 F.3d 1213 (11th Cir. 2019). The employer’s burden

is “exceedingly light.” Holifield, 115 F.3d at 1564. This burden is one of production,

not persuasion, and, consequently, the employer “need only produce evidence that

could allow a rational fact finder to conclude that the [challenged] employment

decision was not made for a discriminatory reason.” Davis v. Qualico Misc., Inc.,

161 F. Supp. 2d 1314, 1321 (M.D. Ala. 2001) (emphasis added) (internal brackets

omitted). See also Kondrak v. Principi, 161 F. App’x 817, 819 (11th Cir. 2005). Once

an employer satisfies its burden of producing a legitimate, non-discriminatory reason

for the employment action at issue, the next step of the McDonnell Douglas

framework requires the plaintiff to establish that the proffered reason was not the

true reason for the employment action, “either directly by persuading the court that

a discriminatory reason more likely motivated the employer or indirectly by showing

that the employer’s proffered explanation is unworthy of credence.” Burdine, 450

U.S. at 256 (citing McDonnell Douglas, 411 U.S. at 804–05). See also Combs, 106

F.3d at 1528.

Defendants concede that Mr. Robinson can establish a prima facie case of

discrimination under the McDonnell Douglas framework because (1) he is a member

of a protected class (African American); (2) was qualified for the position; (3) was

not selected for the position; and (4) the individuals selected for the two vacant

positions were outside Mr. Robinson’s protected class. (Doc. 26 at 23–24); See

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 n.7 (11th Cir. 2018) (listing the

elements of a prima facie case).

Because Mr. Robinson established a prima facie case of discrimination, the

burden of production shifts to ADVA to “rebut the presumption of racial

discrimination raised by plaintiff’s prima facie case by presenting evidence that [he]

was rejected, or that [Carter and Gutierrez were] chosen, for a legitimate,

nondiscriminatory reason.” Mims v. TVA, No. 5:13-cv-672-CLS, 2015 WL 6081200,

at *6 (N.D. Ala. Sept. 23, 2015). A legitimate, non-discriminatory reason is one that

would “motivate a reasonable employer.” Hilliary v. FlightSafety Int’l, 778 F. App’x

835, 839 (11th Cir. 2019). ADVA “need not persuade the court that it was actually

motivated by the proffered reason, but need only present evidence raising a genuine

issue of fact as to whether it discriminated against [Mr. Robinson].” Alvarez v. Royal

Atl. Devs., Inc., 610 F.3d 1253, 1265 (11th Cir. 2010).

The Eleventh Circuit has held that “[w]here ‘several candidates are well-

qualified for a single position, the employer’s testimony that it chose the person it

thought best qualified’ is ordinarily sufficient” to qualify as a legitimate, non-

discriminatory reason for the adverse employment action. Cotton v. Enmarket, Inc.,

No. 19-14000, 2020 WL 2078288, at *2 (11th Cir. 2020) (internal ellipses omitted)

(quoting Smith v. Horner, 839 F.2d 1530, 1539 (11th Cir. 1988)). Specifically, courts

in the Eleventh Circuit consistently hold that selecting a particular job applicant

based on his or her higher scores during the selection process is a legitimate, non-

discriminatory reason for not hiring another candidate. See, e.g., Rodriguez v. Sec’y,

U.S. Dep’t of Homeland Sec., 518 F. App’x 653, 656 (11th Cir. 2013) (finding TSA’s

reason for not selecting plaintiff legitimate and non-discriminatory where TSA

selected to fill a position candidates who “had higher combined matrix and interview

scores—the sole criteria TSA utilized in [its] promotion process”); Fike v. Nichols

Aluminum-Ala., LLC, No. 14-cv-19-KOB, 2015 WL 996600, at *4 (N.D. Ala. Mar.

5, 2015) (finding that defendant met its burden to articulate a legitimate, non-

discriminatory reason for not promoting plaintiff “by explaining that it promoted Mr.

Hughes over [plaintiff] based upon Mr. Hughes’ superior score on the scoring

matrix”); Rogers v. Atlanta Gas Light Co., No. 1:04-cv-3144-RWS-GGB, 2006 WL

8431750, at *7 (N.D. Ga. Mar. 22, 2006) (“[Defendant] asserts that it did not select

Mr. Robinson for one of the foreman positions . . . because [the selectees] had higher

Total Ranking Scores than Plaintiff, which is a legitimate, non-discriminatory reason

for not hiring Plaintiff.”), report and recommendation adopted, No. 1:04-cv-3144-

RWS, 2007 WL 9700617 (N.D. Ga. Mar. 5, 2007).

Defendants argue that their subjective interview scores demonstrate a

legitimate, nondiscriminatory reason for not hiring Mr. Robinson. (See Doc. 26 at

24–29). In response, Mr. Robinson relies heavily on Bradley v. Pfizer, Inc., and the

Eleventh Circuit cases that it cites for the proposition that a subjective interview

score is a legitimate, nondiscriminatory reason for not hiring the plaintiff “only if

the employer articulates a clear and reasonably specific basis for its subjective

assessment.” See No. 1:08-cv-3437-TWT-GGB, 2011 WL 13168986, at *6 (N.D.

Ga. Jan. 21, 2011), report and recommendation adopted, No. 1:08-cv-3437-TWT,

2011 WL 13175434 (N.D. Ga. Feb. 14, 2011), aff’d, 440 F. App’x 805 (11th Cir.

2011). Here, however, Defendants have articulated such a basis.

Edgil testified his rankings were based on the candidate interviews and that

Gutierrez and Carter appeared to have better interpersonal skills and experience

dealing with people in crisis. Edgil ranked Carter highly based on “[h]is response to

the questions and the written application.” (Doc. 25-14 at 33). Edgil considered

Carter’s experience as a reserve deputy sheriff and youth minister at his church, as

well as his military experience. Id. at 34–35. Edgil “thought [Carter] was a good fit

for what [ADVA] was looking for. Someone who could listen to problems, to

sympathize with their needs, take a positive approach to responding to those needs.

Would train well, would learn well.” Id. at 35. Ultimately, Edgil thought Carter was

“a good candidate” who was an “outstanding interviewee.” Id. As to Gutierrez, Edgil

also thought “he interviewed well.” Id. at 36. Gutierrez impressed Edgil with his

prior service with California DSS “dealing with people problems and issues.” Id.

Gutierrez stated that he had experience with upset individuals and “he was able to

deal with irate individuals.” Id.

Edgil also interviewed Mr. Robinson and ranked him third. (See Doc. 25-16

at 53). Although he ranked Mr. Robinson highly, Mr. Robinson takes issue with the

scores he received on certain questions, especially those concerning his prior work

experience. (See, e.g., doc. 27 at 4, 17–18, 40–41). Edgil, though, explained why Mr.

Robinson’s prior experience was not dispositive: Edgil’s impression was that Mr.

Robinson was “a middle manager for an agency that did not have any direct contact

with the public.” (Doc. 25-14 at 55). Further, Edgil scored Mr. Robinson lower

because he questioned Mr. Robinson’s ability to perform in a lower-level entry

position after having held advanced positions. See id. at 41. Although Mr. Robinson

may disagree with Edgil’s reasoning, these are legitimate, non-discriminatory

justifications for his scoring.

Williams testified that she thought she scored Mr. Robinson well. (Doc. 25-

19 at 26). Williams stated that she considered both the applications and the

interviews but “lean[ed] more heavily on the interview and how they interact, how

they come across, if they’re easy to talk to.” Id. Williams scored Carter highest

because of “how he answered the questions” and the fact that he was “very sincere,

very personable.” Id. at 15. Williams described his interview as “excellent,” and she

specifically remembered discussing Carter’s experience as a youth minister and that

he was “proficient in [counseling].” Id. Overall, Carter impressed Williams with his

time as a reserve sheriff, experience working with his church, and military

experience. Id.

Similarly, Williams scored Gutierrez highly because he had worked for

California DSS and “he really did a great job on the interview.” Id. at 17. And,

ultimately, Williams gave Mr. Robinson a good interview score as well. (Doc. 25-16

at 53). Williams testified that “[Mr. Robinson] was a nice person. He did a good

interview, but it’s just the other two, to me, the other two gentlemen did better

interviews.” (Doc. 25-19 at 19).

Edgil’s and Williams’s explanations constitute sufficient evidence to rebut the

presumption of racial discrimination raised by Mr. Robinson, thus shifting the

burden back to Mr. Robinson to show pretext.

To establish pretext, a plaintiff should direct the court to “such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s

proffered legitimate reasons for its action that a reasonable factfinder could find

them unworthy of credence.” Combs, 106 F.3d at 1538 (internal quotation marks

omitted). Stated differently, the plaintiff must establish that the proffered reason was

not the true reason, and that “race was.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S.

502, 508 (1993). Thus, the plaintiff cannot establish pretext merely by quarreling

with the decision-making process, see Alvarez, 610 F.3d at 1266, but instead must

show that “the employer’s proffered reason was a cover-up for a discriminatory

action,” Johnson v. Switch & Data Mgmt. Co. LLC, 199 F. App’x 834, 835 (11th Cir.

2006) (citing Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002)). “The inquiry

into pretext centers on the employer’s beliefs, not the employee’s beliefs and, to be

blunt about it, not on reality as it exists outside of the decision maker’s head.”

Alvarez, 610 F.3d at 1266 (citing Holifield, 115 F.3d at 1565).

Mr. Robinson propounds four pieces of evidence to demonstrate pretext.4

First, he relies on the absence of any objective criteria in the interview scoring

process, citing Watson v. National Linen Service, 686 F.2d 877, 881 (11th Cir. 1982).

4 Because Robinson does not rely on Selena Ricks’s statement regarding ADVA’s hiring practices,

the court will not address its admissibility. (See Doc. 27 (mentioning Ms. Ricks’s statement when

describing the contents of the April Charge but never using it to show discrimination)); Transcript

of Oral Argument at 45 (agreeing that the Ricks statement is not an issue). Nor will the court

address the admissibility of statistical evidence, as Robinson asserts no disparate impact claims

predicated on statistical evidence. (See Doc. 27 at 32 n.18).

In Watson, the Eleventh Circuit stated that “[t]he failure to establish fixed or

reasonably objective standards and procedures for hiring is a discriminatory

practice.” Id. However, the court in Watson was referring to a company’s hiring

policies that “changed from day to day” and thus were not “fixed.” See id. Since that

1982 case, the Eleventh Circuit has clarified that “the fact that an employer based a

hiring or promotion decision on purely subjective criteria will rarely, if ever, prove

pretext under Title VII or other federal employment discrimination statutes.” Denney

v. City of Albany, 247 F.3d 1172, 1185 (11th Cir. 2001). Indeed, the Eleventh Circuit

has acknowledged that “subjective evaluations of a job candidate are often critical,”

especially in the “increasingly service-oriented economy” where positions require

evaluation of personal, not professional, qualities. Id. at 1185–86. “It is

inconceivable that Congress intended anti-discrimination statutes to deprive an

employer of the ability to rely on important criteria in its employment decisions

merely because those criteria are only capable of subjective evaluation.” Chapman,

229 F.3d at 1034. Thus, Mr. Robinson’s first argument is unpersuasive.

Second, Mr. Robinson relies on his superior qualifications in comparison to

those of Carter and Gutierrez. (Doc. 27 at 36). Specifically, Mr. Robinson cites his

educational background, his years of experience in the Veterans Benefit

Administration, and the human capital and personnel skills he acquired in relation

to his MBA and in thirty-five years of working with the military and veterans. Id.

However, “this Court has found that experience is not equivalent to qualification . . .

unless that experience is mandatory.” Edmonson v. Thompson, No. 5:19-cv-1163-

LCB, 2021 WL 4326993, at *5 (N.D. Ala. Sept. 23, 2021) (citing Mims, 2015 WL

6081200, at *7). In addition, Mr. Robinson’s argument disregards Defendants’

statements that his prior experience was not dispositive. Defendants sought the most

qualified, not the most experienced, candidates, prioritizing prior interpersonal

experience such as Carter’s experience as a deputy and youth minister and

Gutierrez’s time working with California DSS. See supra. Although Mr. Robinson

received the highest scores of any candidate on the interview questions addressing

experience, (doc. 25-16 at 40–41), this did not outweigh other considerations. And

“[a]sking the Court to find that [his] score was too low is a paradigmatic example of

quarreling with the selection process.” Edmonson, 2021 WL 4326993, at *6.

Third, in a related argument, Mr. Robinson points to inconsistencies in Edgil

and Williams’s reasoning as evidence of pretext. He argues that Edgil first

“essentially argue[d] Robinson was overqualified”5 but that Edgil then changed tack

and testified that he did not give Mr. Robinson a low score due to any concerns that

he was overqualified. (Doc. 27 at 38; Doc. 25-14 at 43). This argument too is

5 There is precedent in the Eleventh Circuit that candidates’ overqualification for a position can be

a legitimate, non-discriminatory reason for non-selection. See generally Woody, 885 F.2d at 1561;

Soliman v. City of Tampa, No. 8:06-cv-2039-T-TGW, 2008 WL 1931320, *11 (M.D. Fla. May 2,

2008).

unpersuasive. While Edgil testified that he did not score Mr. Robinson low because

of his previous experience with federal employees, that does not prove the corollary

that Mr. Robinson’s overqualification did not play any role in Edgil’s scoring. While

Mr. Robinson’s prior experience did not count against him in the interview, it also

did not add points or value to his interview. (See Doc. 25-14 at 55). Mr. Robinson

continues to argue throughout his brief that his experience should have ranked him

higher, but Defendants testified to the importance of customer service experience

when hiring for the Position. (See, e.g., Doc. 25-14 at 53; Doc. 25-12 at 26). And

Mr. Robinson may not quarrel with the weight that the interviewers gave to different

experiences and skillsets. See Edmonson, 2021 WL 4326993, at *6.

Fourth, Mr. Robinson argues that procedural irregularities in the interview

process indicate pretext. (Doc. 27 at 37). ADVA generally provided interviewers

with a list of twelve interview questions, and interviewers were instructed to ask all

twelve questions to each candidate. (Doc. 25-17 at 13–14, 33–34; Doc. 25-15 at 45).

This policy is referred to as the “Marsh Memo.” Id. at 31–32. Edgil and Williams

were provided with these twelve questions in preparation for Mr. Robinson’s

interview, but they only asked Mr. Robinson five or six of them. (Doc. 25-21 at 12).

While it is true that “[d]epartures from normal procedures may be suggestive of

discrimination,” Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985), this

violation of the Marsh Memo was not a departure from normal procedures. Edgil

testified that he had been with ADVA for more than ten years, (doc. 25-14 at 8), and

had been involved in interviews for similar positions for the past nine years, id. at

17. Edgil testified that the seven interviews to fill the Positions were consistent with

his experience conducting interviews for filling similar positions in the past nine

years, during which time ADVA had not strictly abided by the Marsh Memo. See id.

Additionally, the evidence suggests that each of the seven interviews, including Mr.

Robinson’s, lasted approximately the same amount of time. See Doc. 25-16 at 20

(staggering the morning interviews in forty-five-minute intervals); Doc. 25-19 at 25

(“[W]e would take a break in between people.”); Doc. 25-21 at 12 (stating Mr.

Robinson’s interview lasted 30 minutes). This demonstrates that Edgil and

Williams’s failure to follow the Marsh Memo with respect to Mr. Robinson6 was

consistent with their treatment of white interviewees and thus does not support an

inference of discriminatory intent.

Because Mr. Robinson cannot show that Defendants’ legitimate,

nondiscriminatory reason for not hiring him was actually a pretext for racial

discrimination—in other words that “discrimination was the real reason,” St. Mary’s

6 Defendants contend that there is not enough evidence to determine whether or not they followed

the Marsh Memo. (Doc. 29 at 6–7). Although Mr. Robinson initially stated he was “only asked

five or six questions,” when pressed, he could not remember either the number of questions asked

or which questions the interview panel asked. (See, e.g., Doc. 25-21 at 23 (“[T]hey only asked me

five or six questions. I don’t remember the exact number.”)); id. at 14 (“I don’t remember them

asking me that. They very well could have, but I just don’t remember.”).

Honor Ctr., 509 U.S. at 515—his claim fails under the McDonnell Douglas burden-

shifting framework.

B. Convincing Mosaic Analysis

For the reasons stated above, Mr. Robinson’s claim fails under the McDonnell

Douglas burden-shifting framework. The court will therefore analyze the facts under

an alternative test—the convincing mosaic analysis. Under this approach, “[a] triable

issue of fact exists if the record, viewed in a light most favorable to the plaintiff,

presents a convincing mosaic of circumstantial evidence that would allow a

[factfinder] to infer intentional discrimination by the decisionmaker.” Smith v.

Lockheed-Martin Corp., 644 F.3d 1328 (11th Cir. 2011) (internal quotation marks

and brackets omitted). Under this analysis, a plaintiff can avoid summary judgment

if he presents evidence creating a “reasonable inference” that he was discriminated

against based on his race. Id. But the convincing-mosaic test is not an end-run around

McDonnell Douglas. Rather, “McDonnell Douglas and the ‘convincing mosaic

standard’ are two ways to approach the same question: whether the plaintiff has put

forward enough evidence for a reasonable [factfinder] to conclude that illegal

discrimination occurred.” McCreight v. Auburn Bank, 117 F.4th 1322, 1334 (11th

Cir. 2024) (finding that the plaintiff failed to put forth enough evidence, under either

test, for a reasonable factfinder to conclude that illegal discrimination occurred). As

a matter of law, Mr. Robinson has not done so.

In claiming that summary judgment is improper under the convincing mosaic

analysis, Mr. Robinson relies on the same four arguments that he relies on to

demonstrate pretext. (Doc. 27 at 40). But, as explained supra, the facts underlying

these four arguments do not give rise to an inference of intentional discrimination.

Therefore, Mr. Robinson’s argument based on the convincing mosaic approach

cannot succeed.

Because Mr. Robinson cannot prove racial discrimination using either

analysis, his claims for racial discrimination under the Equal Protection Clause and

Section 1981 via Section 1983 necessarily fail as a matter of law. And because Mr.

Robinson cannot prove that Williams and Edgil acted with racial bias, there is no

underlying claim upon which to base a claim for cat’s paw liability against Davis,

Newton, and ADVA. See Reed v. Forney Indus., Inc., 800 F. App’x 782, 788 (11th

Cir. 2020) (“A plaintiff may prove cat’s paw liability by showing that an unbiased

decision-maker was influenced by or acted on the recommendation of a biased

subordinate.”). Thus, Robinson has failed to meet his burden under either McDonnell

Douglas or the convincing mosaic standard, and all of his claims fail as a matter of

law.7

7 Because Robinson’s claims fail as a matter of law, Defendants’ arguments on but-for causation

and qualified immunity are moot. (See Doc. 26 at 36–37, 40–44).

CONCLUSION

For the reasons stated herein, the court GRANTS Defendants’ motion for

summary judgment, (doc. 24), and DISMISSES the case. A separate judgment will

be issued along with this opinion.

DONE and ORDERED on March 9, 2026.

HAROLD D. Il

UNITED STATES DISTRICT JUDGE

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