Smith v. Office of the Attorney General, State of Alabama

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

SUSAN SMITH, )

)

Plaintiff, )

)

v. ) CASE NO. 2:17-CV-00297-RAH

)

OFFICE OF THE ATTORNEY )

GENERAL, STATE OF ALABAMA,)

a Governmental Agency, et al., )

)

Defendants. )

MEMORANDUM OPINION AND ORDER

Founded in 2011, the Special Prosecutions Division (“SPD”) of the Office of

the Attorney General of the State of Alabama (“OAG”) has always focused on

investigations of public corruption and white-collar crime. In so doing, it undertook

“one of the most challenging missions in law enforcement,” at least according to its

first head, M. Matthew Hart (“Hart”). Dana Beyerle, Public Corruption Alliance

Formed, GADSDEN TIMES, Apr. 12, 2012.1 Since its founding, its investigators and

prosecutors have dealt with numerous high profile matters.

1 District courts may take judicial notice of matters that are accessible to the general public and

“are not subject to reasonable dispute because they are capable of accurate and ready determination

by resort to sources whose accuracy cannot reasonably be questioned.” Bryan v. Avado Brands,

Inc., 187 F.3d 1271, 1278 (11th Cir. 1999). See also U.S. ex rel Osheroff v. Humana, Inc., 776

F.3d 805, 811 n.4 (11th Cir. 2015) (courts may take judicial notice of statements contained

within—but not the veracity of—newspaper articles).

This pay and promotion discrimination case arises out of the hiring decisions

made by the OAG when it first created the SPD. In staffing this new office, the OAG

largely hired outside investigators with significant federal government work

histories to the exclusion of long-term investigators already employed within the

OAG. Susan Smith (“Smith” or “Plaintiff”), formerly employed with the City of

Selma Police Department (“Selma PD”), was one of the passed-over investigators.

In 2017, Smith filed this lawsuit against the OAG and Luther Strange (“Strange”),

this state’s former Attorney General and U.S. Senator, claiming gender

discrimination in violation of the Equal Pay Act of 1963 (“EPA”), as amended, 29

U.S.C. § 206(d); Title VII of the Civil Rights Act of 1964 (“Title VII”), as amended,

42 U.S.C. § 2000e et seq.; and 42 U.S.C. § 1983 (“Section 1983” or “§ 1983”).

Discovery now at an end, the Defendants have moved for summary judgment

on all claims in Smith’s operative pleading (“Complaint”) pursuant to the relevant

provision of the Federal Rules of Civil Procedure,2 as articulated in their motion and

its supporting documents (collectively, “Motion”). (Doc. 51.)

With the Motion having been fully briefed and thus ripe for decision, for the

reasons more fully set forth below, this Court GRANTS the Motion.

I. JURISDICTION AND VENUE

2 In this Memorandum Opinion and Order, any and all references to “Rule []” or “Rules” are to

one or more of the Federal Rules of Civil Procedure unless otherwise noted.

Subject matter jurisdiction is conferred by 28 U.S.C. § 1331 as to Smith’s

federal causes of action. The parties do not contest personal jurisdiction or venue,

and there are adequate allegations to support both. See 28 U.S.C. § 1391.

II. STANDARD OF REVIEW

Summary judgment is appropriate when 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” based on “the pleadings, the discovery and disclosure materials on

file, and any affidavits.” FED. R. CIV. P. 56(a), (c). A district court must view the

evidence, and all reasonable inferences drawn therefrom, in the light most favorable

to the nonmoving party. E.g., Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th

Cir. 2010); Bingham, Ltd. v. United States, 724 F.2d 921, 924 (11th Cir. 1984). Just

as importantly, that court cannot make decisions as to the merits of properly disputed

factual issues. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986); Ryder

Int’l Corp. v. First Am. Nat’l Bank, 943 F.2d 1521, 1523 (11th Cir. 1991).

The party moving for summary judgment “always bears the initial

responsibility of informing the district court of the basis for the motion.” Celotex

Corp. v. Catrett, 477 U.S. 317, 323 (1986); see, e.g., Weinberger v. Hynson, Westcott

& Dunning, 412 U.S. 609, 622 n.18 (1973). A party asserting that a fact cannot be

or is genuinely disputed can support such a statement by citing to particular parts of

materials in the record, including depositions, documents, electronically stored

information, affidavits or declarations, stipulations (including those made for

purposes of the motion only), admissions, interrogatory answers, or other materials.

FED. R. CIV. P. 56(c)(1)(A); Celotex, 477 U.S. at 323, 325. Alternatively, the movant

can do one of two things. It can contend that the materials cited do not establish the

absence or presence of a genuine dispute. FED. R. CIV. P. 56(c)(1)(B); Fuller v. SL

Alabama, LLC, 56 F. Supp. 3d 1232, 1236 (M.D. Ala. 2014). Or, if it will not bear

the burden of production at trial, it can assert, without citing the record, that the

nonmoving party “cannot produce admissible evidence to support” a material fact.

FED. R. CIV. P. 56(c)(1)(B); see also FED. R. CIV. P. 56 advisory committee’s note to

1963 amendment (“Subdivision (c)(1)(B) recognizes that a party need not always

point to specific record materials. . . . [A] party who does not have the trial burden

of production may rely on a showing that a party who does have the trial burden

cannot produce admissible evidence to carry its burden as to the fact.”).

If the movant meets its burden, the burden shifts to the nonmoving party to

establish—with evidence beyond the pleadings—that a genuine dispute material to

each of its claims for relief exists. E.g., Celotex Corp., 477 U.S. at 324; Matsushita

Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving

party is required “to go beyond the pleadings” and to present competent evidence

designating “specific facts showing that there is a genuine issue for trial.” Celotex,

477 U.S. at 324. Generally, “[t]he mere existence of a scintilla of evidence”

supporting the nonmoving party’s case is insufficient to defeat a motion for summary

judgment. Anderson, 477 U.S. at 252.

In applying Rule 56, a court must heed two definitions. Applicable substantive

law identifies those facts that are material and those that are irrelevant. Id. at 248.

As a matter of course, “[d]isputed facts that do not resolve or affect the outcome of

a suit will not properly preclude the entry of summary judgment.” Kingsley v.

Tellworks Commc’ns., LLC, No. 1:15-CV-4419-TWT-JSA, 2017 WL 2624555, at

*14 (N.D. Ga. May 24, 2017). Meanwhile, an issue is not genuine if it is

unsupported by evidence, or if it is created by evidence that is "merely colorable" or

is “not significantly probative.” Anderson, 77 U.S. at 250. Essentially, a genuine

dispute of material fact exists when the nonmoving party produces evidence

allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley

Forge Dental Assocs., Inc., 276 F.3d 1275, 1279 (11th Cir. 2001).

III. BACKGROUND

A. Susan Smith

Smith presently is employed as a merit system-classified special agent at the

OAG. (Doc. 1 at 2; Doc. 1-1 at 1.) She filed this suit against the OAG claiming

discrimination on the basis of sex with respect to pay and promotion in violation of

Title VII and the EPA and against Strange in his individual capacity under § 1983.

In particular, Smith claims that the OAG paid her less than three former federal

investigators – Donald Keith Baker (“Baker”), James Murray (“Murray”) and James

Lambert (“Lambert”) — all of whom ultimately were hired into the OAG between

2011 and 2013.

In her former job with the Selma PD, Smith held a variety of roles over a

twenty-year period. (Doc. 52-10.) She was a patrolman, patrol sergeant,

communications sergeant, detective sergeant, detective lieutenant, and chief of

detectives. (Id.) By the end of her tenure, she had accumulated over twelve years

of experience in investigating various types of crime in the Selma area. Her log of

cases included violent misdemeanors and felonies, forgery, fraud, theft, and white

collar matters. (Id. at 9-15, 17.) Notably, it had only one entry for a public

corruption misdeed. (Id.)

Smith’s employment with the OAG began in 2007. She was hired into a

merit-classified position as a “Special Agent-Attorney General/Ethics Option, Step

1” in the Investigations Division. (Id. at 18; Doc. 52-11.) This position started at a

Step 1 pay level ($41,872.80 annually), which was an increase in salary from her

previous position at the Selma PD ($39,665.60). (Doc. 52-10 at 16; Doc. 52-11 at 2;

Doc. 52-14 at 3.)

After approximately six years as a special agent, Smith applied for a position

as a “Senior Special Agent-Attorney General/Ethics Option” in January 2013. (Doc.

52-1 at 21.) Promotion to a new classification position within the OAG required an

employee to (1) turn in an application, (2) meet the minimum qualifications, (3)

complete and pass any test necessary for the classification, (4) score high enough to

appear in the top ten applicants on the employment register (“Certificate of

Eligibles” or “COE”), and (5) be considered and selected from the COE. (Doc. 52-

2 at 4-7); ALA. ADMIN. CODE R. 670–X–9–.02(1); ALA. CODE § 36–26–2(5). When

seeking to fill a vacant position, the OAG, like any state agency, must request a COE

from the State of Alabama Personnel Department in the classification, option, and

location for the vacant position. (Doc. 52-2 at 6-7.) By law, the OAG cannot appoint

a person to a merit position unless he or she appeared on the COE. (Id.)

Here, complications followed Smith’s exam. After taking the examination,

Smith was notified that she was listed as one of the ten individuals on the COE for

the Senior Special Agent-Attorney General/Ethics Option position on January 15,

2014. (Doc. 22 at 2.) However, she also was informed that the classification

designation was being changed from Attorney General/Ethics Option to the Attorney

General Option, which therefore required that she submit a new job application.

(Doc. 52-10 at 63; Doc. 52-22 at 2.) An email sent on January 16, 2014, to all OAG

staff from an OAG administrative services officer reiterated that the Senior Special

Agent Attorney General/Ethics Option continuous job announcement had been

cancelled due to the name change and that an open announcement for the Attorney

General Option had been posted. (Doc. 52-23 at 2.)

After waiting over three months, Smith finally applied in April 2014 for the

Senior Special Agent position. She was listed on both the Open Competitive Register

(with a score of 90.0) and the Promotional Register (with a score of 90.09). (Doc.

52-1 at 28, 38; Doc. 52-24 at 3.)

Despite having applied in April 2014, Smith has not been promoted to a merit-

classified Senior Special Agent position. Furthermore, she has not been transferred

into a better paying, but non-protected/non-merit (exempt), investigator position

despite her requests to do so. Smith currently earns $52,665.60 as a Special Agent,

having received several cost-of-living increases and step raises over the years. (Doc.

58-10 at 13.)

B. The Special Prosecutions Division and Attorney General Strange

Strange was elected Attorney General in 2010 on a campaign platform of

targeting public corruption in the state. (Doc. 52-6 at 18.) Shortly after taking office

in January 2011, Strange created the Special Prosecutions Division within the OAG

to investigate and prosecute public corruption and high profile, white collar crimes.

(Id. at 15, 18-20.) One of Strange’s first hires was Hart, a long-time federal

prosecutor with expertise in such cases — and was promptly assigned to head the

SPD. (Doc. 52-7 at 19, 30; Doc. 52-8 at 2.)

Strange, along with Richard Allen (“Allen”), the Deputy Attorney General,

and Hart, made a crucial choice in these early days. This trio decided to staff the

division with investigative staff who possessed high-level investigative experience

in public corruption and white-collar crime. (Doc. 52-6 at 16.) To obtain the best

staff available, Strange authorized Allen and Hart to hire individuals outside the state

merit system. (Id. at 15, 58, 63.)

C. Smith’s Three Male Comparators

Smith identifies three male comparators as the basis for her discrimination

claims:

(1) Murray: Prior to his employment at the OAG, Murray served over 22

years as a special agent with the Federal Bureau of Investigation (“FBI”). He had

conducted investigations of high-profile, complex public corruption and intricate

white-collar crimes involving, among others, a former governor and his chief of

staff, an insurance executive, the former director of the Alabama Department of

Transportation, the former president pro-tempore of the Alabama State Senate, two

lobbyists, the former head of HealthSouth Corp., a chief of police, building

inspectors and contractors. (Doc. 52-29 at 6-8.) During his last year at the FBI,

Murray earned $133,000 annually. (Doc. 52-25 at 7.)

In 2011, Murray was targeted for employment at the OAG by Allen due to his

background in public corruption. (Doc. 52-25 at 6.) Murray made it known that he

was interested in the position if his compensation was adequate and if he ultimately

could transition to a merit system position for job protection purposes. (Id. at 6, 9.)

Murray was offered a non-merit3 position in 2011 as an A.G. Special Investigator in

the Investigations Division at a starting salary of $86,390.40. (Id. at 8-9; see Doc.

52-26 at 2.) In 2012, he was assigned to the newly created Special Prosecutions

Division. (Doc. 52-8.)

In March 2013, Murray applied for a merit position as a Special Agent-

Attorney General Option, the same merit position classification held by Smith. (Doc.

52-27.) Somehow, Murray learned that the OAG was “revamping” the Senior

Special Agent position, and he therefore decided to wait until the position was

advertised before applying for it. (Doc. 52-25 at 12.) Once the position was

advertised in February 2014, Murray made his move and formally applied. (Doc. 52-

29.) Murray took the examination for the Senior Special Agent position and ranked

first on the COE with a score of 95.0. (Doc. 52-25 at 12; Doc. 52-30 at 2.)4

Murray was appointed to the Senior Special Agent-Attorney General Option

position in April 2014 at an annual salary of $82,262.40. (Doc. 52-31 at 2.) He was

still assigned to the SPD. (Doc. 52-25 at 12.) After completing his probationary

3 Unlike a merit position, a non-merit position does not have the grievance protections otherwise

afforded to a merit position. Non-merit employees can be demoted, disciplined, dismissed or

transferred for any nondiscriminatory reason. In other words, non-merit employees can be

terminated at will.

4 Smith has not alleged that the state personnel department engaged in any discrimination, had any

improper motives, or that there was anything nefarious in designating Murray first on the COE for

the Senior Special Agent position, although she does question the “unexplained” circumstances

about the COE in her opposition brief to the OAG’s motion for summary judgment. (Doc. 57 at

33-34, n. 150.)

period, Murray was appointed to an unclassified, non-merit position as an A.G.

Special Investigator at a salary of $90,724.80. (Doc. 52-37 at 2.)

(2) Baker: Prior to his employment at the OAG, Baker was employed as

an accountant and then as a special agent with the FBI for twenty-five years,

specializing in the investigation of complex public correction and financial crimes.

(Doc. 52-38 at 11, 18.) Because of this background, Baker initially was approached

in 2011 by Murray and Hart to join the SPD. (Doc. 52-38 at 11-12.) After retiring

from the FBI in 2013, Baker accepted a position at the OAG as a non-merit A.G.

Investigator in the SPD, but only after he had negotiated a salary comparable to his

FBI salary at retirement ($133,000) once the value of his federal retirement benefits

were included.5 (Doc. 52-38 at 12.)

Desiring a merit system position, one month later, Baker applied for a Special

Agent-Attorney General Option position. Ultimately, he was appointed to the

position in December 2013 at the Step 24 classification at an annual salary of

$76,348.80. (Doc. 52-38 at 13; Doc. 52-41 at 2.) The Step 24 designation afforded

Baker a salary equal to the salary he was receiving in his unclassified, non-merit

A.G. Special Investigator position. (Doc. 52-41 at 2.)

5 For example, if Murray was earning $133,000 at the FBI and would receive $50,000 annually

upon retirement from the FBI, he needed a salary with the OAG of no less than $83,000 to maintain

a comparable level of compensation.

In October 2016, Baker transitioned back to a non-merit A.G. Special

Investigator position and a higher salary. (Doc. 52-38 at 16-17.) The impetus for

this action was Baker’s declared intention to consider moving into the private sector.

(Doc. 52-38 at 16-17.) Baker remained in the SPD throughout the duration of his

employment with the OAG.

(3) Lambert: Prior to his employment with the OAG, Lambert was a special

agent with the U.S. Department of Homeland Security (“DHS”). (Doc. 52-50 at 6.)

Unlike Baker and Murray, Lambert was not directly recruited to serve in the SPD.

(Id. at 8.) Wanting to be closer to family, Lambert applied for a position as a Special

Agent-Attorney General/Ethics Option in July 2012, (Doc. 52-51 at 2), and was

appointed to the position at the Step 1 level in February 2013, (Doc. 52-52 at 2), the

same position classification and the same step level where Smith started in 2007.

(Doc. 52-11 at 2; Doc. 52-52 at 2.)

Not long thereafter, Lambert applied for a Senior Special Agent position and

took the requisite exam. Based on his performance, Lambert was listed third (tied

with another individual) on the COE, with a score of 90.15. (Doc. 52-58 at 2.) At

the time, Smith also was listed on the COE with a score of 90.09, slightly outranked

by Lambert (id.), but Lambert was appointed to the Senior Special Agent position at

Step 1 on July 1, 2014, instead, (Doc. 52-59 at 2). According to Chief Investigator

Tim Furman (“Furman”), Lambert was selected over Smith for several different

reasons, including his experience as a manager/supervisor, prior work with the

federal government, a track record of “excell[ing] at the things he was doing” and

taking the initiative to mentor other agents, and commendable scores in the

interviews for the position. (Doc. 52-9 at 43.)

In February 2015, Lambert was transferred to an unclassified A.G. Special

Investigator Position, thereby resulting in a significant pay increase to $76,348.80

annually. (Doc. 52-64 at 2.) He subsequently was promoted to an unclassified

position as A.G. Chief Investigator in December 2016. (Id.) Critically, at no time

was Lambert assigned to the Special Prosecutions Division; at all times, Lambert

remained assigned to the Investigations Division, as was Smith. (Id.)

D. EEOC Charge and Claims

Smith filed a complaint with the Equal Employment Opportunity Commission

(“EEOC”) on July 11, 2014, alleging gender discrimination and a violation of the

EPA. The EEOC issued a Notice of Right to Sue letter on February 4, 2017. (Doc.

1-2 at 1.) Smith timely filed her Complaint in this Court on May 5, 2017. In this

pleading, Smith asserts the following counts:

Count I – Gender Discrimination under Title VII;

Count II – Violation of the EPA; and,

Count III – Strange’s Violation, in his Individual Capacity, of Smith’s

Constitutional Rights under Section 1983.

IV. DISCUSSION

A. Smith’s Wage Discrimination Claims

The Court will first address Smith’s EPA claim and then her Title VII pay

discrimination claim.

1. Smith’s Prima Facie Burden Under the EPA.

The EPA prohibits employers from discriminating on the basis of sex by

paying employees of different sexes different rates for the same work. 29 U.S.C. §

206(d)(1). To establish a prima facie case of discrimination under this statute, a

plaintiff must show that his or her employer “pays different wages to employees of

opposite sexes for equal work on jobs” the performance of which requires “equal

skill, effort, and responsibility, and which are performed under similar working

conditions.” Irby v. Bittick, 44 F.3d 949, 954 (11th Cir. 1995) (quoting Corning

Glass Works v. Brennan, 417 U.S. 188, 195 (1974), and 29 U.S.C. § 206(d)(1)). The

initial burden to demonstrate comparability is “fairly strict”; although the jobs

compared need not be identical, a plaintiff must demonstrate “that she performed

substantially similar work for less pay.” Miranda v. B&B Cash Grocery Store, Inc.,

975 F.2d 1518, 1526 (11th Cir. 1992); see also Waters v. Turner, Wood & Smith Ins.

Agency, Inc., 874 F.2d 797, 799 (11th Cir. 1989) (“The standard for determining

whether jobs are equal in terms of skill, effort, and responsibility is high.”).

Because a prima facie case does not require a showing of an employer’s

discriminatory intent, the EPA “prescribes a form of strict liability.” Miranda, 975

F.2d at 1533. “Once the disparity in pay between substantially similar jobs is

demonstrated, the burden shifts to the defendant to prove that a ‘factor other than

sex’ is responsible for the differential. If the defendant fails, the plaintiff wins. The

plaintiff is not required to prove discriminatory intent on the part of the defendant.”

Id. (citing Mitchell v. Jefferson Cnty. Bd. of Educ., 936 F.2d 539 (11th Cir. 1991)).

Pointing to these standards, the OAG argues that Smith cannot meet her prima

facie burden because she cannot show the OAG paid Murray, Baker and Lambert,

the three male investigators, more for equal work on jobs the performance of which

requires equal skill, effort, and responsibility, and that are performed under similar

working conditions. (Doc. 53 at 30-31.) Baker and Murray, the OAG contends, are

not proper comparators because Smith worked as an investigator in the general

investigative division, which primarily investigated violent crimes and crimes

against women and children, and this duo worked in the SPD, which required

investigators to perform financial analysis, review large volumes of financial

records, track financial records, and investigate high-profile public corruption and

white collar crimes. (Id. at 30-31.) As part of their work, Baker and Murray also

assisted with grand juries, recruited white collar informants, and evaluated telephone

records, electronic communications, credit card records, and suspicious activity

reports (“SAR”) filed with the Financial Crimes Enforcement Network. (Doc 53 at

31.) As an example of the disparity in qualifications, the OAG points to deposition

testimony by Smith in which she acknowledged that she has never used a SAR and

does not know how to download cell phone information. (Id.)

As to Lambert, he too cannot be a proper comparator because he received the

same starting salary as Smith when he began his employment with the OAG. (Id.)

Further, Lambert’s pay disparity occurred only when he was promoted to a different,

senior-level position as Senior Special Agent, a post that included additional

supervisory duties.

Smith, of course, disputes these purported distinctions. She maintains that her

job as a special agent in the Investigations Division was “substantially equal” to the

jobs of Murray and Baker in the SPD. (Doc. 57 at 22.) Smith makes no argument

in this regard as to Lambert. Curiously, Smith does not state for which period of time

her job as a special agent was equal.6 With this in mind, this Court must first

determine whether Smith’s job is substantially similar to those of her alleged

comparators. In so doing, its focus is on the primary duties of each job, not on the

individual employees holding those jobs, or on incidental or insubstantial

responsibilities. Miranda, 975 F.2d at 1533 (noting that “the controlling factor under

6 The Court thus assumes this was the period of time that both Murray and Baker were assigned to

the SPD.

the Equal Pay Act is job content”) (quotation omitted). “[A]n EPA plaintiff must

show she and her comparator hold not only similar job titles and classifications but

the actual job requirements and performance requirements are substantially equal.”

Kohser v. Protective Life Corp., No. 2:11-CV-03915-JHE, 2015 WL 1395896, at

*19 (N.D. Ala. Jan. 13, 2015), report and recommendation adopted as modified, No.

2:11-CV-3915-VEH, 2015 WL 1395911 (N.D. Ala. Mar. 25, 2015), aff'd, 649 F.

App’x 774 (11th Cir. 2016) (rejecting plaintiff’s argument that her job was

substantially similar to her alleged male comparator because the two employees

were hired at the same grade level). To decide whether a plaintiff has met her initial

threshold, a court should not (and the Court will not) ignore that party’s obligation

to prove that the skill, effort, and responsibility required in the performance of the

jobs are “substantially equal.” Miranda, 975 F.2d at 1533.

As already noted, see supra, the standard for determining equality of the

requisite “skill, effort, and responsibility” of the job at issue is “high.” Waters, 874

F.2d at 799. An EPA plaintiff’s burden of proving equivalence is greater than the

comparison that must be made to support a Title VII claim. Miranda, 975 F.2d at

1526. Although formal job titles or descriptions may be considered, attention must

be fixed on the job content and actual duties that the employees are called upon to

perform. Id. at 1533; see also Arrington v. Cobb Cnty., 139 F.3d 865, 876 (11th Cir.

1998) (“[T]he controlling factor in the court’s assessment of whether two jobs are

substantially equal must be actual job content.”). Thus, the skills and qualifications

of the comparators and any incidental job duties are not relevant to this analysis. See

Miranda, 975 F.2d at 1533.

Viewed as a whole, from first spoken word to final quip, the testimony of

Smith, her supervisors, and the two male comparators (Murray and Baker)

demonstrates that Smith’s job did not entail the same “skill, effort, responsibility, or

working conditions” as the jobs that her proffered comparators held. Smith’s job

primarily consisted of investigating crimes of violence and crimes against women

and children, (Doc. 52-10 at 24, 29; Doc. 52-6 at 38), but not public corruption,

(Doc. 52-6 at 52; Doc. 52-48 at 14). While such cases can try the hardiest and

implicate their own unique legal complexities, public corruption and similar such

crimes are a different animal entirely; their intricacies and complications are distinct

in kind, if not degree, demanding a different, but neither better nor worse, set of

forensic skills. A lawyer or detective trained for or mostly familiar with one—and

who has excelled in that particular area of law—will not necessarily possess the

expertise required to thrive in the other, at least without some extended and

specialized training. With investigators and prosecutors, as with many lawyers,

acumen does not always translate, at least not immediately. Indeed, while Smith had

a background performing generalized investigative work at the Selma PD, Murray

and Baker both had backgrounds in regularly investigating complex financial crimes

and public corruption cases at the FBI.

“A distinction should be made between (on the one hand) standard experience,

training, or education required for a position and possessed by all individuals in that

position, and (on the other hand) any additional or unique experience, training, or

education not required for a position but that an individual may bring to the table.”

Morris v. Bessemer City Bd. of Educ., No. 2:08-CV-1086-JHH, 2009 WL 10688079,

at *18 (N.D. Ala. Nov. 5, 2009). While investigative functions for special agents at

the OAG (or even at the FBI or local law enforcement agencies) may indeed be

somewhat “comparable,” they are most certainly not “virtually identical,” which is

required to prove an EPA prima facie case. See, e.g., Waters, 874 F.2d at 799 (“When

Congress enacted the Equal Pay Act, it substituted the word ‘equal’ for ‘comparable’

to show that “the jobs involved must be virtually identical, that is, they would be

very much alike or closely related to each other.”). Indeed, the need for experienced

individuals to investigate crimes of a singularly complex nature was the very reason

the OAG gave for forming the SPD in the first place.

Although Smith, Murray and Baker all investigated crimes for the OAG, the

complexity and level of investigation is what distinguishes Smith’s general

investigatory practice in the Investigative Division from Murray and Baker’s higher-

profile public corruption and white collar investigatory practice in the Special

Prosecutions Division. Most if not all investigative jobs will include similar

activities, but those activities do not define the job—rather, they are generally

inherent in every law enforcement investigator position. If Smith’s argument was

correct, the EPA would require that every OAG investigator be paid the same;

naturally, the EPA’s reach is not that broad. Numerous courts in this Circuit have

rejected this type of “similar core function” theory, and the Court will now do the

same. See Cochran v. Alabama Power Co., No. CV 16-00193-CG-B, 2017 WL

2223038, at *6 (S.D. Ala. May 19, 2017); Rollins v. Alabama Cmty. Coll. Sys., 814

F. Supp. 2d 1250, 1315 (M.D. Ala. 2011); Byrd v. Auburn Univ. at Montgomery,

No. CIVA 2:05-CV-835 CSC, 2007 WL 1140424, at *9 (M.D. Ala. Apr. 17, 2007).

Accordingly, the Court concludes that Smith’s job duties as a special agent in the

Investigations Division were not virtually identical to those of Murray and Baker in

the SPD, and therefore the OAG is entitled to summary judgment on Smith’s EPA

claim on this basis alone.

2. The OAG’s Affirmative Defense

The OAG makes an alternative counter: that even if the job duties were

substantially equal and that Smith could prove a prima facie case, the disparities in

salaries were justified by the “any factor other than sex” inquiry. In particular, the

OAG cites to Murray and Baker’s unique investigative experience in legislative and

public corruption and their prior salaries to justify the pay disparity between them

and Smith. (Doc. 53 at 31.)

Where a plaintiff makes a prima facie showing under the EPA, a defendant

“may avoid liability by proving by a preponderance of the evidence that the pay

differences are based on . . . any other factor other than sex.” Steger v. Gen. Elec.

Co., 318 F.3d 1066, 1078 (11th Cir. 2003) (citing 29 U.S.C. § 206(d)(1)). This is an

affirmative defense, and a defendant's burden of proof is “heavy,” in the sense that

the employer “must demonstrate that the factor of sex provided no basis for the wage

differential.” Id. (citations and internal quotation marks omitted). If a defendant

satisfies its burden, a plaintiff must rebut the explanation by showing with

affirmative evidence that the reason is pretextual or offered as a post-event

justification for a gender-based differential. Id. (citing Irby , 44 F.3d at 954). If a

plaintiff’s rebuttal is sufficient to create an inference of pretext, a material issue

exists that must be resolved at trial. Irby, 44 F.3d at 954.

The Eleventh Circuit has found factors “other than sex” justifying pay

differentials to include “unique characteristics of the same job; . . . an individual's

experience, training or ability; or ... special exigent circumstances connected with

the business.” Id. at 955 (citing Glenn v. Gen. Motors Corp., 841 F.2d 1567, 1571

(11th Cir. 1988)). “So long as subjective business justifications...are not overly

subjective so as to render them incapable of being rebutted, they are legitimate

factors to be considered.” Schwartz v. Fla. Bd. of Regents, 954 F.2d 620, 623 (11th

Cir. 1991).

Here, the OAG argues the “other factors” stem from Baker’s and Murray’s

prior salaries as FBI agents in combination with their “unique legislative corruption

or public corruption experience.” (Doc. 53 at 31.) “[P]rior pay plus experience

establishes an affirmative defense under the EPA.” White v. ThyssenKrupp Steel

USA, LLC, 743 F. Supp. 2d 1340, 1354 (S.D. Ala. 2010); see Irby, 44 F.3d at 955

(“While an employer may not overcome the burden of proof on the affirmative

defense of relying on ‘any other factor other than sex’ by resting on prior pay alone

. . . there is no prohibition on utilizing prior pay as part of a mixed-motive, such as

prior pay and more experience.”). Since prior pay plus experience constitutes “other

factors,” the burden now shifts to Smith to rebut this explanation by showing that

the OAG’s stated justification is pretextual. See Schwartz, 954 F.2d at 623; Edwards

v. Fulton Cnty., Ga., 509 F. App’x 882, 885 (11th Cir. 2013). Again, Smith is not

required to prove discriminatory intent on the part of the OAG. See Miranda, 975

F.2d at 1533. If she is able to create the inference of pretext, an issue that should be

reserved for trial has been found, fatally undermining any Rule 56 attack. Irby, 44

F.3d at 954.

While Smith argues that the OAG, through Strange, has not met its burden

because Strange had no recollection in his deposition of the basis for Murray’s and

Baker’s starting salaries, (Doc. 57 at 26-27), by hanging her hat on Strange’s

forgetfulness, Smith effectively distorts the full picture. Allen, the former Chief

Deputy Attorney General, testified that he recruited Murray, in part, by using “the

flexibility with respect to salary attendant to the unclassified positions to help the

OAG obtain the services of exceptional investigators, like Murray, with significant

experience in white-collar crime investigations and public corruption

investigations.” (Doc. 52-4 at 4.) Allen further explained that without the flexibility

in the unclassified positions, he would not have been as successful in recruiting

qualified people. (Id.) Hart, head of the SPD, confirmed that the non-merit hiring

process allowed the division to get “more senior people” into the office because “it

allows you to pay them more money, and that’s what required. When they’re making

170 grand with the FBI, they’re not leaving there for $55,000. That’s not going to

happen.” (Doc. 52-7 at 44.)

Although Smith also argues that Murray’s and Baker’s prior salaries with the

FBI and their requests for comparable salaries at the OAG, as a condition of

employment by themselves, cannot serve as legitimate factors for the pay disparity,

(Doc. 57 at 27), this position fails to obscure two basic truths. First, without question,

Murray and Baker had salaries significantly higher than Smith in the year preceding

their employment at the OAG. Second, both individuals made it known that they had

no interest in positions at the OAG if their overall compensation was not

commensurate with what they were earning at the FBI. Significantly, Murray and

Baker earned these prior salaries while working for an altogether different

governmental investigatory agency where their corruption and white-collar work

was highly sophisticated. Therefore, the concern of institutionalizing pay

discrimination is not nearly as great as it would be if, for example, Murray and Baker

had been inter-agency transfers from within Alabama state government; that is, they

both came from employers outside the OAG and Alabama state government with a

high degree of relevant and sought-after experience. Compare Joyner v. Town of

Elberta, 22 F. Supp. 3d 1201, 1208 (S.D. Ala. 2014) (no EPA violation where

experienced police officer brought in as permanent chief of police to replace female

temporary chief due to male officer’s extensive experience), with Arrington v. Cobb

Cnty., 139 F.3d 865, 876 (11th Cir. 1998) (possible EPA violation in promotion of

male firefighting officers both of whom came up through the ranks in same

department as female officer, where there was no showing officers had significantly

better experience than female officer). Moreover, the fact that both Murray and

Baker required compensation similar to their previous FBI salaries renders this

issue’s resolution even clearer. See Hankins v. Title Max of Ala., Inc., No. CIV.A.05

AR 00905 S, 2006 WL 4393576, at *6 (N.D. Ala. Sept. 26, 2006) (negotiation of

starting salary a factor in evaluating EPA “any factor other than sex” test).

Considering the foregoing, even though Smith may believe her time with an

Alabama municipal police department equals federal criminal investigatory

experience with the FBI,7 at bottom, all Smith is doing is “quarreling with the

wisdom” of the OAG’s hiring reasons. Chapman v. Al Transp., 229 F.3d 1012, 1030

(11th Cir. 2000). Such personal offense at the OAG’s stated justifications is

insufficient to support the conclusion that the OAG’s reasons were “pretextual or

offered as a post-event justification.” Irby, 44 F.3d at 954. Here, those reasons have

anchors throughout this matter’s evidentiary record. That Smith also condemns

Baker as a flawed investigator who should not command a higher salary because of

events that transpired, inter alia, during a high-profile criminal trial in the Middle

District of Alabama in 2011,8 (Doc. 57 at 10), cannot obviate this conclusion by

engendering an inference of pretext as it concerns the OAG’s stated justifications of

previous pay and federal experience.

In sum, the Court finds that the evidence clearly shows that the pay differential

between Smith, Murray and Baker was justified by the prior pay of Murray and

7 Commissioner Frank Reagan of the New York City Police Department, of the show Blue Bloods,

would disagree.

8 Specifically, Smith asserts that Baker’s ability to effectively participate in federal criminal trials

as a part of his job with the Special Prosecutions Division was adversely impacted by “Giglio”

issues resulting from his past indiscretions. See generally Giglio v. United States, 405 U.S. 150

(1972) (prosecution’s failure to inform the injury that a witness had been promised not to be

prosecuted in exchange for his testimony was a failure to fulfill the duty to present all material

evidence to the jury, and constituted a violation of due process).

Baker, by Murray’s and Baker’s demands for compensation commensurate with

their FBI employment, and by their FBI experience, which clearly are differentials

based on factors “other than sex.” See Irby, 44 F.3d at 954. Since Smith says nothing

as to Lambert, the Court concludes that Smith concedes that Lambert is not a proper

comparator for EPA purposes. For this additional reason, Smith's EPA claim fails.

3. Smith’s Title VII Pay Discrimination Claim

To succeed on her Title VII pay discrimination claim, Smith must show (1)

that she is a member of a protected class; (2) that she was qualified for her job; (3)

that she suffered an adverse employment action; and (4) that her employer treated

similarly situated employees who are not members of the protected class more

favorably. Reddy v. Dep’t of Educ., Ala., No. 18-14433, 2020 WL 1623497, at *7

(11th Cir. April 2, 2020). Disparate pay is an adverse employment action under Title

VII. Bowen v. Manheim Remarketing, Inc., 882 F.3d 1358, 1364 (11th Cir. 2018).

While wage discrimination is forbidden under both Title VII and the EPA, a

Title VII plaintiff’s task of establishing a prima facie case is in some respects easier

because she is not required to meet the exacting burden of showing virtually identical

jobs. Washington Cty. v. Gunther, 452 U.S. 161, 170-71, 181 (1981). Of course,

under Title VII case law, the plaintiff does have the burden of showing that she and

the alleged comparator employees are similarly situated. The Eleventh Circuit

recently clarified that a plaintiff must demonstrate that she and her proffered

comparators are “similarly situated in all material respects.” Lewis v. City of Union

City, Ga., 918 F.3d 1213, 1218 (11th Cir. 2019). A similarly situated comparator

will (1) have engaged in the same basic conduct as the plaintiff; (2) will have been

subject to the same employment policy or guidelines; (3) will have been working

under the same supervisor; and (4) will share the plaintiff’s employment or

disciplinary history. Id. at 1227-28. When determining whether an individual is a

proper comparator, federal courts examine, inter alia, the amount of years an

individual has worked for the employer and the individual’s type of expertise. See

Crawford v. Carroll, 529 F.3d 961, 975 (11th Cir. 2008); Davis v. Dunn Constr. Co.,

872 F. Supp. 2d 1291, 1310 (N.D. Ala. 2012). “If a plaintiff fails to show the

existence of a similarly situated employee, summary judgment is appropriate where

no other evidence of discrimination is present.” Holifield v. Reno, 115 F.3d 1555,

1562 (11th Cir. 1997), abrogated on other grounds by Lewis, 918 F.3d at 1224-25.

The OAG gives a multitude of reasons for why Smith cannot meet her prima

facie of presenting a similarly situated male comparator. The OAG first focuses its

attention to Lambert, noting that when he was hired as a special agent his pay was

identical to that of Smith, a fact that Smith does not dispute. The OAG then goes on

to assert that Smith’s and Lambert’s salaries diverged only when Lambert was

promoted to an altogether different position as a Senior Special Agent. That job

promotion alone was sufficient to make Lambert dissimilar to Smith because Smith

would be basing her pay disparity on her position as a Special Agent when compared

to an employee who was a Senior Special Agent. That is, one cannot properly

compare Senior Special Agent Lambert to Special Agent Smith because they were

not subject to the same employment guidelines and duties and did not share the same

employment history. See Lewis, 918 F.3d at 1227-28.

The OAG next denies that any of the proffered comparators could qualify as

such, as all had different work histories and experience from Smith. Specifically, at

least as the OAG sees it, Smith’s pre-OAG work history with the Selma PD is

structurally different from the federal work histories and experience of Murray,

Baker, and Lambert — Murray and Baker with the FBI, and Lambert with DHS.

(Doc. 53 at 37.) Murray, for one, had experience in investigating not just ordinary

crimes but also high-profile, complex public corruption and white-collar crimes.

(Id.) Like Murray, Baker investigated similar crimes, with added experience in

financial crimes. Lambert, while not previously an agent with the FBI, was

employed with DHS as a Supervisory Special Agent. According to the OAG, these

individuals’ work experience and histories were needed for purposes of staffing the

SPD, a new division in 2011 whose primary focus was high profile, complex public

corruption, white collar and financial crimes.

Based on their history, as recounted above, the Court agrees that these

individuals are not proper comparators for purposes of Smith’s prima face case under

Title VII, especially as it concerns Murray and Baker, because of their different

employment experiences and histories. See Lewis, 918 F.3d at 1228; Earle v.

Birmingham Bd. of Educ., No. 2:18-CV-697-GMB, 2020 WL 470285, at *4 (N.D.

Ala. Jan. 29, 2020); Gaines v. Cooper, No. 2:17-CV-01406-AKK, 2019 WL

2514935, at *6 (N.D. Ala. June 18, 2019). Therefore, Smith’s wage discrimination

claim under Title VII necessarily fails.

Nevertheless, assuming arguendo that Smith has established a prima facie

case, the OAG must tender a legitimate, non-discriminatory reason for the pay

disparity. See Meeks v. Computer Assocs. Intern., 15 F.3d 1013, 1019 (11th Cir.

1994) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), and

Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255-56 (1981)). If the OAG

advances a legitimate, non-discriminatory reason, Smith must then establish by a

preponderance of the evidence that the proffered justifications are actually a pretext

for discrimination. See Miranda, 975 F.2d at 1528-29.

In this regard, even if Murray, Baker or Lambert were proper comparators,

Smith still cannot rebut the OAG’s legitimate, nondiscriminatory reasons for their

salary disparity, namely their qualifications and pay at previous employers, so

maintains the OAG. (Doc. 53 at 37-38.)

Because a difference in qualifications is a legitimate reason for a pay disparity,

Brooks v. Cnty. of Comm’n of Jefferson County, Alabama, 446 F.3d 1160, 1162 (11th

Cir. 2006), as is previous pay, but not standing alone, see White v. ThyssenKrupp

Steel USA, LLC, 743 F. Supp. 2d 1340, 1354, n.22 (S.D. Ala. 2010), the burden now

shifts to Smith to show these reasons were pretextual.

Briefly stated, Smith may demonstrate pretext by showing that the OAG’s

proffered reason for an adverse employment action is a “coverup” for a

discriminatory decision. Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002). A

reason is pretextual only if it is shown both that it is false and the true reason for the

employment decision is discrimination. Springer v. Convergys Customer Mgmt.

Grp. Inc., 509 F.3d 1344, 1349 (11th Cir. 2007). In other words, Smith must show

that a discriminatory reason more likely than not motivated the OAG to pay her less.

See Miranda, 975 F.2d at 1529. She must “meet [the proffered] reason head on and

rebut it, and [she] cannot succeed by simply quarreling with the wisdom of that

reason.” Brooks, 446 F.3d at 1163. The Eleventh Circuit has explained that unfair

treatment, absent discrimination based on membership in a protected class, is not an

unlawful employment practice under Title VII. Coutu v. Martin Cnty. Bd. of Cnty.

Comm’rs, 47 F.3d 1068, 1074 (11th Cir. 1995).

The Court’s analysis of pretext here primarily is the same as that for Smith’s

EPA claim; indeed, they are somewhat merged. (Doc. 57 at 33-37.) In any event,

the Court notes that Smith’s citations to Bass v. Bd. of Cty. Comm'rs, Orange Cty.,

Fla., 256 F.3d 1095 (11th Cir. 2001), abrogated on other grounds by Burlington N.

& Santa Fe Ry. Co. v. White, 548 U.S. 53 (2005), as recognized in Crawford v.

Carroll, 529 F.3d 961, 971, 973 (11th Cir. 2008), and Blackledge v. Ala. Dep’t of

Mental Health & Mental Retardation, No. 2:06-cv-321-ID, 2007 WL 3124452

(M.D. Ala. Oct. 25, 2007), regarding the OAG’s pretextual reasons for paying

Lambert at a higher rate, are unavailing. To begin, Bass is factually distinguishable

from this case; there, the employer proffered only one reason for not hiring the

plaintiff, and that was the interview. 256 F.3d at 1105. Here, the OAG’s main

proffered reasons for promoting Lambert and paying him more are his supervisory

experience at DHS, his initiative in helping other agents, and his interview. As the

Supreme Court stated in Burdine, that explanation is “clear and reasonably specific.”

450 U.S. at 258. Smith’s citation to Blackledge, arguing that the numerical scores

given to Lambert are too generic, again disregards Lambert’s superior qualifications.

That is a far cry from the tableau of inconsistent reasoning provided by the employer

in Blackledge. 2007 WL 3124452, at *22–25.

Smith thus has failed to offer any record evidence showing that the OAG’s

proffered reason for paying Murray, Baker and Lambert a higher salary was

motivated by discriminatory animus based on Smith’s gender. While it may have

been unfair that Smith had years of prior experience with the Selma Police

Department yet was paid less than others in “investigatory” positions, unfair

treatment absent discrimination is not an unlawful employment practice under Title

VII. See Robertson v. Interactive Coll. of Tech./Interactive Learning Sys., Inc., 743

F. App'x 269, 275 (11th Cir. 2018); Coutu, 47 F.3d at 1074-75. Thus, the OAG is

due summary judgment on Smith’s wage discrimination claim under Title VII.9

B. Smith’s Title VII Failure to Promote Claim

1. Mixed-Motive

As to this issue, Smith’s position is somewhat murky. For its part, the OAG

argues that Smith improperly has asserted a mixed-motive claim for the first time in

her brief opposing summary judgment and that she did not give notice of such a

claim in her Complaint. According to the OAG, Smith should hence not be permitted

to inject a mixed-motive claim into the case at the last second. The Court disagrees

because the Complaint takes no position as to whether Smith is advancing a single-

motive or mixed-motive Title VII failure to promote claim. Consequently, the Court

assumes that Smith has asserted a mixed-motive Title VII claim and examines the

merits of that claim in turn.

“[A]n adverse employment action motivated by both legal and illegal reasons

constitutes actionable discrimination under Title VII.” Quigg v. Thomas Cty. Sch.

9 Smith alluded to the alternative “convincing mosaic” analysis in her brief opposing summary

judgment, albeit in the portion of the brief discussing the OAG’s mixed-motive failure to promote

claim. (Doc. 57 at 31.) Even assuming this argument was properly briefed vis à vis Smith’s Title

VII pay discrimination claim, suffice it to say, Smith has not met the Lockheed-Martin Corp.

standard either. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1341 (11th Cir. 2011). For

one, she has not shown any clear indication that the OAG “consciously injected” gender

consideration into salary decisions or that the OAG had a substantial incentive to make gender-

conscious salary decisions. See id.

Dist., 814 F.3d 1227, 1236 (11th Cir. 2016) (citing Price Waterhouse v. Hopkins,

490 U.S. 228 (1989)). A plaintiff “can succeed on a mixed-motive claim by showing

that illegal bias, such as bias based on sex or gender, ‘was a motivating factor for’

an adverse employment action, ‘even though other factors also motivated’ the

action.” Quigg, 814 F.3d at 1235 (quoting 42 U.S.C. § 2000e–2(m)). A plaintiff “can

prove a mixed-motive case with direct or circumstantial evidence.” Id. at 1237

(citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 101-02 (2003)).

However, it is improper to use the McDonnell Douglas framework to evaluate

a mixed-motive claim at the summary judgment stage. Quigg, 814 F.3d at 1238.

Rather, “[t]o avoid summary judgment, a plaintiff raising a mixed-motive claim

must offer evidence sufficient to convince a jury that: (1) the [employer] took an

adverse employment action against [her]; and (2) a protected characteristic was a

motivating factor for the [employer]’s adverse employment action.” Bowen, 882

F.3d at 1364 (quoting Quigg, 814 F.3d at 1239) (emphasis in original) (internal

quotation marks omitted). “In other words, the court must determine whether the

plaintiff has presented sufficient evidence for a reasonable jury to conclude, by a

preponderance of the evidence, that [her protected characteristic] was a motivating

factor for [an] adverse employment decision.” Quigg, 814 F.3d at 1239 (internal

quotation marks omitted) (bracketed text in original). Because this case turns on

circumstantial evidence, the Court examines whether Smith has presented sufficient

evidence to support a mixed-motive claim.

Because, as for the first prong, denial of a promotion based on sex is an

adverse employment action under Title VII, Pennington v. City of Huntsville, 261

F.3d 1262, 1267 (11th Cir. 2001), the Court will proceed to examine Smith’s claim

that gender was a motivating factor for being denied the position. Smith offers the

following evidence in support of her mixed-motive claim: that like Lambert, she

requested a position reclassification and a pay raise, both of which were granted to

Lambert but not her; that a fellow investigator, Donna Clayton, was “maxed out” on

the merit pay scale and was treated as “complacent and willing to settle”; and that

Tracey Edwards, another special agent, complained about gender discrimination at

the OAG. (Doc. 57 at 31-33.) Smith then grafts a “convincing mosaic” analysis onto

the Quigg mixed-motive framework’s second prong, asserting that these assorted

circumstances show that Smith’s gender was a discriminatory motivating factor in

the OAG’s refusal to promote her. See Lockheed-Martin Corp., 644 F.3d at 1328

(discussing the “convincing mosaic” alternative analysis to the traditional

McDonnell Douglas framework).10

The proffered evidence fails to create a genuine issue of material fact that the

10 Smith may be conflating the single-motive and multiple-motive analyses. See Williams v. Hous.

Opportunities for Persons with Exceptionalities, 777 F. App’x 451, 454, n. 4 (11th Cir. 2019). In

any event, out of an abundance of caution, the Court analyzes Smith’s Title VII claims under the

single-motive framework as well.

OAG actually relied on Smith’s gender in making its hiring and promotion decisions.

See Quigg, 814 F.3d at 1241. Although not always necessary for a mixed-motive

claim to proceed, Smith has not, for example, alleged that the decisionmakers made

any statements that suggested gender-based bias or that bias factored into their

decisional process. See id. (“Statements by the board’s members or others involved

with the board’s decisional process that suggest bias can serve as evidence of

discrimination.”). In essence, Smith has only proffered “otherwise anecdotal

information” to show the OAG’s discrimination. See Dukes v. Shelby Cnty. Bd. of

Educ., 762 F. App’x 1007, 1014 (11th Cir. 2019) (citing Evans v. McClain of Ga.,

Inc., 131 F.3d 957, 963 (11th Cir. 1997) (“Statistics without any analytical

foundation are virtually meaningless.”). Because Smith has failed to provide

sufficient evidence for a reasonable jury to conclude that her gender was a

motivating factor for her denial of a promotion, her mixed-motive claim is due to be

dismissed. See Quigg, at 1239.

2. Single-Motive

Even if analyzed under a single-motive framework, the result is the same.

Title VII provides that “[i]t shall be an unlawful employment practice for an

employer . . . to discriminate against any individual with respect to . . . terms,

conditions, or privileges of employment, because of such individual’s race, color,

religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Because Smith does not

contend that there is any direct evidence to support her Title VII claim, this single-

motive claim must be evaluated under the familiar McDonnell Douglas scheme.

Under this burden-shifting framework, “a plaintiff first must make out a prima facie

case of discrimination that ‘in effect creates a presumption that the employer

unlawfully discriminated against the employee.’” Flowers v. Troup Cty., Ga. Sch.

Dist., 803 F.3d 1327, 1336 (11th Cir. 2015) (quoting Burdine, 450 U.S. at 254).

To survive summary judgment on a Title VII failure to promote claim, the

plaintiff must demonstrate that: (1) she belonged to a protected class; (2) she was

qualified for and applied for a position; (3) despite qualifications, she was rejected;

and (4) the position was filled with an individual outside her protected class. Vessels

v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005).

For the OAG, summary judgment is appropriate on Smith’s Title VII single-

motive claim because Smith has failed to establish the second and forth elements:

that she was qualified for the job and that there was an employee outside her

protected class who was treated more favorably. In her response, Smith says not so,

at least if based on an interpretation of her claim under a mixed-motive analysis.

(Doc. 57 at 31.) Since the OAG argues for summary judgment under the single-

motive analysis and since Smith fails to address it, the Court concludes that Smith

has abandoned and waived this claim to the extent it was ever asserted. See Gailes

v. Marengo Cnty. Sheriff’s Dep’t, 916 F.Supp.2d 1238, 1241-42 & n.6 (S.D. Ala.

2013)(collecting cases). But even if Smith had properly raised the single-motive

analysis, the OAG still would be entitled to summary judgment.

First, as it concerns the failure to promote claim against Murray’s hiring as a

Senior Special Agent in April 2014, the OAG’s argument – that Smith was not

qualified for the position as was Murray because Smith was not on the COE in April

2014 unlike Murray—is correct. As the evidence before the Court shows, the OAG

could only hire for the Senior Special Agent position from the list of individuals

found on the COE at that time. At the time of Murray’s hiring in April 2014, he was

on the COE but Smith was not. As such, as between the two, only Murray was

qualified, and any claim regarding Murray’s hiring as a Senior Special Agent over

Smith in April 2014 is not actionable.

Next comes Lambert, a more convoluted case. While Smith may not have

been on the COE in April 2014 when Murray was hired, she was on the COE in July

2014 when Lambert was hired as a Senior Special Agent. As such, at that time, she

was qualified for the job and therefore can meet her prima facie case on that element.

But, as to Lambert, the OAG does not actually contend that Smith cannot meet her

prima facie case but instead focuses on the second factor of the McDonnell Douglas

framework, i.e., that it had legitimate, nondiscriminatory reasons for promoting

Lambert over Smith. (Doc. 53 at 35.) In so spinning, the OAG apparently concedes

that Smith can meet her prima facie case when it comes to Lambert.

Regardless, according to the OAG, Lambert was hired over Smith because he

was more qualified and demonstrated, through “his supervisory experience at DHS,

his initiative to help other agents while a Special Agent, and his strong interview for

the Senior Special Agent position.” (Id.) The OAG also points to the fact that

Lambert was ranked higher on the COE. (Id.)

The Court agrees with the OAG. To be sure, the OAG does not contend that

Smith was not qualified for the position of Senior Special Agent at the time Lambert

was hired for the position. Instead, the OAG simply argues that Lambert was more

qualified due to a host of factors. For her part, Smith does not really argue that she

was more qualified than Lambert. On this issue, Burdine gives an answer: “an

employer has discretion to choose among equally qualified candidates, provided the

decision is not based on unlawful criteria.” 450 U.S. at 248. Logically enough, the

Eleventh Circuit has recognized that an employer’s hiring of a more qualified

candidate constitutes a legitimate reason that then shifts the burden to the plaintiff

to show pretext. Brooks, 446 F.3d at 1163. Bound by this case law, this Court agrees

that the OAG’s stated reasons constitute legitimate nondiscriminatory reasons for

hiring Lambert over Smith.

Now bearing the burden of presenting evidence that these reasons were a mere

pretext, Smith opts for one fact: that when Lambert applied for a Senior Special

Agent position, the OAG “ignored the requirements of three years’ of evaluations

for merit system employees” and manipulated the selection process. (Doc. 57 at 34.)

In Smith’s telling, this “pre-selection” shows that Lambert was pre-chosen for the

position, thereby demonstrating that the OAG had engaged in verboten gender

discrimination. Smith cites Goostree v. State of Tennessee, 796 F.2d 854, 861 (6th

Cir. 1986), for the proposition that such pre-selection displays discriminatory intent.

Rather meekly, the OAG counters that in the Eleventh Circuit, pre-selection at best

can serve as “relevant evidence” of discrimination. See Springer v, 509 F.3d at 1350;

Blackledge, 2007 WL 3124452, at *24.

Here too the law is clear. As the Eleventh Circuit has stated, “where

preselection violates [employer] personnel policies, it does not necessarily indicate

[illegal] discrimination.” Springer, 509 F.3d at 1350. And again, it is not at all clear

that pre-selection was even afoot here, for Lambert had other qualifications (i.e., his

DHS experience) the OAG found desirable in promoting him, even besides scoring

ahead of Smith on the COE. Therefore, Smith has failed to demonstrate that the

OAG’s stated reasons for promoting Lambert were pretextual, and summary

judgment is granted to the OAG on this claim as well.

C. Smith’s Section 1983 Claim Against Strange.

Finally, the Court turns to Smith’s claims that Strange, in his individual

capacity, discriminated against Smith in her pay and by failing to promote her in

violation of the Equal Protection Clause of the Fourteenth Amendment, as enforced

against state officials through § 1983.

“[W]hen section 1983 is used as a parallel remedy for violation . . . of Title

VII, the elements of the two causes of action are the same.” Underwood v. Perry

Cnty. Comm'n, 431 F.3d 788, 793 (11th Cir. 2005) (internal quotation marks and

citations omitted). Because Smith’s Title VII pay discrimination and failure to

promote claims against the OAG fail, see supra Parts IV.A.3. and IV.B.,

respectively, so too must her § 1983 claim against Strange. See Hardin v.

Stynchcomb, 691 F.2d 1364, 1369, n.16 (11th Cir. 1982) (citing Whiting v. Jackson

State Univ., 616 F.2d 116, 121 (5th Cir. 1980)).

Therefore, Strange’s motion for summary judgment as to Smith’s § 1983

claim is also due to be granted.

V. CONCLUSION

Based on the foregoing, it is ORDERED that the Defendants’ Motion for

Summary Judgment, (Doc. 51), is GRANTED, and this case is dismissed with

prejudice.

A separate judgment shall issue.

DONE, this 16th day of July, 2020.

/s/ R. Austin Huffaker, Jr.

R. AUSTIN HUFFAKER, JR.

UNITED STATES DISTRICT JUDGE