The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
GARY C. SHARP, )
)
Plaintiff, )
)
v. ) CASE NO. 2:19-CV-857-WKW
) [WO]
CITY OF MONTGOMERY, )
)
Defendant. )
MEMORANDUM OPINION AND ORDER
Plaintiff Gary C. Sharp brings this action alleging race discrimination and
retaliation in the denial of promotions. He invokes Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. §§ 2000e through 2000e-17 (Title VII); 42 U.S.C.
§ 1981 and a corresponding damages provision, 42 U.S.C. § 1981a; and
42 U.S.C. § 1983. He sues the City of Montgomery (the City).
Before the court is the City’s motion to for summary judgment under Rule 56
of the Federal Rules of Civil Procedure. (Doc. # 75). Sharp responded in opposition
(Doc. # 77). Notably, the City did not file a reply brief. For the reasons that follow,
the motion will be denied.
I. JURISDICTION AND VENUE
Subject matter jurisdiction is proper pursuant to 28 U.S.C. § 1331. Personal
jurisdiction and venue are uncontested.
II. STANDARD OF REVIEW
To succeed on a motion for summary judgment, the moving party must
demonstrate that “there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The court views
the evidence, and all reasonable inferences drawn therefrom, in the light most
favorable to the nonmoving party. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820
(11th Cir. 2010).
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). This responsibility includes identifying
the portions of the record illustrating the absence of a genuine dispute of material
fact. Id. Alternatively, a movant who does not have a trial burden of production 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 (“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. Celotex Corp., 477 U.S. at 324. 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., 276 F.3d 1275, 1279 (11th Cir. 2001).
III. PROCEDURAL HISTORY
In November 2019, Sharp sued the City and multiple city officials alleging
race discrimination and retaliation in the denial of promotions. (Doc. # 1.) He
brought his claims under Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. §§ 2000e through 2000e-17 (Title VII); 42 U.S.C. § 1981; and 42 U.S.C. §
1983. (Doc. # 1 at 15.)
Three months later, in February 2020, Sharp filed the amended and operative
complaint. (Doc. # 35.) In it, Sharp omitted the individual city officials and brought
his claims against two Defendants: the City and the Montgomery City-County
Personnel Board. Both Defendants moved to dismiss. (Docs. # 36, 37.) The court
granted the motions in part and denied them in part. (Doc. # 51.) Specifically, the
court narrowed the claims and found that Sharp only plausibly alleged claims for (1)
a discriminatory failure to promote based on race against both Defendants, and (2) a
failure to promote based on retaliation for protected activity against both Defendants.
Discovery was conducted. Over a year after the opinion at the motion-to-
dismiss stage was entered (Doc. # 73), the parties jointly filed to voluntarily dismiss
the Montgomery City-Count Personnel Board, and the court granted that motion
(Doc. # 74). A day later, the City, the only remaining Defendant, moved for
summary judgment on both of Sharp’s claims. (Doc. # 75.) That motion is before
the court in the lead up to trial, which is currently set for June 19, 2023. (Doc. # 61.)
IV. FACTUAL BACKGROUND
The facts are relayed in the light most favorable to Sharp.
At the beginning of 2018, Sharp, a Black man, applied for a promotion to the
position of director of economic and community development for the City (the
director position). Sharp says that on April 17, 2018, he was told that he was ranked
by the Personnel Board as being tied at number one for the position per the certified
candidate register, which is a list of qualified candidates. However, the record
indisputably establishes that Sharp was not given a ranking for the position. On
April 17, 2018, the Personnel Board emailed Sharp and told him that he was
“qualified” to be considered for the director position, and that “[s]ince there are five
or less qualified applicants, all applicants were considered equal, and their names
were placed on the register in alphabetical order.” (Doc. # 75-1 at 28.)
After nearly eight months had passed without the position being filled, Sharp
received an email on December 10, 2018 from the Personnel Board that the director
position was being reopened with updated qualifications and informing Sharp how
to apply. (Doc. # 75-1 at 31.) Notably, reopening an employment registry when
there are less than five eligible applicants on the register is specifically contemplated
by the Personnel Department’s Operations Manual, which states “that an appointing
authority may request that a new list be established” if there are “less than five
eligible applicants on the register.” (Doc. # 77-4 at 1.) On December 18, 2018,
Sharp received an email from telling him that his “application would be copied from
earlier in the year to the new recruitment.” (Id. at 25.) Sharp then went and
complained to Judge Charles Price that he was being discriminated against by being
denied the director position.
On January 1, 2019, Sharp emailed Personnel Analyst Cami Hacker and
Personnel Director Carmen Douglas, who is Black, and expressed his belief that the
City of Montgomery “had violated [his] Civil Rights when the decision was made
to close the original announcement.” (Doc. # 75-1 at 30.) Douglas responded by
email. She explained the rule allowing for a new registry when there are less than
five applicants and denying any discrimination. (Id.); (Doc. # 77-4 at 1.)
Thereafter, on January 22, 2019, Sharp’s attorney sent a letter to then-Mayor
Strange and others alleging race discrimination and that the City reopened the
registry to prevent Sharp from being hired to fill the application because of his race.
(Doc. # 75-1 at 25.)
Ms. Douglas responded to that letter on January 25, 2019, reiterating the rule
about the option to create a new list when there were less than five applicants for a
position, restating that Sharp was not ranked whatsoever on the original registry
because there were less than five applicants, and insisting that Sharp was being
treated equally by the Personnel Department. (Doc. # 75-1 at 27.)
At some point, Sharp was interviewed for the director position. So was
Desmond Wilson, a black man who was once Sharp’s supervisor. About eight weeks
after Sharp’s attorney sent his letter, the director position was filled by Desmond
Wilson. Then-Mayor Strange made the hiring decision. Sharp says that Wilson did
not have a master’s degree, like the posting required, but the posting specifically
states that “two years of qualifying experience can substitute for the master’s
degree.” (Doc. # 75-1 at 31.)
Thereafter, on July 30, 2019, Sharp filed a charge with the EEOC alleging he
was denied the position off the first registry based on race discrimination and that he
was denied the position off the second registry “because [he] complained of race
discrimination during the hiring process.” (Doc. # 77-5 at 1–2.)
Notably, the City has not proffered a reason for why the initial registry was
left open for months, then closed, and reopened. Nor has it provided a reason for
why it declined to hire Sharp off the first registry.
IV. DISCUSSION1
Before turning to the merits, the court writes to emphasize the strange posture
of this case. Unlike almost every other employment discrimination at the summary
judgment stage, this case lacks a discussion of the employer’s proffered reason for
doing something, and whether there is sufficient evidence to determine that that
reason was pretextual and meant to cover up discrimination. That discussion is
absent because the City declined to provide any evidence, arguments, or basis to
proactively defend its actions. Specifically, totally absent from the record are two
crucial factual assertions: (1) the City’s articulation as to why it closed the initial
registry/job opening, and (2) the City’s articulation as to why it declined to hire
Sharp off the first registry. Indeed, the City’s briefing completely declines to address
these points.2 In many ways, their silence as to these factual issues condemns their
pending motion for summary judgment. Had they addressed them whatsoever, the
outcome may very well have been different at this procedural stage. For following
reasons, the City’s motion for summary judgment will be denied.
1 This opinion only addresses the arguments raised by the Defendant in support of its
motion for summary judgment. Specifically, Defendant only moves for summary judgment as to
the substantive merits of Sharp’s two claims: race discrimination and retaliation.
2 The City filed the motion and brief in support, but it did not file a reply to Sharp’s
response in opposition.
A. Failure to Promote Based on Race Discrimination3
Title VII, § 1981, and § 1983 all prohibit “intentional discrimination based on
race in the employment context.” Blash v. City of Hawkinsville, 856 F. App’x 259,
263 (11th Cir. 2021). Sharp alleges he was discriminated against on the basis of his
race when the City declined to hire him off the first registry but kept the position
open. Sharp does not have any direct evidence supporting this narrative, so he must
proceed using circumstantial evidence that would permit a reasonable factfinder to
determine that the City’s decision to leave the post open for months under the first
registry, close it, and reopen it under a different registry was because it did not want
to hire Sharp due to his race.
One way for inferring racial animus based on circumstantial evidence is the
McDonnell Douglas framework. Under this framework, Sharp makes out a prima
facie case of racial discrimination in the failure-to-promote context by showing “(i)
that he belongs to a racial minority; (ii) that he applied and was qualified for a job
for which the employer was seeking applicants; (iii) that, despite his qualifications,
he was rejected; and (iv) that, after his rejection, the position remained open and the
employer continued to seek applicants from persons of complainant's
3 If Sharp believes he has brought a claim for a discriminatory failure to promote based on
the second registry, the court disagrees. Such a claim was not addressed in the court’s prior opinion
nor is it clearly in the complaint. Regardless, even if Sharp had brought that claim, summary
judgment would be appropriate as to it, because a black man, like Sharp, ultimately landed the job,
which prevents Sharp from establishing his prima facie case of discrimination on these facts.
qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). It
is beyond dispute that Sharp has established all four of these elements. He is Black,
the Personnel Department determined he was qualified for the position, he was not
given the position for 8 months, the position was closed, and then immediately re-
opened and the City continued to seek applications.
Accordingly, having established a prima facie case, the burden shifts to the
City to “articulate some legitimate, nondiscriminatory reason” for not hiring Sharp
but continuing to seek applications (albeit under a renewed posting). Id.
Shockingly, the City chose not to “articulate some legitimate, nondiscriminatory
reason” for not hiring Sharp off the first registry, making a new registry for the exact
same position, and soliciting more applicants. Id. Summary judgment must be
denied because Sharp made out his prima facie case, the burden shifted to the City,
and the City failed to meet that burden by articulating a reason for declining to hire
Sharp off the first registry.
Admittedly, the court believes that the City might be confused as to the nature
of Sharp’s claim. The City argues, as it did at the motion-to-dismiss stage, that Sharp
fails to establish a prima facie case because the City ultimately hired a Black man
off the second registry. However, the court has little sympathy for this confusion
and misguided line of argument because it was directly addressed in the court’s prior
opinion:
The City argues that Mr. Sharp has failed to plead facts plausibly
establishing discriminatory intent in the denial of the promotion to the
director position. The gist of this argument is that allegations of
discriminatory intent are lacking because “another black male” was
selected for the position. (City Mot. to Dismiss, at 7.) This argument is
not persuasive at this stage of the litigation.
Circumstantial evidence of intentional discrimination can be shown
where after the rejection of the application, the employer “either filled
the position with a person not of the same racial minority or left the
position open.” Sledge v. Goodyear Dunlop Tires N. Am., Ltd., 275 F.3d
1014, 1015 n.1 (11th Cir. 2001) (citing McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802 (1973)). The City’s argument does not
address the scenario where the employer rejects the application and
leaves the position open. The facts of the amended complaint, construed
in the light most favorable to Mr. Sharp, plausibly fit within this scenario
. . . .
Mr. Sharp has alleged enough to show plausibly that the City rejected
his application and left the position open to seek applications from
individuals with Mr. Sharp’s qualifications. How the facts play out is a
matter for discovery.
(Doc. # 51 at 11–12.)
The City had an opportunity to present a reason for why it declined to
hire Sharp off the first registry. It was not a heavy burden. But the City chose
not to do so. Summary judgment is denied as to Sharp’s Title VII and
§ 1983/§ 1981 claims alleging racial discrimination in the denial of the
promotion to the director position.
B. Retaliatory Failure to Promote
“Where . . . a plaintiff’s claims under Title VII are based on the same set of
facts as his claims under § 1983, the analysis under Title VII is identical to the
analysis under § 1983.” King v. Butts Cnty. Ga., 576 F. App’x 923, 931 (11th Cir.
2014). That is the scenario here. Sharp alleges that he was ultimately denied the
director position from the second registry because he complained about race
discrimination in the City’s handling of the first registry. The last time Sharp
complained was through his attorney on January 22, 2019. Roughly two months
later, someone else got the job. To state a claim for retaliation, “an employee must
plausibly allege he engaged in statutorily protected expression, he suffered a
materially adverse employment action, and there was a causal link between the
protected expression and adverse action.” Henderson v. City of Birmingham, Ala.,
826 F. App’x 736, 741 (11th Cir. 2020).
Only causation is in dispute. The City argues that Sharp fails to establish
causation because he has not presented any evidence that the decisionmaker with
hiring and firing authority for the City of Montgomery, that is, then-Mayor Strange,
knew about Sharp’s protected conduct. Not so. As the court previously determined,
Sharp’s counsel’s letter that was sent to Mayor Strange constitutes protected activity.
Moreover, that letter was sent just two months before Mayor Strange decided to
reject Sharp’s application for the director position, the proximity of which allows a
reasonable juror to conclude that the adverse action was “causally related to the
protected activity.” Patterson v. Georgia Pacific, LLC, 38 F. 4th 1336, 1351 (11th
Cir. 2022); see also Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th
Cir. 1999) (seven weeks sufficient to infer a causal connection); McCarley v. City of
Northport, 240 F. Supp. 3d 1242 (N.D. Ala. 2017) (Proctor, J.) (eight weeks and two
days sufficient to infer a causal connection). Moreover, the City’s denial of the
promotion to Sharp in March 2019 could be reasonably construed to have been the
City’s “first opportunity” to retaliate against Sharp for opposing perceived racially
discriminatory hiring practices. Jones v. Suburban Propane, Inc., 577 F. App’x 951,
955 (11th Cir. 2014) (per curiam) (citation omitted) (noting that proximity can also
be supported by evidence “that the adverse action was the ‘first opportunity’ for the
employer to retaliate” to establish causation).
The City’s motion for summary judgment as to Sharp’s Title VII and
§ 1983/§ 1981 claims alleging a retaliatory denial of promotion to the director
position will be denied.
V. CONCLUSION
Based on the forgoing, it is ORDERED that Defendant’s motion for summary
judgment (Doc. # 75) is DENIED.
DONE this 15th day of May 2023.
/s/ W. Keith Watkins
UNITED STATES DISTRICT JUDGE