Shine v. University of Alabama - Birmingham

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

MICHAEL SHINE, TONY )

ELLIS, and LEWIS THOMAS, )

)

Plaintiffs, )

)

v. )

) Case No. 2:18-CV-2093-CLM

THE BOARD OF TRUSTEES )

OF THE UNIVERSITY OF )

ALABAMA, )

)

Defendant. )

MEMORANDUM OPINION

Michael Shine sued his former employer, The Board of Trustees of the

University of Alabama (“UAB”), alleging race discrimination and retaliation under

Title VII, 42 U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. UAB moved for

summary judgment (doc. 63) and to strike Shine’s expert designation and report

(doc. 76). For the reasons below, the Court GRANTS the motion for summary

judgment and DENIES AS MOOT the motion to strike.

FACTUAL AND PROCEDURAL BACKGROUND

The Court draws the facts from the summary-judgment record. At this stage,

“[a]ll evidence and factual inferences are viewed in the light most favorable to the

non-moving party, and all reasonable doubts about the facts are resolved in favor of

the non-moving party.” Hardigree v. Lofton, 992 F.3d 1216, 1223 (11th Cir. 2021).

I. Factual Background1

Michael Shine is an African-American man with a bachelor’s degree in

marketing and a master’s degree in business administration. (Docs. 66-1 at 15–16).2

UAB hired Shine in January 2017 as the Manager of IT Business Services, a newly

created position. (Docs. 68 at 4 ¶ 4, 72 at 3 ¶ 4). In that role, Shine oversaw the day-

to-day operation and administration of customer-support functions for the IT

Department. (Docs. 68 at 4 ¶ 7, 72 at 4 ¶ 7). And his chief task was to manage the

processes for renewing existing IT contracts and requesting new IT contracts for

UAB’s departments and entities. (Docs. 68 at 4 ¶ 7–8, 72 at 4 ¶ 7–8). Those

contracts—for example, the Microsoft contract that allowed everyone on campus to

1 For many facts, Shine contends that the Court should disregard UAB’s employees’ testimonies because

they are “interested witnesses.” (See, e.g., Doc. 72 at 1–2 ¶ 1). But repeating this contention (eight times) does not

dispute the facts asserted by UAB’s witnesses. And the Court will not ignore their uncontroverted testimonies at the

summary-judgment stage. See, e.g., Woods v. Delta Air Lines Inc., 595 F. App’x 874, 879 (11th Cir. 2014) (“[U]nder

Rule 56, a party may support a motion for summary judgment with, among other things, affidavits or declarations,

and there is no requirement that these sworn statements be from disinterested witnesses. Once the moving party does

so, the nonmoving party bears the burden to produce evidence to dispute the facts averred in the sworn statement.”

(citations omitted)).

2 In his April 2021 deposition, Shine testified that he was (and presumably still is) pursuing a doctorate of

business administration. (Doc. 66-1 at 16).

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use Microsoft applications—“were an integral part of supporting UAB.” (Docs. 68

at 5 ¶ 9, 72 at 4 ¶ 9).

1. Shine’s Performance: No one complained about Shine’s performance in his

first year (2017). (Docs. 68 at 5 ¶ 10, 72 at 4 ¶ 10). In 2018, an African-American

woman named Laquita Graham became the IT Department’s Director of Finance

and Shine’s direct supervisor. (Docs. 66-1 at 72, 68 at 5 ¶ 11, 72 at 4 ¶ 11). Soon

after, Graham heard complaints from customers (departments and entities at UAB)

about Shine’s “untimely routing and review of contracts.” (Docs. 66-11 at 3 ¶ 4, 68

at 5 ¶ 12).3 Graham says she found that Shine “was not ensuring vendor contract

were timely renewed, was not properly monitoring the routing of contracts, and was

not ensuring proper processes were in place for contract review and renewal.” (Doc.

66-11 at 3 ¶ 4). So, on May 15, 2018, Graham issued Shine a verbal warning—

which, at Shine’s request, she put into writing—and placed him on a 60-day Personal

Improvement Plan (PIP). (Docs. 66-1 at 71, 66-2 at 35–36 (warning), 66-2 at 45–46

3 Shine tried to dispute the existence and veracity of the complaints (doc. 72 at 4–5 ¶¶ 12–14), calling them

“phantom” complaints. (Docs. 66-1 at 72, 72 at 18). In his summary-judgment brief, he cited an email that he sent to

Graham (after they had a meeting), in which he acknowledged the complaints’ existence and asked Graham for the

complainants’ identities. (Doc. 66-2 at 32–33). But the email does not suggest that UAB fabricated the complaints.

Shine also cited his own deposition testimony that the complaints were “phantom or made-up information.” (Doc. 66-

1 at 72). But “[c]onclusory allegations and speculation are insufficient to create a genuine issue of material fact.”

Glasscox v. City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018). Moreover, later in his deposition, Shine acknowledged

that other UAB employees lodged “[c]omplaints about the process of everything, how the flow of the contracts go,”

and that “[t]hey didn’t like the flow of contracts because they were taking too long.” (Doc. 66-1 at 102). So the Court

finds that Shine has not genuinely disputed UAB’s factual assertion that Graham learned about authentic complaints

about Shine’s performance.

3

(PIP), 68 at 6 ¶ 16, 72 at 5 ¶ 16). The warning charged Shine with “failure to provide

guidance on agreement options” and “[f]ailure to identify expired or expiring

agreements and ensure timely renewals resulting in the risk of losing software.”

(Doc. 66-2 at 35).

Once the PIP period drew to a close in July 2018, Graham met with Shine

again and gave him a memo detailing UAB’s expectations for Shine going forward.

(Doc. 66-2 at 49–50). The memo explained that Shine completed the PIP but “only

with prompting for meetings and participation from [Graham] and [the] HR

representative.” (Id. at 49). The memo then set out expectations and warned that

Shine’s failure to meet those expectations could lead to more discipline. (Id. at 50).

According to UAB, Shine’s performance problems continued. (Doc. 68 at 8 ¶

24). In September, Graham prepared a written warning that explained her

dissatisfaction with Shine’s untimeliness. (Doc. 66-14 at 16–17). The warning

referenced more customer complaints about Shine’s failure to respond timely to

requests. (Id. at 16). And it discussed Shine’s failure to execute his responsibilities

for an agreement with Gartner, Inc. (Id.).

On October 1, before Graham issued the written warning, the high-priority

“Microsoft Premier” contract for 2018 lapsed. (Docs. 66-1 at 137–38, 68 at 8 ¶ 26).

This lapse impacted Microsoft software licensing across the entire university. (Docs.

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66-1 at 64, 68 at 8 ¶ 26).

UAB blamed the lapse on Shine’s failure to ensure timely renewal. (Doc. 66-

11 at 4 ¶ 6, 68 at 8 ¶ 26). Shine countered that he never received the contract because

of a technical problem with his email. (Docs. 66-2 at 64, 68 at 9–10 ¶ 32, 72 at 8 ¶

28). And he testified that a UAB employee confirmed that he didn’t receive the

contract and that UAB did nothing to investigate. (Docs. 66-1 at 125, 66-1 at 157,

72 at 8 ¶ 28). But UAB says that it “undertook a thorough investigation” and found

that “no such [technical] failure occurred.” (Doc. 66-13 at 5–6, 68 at 10 ¶ 33).

After that, UAB suspended Shine (docs. 66-1 at 144, 68 at 9 ¶ 30) and asked

him to provide a written account of the 2018 Microsoft Premier and Gartner Inc.

contract issues. (Doc. 66-1 at 157, 66-2 at 167). In his account, Shine blamed the

Microsoft lapse on the error with his email. (Doc. 66-2 at 64). And he said that he

was not to blame for any problems with the Gartner contract. (Id. at 65).

UAB fired Shine in November 2018. (Doc. 66-2 at 67–68). In a termination

letter, UAB detailed its dissatisfaction with Shine’s performance related to the

Microsoft and Gartner agreements. (Id. at 67). And the letter charged Shine with

inexcusable neglect, negligence, and unsatisfactory job performance. (Id. at 68).

2. Shine’s allegations against UAB: Shine says that UAB fired him for a

different reason: He complained about “racial disparities in promotions and pay” to

5

Dr. Curtis Carver, the head of the IT Department. (Doc. 72 at 8 ¶ 30, id. at 17). Shine

testified that, during a “meeting with everyone in the department” in May 2018, he

raised concerns that some IT employees make more money than others because they

have an “ENT” designation in their job title. (Doc. 66-1 at 67–69).4 But no record

evidence suggests that Shine raised any racial issue during that meeting. And

Kendra Thompson testified: “I recall being in a meeting with Mr. Shine and [Dr.]

Carver and the rest of the business operations team, and I recall Mr. Shine raising

questions and concerns regarding ENT titles. I do not recall race or race-based

anything being mentioned in that meeting to Dr. Carver.” (Doc. 66-9 at 148).

Shine also contends that several superiors—Robert Howard, Scott Sorenson,

and Kathy Litzinger—discriminated against him. (Docs. 68 at 10 ¶ 37, 72 at 10 ¶

37). He says that Howard offended him by calling him a “diva,” which Shine

interpreted as a remark about his sexuality. (Docs. 68 at 11 ¶ 38, 72 at 11 ¶ 38). He

says Sorenson offended him by commenting that another African-American

4 Kathy Litzinger, the Executive Director of IT Business Operations, testified that the ENT designation

(meaning “enterprise”) refers to employees who provide IT support services to faculty, staff, and students across the

entire campus. (Doc. 66-7 at 76–77). She also said that the ENT positions include a technical skillset that sometimes

correlates to higher pay ranges. (Id. at 77–78). By contrast, she explained, IT employees who support only a specific

unit or school do not have an ENT designation. (Id.). And employees like Shine who work “[i]n business operations”

and serve “customers without a technical component” do not have such designations. (Id. at 78).

Kendra Thompson, a “Personnel Generalist,” testified similarly. She said that the “enterprise titles are

technical positions and they were created to differentiate our technical roles in UAB IT from distributed IT roles, or

things that people do specifically within IT that are not done across the campus.” (Doc. 66-9 at 149). The ENT

designations “differentiate what’s in IT from across the university because they are specifically potentially supporting

larger systems or more customers in supporting the University as a whole.” (Id. at 150).

Shine testified that he doesn’t know what differentiates ENT and non-ENT employees. (Doc. 66-1 at 73).

6

employee was not experiencing the same work-related problems with another

employee that Shine was experiencing. (Doc. 68 at 11 ¶ 39, 72 at 11 ¶ 39). And he

says Litzinger: (1) was a catalyst for his discrimination; (2) was the decision-maker

behind his discipline and termination; and (3) made a discriminatory (or at least

unfair) remark to Shine that he caused a “mess” by complaining about the ENT

designations. (Docs. 66-1 at 166, 68 at 11 ¶ 40, 72 at 11 ¶ 40).

Lastly, Shine contends that UAB lacks a “viable pay and promotion system”

for African-Americans. (Docs. 66-1 at 7, 68 at 11 ¶ 42, 72 at 11 ¶ 42). And he says

that UAB discriminated against him in pay and promotions by treating less-educated

white employees more favorably than him. (Docs. 68 at 12 ¶ 44, 72 at 11 ¶ 44).

II. Procedural Background

Shine filed to discrimination charges with the Equal Employment Opportunity

Commission. He filed his first charge in May 2018, after the verbal warning, for race

discrimination in pay and promotions. (Doc. 1-1). And the EEOC sent Shine a notice

of suit rights in September 2018. (Id.). Shine then filed a second charge in November

2018, after his termination, claiming race discrimination and retaliation. (Doc. 66-2

at 71). The record contains no evidence of a second notice from the EEOC.

Shine sued UAB and Kathy Litzinger in December 2018. (Doc. 1). He

amended his complaint three times—to correct pleading deficiencies, to add co-

7

plaintiffs, and to add class allegations. (Docs. 11, 18-1, 32). The third amended

complaint raises three claims. First, a Title VII disparate-treatment claim against

UAB for race discrimination “with regards to promotions, pay[,] and other terms and

conditions of employment.” (Doc. 32 at 20). Second, a claim for race discrimination

and retaliation under the Equal Protection Clause and 42 U.S.C. § 1983. (Id. at 21).

And third, a Title VII disparate-impact claim against UAB. (Id. at 23). Shine also

appears to raise identical claims against UAB under 42 U.S.C. § 1981. (Id. at 2).5

The Court has dismissed all claims against Litzinger. (Docs. 47, 62). So all that

remains are the claims against UAB.

UAB filed a motion for summary judgment on Shine’s claims. (Docs. 63, 68,

79). Shine opposes summary judgment. (Doc. 72). To support his opposition, Shine

produced an expert report with statistical evidence about pay and promotion in

UAB’s IT Department between 2014 and 2020. (Doc. 72-1). And UAB has moved

to strike the expert report. (Doc. 76).

5 Section 1981 does not provide for suits against state actors. Bryant v. Jones, 575 F.3d 1281, 1287 n.1

(11th Cir. 2009). The Court therefore dismisses Shine’s Section 1981 claims against UAB for lack of jurisdiction.

8

STANDARD OF REVIEW

The Court may grant summary judgment only “if the movant shows that there

is no genuine dispute as to any material fact and the movant is entitled to judgment

as a matter of law.” FED. R. CIV. P. 56(a). A dispute is genuine “if the evidence is

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

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). And a fact is material if

its resolution “might affect the outcome of the suit.” Id. To survive a “properly

supported motion for summary judgment, [the nonmovant] must come forward with

specific factual evidence, presenting more than mere allegations.” Gargiulo v. G.M.

Sales, Inc., 131 F.3d 995, 999 (11th Cir. 1997). “Conclusory allegations and

speculation are insufficient to create a genuine issue of material fact.” Glasscox, 903

F.3d at 1213.

DISCUSSION

The Court divides its discussion into three main parts: (1) disparate treatment,

(2) retaliation, and (3) disparate impact. For the reasons below, the Court grants

UAB’s motion for summary judgment on all counts. (Doc. 63).

I. Disparate Treatment

In his third amended complaint, Shine alleged that UAB discriminated against

him “with regards to promotions, pay[,] and other terms and conditions of

9

employment because of [his] race.” (Doc. 32 at 20 ¶ 65). In his summary-judgment

briefing, Shine clarified and narrowed the scope of his disparate-impact claim: UAB

discriminated against him in pay based on his race. (Doc. 72 at 16–17).6

For any Title VII disparate-impact claim, the plaintiff “has the burden of

persuading the trier of fact that the defendant has committed intentional

discrimination.” Lincoln v. Bd. of Regents of Univ. Sys. of Ga., 697 F.2d 928, 936

(11th Cir. 1983). The plaintiff “can do so in a variety of ways, one of which is by

navigating the now-familiar three-part burden-shifting framework established by the

Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).” Lewis

v. City of Union City, 918 F.3d 1213, 1217 (11th Cir. 2019) (en banc). Other ways

to satisfy this burden are to “present direct evidence of discriminatory intent, or

demonstrate a ‘convincing mosaic’ of circumstantial evidence that warrants an

inference of intentional discrimination.” Id. at 1220 n.6 (citations omitted).

In his summary-judgment opposition, Shine tries to skirt the McDonnell-

Douglas framework. He contends, correctly, that McDonnell-Douglas “is not the

only way to prove discrimination.” (Doc. 79 at 15). From there, he says that

6 Shine has abandoned any other theories of disparate-impact liability by failing to address them in his

summary-judgment opposition. See Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir. 1995) (en

banc) (“[G]rounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned.”);

Bulluck v. Newtek Small Bus. Fin., Inc., 808 F. App’x 698, 702 (11th Cir. 2020) (explaining that plaintiffs abandon

claims “by failing to raise those arguments in response to [d]efendants’ motions for summary judgment”).

10

“significant evidence” supports a finding “that UAB discriminates in how it

compensates it[s] African-American employees.” (Id. at 16). And then, with no

record citations, Shine says that the supportive evidence includes:

(1) Shine who possesses multiple degrees related to his job earns about

$84,000 per year while whites with high school diplomas earn $184,000

[Christopher Cummings] and $110,000 [Jeff Herrington];

(2) [T]he white person that occupied Shine’s position before he was

hired made $120,000 annually.

(3) Shine raised the pay disparity issue with the head of the department

and immediately began to suffer reprisals from Kathy Litzinger and

Laquita Graham;

(4) UAB has nebulous criteria for the receipt of pay raises;

(5) [U]pper management in UAB’s IT-Department is bereft of racial

diversity;

(6) [S]tatistical evidence shows that African-Americans in UAB’s IT-

Department receive on average 37% less in annual compensation; and

(7) [S]tatistical evidence shows that African-Americans were less likely

to receive promotions.

(Id. at 16–17 (footnote omitted)). As detailed below, this circumstantial evidence

does not satisfy the McDonnell-Douglas framework or the convincing-mosaic

framework.

11

A. The McDonnell-Douglas framework for pay discrimination

McDonnell Douglas is a three-step, burden shifting framework. In Step 1,

Shine must establish that: “(1) he belongs to a racial minority; (2) he received low

wages; (3) similarly situated comparators outside the protected class received higher

compensation; and (4) he was qualified to receive the higher wage.” Hill v. Emory

Univ., 346 F. App’x 390, 395 (11th Cir. 2009); see also Smith v. Thomasville, 753

F. App’x 675, 697 (11th Cir. 2018) (“[A] plaintiff must show that he was paid less

than a similarly situated member of a different race and that he was qualified to

receive the higher wage.”). If Shine meets that burden then, in Step 2, UAB must

present “a legitimate and non-discriminatory reason for the employment action.”

Edmondson v. Bd. of Trustees of Univ. of Ala., 258 F. App’x 250, 252–53 (11th Cir.

2007). If UAB meets its burden, then the burden then shifts back to Shine to show

that UAB’s proffered reason(s) are merely pretext for discrimination. Id. at 253.

The en banc Eleventh Circuit recently clarified that, in Step 1, the plaintiff

and any comparator must be “similarly situated in all material respects.” Lewis, 918

F.3d at 1231. That means establishing that the plaintiff and comparator are

“sufficiently similar, in an objective sense, that they ‘cannot reasonably be

distinguished.’” Id. at 1228 (quoting Young v. United Parcel Serv., Inc., 135 S. Ct.

1338, 1355 (2015)). And, under Lewis, a comparator generally will: (1) “have

12

engaged in the same basic conduct (or misconduct) as the plaintiff”; (2) “have been

subject to the same employment policy, guideline, or rule as the plaintiff”; (3) “have

been under the jurisdiction of the same supervisor as the plaintiff”; and (4) “share

the plaintiff’s employment or disciplinary history.” Id. at 1227–28. In the context of

a pay-discrimination claim, the plaintiff and comparator should have similar enough

job responsibilities, qualifications, and necessary skillsets to warrant equal

compensation.

Shine’s prima facie (Step 1) case fails the comparator element because Shine

cannot show that “similarly situated comparators outside the protected class received

higher compensation.” Hill, 346 F. App’x at 395. Shine identifies three potential

comparators in his brief opposing summary judgment: (1) Christopher Cummings,

(2) Jeff Herrington, and (3) “the white person that occupied Shine’s position before

he was hired.” (Doc. 72 at 16). But Shine fails to show that any of these three people

are proper comparators.

First, Christopher Cummings is currently the interim “Executive Director of

Network Infrastructure in UAB’s IT department.” (Doc. 66-12 at 1 ¶ 2).7 Shine

conceded that Cummings never worked in the “finance area” of the IT Department,

as Shine did. (Doc. 66-1 at 45). And Shine made no effort to explain how Cummings’

7 His name is actually Christian Cummings. (Doc. 66-12).

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job duties, responsibilities, and skillsets were sufficiently similar to warrant equal

compensation. See Hill, 356 F. App’x at 395 (holding that, under the pre-Lewis

standard, that would-be comparators were not similarly situated because their “jobs

involved different responsibilities than [the plaintiff’s] job”). In fact, Shine does not

even identify what specific positions Cummings has held in the IT Department.

Shine’s generalized argument that he and Cummings were similarly situated because

both worked in the IT Department and Shine was more educated than Cummings

does not establish “that they ‘cannot reasonably be distinguished.’” Lewis, 918 F.3d

at 1228. And because Shine made no effort to explain the similarities between

Cummings’ job and Shine’s former job (if any exist), Shine cannot show that they

were “similarly situated in all material respects.” See id. at 1231.

Second, Jeff Herrington “works as the Manager of the Help Desk in the Ask

IT department where he manages the day-to-day operations of the service desk

where customers seek assistance from IT.” (Doc. 66-14 at 4 ¶ 8). As far as the Court

can tell, Herrington appears to have held that position since his hiring in 2017. (Docs.

66-10 at 69, 66-14 at 4 ¶ 8). Again, Shine conceded that Herrington never worked in

the “finance area” of the IT Department. (Doc. 66-1 at 45). And, again, Shine made

no effort to explain how Herrington’s job and Shine’s job were sufficiently similar

to warrant equal compensation. See Hill, 346 F. App’x at 395. Shine’s argument that

14

they were similarly situated because both worked in the IT Department and Shine

was more educated does not establish “that they ‘cannot reasonably be

distinguished.’” Lewis, 918 F.3d at 1228. So, once again, Shine’s failure to explain

the similarities between Herrington’s job and his former job precludes a summary-

judgment demonstration that they were “similarly situated in all material respects.”

See id. at 1231.

And third, Shine relies on “the white person that occupied Shine’s position

before he was hired [who] made $120,000 annually.” (Doc. 72 at 16). But Shine’s

effort to rely on this person suffers from the opposite problem as Cummings and

Herrington. Even if the Court assumes that Shine and this person had identical job

responsibilities, and that Shine replaced this person (which UAB disputes), the Court

still lacks enough information to consider the person a proper comparator. Shine

offered nothing about the person’s background, experience, tenure at UAB, and

other qualifications. Without that information, the Court cannot say that Shine made

a summary-judgment showing that this person and Shine are sufficiently similar to

warrant equal compensation and that they “cannot reasonably be distinguished.” See

Lewis, 918 F.3d at 1228.

In sum, Shine cannot satisfy the McDonnell-Douglas framework because he

has not identified a proper comparator in Step 1. See Hill, 346 F. App’x at 395.

15

B. The convincing-mosaic theory

In the Eleventh Circuit, a plaintiff can also survive summary judgment by

establishing “a ‘convincing mosaic’ of circumstantial evidence that warrants an

inference of intentional discrimination.” Lewis, 918 F.3d at 1220 n.6. A plaintiff may

make this showing with evidence of “(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 was pretextual.” Lewis v. City of Union City,

934 F.3d 1169, 1185 (11th Cir. 2019) (on remand) (cleaned up).

Shine relies on seven “facts”—without record citations—to support his

argument. Facts (1) and (2) relate to UAB’s compensation of would-be comparators

which, as explained above, does not amount to a summary-judgment showing that

“similarly situated comparators outside the protected class received higher

compensation.” Hill, 346 F. App’x at 395. This evidence therefore necessarily fails

to show “systematically better treatment of similarly situated employees.” See Lewis,

934 F.3d at 1185 (emphasis added). Fact (3) appears to contend that Shine suffered

retaliation. But as explained in the retaliation section of this opinion, see infra

Section II, Shine’s attempt to show that UAB’s proffered race-neutral reasons for

disciplining him were pretextual falls well short. Facts (4) and (5) are conclusory

16

allegations about UAB’s pay and management structures that cannot create a

genuine issue of material fact. See Glasscox, 903 F.3d at 1213. And in facts (6) and

(7), Shine alleges that UAB pays and promotes African-Americans at lower rates

than white employees. But the Eleventh Circuit has explained that “a plaintiff does

not show . . . disparate treatment discrimination merely by citing statistics.” Burke-

Fowler v. Orange Cnty., 447 F.3d 1319, 1325 (11th Cir. 2006). And as explained in

the disparate-impact section of this opinion, see infra Section III, Shine’s attempt to

show a statistically disparate impact falls well short of his burden to connect those

alleged disparities to any race-based practice or policy.

Considering all of these facts together, Shine has not presented “a ‘convincing

mosaic’ of circumstantial evidence that warrants an inference of intentional

discrimination” in the context of his compensation. Lewis, 918 F.3d at 1220 n.6. No

evidence shows that Shine’s race played a role in UAB’s decisions about Shine’s

compensation. See Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1345–46 (11th

Cir. 2011) (finding sufficient evidence of discrimination where employer injected

race into the decision-making process by using a discipline “matrix” that explicitly

considered the employee’s race). Although Shine presents some statistical evidence

that African-American employees generally receive less pay than white employee,

this evidence is too abstract to create a genuine dispute of material fact as to Shine’s

17

compensation.8 And Shine has not shown that his $84,000 salary was lower than

any similarly situated white employee. For these reasons, he has not presented

evidence that would allow a reasonable jury to infer intentional discrimination.

* * *

Because Shine has no direct evidence of discrimination, and his circumstantial

evidence fails both the McDonnell-Douglas and convincing mosaic frameworks, the

Court will grant summary judgment on Shine’s pay-discrimination claim.

II. Retaliation

Shine alleged in his third amended complaint that he suffered “retaliation for

his reporting and opposing discrimination in employment, which ultimately led to

his termination.” (Doc. 32 at 8 ¶ 19). And in his summary-judgment opposition,

Shine said that UAB terminated him “for raising the issues of racial disparities in

promotions and pay with Dr. Carver and other high up officials [during a] May 2018

meeting.” (Doc. 72 at 9 ¶ 34). The Court grants summary judgment to UAB on this

claim.

8 Shine’s expert report says that, between 2014 and 2020, African-American employees in UAB’s IT

Department earned on average $66,181 while white employees earned on average $90,833, a 37% difference (Doc.

72-1 at 2). But neither the expert nor Shine make any attempt to explain why how this amounts to “systematically

better treatment of similarly situated employees.” Lewis, 934 F.3d at 1185 (emphasis added). As a result, this evidence

does not bring Shine any closer to a summary-judgment showing of intentional discrimination for his compensation.

18

Title VII’s anti-retaliation provision “prohibits an employer from

‘discriminat[ing] against’ an employee or job applicant because that individual

‘opposed any practice’ made unlawful by Title VII or ‘made a charge, testified,

assisted, or participated in’ a Title VII proceeding or investigation.” Burlington N.

& Sante Fe Ry. Co. v. White, 548 U.S. 53, 56 (2006) (alteration in original) (quoting

42 U.S.C. § 2000e-3(a)). And the Court uses the same burden-shifting framework to

review Shine’s retaliation claim. In Step 1, Shine must “show (1) that [he] engaged

in statutorily protected activity, (2) that [he] suffered an adverse action, and (3) that

the adverse action was causally related to the protected activity.” Gogel v. Kia

Motors Mfg. of Ga., Inc., 967 F.3d 1121, 1134 (11th Cir. 2020) (en banc) (quotation

marks omitted). If Shine makes that showing, in Step 2, the burden “shifts to the

employer to rebut the presumption [of retaliation] by articulating a legitimate, non-

discriminatory reason for the employment action.” Id. at 1135. If UAB does so, in

Step 3, Shine must “demonstrate that the ‘proffered reason was merely a pretext to

mask [retaliatory] actions.’” Id. (alteration in original).

Shine says that he engaged in protected activity when he “complained of racial

disparities in promotions and pay at a meeting with Dr. Carver and others in May of

2018.” (Doc. 72 at 17). He says that UAB began retaliating against him—with the

verbal warning—about two weeks later and that this retaliation ended with his

19

November 2018 termination. (Id. at 17–18). And he argues that the temporal

proximity between his “raising the promotion and pay issues” and the verbal warning

both satisfies Step 1’s causation element and Step 3’s evidence of pretext. (Id.).

UAB counters, among other things, that Shine’s claim fails because he cannot

show pretext. (Docs. 68 at 23, 79 at 9–10). UAB says that Shine’s “own intervening

conduct,” not his race, led to his discipline and termination. (Doc. 68 at 24).

The Court agrees with UAB. Even if the Court assumes that Shine satisfies

his Step 1 burden because his complaints in May 2018 amount to protected activity,9

UAB’s actions constitute adverse-employment actions, and a causal connection

exists, Shine’s claim still fails in Step 3 because Shine has not made a summary-

judgment showing of pretext.

Assuming that Shine made a prima facie case in Step 1, UAB must

“articulat[e] a legitimate, non-discriminatory reason for the employment action[s].”

Gogel, 967 F.3d at 1135. UAB has offered nondiscriminatory reasons for each action

it took against Shine:

9 The Court is skeptical that Shine engaged in protected activity. In his summary-judgment opposition, Shine

says he “complained of racial disparities.” (See, e.g., Doc. 72 at 17). But no evidence supports this assertion. Shine

testified that he “raised a concern that some IT employees make more money than others because they have an ‘ENT’

designation in their job title.” (Doc. 66-1 at 67). But he never testified that this disparity had anything to do with race.

Indeed, Kendra Thompson testified that she could not “recall race or race-based anything being mentioned in that

meeting with Dr. Carver.” (Doc. 66-9 at 148). The opposition clause of Title VII protects employees who have

“opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). But the

record does not appear to support a finding that Shine’s complaint about ENT designations amounted to an

“opposition” of race discrimination in UAB’s IT Department. That said, UAB has not adequately briefed this issue,

so the Court will not consider it further.

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• UAB issued a verbal warning to Shine and placed him on a

Performance Improvement Plan because UAB received and confirmed

complaints related to Shine’s untimely routing and review of contracts.

(Doc. 68 at 5–6 ¶¶ 12–14).

• UAB suspended Shine for performance failures because he allowed the

Microsoft contract to lapse. (Doc. 68 at 9 ¶ 30).

• UAB terminated Shine for inexcusable neglect of his duties,

negligence, and unsatisfactory job performance. (Docs. 68 at 10 ¶ 34,

66-2 at 67–68). And that determination stemmed from the Microsoft

contract lapse and Shine’s failure to timely route the Gartner contract.

(Doc. 66-2 at 67).

These nondiscriminatory reasons satisfy UAB’s “exceedingly light” burden. Tolar

v. Bradley Arant Boult Cummings, LLP, 997 F.3d 1280, 1297 (11th Cir. 2021).

So, in order to survive summary judgment, Shine must “come forward with

evidence . . . sufficient to permit a reasonable factfinder to conclude that the reasons

given by [UAB] were not the real reasons for its action, and that the real reason was

retaliation.” Id. at 1298 (quotation marks omitted). He must rebut UAB’s reasons

“head on,” and he “cannot succeed by simply quarreling with the wisdom of [those]

reason[s].” Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).

Shine appears to offer three arguments to support pretext. First, Shine says

that the “close temporal proximity between the protected action and the adverse

employment action can be evidence of pretext.” (Doc. 72 at 18). But the en banc

Eleventh Circuit recently said that “[w]hile close temporal proximity between the

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protected conduct and the adverse employment action can establish pretext when

coupled with other evidence, temporal proximity alone is insufficient.” Gogel, 967

F.3d at 1137 n.15. So, at minimum, Shine must show more.10

Second, Shine says that he was “accused of phantom performance issues.”

(Doc. 72 at 18). But Shine himself acknowledged the complaints “about the process

of everything, how the flow of contracts go,” and he conceded that “[t]hey didn’t

like the flow of contracts because they were taking too long.” (Doc. 66-1 at 102). He

also acknowledged that the 2018 Microsoft Premier contract lapsed. (Id. at 132).

These concessions align with UAB’s reasons for his discipline and termination.

(Docs. 66-2 at 35 (verbal warning), id. at 67 (termination)). And, again, the record

does not support a finding that UAB fabricated complaints against Shine. See ante

at 3 n.3. In sum, Shine’s conclusory allegations about fabrication—coupled with his

concessions about events that underlie his discipline and termination—bring him no

closer to pretext.

Moreover, “[w]hen an employer asserts that it has fired an employee based on

reported workplace incidents, the employee must not only dispute that those

10 Shine does not explain how a close temporal proximity between his May 2018 conduct and his May 2018

warning (and PIP placement) translates into a retaliatory firing in November 2018. See Thomas v. Cooper Lighting,

Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (holding that a three-month gap was not close enough for causation).

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incidents occurred, but also call into question the employer’s sincere belief that they

occurred.” Lewis v. Blue Bird Corp., 835 F. App’x 526, 530 (11th Cir. 2020). Shine

has not genuinely disputed the existed of his own performance issues. And neither

has he disputed UAB’s good-faith belief that Shine’s job performance was

unsatisfactory. So this reinforces the conclusion that Shine cannot show pretext.

Third, Shine points out that he completed the Performance Improvement Plan

in summer 2018 but was “still pegged for termination.” (Doc. 72 at 18). As the

Eleventh Circuit has explained for causation, “[i]ntervening acts of misconduct can

break any causal link between the protected conduct and the adverse employment

action.” Henderson v. FedEx Express, 442 F. App’x 502, 506 (11th Cir. 2011).

Likewise for pretext, intervening performance deficiencies can serve as independent

support for discipline or termination. Thus, the fact that Shine completed his PIP is

not evidence of pretext where several intervening performance issues independently

supported his termination and there is no other indication that his performance issues

weren’t the reasons for his discipline and termination.

In sum, UAB offered nondiscriminatory performance-based reasons for its

employment actions, and Shine has not shown “weaknesses, implausibilities,

inconsistencies, incoherencies or contradictions” in UAB’s reasons that would allow

a reasonable factfinder to say that they are “unworthy of credence.” Springer v.

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Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1348 (11th Cir. 2008). Nor

has Shine presented evidence that would allow a reasonable juror to find that UAB

instead fired Shine as retaliation for speaking out about racial pay disparities. So the

Court will grant summary judgment on Shine’s retaliation claim.

III. Disparate Impact

Shine’s final claim is disparate-impact discrimination. “[D]isparate impact

theory prohibits neutral employment practices which, while non-discriminatory on

their face, visit an adverse, disproportionate impact on a statutorily-protected

group.” E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1274 (11th Cir. 2000).

For the reasons below, the Court grants summary judgment to UAB on this claim.

Disparate impact claims also use the three-step burden-shifting framework.

To establish a prima facie disparate-impact case in Step 1, Shine must satisfy three

elements. Id. First, he must show “a significant statistical disparity.” Id. Second, he

must show “a specific, facially[]neutral, employment practice which is the alleged

cause of the disparity.” Id. Then third, “and most critically,” he must show “that a

causal nexus exists between the specific employment practice identified and the

statistical disparity shown.” Id.

If Shine makes a prima facie case, then the burden “shifts to the defendant to

establish that the challenged employment practice serves a legitimate, non-

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discriminatory business objective.” Id. at 1275. And UAB does this, then in the final

step, Shine must show “that an alternative, non-discriminatory practice would have

served the defendant’s stated objective equally as well.” Id.

Shine’s disparate-impact claim fails for two reasons. First, he abandoned his

original disparate-impact theory and impermissibly raised (and now exclusively

relies on) a new theory in his summary-judgment opposition. And second, the newly

raised disparate-impact theory fails on the merits.

A. Shine cannot raise a new theory at summary judgment.

Shine presented one disparate-impact theory in his pleadings and a different

theory in his summary-judgment opposition. By doing so, Shine abandoned his

original theory and impermissibly tries to rely on a theory that he did not plead in

his complaint. See Resolution Trust Corp., 43 F.3d at 599 (“[G]rounds alleged in the

complaint but not relied upon in summary judgment are deemed abandoned.”);

Cacciamani v. Target Corp., 622 F. App’x 800, 804–05 (11th Cir. 2015) (explaining

that a party cannot rely on a theory that “had not been properly pled”).

In the third amended complaint, Shine alleged that UAB “undertook a policy

of denying African-Americans in its [IT] Department the same opportunities for

better jobs and higher pay” that it offered white employees. (Doc. 32 at 9 ¶ 21). He

alleged that “UAB accomplished this aim by employing a ‘Performance Evaluation’

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metric that had the effect of making African-Americans appear less deserving of

better jobs and higher pay.” (Id. at 9 ¶ 22). The effect, according to Shine’s

complaint, was that “[w]hite employees with little seniority or experience were

brought into UAB and then promoted into positions of higher authority and pay.”

(Id.). And Shine alleged that “[t]hese processes disparately impacted African-

American employees such as Shine . . . because they allow subjectivity and racism

to unlawfully influence employment decisions.” (Id. at 24 ¶ 80).

Shine changed course in his brief opposing summary judgment. He never

mentioned the “Performance Evaluation” theory. Instead, Shine now says that

“UAB’s Promotion by Reclassification Policy . . . violates Title VII’s disparate-

impact prohibition.” (Doc. 72 at 18). According to Shine’s new theory, the

Promotion by Reclassification Policy “allows for promotion of employees without

the jobs being posted for open-bid on its careers website.” (Id. at 12 ¶ 3). And he

says that the policy “allows UAB to circumvent its regular job posting procedure

and award higher pay to incumbent employees by changing the job title for the

position which entails a raise in pay.” (Id. at 13 ¶ 6). And he argues that the policy

allows UAB “to skirt proper promotion procedures to benefit one group over the

other,” and leads to “white employees with high school diplomas earn[ing] six figure

salaries, while African-Americans are implicitly told to be happy with receiving high

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five figures.” (Id. at 19).

Shine abandoned the original “Performance Evaluation” theory by failing to

raise supportive arguments in response to UAB’s motion for summary judgment.

Resolution Trust Corp., 43 F.3d at 599. And he cannot rely on the “Promotion by

Reclassification” theory because he raised it for the first time at the summary-

judgment stage. Cacciamani, 622 F. App’x at 804–05. After all, any plaintiff’s

complaint “must give the defendant notice of what the plaintiff complains.” Id. at

804. And “[a] plaintiff may not amend [his] complaint through argument in a brief

opposing summary judgment.” Id. (second alteration in original). As a result, Shine

impermissibly injected the Promotion by Reclassification theory into this case. He

cannot rely on it to survive summary judgment.

The Court may grant summary judgment to UAB on Shine’s disparate-impact

claim for these reasons alone. Still, the Court will address Shine’s new theory.

B. Shine’s new theory fails on the merits.

Shine’s new theory cannot survive summary judgment on the merits, either.

Shine produced an expert report that says, between 2014 and 2020, African-

American employees in UAB’s IT Department averaged $66,181 per year while

white employees averaged $90,833—a 37% difference. (Doc. 72-1 at 2). The report

also says that African-American employees receive promotions at a lower frequency

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than white employees—14.58% for African-American employees and 21.14% for

white employees. (Id. at 3). Shine says in his summary-judgment opposition that the

Promotion by Reclassification Policy is the cause of these disparities. (Doc. 72 at

18–19).

After careful review, the Court finds that Shine has failed to satisfy the

causation element of his disparate-impact case because he cannot show “a causal

nexus . . . between the specific employment practice identified and the statistical

disparity shown.” Joe’s Stone Crab, Inc., 220 F.3d at 1274. The Eleventh Circuit has

made clear that “a plaintiff does not show . . . disparate impact racial discrimination

. . . merely by citing statistics.” Burke-Fowler, 447 F.3d at 1325. And Shine does no

more than just cite surface-level statistics about promotions in the IT Department

generally, so he has not connected (and cannot connect) the cited disparities with the

policy. No evidence suggests that UAB used this policy to promote white employees

at higher rates than African-American employees. And without something to

connect this policy to the pay and promotion imbalances, Shine cannot establish

causation. For that reason, Shine’s disparate-impact claim fails on the merits (on top

of being precluded because Shine failed to plead it in his complaint).

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CONCLUSION

For these reasons, the Court DENIES AS MOOT UAB’s motion to strike

(doc. 76) and will enter a separate order that GRANTS UAB’s motion for summary

judgment on Shine’s claims (doc. 63).

DONE on December 30, 2021.

Lives. ag

COREY LE. MAZE

UNITED STATES DISTRICT JUDGE

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