Denham v. Alabama State University (CONSENT)

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

SUSAN DENHAM, )

)

Plaintiff, )

)

v. ) Case No. 2:22-cv-185-SMD

)

ALABAMA STATE UNIVERSITY, )

)

Defendant. )

OPINION & ORDER

Plaintiff Dr. Susan Denham (“Dr. Denham”) asserts that her former employer,

Defendant Alabama State University (“ASU”), discriminated against her based on her race

and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq.

(“Title VII”). Before the Court is ASU’s Motion for Summary Judgment. Mot. (Doc. 20).

For the following reasons, ASU’s motion is granted, and Dr. Denham’s claims are

dismissed with prejudice.

I. JURISDICTION

Dr. Denham’s complaint alleges violations of Title VII, which is a federal statute.

As such, this case presents a federal question within this Court’s original subject-matter

jurisdiction under 28 U.S.C. § 1331.

II. UNDISPUTED MATERIAL FACTS

Dr. Denham, a White female, began her career as an Instructor of Occupational

Therapy in ASU’s College of Health Sciences (“COHS”) in 1998. Notice of Employment

(Doc. 22-1) p. 1. Over the course of her employment with ASU, Dr. Denham was promoted

to professor and received academic tenure. Letters (Docs. 22-5; 22-6). Dr. Denham has a

Bachelor of Science in Occupational Therapy, a Master’s of Science in Human Resources

Management, and a Doctorate in Educational Leadership, Policy and Law. Denham CV

(Doc. 23-2) p. 1. She has been a licensed occupational therapist since 1990 and has

contracted with at least five facilities since that time to provide occupational therapy

services. Id. at 2-4. While at ASU, Dr. Denham served on numerous committees, was a

finalist for teaching and faculty awards, and is a member of multiple scientific and

professional societies. Id. at 4, 7-12. She retired from ASU in 2022. Denham Depo. (Doc.

22-14) pp. 18-19.

In 2018, ASU began a search for the position of Dean of COHS. Pettis Aff. (Doc.

22-9) pp. 1-2. ASU formed a search committee to review and interview applicants for the

position. Id. Dr. Dartell Treadwell (“Dr. Treadwell”), a Black male, applied for the position

and was interviewed by the committee. Id. Dr. Treadwell has a Doctorate in Physical

Therapy and a Master’s in Public Service Management. Treadwell Resume (Doc. 23-3) p.

2. Throughout his career, Dr. Treadwell has managed acute inpatient hospital, geri-psych,

and outpatient departments; supervised nine nursing facilities with a team of eighty

therapists; built, owned, and operated a contract home health service business offering

physical and occupational therapy; and served as an assistant professor for one year at

Arkansas State University. Id. at 1-2. Dr. Treadwell was not selected for the position of

COHS dean. Pettis Aff. (Doc. 22-9) p. 2.

Around the same time that ASU was searching for the COHS Dean, there was a

vacancy for the position of Associate Dean of the COHS. Assoc. Dean Posting (Doc. 22-

10). Dr. Treadwell and Dr. Denham both applied for the position. The posting for the

Associate Dean job set forth two minimum qualifications:

(1) An earned doctorate from an accredited institution which includes a

distinguished academic record in one of the fields of the College, or related

health sciences/allied health discipline;

(2) Experience and credentials to qualify for the rank of associate professor . . .

in one of the College’s academic departments[.]

Id.

ASU’s Faculty Handbook sets forth the “experience and credentials” necessary to

qualify for the rank of associate professor. Specifically, the Handbook states that an

associate professor must have “[f]ive academic years of successful teaching experience at

an accredited college/university,” three years of which “must have been at the rank of

assistant professor[.]” ASU Handbook (Doc. 22-17) pp. 2, 3. The Handbook, however,

provides several means by which an employee may rank as an associate professor without

having the required teaching experience. These exceptions include, in relevant part:

. . .

B. Upon recommendation of the Provost and Vice President for Academic Affairs,

the president may recommend to the Board of Trustees the assignment of

academic rank for a new member of the faculty who serves in a combination of

teaching and administrative roles.

C. Upon recommendation of the dean of the college involved and the Provost and

Vice President for Academic Affairs, the president may recommend to the Board

of Trustees the assignment of academic rank for a new member of the faculty

solely on the basis of extraordinary and distinguished national service to the

teaching field.

Id. at 3-4.

The same search committee that reviewed and interviewed candidates for the Dean

position reviewed and interviewed the candidates for the Associate Dean position.

Thomas1 Depo. (Doc. 22-7) pp. 11-12. The committee interviewed Dr. Denham but did not

re-interview Dr. Treadwell because they had recently interviewed him for the Dean

position. Id. at 14-15, 39. The committed used the same questions to interview Dr. Denham

for the Associate Dean position as it used to interview Dr. Treadwell for the Dean position.

Id. at 94. The committee recommended that Dr. Treadwell be hired as Associate Dean and

forwarded their recommendation to the Office of Academic Affairs and its Provost/Vice

President, Dr. Carl Pettis. Id. at 21-22; Pettis Aff. (Doc. 22-9) p. 2.

Dr. Pettis, who is a Black male, interviewed Dr. Treadwell and Dr. Denham and

reviewed their applications for the Associate Dean position. Pettis Aff. (Doc. 22-9) pp. 1-

2. As to their interviews, Dr. Pettis found that Dr. Treadwell performed better than Dr.

Denham because he brought a lot of “energy” and spoke with “passion” in the interview.

Id. at 2-3; Pettis Depo. (Doc. 22-12) pp. 59, 78-79, 43-44, 48, 61-65. As to their

applications, Dr. Pettis acknowledged that Dr. Treadwell did not have five academic years

of successful teaching experience at an accredited college/university or three years of

teaching experience at the rank of assistant professor. Pettis Depo. (Doc. 22-12) pp. 42-43,

84. But Dr. Pettis believed Dr. Treadwell was nonetheless qualified for the Associate Dean

1 Dr. Christine Thomas was the chair of the search committee for COHS’s Dean and Associate Dean

positions. Thomas Depo (Doc. 22-7) pp. 8-9.

position based on the Handbook’s exceptions. Id. at 88-93. Specifically, Dr. Pettis felt that

Dr. Treadwell’s clinical work as a physical therapist constituted “extraordinary and

distinguished national service to the teaching field” and that, as Provost, he could

recommend that Dr. Treadwell be assigned the rank of associate professor because he

would be serving in a combination of teaching and administrative duties. Id. at 96-99.

Dr. Pettis recommended that Dr. Treadwell be hired as Associate Dean and

forwarded his recommendation to ASU President Dr. Quinton Ross (“President Ross”). Id.

at 12, 44; Pettis Aff. (Doc. 22-9). President Ross accepted Dr. Pettis’s recommendation

and submitted it to ASU’s Board of Trustees, who approved the recommendation.2 Ross

Depo. (Doc. 22-13) p. 7; Pettis Aff. (Doc. 9).

III. LEGAL STANDARDS

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate if a

moving party “shows that there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” FED. R. CIV. P. 56(a). A material fact is one

“that might affect the outcome of the suit under the governing law.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute over a material fact is genuine if “the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

2 Dr. Denham advances a cat’s paw theory in this case. The Eleventh Circuit recognizes the cat’s paw theory

whereby the unlawful intent by a person involved in the decision-making process is transferred to the

decision-maker who has no such intent. See, e.g. Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir.

1999). Here, Dr. Denham contends that Dr. Pettis was the “proximate cause” of ASU’s Board’s decision to

hire Dr. Treadwell. Resp. (Doc. 24) pp. 12-14. ASU does not contest that the cat’s paw theory applies. See

generally Reply (Doc. 25).

To survive summary judgment, a non-movant must assert facts that make a

sufficient showing on every essential element of her case on which she bears the burden of

proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Unsupported conclusions,

factual allegations, and allegations based on speculation are insufficient to create a genuine

issue of material fact. Ellis v. England, 432 F.3d 1321, 1326 (11th Cir. 2005); Cordoba v.

Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir. 2005). In reviewing a motion for summary

judgment, a court must “view the evidence in the light most favorable to the non-moving

party and resolve all reasonable doubts about the facts in favor of the non-movant.” Kroma

Makeup EU, LLC v. Boldface Licensing + Branding, Inc., 920 F.3d 704, 707 (11th Cir.

2019).

IV. DISCUSSION

Dr. Denham claims that ASU failed to promote her to the Associate Dean position

because of her race and/or sex in violation of Title VII. Dr. Denham does not provide direct

evidence of race or sex discrimination; therefore, she seeks to prove her case through (1)

the burden-shifting framework of McDonnell Douglas Corporation v. Green, 411 U.S. 792

(1973), (2) the “convincing mosaic” standard as developed under Smith v. Lockheed-

Martin Corporation, 644 F.3d 1321 (11th Cir. 2011), and (3) a mixed-motive framework

under 42 U.S.C. § 2000e-2(m). Resp. (Doc. 24) pp. 11-12. The undersigned will address

each method of proof in turn.

A. McDonnell Douglas Framework

To prevail on a failure to promote claim under the McDonnell Douglas framework,

a plaintiff must first establish a prima facie case of discrimination by showing that: (1) she

belongs to a protected group; (2) she sought and was qualified for the position that the

employer was attempting to fill; (3) despite her qualifications she was rejected; and (4) the

position was filled with a person outside of her protected group. Wilson v. B/E Aerospace,

Inc., 376 F.3d 1079, 1089 (11th Cir. 2004).

If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the

defendant to articulate a legitimate, nondiscriminatory reason for its employment action.

Combs v. Plantation Patterns, 106 F.3d 1519, 1527-28 (11th Cir. 1997). “To satisfy this

intermediate burden, the employer need only produce admissible evidence which would

allow the trier of fact rationally to conclude that the employment decision had not been

motivated by discriminatory animus.” Id. at 1528.

Should a defendant meet this burden, the plaintiff must then demonstrate that the

defendant’s proffered reason for its action was merely a pretext to mask retaliation. Id. Put

another way, the “pretext analysis focuses on a narrow question: Would the proffered

evidence allow a reasonable factfinder to conclude that the articulated reason for the

[defendant’s] decision was not the real reason?” Walker v. Prudential Prop. & Cas. Ins.

Co., 286 F.3d 1270, 1276 (11th Cir.2002). A plaintiff may establish pretext by producing

evidence that reveals “such weaknesses, implausibilities, inconsistencies, incoherencies or

contradictions in [the defendant’s] proffered legitimate reasons for its actions that a

reasonable factfinder could find them unworthy of credence.” Springer v. Convergys

Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348-49 (11th Cir. 2004) (quoting Cooper v.

S. Co., 390 F.3d 695, 725 (11th Cir. 2004) (internal quotation marks omitted). Importantly,

though, “[a] reason is not pretext for discrimination ‘unless it is shown both that the reason

was false, and that discrimination was the real reason.” Springer, 509 F.3d at 1348-49

(citing Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir. 2006)).

1. Dr. Denham has set forth a prima facie case of race and sex

discrimination.

Dr. Denham, a White female, is a member of a protected class for both her sex and

race. She applied for the Associate Dean position and was qualified for the same; she was

rejected for the position despite those qualifications; and the position was filled by a Black

male―i.e., someone outside of Dr. Denham’s protected groups. Thus, Dr. Denham has

established prima facie cases of race and sex discrimination.

2. ASU has proffered a legitimate, non-discriminatory reason for its

employment decision.

ASU contends that it hired Dr. Treadwell instead of Dr. Denham because Dr.

Treadwell interviewed better than Dr. Denham and because he possessed the clinical

experience ASU sought for the position. Mot. (Doc. 21) p. 8; Reply (Doc. 25) p. 1. These

are legitimate, non-discriminatory reasons for hiring Dr. Treadwell as Associate Dean.3

Therefore, ASU has met its burden to produce evidence that its employment decision was

not discriminatory.

3. Dr. Denham has not shown that ASU’s legitimate, non-

discriminatory reasons for its employment decision are pretext for

race or sex discrimination.

Dr. Denham argues that she can show that ASU’s proffered reasons for hiring Dr.

Treadwell are a pretext for discrimination because (1) she was clearly more qualified for

3 See Fraser v. J.C. Penney, Corp., 733 F. App’x 969, 977 (11th Cir. 2018) (holding that interview

performance is a legitimate, non-discriminatory reason upon which to base an employment decision).

the position than Dr. Treadwell, whom she claims did not meet the minimum requirements

of the job posting, and (2) Dr. Pettis’s subjective reasons for choosing Dr. Treadwell over

her―his stronger interview performance and his clinical work―are unsupported and could

reasonably be disbelieved. Resp. (Doc. 24) pp. 18-20. The Court examines each argument

in turn.

a. Whether Dr. Denham was more qualified than Dr. Treadwell

for the Associate Dean position.

Dr. Denham argues that she can show that ASU’s proffered reasons for hiring Dr.

Treadwell are pretext for discrimination because she is clearly more qualified than Dr.

Treadwell for the Associate Dean position. Resp. (Doc. 24) pp. 18-19. In support of this

argument, Dr. Denham claims that Dr. Treadwell, who had only one year of teaching

experience, did not meet the minimum teaching requirements to qualify for the position

per the job posting. Id.

In the context of a promotion, “a plaintiff cannot prove pretext by simply arguing

or even by showing that [she] was better qualified than the [person] who received the

position [she] coveted.” Alexander v. Fulton Cnty., 207 F.3d 1303, 1339 (11th Cir. 2000)

(citing Combs, 106 F.3d. at 1543). Instead, a plaintiff must show that the disparities

between the successful applicant’s and her own qualifications were “of such weight and

significance that no reasonable person, in the exercise of impartial judgment, could have

chosen the candidate selected over the plaintiff.” Cooper, 390 F.3d at 732 (citation

omitted); see also Ash v. Tyson Foods, Inc., 546 U.S. 453 (2006) (approving of this

language from Cooper). In other words, a plaintiff must show that the disparities in

qualifications “jump off the page and slap [you] in the face.” Lee v. GTE Fla., Inc., 226

F.3d 1249, 1254 (11th Cir. 2000). Evidence that a successful candidate does not meet the

minimum requirements of a job posting can raise an inference―but is not

determinative―of unlawful discrimination. Bass v. Bd. of Cnty. Comm’rs, 256 F.3d 1095,

1108 (11th Cir. 2001) (“[T]he fact that [the employer] promoted . . . an employee who was

unqualified by [the employer’s] own criteria over [an employee who was so qualified]

supports an inference of discrimination.”).4

Here, the Associate Dean job posting required a qualified candidate to possess

“[e]xperience and credentials to qualify for the rank of associate professor . . . in one of the

College’s academic departments[.]” Assoc. Dean Posting (Doc. 22-10). As previously

explained, under ASU’s Faculty Handbook, a faculty member qualifies for the rank of

associate professor by having, inter alia, five years of teaching experience at an accredited

college or university with at least three of those years at the rank of assistant professor.

Handbook (Doc. 22-17) pp. 3-4. It is undisputed that Dr. Treadwell, who had one year of

teaching experience as an assistant professor, did not qualify as an associate professor

under this provision of the Handbook.

4 See also Alexander, 207 F.3d at 1340 (observing “that evidence showing an employer hired a less qualified

applicant over the plaintiff may be probative of whether the employer’s proffered reason for not promoting

plaintiff was pretextual”); Vessels v. Atlanta Independent Sch. Sys., 408 F.3d 763, 771 (11th Cir. 2005)

(“Though not determinative, [the employer’s] choice of the [selected candidate] over [the unselected

candidate] when [the employer’s] own regulations appear to favor someone of [the unselected candidate’s]

qualifications contributes to [the] showing of pretext.”); Walker v. Mortham, 158 F.3d 1177, 1190 (11th

Cir. 1998) (“The fact that a court may think that the employer misjudged the qualifications of the applicants

does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s

reasons are pretexts for discrimination.”).

Importantly, however, ASU’s policies permitted Dr. Treadwell to qualify for the

rank of associate professor under certain exceptions. One exception allows for a new

faculty member “who serves in a combination of teaching and administrative roles” to be

assigned the rank of associate professor. Id. at 3-5. Another exception allows for the

assignment of rank based on extraordinary and distinguished national service in the

teaching field. Id. Dr. Pettis testified that he knew Dr. Treadwell did not have five years of

teaching experience, but he nonetheless considered him qualified for the Associate Dean

position because he believed those exceptions applied. Pettis Depo. (Doc. 22-12) pp. 95-

97; Pettis Affid. (Doc. 22-9).

The facts of this case are similar to those considered by the United States District

Court for the Middle District of Georgia in Jolivette v. City of Americus, Georgia. In that

case, Roderick Jolivette (“Jolivette”), a Black male, applied for the position of fire chief

for the City of Americus (the “City”). Jolivette, 2018 WL 6579160, at *1 (M.D. Ga. Dec.

13, 2018). The fire chief job posting required a bachelor’s degree in fire science, public

administration, or a closely related field. Id. The candidate selected for the position, Roger

Bivins (“Bivins”), a White male, did not hold such a degree, while Jolivette did. Id.

Despite the disparity in their qualifications, the court found that Jolivette had not

shown that the City’s legitimate nondiscriminatory reasons for hiring Bivins were pretext.

In reaching this conclusion, the court noted that Bivins’s lack of education was “certainly

[a] factor to consider in the pretext calculus,” but did not outweigh other factors―including

Bivins’s experience, qualifications, intimate knowledge of the department and its

personnel, enthusiasm for the job, high interview scores, and future plans for the

department―that the City valued in making its employment decision. Id. Thus, the court

declined to act “as a super-personnel department,” id., and the Eleventh Circuit upheld the

court’s decision, Jolivette v. City of Americus, Ga., 786 F. App’x 234, 236 (11th Cir.

2019).5

Like Jolivette, Dr. Denham attempts to show that she was more qualified than Dr.

Treadwell because he did not meet the job posting’s minimum requirements for the

Associate Dean position. But while Dr. Treadwell did not qualify for the position per his

teaching experience, ASU’s written policies permitted alternative routes to rank Dr.

Treadwell as an associate professor. Dr. Denham has produced no evidence to dispute that

Dr. Pettis relied on these exceptions to qualify Dr. Treadwell for the position. And more

importantly, she has provided no evidence that Dr. Pettis’s decision to rely on the

exceptions to qualify Dr. Treadwell was motivated by sex or race. Instead, Dr. Denham

merely quarrels with the wisdom of Dr. Pettis’s determination that Dr. Treadwell qualified

for the position under an exception to the teaching requirement. This is insufficient to

establish pretext. See Mahone v. BBG Specialty Foods, 2018 WL 1526336, at *6 (M.D.

Ala. Mar. 28, 2018) (“A quarrel with the wisdom of an employer’s decision is not sufficient

to show pretext; rather the plaintiff must submit evidence of discrimination.”).6 Without

5 In affirming the district court’s decision, the Eleventh Circuit noted that “[a]lthough Jolivette possessed a

bachelor’s degree, as required in the job posting, the City [of Americus’s] policies weighed equally

candidates who possessed an ‘equivalent combination of education, training, and experience.’” Jolivette,

786 F. App’x at 236.

6 See also Conner v. Lafarge N. Am., Inc., 343 F. App’x 537, 541-42 (11th Cir. 2009) (finding that the

plaintiff failed to show pretext where the promoted candidate did not meet the job posting’s listed

qualifications but where the employer, following its company policy, chose to treat internal candidate status

more, the Court will not say that the disparities between Dr. Treadwell’s and Dr. Denham’s

qualifications jump off the page and slap you in the face. Thus, the Court will not disrupt

ASU’s hiring decision because it relied on an exception to find Dr. Treadwell qualified for

the Associate Dean position. See Jolivette, 786 F. App’x at 236 (declining to disrupt the

City’s employment decision despite the fact that Bivins had less experience and did not

meet the job posting requirements).

b. Whether Dr. Pettis’s subjective reasons for choosing Dr.

Treadwell show pretext.

Additionally, Dr. Denham argues that she has shown pretext because Dr. Pettis’s

subjective reasons for choosing Dr. Treadwell―his stronger interview performance and

his extraordinary clinical work―are unsupported and could reasonably be disbelieved. The

Eleventh Circuit instructs that, “[a]bsent evidence that subjective hiring criteria were used

as a mask for discrimination, the fact that an employer based a . . . promotion decision on

purely subjective criteria will rarely, if ever, prove pretext[.]” Denney v. City of Albany,

247 F.3d 1172, 1185 (11th Cir. 2001). “A subjective reason is a legally sufficient,

legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably

specific factual basis upon which it based its subjective opinion.” Id. at 1186. When

supported by a clear and reasonably specific factual basis, subjective reasons must be

directly refuted to show pretext. Chapman v. AI Transp., 229 F.3d 1012, 1033-34, 1036

as equivalent to the qualifications listed in the job posting); Edmonson v. Thompson, 2021 WL 4326993, at

*5 (N.D. Ala. Sept. 23, 2021) (“Assuming arguendo that [the employer] mistakenly found that [the

successful candidate met the minimum qualifications of the job posting], showing that an employment

decision was a mistake is alone insufficient” to show pretext.).

(11th Cir. 2000). That is, a plaintiff must “show not just that [the employer’s] proffered

reasons for [failing to promote her] were ill founded but that unlawful discrimination was

the true reason.” Alvarez v. Royal Atl. Devs., Inc., 610 F.3d 1253, 1267 (11th Cir. 2010)

(citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000)).

Dr. Pettis testified that Dr. Treadwell’s interview was superior to Dr. Denham’s

because Dr. Treadwell “brought a lot of energy” to the interview. (Doc. 22-12) p. 44, 60-

61. When questioned as to what this meant, Dr. Pettis stated that Dr. Treadwell spoke with

“passion,” particularly with respect to the role he could play as Associate Dean. Id. at 61-

62. On the other hand, Dr. Pettis testified that Dr. Denham did not make the same

impression during her interview. Id. at 45. Specifically, Dr. Pettis noted that, when

questioned why she was applying for the Associate Dean position, Dr. Denham responded:

“why not apply?” Id.

Dr. Pettis’s testimony provides a reasonably specific factual basis upon which he

concluded that Dr. Treadwell outperformed Dr. Denham in the interview.7 Dr. Denham has

not produced any evidence directly refuting Dr. Pettis’s conclusion that Dr. Treadwell

communicated a sense of energy and passion during his interview. As such, Dr. Denham

has failed to show that Dr. Pettis’s subjective opinion that Dr. Treadwell performed better

in the interview is pretext.

7 See Springer, 509 F.3d at 1349-50 (finding that there was a sufficiently specific factual basis for the

defendant’s opinion that the plaintiff was the more qualified candidate for the promotion based on the

decision-maker’s testimony describing her first-hand experience with the candidates); but see Dove v.

Flagler Cnty. Sch. Bd., 2022 WL 16923562, at *5 (M.D. Fla. Nov. 14, 2022) (finding that the employer did

not provide a clear and reasonably specific basis that the plaintiff was less qualified compared to other

candidates by simply stating that the plaintiff “was not the best qualified candidate”).

Dr. Denham similarly fails to show that Dr. Pettis’s subjective opinion that Dr.

Treadwell’s clinical experience was more desirable than Dr. Denham’s is pretext. Dr.

Treadwell had approximately fifteen years of clinical experience when he was hired by

ASU. Treadwell Resume (Doc. 23-3) pp. 1-2. Dr. Denham, on the other hand, had twenty-

nine years of experience. Denham CV (Doc. 23-2) pp. 1-4. Even though Dr. Denham had

almost twice as much clinical experience as Dr. Treadwell, Dr. Pettis testified that Dr.

Treadwell possessed the type of experience that he believed would be valuable to the

COHS students participating in their required clinical experiences. Pettis Depo. (Doc. 22-

12) pp. 48-54.

Dr. Denham has not argued that Dr. Treadwell does not possess valuable clinical

experience; that his experience is subpar to hers; or that she brings the same type of

experience to the table that Dr. Pettis found valuable in Dr. Treadwell. Instead, Dr. Denham

merely contends that the disparity between the years of clinical experience she and Dr.

Treadwell possess shows pretext. Resp. (Doc. 24) p. 20. But the length and amount of Dr.

Denham’s clinical experience does not make her experience more valuable than Dr.

Treadwell’s. See Edmonson, 2021 WL 4326993, at *5 (finding unpersuasive the plaintiff’s

argument that she was generally more qualified than the selected candidate because she

had “twice as much relevant technical experience”). Without more, Dr. Denham has not

shown that Dr. Pettis’s subjective opinion that Dr. Treadwell’s experience made him better

suited for the Associate Dean position is pretext for discrimination.

c. Conclusion

Dr. Denham has failed to create a genuine issue of material fact with respect to

whether ASU’s legitimate non-discriminatory reasons for its decision to hire Dr. Treadwell

as Associate Dean were pretext for either race or sex discrimination. Despite Dr. Denham’s

attempt to frame it as such, this is not a case where an unqualified applicant was chosen

over a qualified applicant. True, Dr. Denham possessed the teaching experience required

to rank as an associate professor and Dr. Treadwell did not. However, ASU’s policies

explicitly provided exceptions for affording a new hire―like Dr. Treadwell―the status of

associate professor. Dr. Denham has not shown that Dr. Pettis’s reliance on these

exceptions was false, unfounded, or otherwise pretextual.

Neither has Dr. Denham produced sufficient evidence to show that Dr. Pettis’s

subjective reasons for hiring Dr. Treadwell could not reasonably be believed. Indeed, Dr.

Denham has not produced evidence that Dr. Treadwell did not convey energy and passion

during his interview. Similarly, she has not produced evidence that Dr. Treadwell’s clinical

experience was not particularly desirable to Dr. Pettis for the Associate Dean position.

Without any other evidence that Dr. Pettis’s decision was based on race or sex, Dr.

Denham has not shown that ASU’s proffered reasons for hiring Dr. Treadwell are pretext

for discrimination. Therefore, ASU is entitled to summary judgment on Dr. Denham’s sex

and race discrimination claims.

B. Convincing Mosaic

Establishing the elements of the McDonnell Douglas framework “is not, and never

was intended to be, the sine qua non for a plaintiff to survive a summary judgment motion

in an employment discrimination case.” Smith, 644 F.3d at 1328. Rather, a plaintiff will

survive summary judgment if she presents circumstantial evidence that creates a triable

issue concerning the employer’s discriminatory intent. Id. 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. A “convincing mosaic” may be shown by evidence that

demonstrates, among other things, (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).

Dr. Denham argues that her discrimination claims should survive summary

judgment under the convincing mosaic standard. In support of her argument, she once again

contends that she was better qualified than Dr. Treadwell and that Dr. Pettis’s articulated

reasons for choosing Dr. Treadwell were unfounded and could reasonably be disbelieved.

Resp. (Doc. 24) pp. 20-22. But as explained in the previous section, these arguments do

not establish pretext. Further, Dr. Denham has not produced evidence of suspicious timing,

ambiguous statements, or other evidence from which an inference of discriminatory intent

might be drawn. Nor has she produced evidence that ASU systematically treats Black

people better than White people, or men better than women. As such, when examined under

the convincing mosaic standard, the Court finds that Dr. Denham has failed to create a

triable issue of fact as to her discrimination claims.

C. Mixed-Motive Theory

Discrimination claims brought under Title VII are typically categorized as either

mixed-motive or single-motive claims. Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227,

1235 (11th Cir. 2016). A mixed-motive claim is based on adverse action taken against an

employee that was motivated by both a legal and an illegal reason. Id. at 1235. An

employee can succeed on a mixed-motive claim by showing―via direct or circumstantial

evidence―that illegal bias, such as bias based on race or sex, “was a motivating factor for”

an adverse employment action, “even though other factors also motivated” the action. 42

U.S.C. § 2000e–2(m). Notably, under a mixed-motive theory, a plaintiff is not required to

show pretext. Quigg, 814 F.3d at 1235.

To show that ASU’s hiring of Dr. Treadwell was motivated by an illegal reason, Dr.

Denham again relies on the disparity in qualifications between her and Dr. Treadwell as

well as Dr. Pettis’s subjective analysis of the candidates’ interviews. Resp. (Doc. 24) pp.

23-24. She puts forth no additional evidence that race or sex was a motivating factor for

Dr. Pettis’s decision to hire Dr. Treadwell. As such, for the reasons discussed previously,

the Court finds that Dr. Denham has not created a triable issue of fact as to her

discrimination claims under a mixed-motive theory of discrimination.

V. CONCLUSION

The Court finds that Dr. Denham has failed to put forth sufficient evidence to show

that she was not selected as Associate Dean because of her race or sex. Therefore, it is

ORDERED that ASU’s Motion for Summary Judgment (Doc. 20) is GRANTED

and that Dr. Denham’s claims are DISMISSED in their entirety WITH PREJUDICE.

A separate judgment shall issue.

DONE this 28th day of June, 2023.

Stephen M. Doyle

CHIEF U.S. MAGISTRATE JUDGE