Buckhanon v. Opelika Housing Authority

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

BARBARA BUCKHANON, )

)

Plaintiff, )

)

v. ) CIVIL ACT. NO. 3:19-cv-893-ECM

) (WO)

OPELIKA HOUSING AUTHORITY, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Barbara Buckhanon (“Buckhanon” or “Plaintiff”) brings this employment

discrimination action against her employer, the Opelika Housing Authority (“OHA” or

“Defendant”), alleging color-based discrimination in violation of Title VII of the Civil

Rights Act of 1964 (“Title VII”). (Doc. 1). Buckhanon alleges that OHA, through its

Executive Director, Matthew McClammey (“McClammey”), treated her less favorably

based on her skin color. The sole remaining claim before the Court is Buckhanon’s Title

VII color discrimination claim against OHA. (Doc. 35).

Now pending before the Court is OHA’s motion for summary judgment. (Doc. 77).

The Plaintiff has filed a response, and the motion is ripe for resolution. After careful review

of the motion, the Plaintiff’s response, and the evidentiary materials filed in support of and

in opposition to the motion, the Court concludes that the Defendant’s motion for summary

judgment is due to be granted.

II. JURISDICTION AND VENUE

The Court has original subject matter jurisdiction pursuant to 28 U.S.C. § 1331 and

the jurisdictional grant found in 42 U.S.C. § 2000e-5(f)(3). Personal jurisdiction and venue

are uncontested, and the Court concludes that venue properly lies in the Middle District of

Alabama. See 28 U.S.C. § 1391.

III. STANDARD OF REVIEW

“Summary judgment is proper if the evidence shows ‘that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.’”

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1311 (11th Cir. 2018) (quoting Fed. R. Civ.

P. 56(a)). “[A] court generally must ‘view all evidence and make all reasonable inferences

in favor of the party opposing summary judgment.’” Fla. Int’l Univ. Bd. of Trs. v. Fla.

Nat’l Univ., Inc., 830 F.3d 1242, 1252 (11th Cir. 2016). However, “conclusory allegations

without specific supporting facts have no probative value.” Jefferson v. Sewon Am., Inc.,

891 F.3d 911, 924–25 (11th Cir. 2018). If the record, taken as a whole, “could not lead a

rational trier of fact to find for the non-moving party,” then there is no genuine dispute as

to any material fact. Hornsby-Culpepper, 906 F.3d at 1311 (quoting Matsushita Elec.

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

The movant bears the initial burden of demonstrating that there is no genuine dispute

as to any material fact, and the movant must identify the portions of the record which

support this proposition. Hornsby-Culpepper, 906 F.3d at 1311 (citing Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986)); Fed. R. Civ. P. 56(c). The movant may carry this

burden “by demonstrating that the nonmoving party has failed to present sufficient

evidence to support an essential element of the case.” Hornsby-Culpepper, 906 F.3d at

1311. The burden then shifts to the non-moving party “to establish, by going beyond the

pleadings, that a genuine issue of material fact exists.” Id. at 1311–12. The non-moving

party “must do more than simply show that there is some metaphysical doubt as to the

material facts.” Matsushita Elec. Indus. Co., 475 U.S. at 586. Non-movants must support

their assertions “that a fact cannot be or is genuinely disputed” by “citing to particular parts

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

information, affidavits or declarations, stipulations . . . , admissions, interrogatory answers,

or other materials” or by “showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence

to support the fact.” Fed. R. Civ. P. 56(c)(1)(A) & (B).

In determining whether a genuine issue for trial exists, the court must view all the

evidence in the light most favorable to the non-movant. Fla. Int’l Univ. Bd. of Trs., 830

F.3d at 1252. Likewise, the reviewing court must draw all justifiable inferences from the

evidence in the non-moving party’s favor. Id. However, “mere conclusions and

unsupported factual allegations are legally insufficient to defeat a summary judgment

motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam).

IV. FACTS1

Plaintiff Barbara Buckhanon is a dark-skinned Black woman. She began working

for the Opelika Housing Authority in 2001. In 2015, at her request, Buckhanon began

1 Because this matter is before the Court on the Defendant’s motion for summary judgment, the Court

construes the facts in the light most favorable to the non-movant, Buckhanon, and draws all justifiable

inferences in her favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

working as the Housing Quality Standards2 (“HQS”) inspector. While employed at OHA,

Buckhanon was the only HQS inspector. Besides a yearly quality control re-inspection of

already inspected properties by a Section 8 supervisor, Buckhanon was solely responsible

for performing inspections and re-inspections of OHA’s Section 8 properties.

As the HQS inspector, Buckhanon was responsible for inspecting Section 8

properties before a new resident moved in, then every year thereafter, and when problems

arose (“special inspections”). The inspector is also responsible for reinspecting a property

if it has previously failed an inspection. When a property fails an inspection for health or

safety issues, the HQS inspector is required to record the failure, alert the landlord, and

schedule a reinspection within 24 hours. If the landlord does not fix the problem within

twenty-four hours, funding will be cut off. Similarly, if the property fails for a non-health

or safety reason, the HQS inspector is required to record the failure, provide notice to the

landlord, and schedule a reinspection within two weeks. If the landlord does not remedy

the issue within thirty days, the property’s funding is discontinued.

In or around late 2016/early 2017, a fire broke out in an OHA Section 8 property

that had been inspected by Buckhanon. Tragically, four children were killed, and another

was seriously injured along with the children’s mother. Buckhanon was ultimately found

responsible for failing to adequately inspect the property, and on December 11, 2018, a

civil judgment was entered against her.

2 HQS refers to the United States Department of Housing and Urban Development’s (“HUD”) required

minimum quality standards for properties that are used for Section 8 housing assistance.

In 2017, OHA began using a program called “Yardi” to track and schedule

inspections. The Yardi company sent a trainer to Opelika to train OHA staff. In January

2018, OHA required all employees to use only the Yardi program for tracking and

scheduling inspections and re-inspections.

In order to maintain its funding from HUD, OHA is required to participate in Section

8 Management Assessment Program (“SEMAP”) certification every year. SEMAP

measures performance in “key Section 8 program areas and [ ] assign[s] performance

ratings.” One of the performance indicators is HQS enforcement.

McClammy became the Executive Director of OHA in February 2018.

On June 11, 2018, Buckhanon received a performance evaluation that described her

as “prompt,” “willing to assist the department,” “takes initiative,” and “a team player.”

However, the evaluation also noted, “she must get her arms around pulling the system

reports to ensure all inspections are completed. She cannot rely on the supervisor to inform

her when an inspection is late.”

On July 30, 2018, Julia Dowell (“Dowell”), a light-skinned Black woman, was

named Acting Manager of the Section 8 program and became Buckhanon’s immediate

supervisor.

Dowell soon began questioning Buckhanon about inspections, re-inspections, and

Buckhanon’s use of the Yardi program. Thereafter, when Buckhanon requested additional

training on Yardi, Dowell sent her a link to Yardi’s eLearning portal.

On October 1, 2018, OHA was notified that it had received a zero HQS enforcement

score on its SEMAP certification application for fiscal year 2018, which ran from July 1,

2017 to June 30, 2018. OHA did not receive a zero in any other SEMAP indicator category.

This score caused OHA to drop below “high performer” level to “standard” performer,

which impacts its funding.

By November, Dowell was experiencing issues with Buckhanon’s work. For

example, instead of giving Dowell information about inspections directly as requested,

Buckhanon left the information in Dowell’s box. In an email to Buckhanon, Dowell

complained that Buckhanon’s work was “lackluster and mediocre.”

In January 2019, Buckhanon requested time off for a medical procedure. At that

time, McClammey, a light-skinned Black man, discovered that there were numerous

inspections scheduled for the period when Buckhanon was on medical leave.

Consequently, McClammey brought in outside inspectors from a company called OHDi to

perform inspections while Buckhanon was out.

On February 1, 2019, McClammey and Dowell met with Buckhanon to discuss the

zero SEMAP score. Buckhanon admitted that she had not completed all inspections and

re-inspections in a timely manner. McClammey told Buckhanon that OHA could not

receive another zero for HQS enforcement. McClammey also questioned Buckhanon

about where she was going in the OHA truck every day when she left the office. When

asked for the mileage log of her work truck, Buckhanon was unable to explain where she

had gone in the OHA truck. During the meeting, McClammey told Buckhanon that if she

did not want to be an inspector anymore, her only alternative was to find other employment.

On February 4, 2019, McClammey and Dowell met with Buckhanon again. During

this meeting, McClammey and Dowell discussed how Buckhanon would be able to perform

the outstanding inspections. Buckhanon admitted that she was late on re-inspections but

asserted that she did not know how to find reports and needed more training using the Yardi

program. McClammey told Buckhanon that she needed to take the initiative in learning

how to use Yardi and avail herself of the training modules. Buckhanon requested training

with another inspector, so McClammey suggested that Buckhanon shadow the OHDi

inspector. According to Buckhanon, McClammey told her she was not to conduct any

more HQS inspections and that OHDi was going to conduct the inspections at least for a

few months. In 2019, Buckhanon performed only a fraction of the total inspections that

she had performed in previous years.

On February 13, 2019, Buckhanon filed a complaint with the Equal Employment

Opportunity Commission (“EEOC”) alleging color discrimination. In her charge,

Buckhanon complained that Dowell and McClammey had “taken a very condescending

attitude” towards her and that, in an e-mail, Dowell had questioned her professionalism

and character, and described her performance as lackluster and mediocre. She alleged that

upon her return from medical leave, her job had been given to a white male.3 Buckhanon

also alleged that she had requested extra training but never received it.

For the fiscal year beginning on July 1, 2018, and ending on June 30, 2019, OHA

again received a zero for HQS enforcement.

On July 15, 2019, Angela Johnson (“Johnson”) became the Director of Operations

for OHA. On August 29, 2019, Johnson, Dowell, and Buckhanon met to discuss instances

3 Buckhanon refers to Toney Fuller, an employee of OHDi, who was contracted to do inspections while

Buckhanon was on medical leave but continued to do inspections after she returned to work.

where Buckhanon had failed to schedule re-inspections or notify owners of failed

inspections in a timely manner.

On September 6, 2019, McClammey, Johnson, Dowell, and representatives from

OHDi met to discuss the zero SEMAP HQS enforcement score. Buckhanon was invited

to the meeting, but she did not attend. At that meeting, McClammey asked why OHA had

received another zero, and Dowell explained it was because units had not been timely

reinspected after failing an initial inspection. A representative from OHDi explained that

landlords were not used to failing inspections and proposed that all inspection

responsibilities be handed over to OHDi. During that meeting, McClammey determined

that Buckhanon would not perform any more inspections; OHDi would handle inspections.

On October 24, 2019, McClammey terminated Buckhanon’s employment with

OHA.

Buckhanon filed this action on November 18, 2019.

V. DISCUSSION

The sole remaining claim before the Court is Buckhanon’s claim that she was

discriminated against by the Opelika Housing Authority because of the color of her skin in

violation of Title VII.4 Title VII prohibits employers from discriminating “against any

individual with respect to [her] compensation, 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)(1); see also Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 347

4 Although the Defendant argues that the Plaintiff’s hostile work environment claim should be dismissed,

a review of the Complaint reveals that the Plaintiff did not plead a hostile work environment claim.

Therefore, this claim is not before the Court. Plaintiff’s claims under 42 U.S.C. §1983 and the Fair Labor

Standards Act were previously dismissed. (Doc. 27).

(2013). Specifically, the Plaintiff asserts that OHA discriminated against her because she

is a dark-skinned Black woman. The parties do not dispute that Buckhanon can bring a

color-based discrimination claim. Courts have described color discrimination as arising

“when the particular hue of the plaintiff's skin is the cause of the discrimination, such as

the case where a dark colored African–American individual is discriminated against in

favor of a light-colored African–American individual.” Gill v. Bank of Am. Corp., 2015

WL 4349935, at *4 (M.D. Fla. July 14, 2015) (citing Bryant v. Bell Atl. Md. Inc., 288 F.3d

124, 133 n.5 (4th Cir. 2002)).

Buckhanon alleges that OHA discriminated against her when it failed to properly

train her on the Yardi program, demoted her from the HQS inspector position, and

ultimately terminated her because she is dark-skinned. Buckhanon bears the ultimate

burden of proving that the Defendant intentionally discriminated against her. Texas Dep’t.

of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The Eleventh Circuit has

consistently held that federal courts, in resolving discrimination claims, do not review the

wisdom of an employer’s employment decision. See e.g., Jones v. Bessemer Carraway

Med. Ctr., 151 F.3d 1321, 1324 n.16 (11th Cir. 1998) (explaining, “Title VII is not a shield

against harsh treatment at the workplace. . . . The employer may fire an employee for a

good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as

long as its action is not for a discriminatory reason”).

There are different legal theories under which a plaintiff may proceed in a Title VII

employment discrimination case. Indeed, Title VII not only prohibits discrimination

because of an employee’s color (single-motive theory), but also prohibits adverse

employment actions upon which color was a motivating factor (mixed-motive theory).

When a plaintiff predicates her Title VII color discrimination claim on a single-motive

theory, the McDonnell Douglas5 analytical framework is appropriate. When a plaintiff

predicates her Title VII color discrimination claim on a mixed-motive theory, the

McDonnell Douglas analysis is not appropriate. A mixed-motive discrimination claim is

examined under the inquiry articulated in Quigg v. Thomas County School District, 814

F.3d 1227 (11th Cir. 2016): “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.” 814 F.3d

at 1239 (citations and quotations omitted).

In its motion for summary judgment, the OHA analyzes Buckhanon’s claims under

the familiar McDonnell Douglas burden-shifting framework. In her opposition to the

motion for summary judgment, Buckhanon articulates the McDonnell Douglas burden-

shifting analysis, the Quigg motivating factor inquiry, and but-for causation under Bostock

v. Clayton County, GA, 140 S.Ct. 1731 (2020). However, Buckhanon fails to identify the

appropriate legal framework under which to analyze her claim. Instead, she appears to

assert that she can prevail under all the Title VII frameworks. In so doing, the Court is left

to sort out the nature of Buckhanon’s discrimination claim and thus determine the

appropriate legal analysis.

Looking first to the Complaint, the Court notes that the Plaintiff alleges

“employment discrimination based on color.” (Doc. 1 at 1). The Plaintiff also references

5 McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

“pretext” in relation to stated reasons for employment decisions (doc. 1 at 5, para. 24; doc.

1 at 7, paras. 31 and 33). Buckhanon generally pled that her “color was a motivating factor,

moving force, and/or otherwise influenced OHA’s employment decisions…,” but she does

not plead that OHA had mixed motives in making employment decisions. (Doc. 1 at 16,

para. 67).

Turning next to the Plaintiff’s summary judgment briefing, the Court finds shifting,

inconsistent arguments. Citing to Bostock, Buckhanon asserts that “a reasonable jury could

find that but-for Plaintiff’s color, but for Plaintiff being a dark-skinned Black person, OHA

would not have [undertaken adverse employment actions].” (Doc. 81 at 27). Citing to

Quigg, Buckhanon argues that “[a]s long as [she] can show ‘her protected characteristic,’

being a dark-skinned Black employee, was ‘a’ motivating factor,’ in the adverse

employment actions taken against her – all leading up to her termination, then [sic] presents

an issue for trial under a motivating factor test.” (Doc. 81 at 31). Citing to McDonnell

Douglas, Buckhanon argues that she has identified comparators who “were given

deferential workplace treatment,” that “this case does not need McDonnell Douglas

pretext,” and that “a reasonable jury could find that OHA perpetuated adverse employment

actions against Plaintiff because of the color of her skin.” (Doc. 81 at 37-39). Buckhanon

asserts that under all three analyses (Bostock, Quigg, and McDonnell Douglas),

Plaintiff provides sufficient evidence to proceed to trial.

Plaintiff provides sufficient evidence to enable a reasonable

juror to find color-based workplace discrimination. Evidence

points to, and a reasonable person could certainly conclude,

that but for plaintiff Buckhanon’s being a dark-skinned Black

woman, OHA would not have so negatively, adversely, altered

her workplace terms and conditions. This simple fact and the

law regarding it is what this case’s legal analysis and test turns

on.

(Doc. 81 at 25).

Buckhanon did not plead in her Complaint that OHA had mixed motives in making

decisions related to her employment. Instead, she alleges discrimination based on color

and referenced pretextual actions taken by OHA. Further, Buckhanon, in her summary

judgment briefing, focused on a single motive, color, for the adverse employment actions

alleged. The few references to a mixed-motive theory in Buckhanon’s briefing were

conclusory and unsupported by the evidence. “To withstand summary judgment [in a

mixed-motive case], [Plaintiff] needed to submit evidence sufficient to convince a jury that

she was terminated for both legitimate and illegitimate reasons, with the illegitimate reason

being a motivating factor in the termination decision.” Fonte v. Lee Memorial Health

System, 2021 WL 5368096 (11th Cir. Nov. 18, 2021) (finding that the district court

properly applied the single motive framework where the plaintiff made mention of

motivating factors for an adverse employment action but did not elaborate on them).6 The

Plaintiff failed to submit evidence of a mixed motive; therefore, the Court finds that

Buckhanon brings a single-motive claim and thus, the McDonnell Douglas analysis is

appropriate.

A. McDonnell Douglas Framework

To defeat the Defendant’s motion for summary judgment, Buckhanon must first

establish a prima facie case of discrimination by one of three generally accepted methods:

6 The Court recognizes that this is unpublished opinion is not binding precedent. However, the Court finds

its analysis persuasive.

(1) presenting direct evidence of discriminatory intent; (2) presenting evidence to satisfy

the four-part circumstantial evidence test set out in McDonnell Douglas; or (3) presenting

statistical proof. Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). The Plaintiff

offers neither direct nor statistical evidence, but instead points to circumstantial evidence

to support her claim.

Because the Plaintiff relies on circumstantial evidence to support her color

discrimination claim, the Court first turns to the McDonnell Douglas7 framework to

determine whether Buckhanon survives summary judgment. To be successful, Buckhanon

must first establish a prima facie case of discrimination. If Buckhanon establishes a prima

facie case, the burden shifts to OHA to produce “some legitimate, non-discriminatory

reason” for the challenged employment action. See McDonnell, 411 U.S. at 802. If OHA

satisfies this burden, Buckhanon must then establish, by a preponderance of the evidence,

that the articulated reasons were mere pretext for intentional discrimination. Burdine, 450

U.S. at 256. At all times, the ultimate burden of persuasion remains with the Plaintiff to

show that the Defendant intentionally discriminated against her. St. Mary's Honor Ctr. v.

Hicks, 509 U.S. 502, 507 (1993). In the summary judgment context, Buckhanon need only

present evidence from which a reasonable trier of fact could conclude the Defendant

intentionally discriminated against her based on her color.

7 Although the Plaintiff acknowledges and argues the merits of her claim under the McDonnell Douglas

paradigm, she also argues that the framework is outdated and has been obviated by case law. This Court is

bound by Supreme Court and Eleventh Circuit precedent, and the use of the McDonnell Douglas framework

in employment discrimination cases is appropriate.

i. Prima face case

To establish a prima facie case of disparate treatment based on her color, Buckhanon

must show that: “(1) that she belongs to a protected class, (2) that she was subjected to an

adverse employment action, (3) that she was qualified to perform the job in question, and

(4) that her employer treated similarly situated employees outside her class more favorably

treated.” Lewis v. City of Union City, Georgia, 918 F.3d 1213, 1220–21 (11th Cir. 2019)

(en banc) (emphasis in original).

The Defendant concedes that Buckhanon is a member of a protected class as a

“darker colored African-American” and “assume[s] . . . she was qualified for her job.”

(Doc. 79 at 60). However, the Defendant argues that Buckhanon cannot establish a prima

facie case of color discrimination because she cannot show that she was subject to an

adverse employment action or that similarly situated employees outside her class were

treated more favorably. (Id. at 69–70).

a. Adverse employment actions

Turning to the adverse employment action prong, Buckhanon contends that she

suffered adverse employment actions8 when her responsibilities were substantially reduced

8 Buckhanon complains about Dowell’s email in which she questioned Buckhanon’s work. Reprimands

received from supervisors, while unpleasant, are routinely found to fall short of the “serious and material”

threshold necessary to be considered adverse employment actions. Summerlin v. M & H Valve Co., 167 F.

App’x 93, 97 (11th Cir. 2006) (“The reprimand of an employee does not constitute an adverse employment

action when the employee suffers no tangible harm as a result.”). The Court concludes that, to the extent

Buckhanon complains about reprimands, such actions do not rise to the level of adverse employment

actions.

Buckhanon also suggests that having notes written about her by her supervisor and being under more

surveillance than in the past constitute adverse employment actions. (Doc. 81 at 17). However, courts have

held that “increased supervision cannot reasonably be considered ‘adverse.’” Rapson v. Dev. Auth. of

Peachtree City, 2004 WL 1944846, at *6 (N.D. Ga. Mar. 31, 2004); see also Harbuck v. Teets, 152 F.

App’x 846, 848 (11th Cir. 2005) (holding that heightened scrutiny of plaintiff not an “adverse employment

action”).

when she returned from medical leave in February 2019; when she was denied training on

Yardi; and when she was ultimately terminated.9

To constitute an “adverse employment action,” the Plaintiff must establish that a

decision of the employer “impact[ed] the terms, conditions, or privileges of [her] job in a

real and demonstrable way.” Jefferson, 891 F.3d at 920–21 (citing Davis v. Town of Lake

Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001)). This “impact cannot be speculative and

must at least have a tangible adverse effect on the plaintiff’s employment.” Jefferson, 891

F.3d at 921. “A tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote, reassignment with

significantly different responsibilities, or a decision causing a significant change in

benefits.” Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 761 (1998) (emphasis

added).

Although she presents no evidence that her job title, pay, or benefits were altered,

Buckhanon argues that, after she returned from medical leave, she was transferred or

demoted when McClammey said she was not conducting inspections anymore. Buckhanon

asserts that the change in her responsibilities resulted in “occasionally shadowing OHDI

9 The Defendant asserts that the Plaintiff cannot rely on her termination as an adverse employment action

because it was not included in her EEOC charge. While the Plaintiff is constrained by the allegations

contained in her February 2019 EEOC charge, Buckhanon asserted in the charge that she was “being set up

for failure and subjected to a paper trail that may lead to my termination.” (Doc. 81-2 at 3). For the purpose

of establishing a prima facie case, the Court will assume that the Plaintiff’s termination in October 2019 is

sufficiently intertwined with her complaints of color discrimination and will consider her termination an

adverse employment action.

(sic), doing back-office work, occasionally filling-in for other inspectors, being expected

to do support paperwork.” (Doc. 81 at 40).

“[A]pplying the adverse action requirement carefully is especially important when

the plaintiff's claim is predicated on [her] disagreement with [her] employer's reassignment

of job tasks.” Davis, 245 F.3d at 1244. And as the Davis Court noted, other Circuits have

been “reluctant to hold that changes in job duties amount to adverse employment action

when unaccompanied by any tangible harm.” Id. (citing Mungin v. Katten Muchin &

Zavis, 116 F.3d 1549, 1557 (D.C. Cir. 1997)). However, a change in work assignments or

responsibilities could rise to the level of an adverse employment action when “in unusual

instances the change [in assignments or responsibilities] may be so substantial and material

that it does indeed alter the terms, conditions, or privileges of employment.” Id. at 1245

(alteration added) (internal quotations removed). The Court reiterated its caution that

[i]n the vast majority of instances . . . an employee alleging a loss of prestige on account

of a change in work assignments, without any tangible harm, will be outside the protection

afforded by Congress in Title VII's anti-discrimination clause.” Id. (alteration added). See

also Kidd v. Mando Am. Corp., 731 F.3d 1196, 1203–4 (11th Cir. 2013) (removing

supervisory responsibilities of the vacant assistant account manager position with no

change in pay or title did not constitute an adverse employment action).

Taking the facts in the light most favorable to the Plaintiff, the Court concludes that,

at the prima facie stage, the Defendant’s reassignment of Buckhanon’s inspection duties to

a contracted individual constitutes a substantial and material change to the terms and

conditions of her employment. Although there was no reduction in her pay, benefits, or

title, the reassignment resulted in the removal of most, if not all, of her inspection duties as

the HQS inspector. The Plaintiff was instead tasked with “occasionally shadowing OHDI

(sic), doing back-office work, occasionally filling-in for other inspectors, being expected

to do support paperwork.” Moreover, although Buckhanon was told that “they [OHDi

inspectors] were going to remain for several months,” (doc. 78-1 at 19), it appears that

OHDi continued doing the lion’s share of the inspections—the core of her

responsibilities—until Buckhanon’s termination.10 Removing the Plaintiff’s inspection

duties is, in this case, substantial enough to constitute an adverse employment action.11

In sum, the Court concludes that Buckhanon has demonstrated that she suffered

adverse employment actions for the purposes of establishing a prima facie case because

her job responsibilities were significantly reduced, and she was ultimately terminated.

b. Comparators

To make out a prima facie case for employment discrimination based on disparate

treatment, Buckhanon must also show that she was treated worse than other similarly

situated employees who were outside of her protected class. Thus, she must show that she

was treated less favorably than lighter-skinned Black people. The Defendant argues that

the Plaintiff cannot show any similarly situated compactors were treated less favorably.

10 It is undisputed that after Buckhanon’s termination, McClammey eliminated the HSQ inspector position

and contracted with OHDi to perform all inspections and re-inspections.

11 The Plaintiff also argues that OHA’s failure to provide her adequate training opportunities on the Yardi

system constitutes an adverse employment action. (Doc. 81 at 39). The Plaintiff contends that an employee

can establish an adverse employment action “if the plaintiff can establish that the employer denied material

training opportunities to [her].” Johnson v. Gestamp Alabama, LLC, 946 F. Supp. 2d 1180, 1202 (N.D. Ala.

2013). Here, the evidence shows that the Plaintiff was afforded training opportunities on the Yardi system.

Therefore, the Plaintiff fails to establish an adverse employment action with respect to training.

(Doc. 79 at 66). The Plaintiff identifies Julia Dowell, Crystal Allen, and Gemelia Welch

as comparators.12 (Doc. 81 at 37).

The Eleventh Circuit has emphasized that the comparator analysis is central to

establishing the prima facie case because “it is only by demonstrating that [an] employer

has treated ‘like’ employees ‘differently’—i.e., through an assessment of comparators—

that a plaintiff can supply the missing link and provide a valid basis for inferring unlawful

discrimination.” Lewis, 918 F.3d at 1223 (emphasis in original). A plaintiff and

comparator must be “similarly situated in all material respects.” Id. at 1226. To determine

if a plaintiff and potential comparator were “similarly situated in all material respects,” the

Court considers whether they both (1) engaged in the same basic conduct (or misconduct)

as the plaintiff; (2) were subject to the same employment policies, guidelines, or rules as

the plaintiff; (3) were under the same supervisor; and (4) share the same employment and

disciplinary history. Lewis, 918 F.3d at 1227–28.

i. Julia Dowell

The Plaintiff argues Dowell is an appropriate comparator because she is a

light-skinned Black woman who received more favorable treatment than her. (Doc. 81 at

8–9). Specifically, Buckhanon asserts that Dowell failed to remove a tenant from Section

8 program housing for noncompliance after Buckhanon told her about an issue, Dowell

made mistakes entering inspection data, but Dowell was not fired for these mistakes. (Id.

at 9–10).

12 Although not identified by the Plaintiff, the Defendant suggests that the OHDi contractors are potential

comparators. It is undisputed that the OHDi contractors were not employees of OHA, and, thus, the Court

does not consider them “similarly situated employees” for the purpose of establishing the prima facie case.

However, the Court finds that Dowell is not a proper comparator to Buckhanon

because they were not “similarly situated in all material respects.” First, they were not

engaged in the same basic conduct. Dowell did not perform inspections or re-inspections.

The Plaintiff failed to perform or schedule timely re-inspections which resulted in OHA

receiving a zero SEMAP score for HQS enforcement two years in a row. Dowell was not

responsible for the zero SEMAP score; rather, she failed to remove a tenant and erred

entering data into the OHA database. The only evidence the Plaintiff puts forth that she

and Dowell were subject to the same rules is her statement that they were both subject to

the same policies and work rules. However, Dowell was the Plaintiff’s supervisor, not her

co-worker, and there is no evidence in the record regarding Dowell’s employment and

discipline history. Because Buckhanon has failed to demonstrate that Dowell is similarly

situated in all material respects, she is not appropriate comparator.

ii. Crystal Allen, and Gemelia Welch

Buckhanon alleges that Allen and Welch are valid comparators and were treated

more favorably than she was. Specifically, Buckhanon argues that Welch and Allen, who

are lighter-skinned Black people, were hired as assistant property managers, even though

neither of them possessed a valid driver’s license—an OHA job requirement. (Doc. 81 at

6). Buckhanon also argues that they are were similarly situated because “Allen, Welch and

Buckhanon all put information into OHA's system regarding tenants and clients; all three

had to pull criminal reports; all three had to do background checks; all had to make sure

people were qualified for the unit that they were going in.” (Id. at 16). And the Plaintiff

also notes that both Allen and Welch were hired to do inspections. (Id. at 7). However, the

undisputed evidence before the Court demonstrates that Allen and Welch were hired as

assistant property managers, not HQS inspectors, and they did not conduct HQS

inspections. Thus, neither Allen nor Welch are proper comparators to the Plaintiff.

Moreover, the Plaintiff points to no evidence that Allen or Welch were engaged in

the same misconduct as she was, were supervised by the same supervisor, or shared similar

employment or disciplinary histories.13 Therefore, Allen and Welch are not “similarly

situated in all material respects” to the Plaintiff, and neither is an appropriate comparator.

Because the Plaintiff fails to identify a similarly situated comparator, the Plaintiff

cannot make out a prima facie case under the McDonnell Douglas burden shifting

framework.

ii. Legitimate non-discriminatory reasons

Even assuming that Buckhanon could establish a prima facie case of intentional

discrimination, the Defendant has asserted legitimate non-discriminatory reasons for its

employment decision to substantially reduce Buckhanon’s inspection responsibilities and

ultimately terminate her. This is a burden of production, not persuasion. Brown v. Ala.

Dep’t of Transp., 597 F.3d 1160, 1174 (11th Cir. 2010). OHA “need not persuade the court

that it was actually motivated by the proffered reasons.” Id. (quoting Burdine, 450 U.S. at

254). Rather, OHA can rebut the presumption of discrimination by articulating a non-

13 Buckhanon alleges Allen was “given” as pass for alleged misconduct attributed to her. Allegedly, Allen

violated OHA policy violation when Allen told a housing manager that a coworker had been made a full-

time employee and had gotten a raise. According to Buckhanon, when McClammey was found out, he said

“it was not done maliciously or intentional[ly], and he gave Allen a pass.” Even accepting this allegation

as true, this is not comparable to the Plaintiff’s failures to perform timely inspections and re-inspections

which resulted in the zero SEMAP scores.

discriminatory reason for the employment action. Thereafter, the burden shifts back to the

Plaintiff to show that the articulated reasons are simply pretext for discrimination. Id.

The OHA proffers that OHDi was brought in to conduct inspections initially

because Buckhanon was on medical leave, and the inspections and re-inspections needed

to be completed. Thereafter, Buckhanon was removed from conducting inspections and

re-inspections because she was admittedly late in scheduling and conducting the

inspections. Finally, OHA proffers that the employment actions taken against Buckhanon

were initiated as a result of the first zero HQS Enforcement SEMAP score and culminated

with the receipt of the second zero HQS Enforcement SEMAP score. The Defendant’s

proffered legitimate, non-discriminatory reasons are supported by evidence in the record.

Indeed, Buckhanon does not dispute that she was late with inspections and re-inspections.

Nor does she dispute that she was responsible for the first zero SEMAP score. She also

does not contest that although she did not conduct many inspections in 2019, she was still

responsible for scheduling inspections and did not schedule inspections or re-inspections

in a timely manner, which resulted in the second zero HSQ Enforcement SEMAP score.

The Defendant has satisfied its burden of production.

iii. Pretext

Upon Defendant’s production of a legitimate nondiscriminatory reason for the

adverse employment actions, the presumption in favor of the Plaintiff is rebutted and falls

away. Burdine, 450 U.S. at 255. The burden shifts back to Buckhanon to show that the

Defendant’s explanation is pretextual, and that color discrimination motivated OHA.

Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143 (2000).

A plaintiff can show pretext by “directly persuading the court that a discriminatory

reason more likely motivated the employer” or indirectly that the employer’s explanation

is not believable. Burdine, 450 U.S. at 256 (1981). The Plaintiff must show that the

Defendant’s “proffered reason was not its true reason, which merges with the plaintiff’s

ultimate burden of persuading the court that the employer intentionally discriminated

against her.” Alvarez v. Royal Atlantic Developers, Inc., 610 F.3d 1253, 1265 (11th Cir.

2010). The Plaintiff’s color discrimination claim also fails here.

In order to show pretext, the Plaintiff “must demonstrate ‘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.’” Alvarez, 610 F.3d at 1265 (citing Combs v. Plantation Patterns,

106 F.3d 1519, 1538 (11th Cir. 1997)). In some cases, proof that an employer’s asserted

justification is false, when coupled with the evidence establishing the plaintiff’s prima facie

case, is sufficient to permit an inference of discrimination. See Reeves, 530 U.S. at 148.

However, Buckhanon’s evidence of pretext is entirely rooted in her own beliefs and

inferences, and relies on unsubstantiated allegations and conclusory statements which is

simply insufficient to meet her burden. “[U]nsubstantiated assertions alone are not enough

to withstand a motion for summary judgment.” Rollins v. TechSouth, Inc., 833 F.2d 1525,

1529 (11th Cir. 1987); see also Carter, 132 F.3d at 642 (conclusory allegations without

specific supporting facts have no probative value).

Title VII does not make unexplained differences in treatment

per se illegal nor does it make inconsistent or irrational

employment practices illegal . . . What the law does require is

that an employer not discriminate against an employee on the

basis of the employee’s protected class characteristics.

E.E.O.C. v. Flasher Co., Inc., 986 F.2d 1312, 1319 (10th Cir. 1992).

Accordingly, Buckhanon cannot show a genuine issue of material fact exists with

respect to pretext.

B. Convincing Mosaic of Circumstantial Evidence

Alternatively, Buckhanon can “survive summary judgment if [s]he presents

circumstantial evidence that creates a triable issue concerning the employer’s

discriminatory intent.” Smith, 644 F.3d at 1328. “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 jury to infer intentional discrimination by the

decisionmaker.” Id.

Buckhanon may establish a convincing mosaic by pointing to evidence that

demonstrates “(1) suspicious timing, ambiguous statements . . ., and other bits and pieces

from which an inference of discriminatory intent might be drawn, (2) systematically better

treatment of similarly situated employees, and (3) that the employer’s justification is

pretextual.” Lewis v. City of Union City, Ga., 934 F.3d 1169, 1185 (11th Cir. 2019)

(alteration in original). Moreover, “[n]ot every employee subjected to unlawful

discrimination will be able to produce a similarly situated comparator,” so failure to

produce one does not necessarily doom the plaintiff’s case. Id.

Here, the Court considers whether the Plaintiff can assemble a convincing mosaic

based on “suspicious timing, ambiguous statements . . . and other bits and pieces from

which the inference of discriminatory intent might be drawn” or “systematically better

treatment of similarly situated employees.”

Turning first to the Plaintiff’s evidence that allegedly shows that other lighter-

skinned Black people were treated better than she was, Buckhanon points to the hiring of

Allen and Welch as assistant property managers despite the fact that neither had a valid

driver’s license. Although the parties contest how long each employee had to obtain a

driver’s license, the Plaintiff does not contest the Defendant’s assertion that Welch was

terminated when she unable to get her license. Although Buckhanon implies that Allen

and Welch were treated differently because they were lighter-skinned, the evidence does

not demonstrate that McClammey acted in a way that could reveal an intent to discriminate

against darker-skinned Black people.

Although the Plaintiff claims that McClammey had a “close, hands-on, working

relationship with light-skinned Julia Dowell,” this does not evidence an intent to

discriminate against Buckhanon. Further, while the Plaintiff asserts that Dowell committed

errors in her work, Buckhanon has failed to demonstrate that Dowell’s errors were

tantamount to her failures to conduct inspections and re-inspections which resulted in the

two zero HQS Enforcement scores.

The Plaintiff fails to produce evidence of systematically better treatment of lighter-

colored Black people or evidence that lighter-skinned coworkers were treated better than

she was under the same circumstances.14

14 The Plaintiff points to McClammey’s alleged “affinity for light-skinned women;” Toya Henderson’s

statement that she had “witnessed a large amount of discrimination towards [ ] women of darker

complexion;” and Anthony Brock’s comment that he “noticed some things that [he] didn't think was fair,

but that doesn't necessarily mean [McClammey] discriminates because of skin color” to support her claim.

Relying on an evaluation for an assistant manager position, Buckhanon argues that

there is no explanation other than color discrimination for why McClammey’s evaluation

of her changed so radically from October 2018 to November 2019. Although McClammey

completed the evaluation two months after the first zero SEMAP score, Buckhanon

disregards evidence that, in February 2019, two meetings were held with her to address the

first zero HSQ Enforcement SEMAP score, which she agreed was her fault. In these

meetings, it was made clear to the Plaintiff that many of her inspecting duties would be

transferred to OHDi so that she could catch up on past inspections and learn the scheduling

system. She was also advised that a second zero HSQ Enforcement SEMAP score would

be unacceptable.

Next, the Plaintiff argues that McClammey’s failure to provide sufficient training

on color discrimination by offering a course or attending one himself, coupled with his

alleged lack of understanding of colorism, is indicative of discrimination. However, it is

undisputed that any form of discrimination was prohibited in the employee handbook. And

although the Plaintiff points to McClammey’s deposition testimony regarding color

discrimination, a careful review of his testimony demonstrates that, during his testimony,

McClammey testified that he had never “been involved in any form of discrimination, nor

would [he] allow it to exist.” The evidence identified by the Plaintiff is insufficient for a

reasonable jury to determine that the Defendant intentionally discriminated against the

Plaintiff based on her color.15

However, the Court does not credit these conclusory statements and finds them insufficient to show

intentional discrimination.

15 Although the Court determined that analysis of the Plaintiff’s claims under Quigg was not appropriate,

even if Quigg did govern the claims, the outcome would be the same. “An employee can succeed on a

VI. CONCLUSION

For the reasons as stated, and for good cause, it is

ORDERED that the Defendant’s Motion for Summary Judgment, (doc. 77), is

GRANTED, and this case is DISMISSED with prejudice.

A separate final judgment will be entered.

DONE this 29th day of September, 2022.

/s/ Emily C. Marks

EMILY C. MARKS

CHIEF UNITED STATES DISTRICT JUDGE

mixed-motive claim by showing that illegal bias . . . ‘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)). The Plaintiff fails to produce evidence that her color was a motivating factor in the adverse

employment actions.