# Shine v. University of Alabama - Birmingham

> District Court, N.D. Alabama · December 30, 2021

URL: https://www.frixlaw.com/law-library/cases/9990788

## Case

- **Court:** District Court, N.D. Alabama
- **Decided:** December 30, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

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
Lewis Thomas sued his former employer, The Board of Trustees of the
University of Alabama (“UAB”), alleging race discrimination under Title VII, 42
U.S.C. § 2000e et seq., and under 42 U.S.C. § 1981. UAB has moved for summary
judgment (doc. 65) to strike Thomas’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
Lewis Thomas, an African-American man, began working for UAB in 1993.

(Docs. 74 at 1 ¶ 1, 74-1 at 2). Since 2004, Thomas has been a “Network Technician
– IV” in UAB’s IT Department. (Docs. 67 at 3 ¶, 74 at 1 ¶ 1). Network technicians
support the IT Department’s engineers and analysts. (Doc. 66-12 at 3 ¶ 4). And, in
his role, Thomas “programs network equipment, processes work orders[,] and

completes assigned tasks from engineers and analysts.” (Id.).
A. Promotions at UAB
Thomas’s lawsuit centers on his allegation that UAB discriminatorily denied

him four promotions/positions: Communication Analyst Manager in 2012 and 2016,

1 For many facts, Thomas contends that the Court should disregard the testimony of UAB employees because
they are “interested witnesses.” (See, e.g., Doc. 74 at 1–2 ¶ 3). But merely repeating this contention (eighteen 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)); Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 898 (5th Cir. 2002) (“The definition
of an interested witness cannot be so broad as to require us to disregard testimony from a company’s agents regarding
the company’s reasons for discharging an employee.”).
2
Communication Engineer III in 2016, and Network Manager in 2019.
1. Communication Analyst Manager positions in 2012 and 2016
Thomas applied for the Communication Analyst Manager position in 2012.
(Docs. 67 at 4 ¶ 9, 74 at 5 ¶ 9). But he didn’t get an interview. (Docs. 67 at 5 ¶ 10,

74 at 5 ¶ 10). UAB gave the job instead to Mike Kiser, a white man who was already
filling the role on an interim basis. (Docs. 67 at 4 ¶ 8, 74 at 5 ¶ 8). Thomas believes
that he was more qualified than Kiser because he had served in a non-managerial

communication-analyst role from 1997 to 2004 and performed duties such as
“programming the telephone system, writing service orders, meeting with customers
to populate new buildings, [and] data invoice.” (Docs. 66-5 at 16–17, 67 at 5 ¶ 11,
74 at 5 ¶ 11).

Around 2016, the same position re-opened and Thomas applied. (Docs. 67 at
5 ¶ 10, 74 at 5 ¶ 10). This time around, UAB interviewed Thomas, Jennifer Dodson
(a white woman who was filling the role in an interim basis), and Lori Williams

(another white woman). (Docs. 66-15 at 3 ¶ 4, 67 at 5 ¶ 10, 74 at 5 ¶ 10). UAB
selected Dodson. (Docs. 67 at 4 ¶ 9, 74 at 5 ¶ 9).
UAB says it selected Dodson because of her strong interview performance,
prior work as an analyst and engineer, and her prior work supervising other analysts

when she worked as a Coordinator of Telecommunication Services. (Docs. 66-15 at
3
3 ¶ 4, 67 at 6 ¶ 16). As for Thomas, UAB says that he had a poor interview
performance (including, for example, that he failed to make eye contact with the
interviewers), his lack of recent experience as an analyst (not since 2004), and his
complete lack of engineer experience. (Docs. 66-15 at 3 ¶ 4, 67 at 6 ¶ 17).

In his deposition, Thomas said that the 2016 interview process was unfair and
discriminatory for three reasons. First, he said that it was “odd” that Kathy
Litzinger—the Executive Director of IT Business Operations—changed the

interview process from “an interview with the supervisor of the area and one other
person” to using an interview panel. (Doc. 66-5 at 20, 24). Second, he said that UAB
used a discriminatory practice of putting unqualified people in an interim position
and then later selecting them for the full-time position. (Id. at 14). And third, he says

he was more qualified because he had trained Dodson. (Id. at 25). Thomas conceded,
though, that he has no personal knowledge of Dodson’s at-the-time job duties,
educational background, or work experience before UAB. (Id. at 25–27).

2. Communication Engineer III in 2016
Thomas also applied for an opening for a Communication Engineer III in
2016. (Docs. 67 at 8 ¶ 24, 74 at 9 ¶ 24). UAB interviewed Thomas, Otis Perkins (a
white man who was working as a Communication Engineer II), and William Todd

Weaver (another white man). (Doc. 66-15 at 4–5 ¶ 5). UAB selected Perkins. (Docs.
4
67 at 8 ¶ 25, 74 at 9 ¶ 25). And UAB says it selected Perkins because he was “the
best qualified candidate and performed the best during the interview as compared to
Weaver and Thomas.” (Doc. 66-15 at 4–5 ¶ 5). Thomas again challenged UAB’s use
of a panel interview. (Doc. 66-5 at 23–24). And he says, after this rejection, that he

became discouraged by his lack of success at obtaining a promotion. (Id. at 36).
3. Data Center Network Manager in 2019
Thomas later applied for one other position: Data Center Network Manager

position in 2019. (Docs. 67 at 8 ¶ 28, 74 at 11 ¶ 28). UAB interviewed Thomas for
the position after he “followed up with HR why [he] never received an invite to . . .
have an interview for the job.” (Doc. 66-5 at 39). And during his deposition, Thomas
identified two complaints about the interview process. First, Thomas felt that he “had

to force their hand to even interview [him].” (Id. at 40). Second, Thomas objected to
UAB inviting another technician (who worked under Thomas) to interview before
asking him to interview. (Id. at 40–41).

It turns out that UAB never filled this position. (Doc. 66-12 at 4 ¶ 6). In his
deposition, Thomas conceded that he didn’t know whether UAB ever hired someone
for the job. (Doc. 66-5 at 40).
B. Other allegations of misconduct

In his deposition, Thomas detailed several other allegations of misconduct by
5
UAB. First, he said that UAB discriminated against him by paying him less than it
paid white employees whom he trained or whom he assisted at work. (Docs. 66-5 at
71–76, 67 at 9 ¶¶ 31–35, 74 at 12–13 ¶¶ 31–34). Second, he said that UAB mistreated
him by unfairly evaluating him in his performance reviews. (Docs. 66-5 at 90–91,

67 at 10 ¶ 36, 74 at 13 ¶ 36). Although Thomas doesn’t remember getting a negative
performance review, Thomas said that he should have received even better reviews.
(Doc. 66-5 at 91, 66-12 at 4 ¶ 7). And he said that this was discriminatory because

“people of other races got better performance [reviews].” (Doc. 66-5 at 91).
Thomas also accused several UAB employees of misconduct. First, he said
that Kathy Litzinger discriminated against him by failing to follow up with Thomas
about his pay after saying that she would. (Id. at 80). Second, he said that Dodson

would become “irate” with him and that it must stem from his race because “she
ha[d] no other reason to be irate with [him].” (Id. at 31–32). But Thomas conceded
that Dodson could have been angry with him for work-related reasons. (Id. at 32).

Third, Thomas said that Jeff Mize (an assistant director in the IT Department)
discriminated against him by asking him to accept a position in 2004 without a pay
raise. (Id. at 66–69). Fourth, he said that Heather White (then-Chief Financial
Officer) discriminated against him by failing to follow up with him about his pay.

(Doc. 66-5 at 87). Fifth, he said that Bob Cloud discriminated against him based on
6
Cloud’s involvement in the hiring in Kiser and Dodson, and based on Cloud’s failure
to help Thomas find promotional opportunities. (Id. at 95–97, 126). And sixth, he
claimed that Willie Martin (a network technician) would yell at him and give him
assignments that were not his responsibilities. (Id. at 45). But Thomas conceded that

Martin would yell at white employees, too. (Id. at 47).
Lastly, Thomas said that Martin once unplugged Thomas’s office phone line
while Thomas was working from home, which prevented Thomas from working

remotely. (Id. at 49). After Thomas complained, UAB investigated Martin and
learned about Martin’s negative communication habits. But UAB could not
determine whether Martin unplugged Thomas’s phone line. (Docs. 67 at 13–14 ¶¶
53–54, 74 at 16 ¶¶ 53–54). And following the investigation, a superior met with

Martin to address his abrasive communication style. (Doc. 66-12 at 4 ¶ 8).
II. Procedural Background
Thomas did not file his own discrimination charge with the Equal

Employment Opportunity Commission. (Doc. 32 at 6 ¶ 10). Instead, he relies on the
“earliest filed charge” of co-plaintiff Michael Shine, which Shine filed in May 2018.
(Id.; Doc. 1-1).
Co-plaintiff Shine filed this lawsuit against UAB and Kathy Litzinger in

December 2018. (Doc. 1). Thomas became a plaintiff in the third amended
7
complaint. (Doc. 32). The third amended complaint—the operative 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). Thomas also
appears to raise identical claims against UAB under 42 U.S.C. § 1981. (Id. at 2).2

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 Thomas’s claims. (Docs. 65,
67, 77). Thomas opposes summary judgment. (Doc. 74). To support his opposition,

Thomas produced an expert report with statistical evidence about pay and promotion
in UAB’s IT Department between 2014 and 2020. (Doc. 74-1). And UAB has moved
to strike the expert report. (Doc. 76).

2 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 Thomas’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 v.

City of Argo, 903 F.3d 1207, 1213 (11th Cir. 2018).
DISCUSSION
In support of its motion for summary judgment, UAB briefed these claims:

(1) promotion discrimination; (2) pay discrimination; (3) discrimination based on
Thomas’s performance reviews; (4) hostile work environment; and (5) disparate-
impact discrimination. (Doc. 67). In his opposition, Thomas briefed only
(1) promotion discrimination and (2) disparate-impact discrimination. (Doc. 74 at

20–24). So the Court finds that Thomas abandoned all claims except promotion
9
discrimination and disparate-impact discrimination.3 The Court turns now to those
two claims.
I. Disparate Treatment: Promotion Discrimination
In the third amended complaint, Thomas alleged that UAB treats white

employees “better than African-Americans with regards to promotions.” (Doc. 32 at
12 ¶ 39). And he alleged that white employees enjoyed “markedly better” career
advancement. (Id. at 12 ¶ 40). Most of the factual bases for Thomas’s promotion-

discrimination claim are time barred. See Nat’l R.R. Passenger Corp. v. Morgan,
536 U.S. 101, 113 (2002). And Thomas cannot satisfy the McDonnell-Douglas
framework or otherwise make a summary-judgment showing of intentional
discrimination for the single basis that is not time barred. As a result, the Court grants

summary judgment to UAB on Thomas’s promotion-discrimination claim.
A. Governing Standards
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

3 The Eleventh Circuit has made clear that a party abandons grounds for relief by failing to address them in
opposition to a defendant’s well-supported motion for summary judgment. 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
(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).

McDonnell-Douglas creates a three-part, burden shifting framework. In Step
1, the plaintiff must establish that: (1) “he or she belonged to a protected class”;
(2) “he or she was qualified for and applied for a position that the employer was
seeking to fill”; (3) “despite qualifications, he or she was rejected”; and (4) “the

position was filled with an individual outside the protected class.” Vessels v. Atlanta
Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir. 2005). If the plaintiff makes that
showing, then the burden shifts to the employer “to produce a legitimate, non-

discriminatory reason for the alleged disparate treatment.” Hill v. Suntrust Bank, 720
F. App’x 602, 605 (11th Cir. 2018). And if the employer does so, then the burden
shifts back to the plaintiff to “show that the employer’s proffered reasons are merely
pretextual.” Id.

Beyond McDonnell Douglas, the plaintiff can also survive summary judgment
11
by establishing “a ‘convincing mosaic’ of circumstantial evidence that warrants an
inference of intentional discrimination.” Lewis, 918 F.3d at 1220 n.6. And the
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).

One more thing: timeliness. The plaintiff “must exhaust administrative
remedies before filing a complaint of discrimination under Title VII.” Stamper v.
Duval Cnty. Sch. Bd., 863 F.3d 1336, 1339 (11th Cir. 2017). To comply with this
mandatory (but not jurisdictional) claim-processing rule, Thomas must have filed a

charge with the EEOC within 180 days of the alleged unlawful employment practice.
See 42 U.S.C. § 2000e-5(e)(1); Stewart v. Jones Util. & Contracting Co., 806 F.
App’x 738, 740 (11th Cir. 2020). The Supreme Court has explained that “discrete

discriminatory acts are not actionable if time barred, even when they are related to
acts alleged in timely filed charges.” Morgan, 536 U.S. at 113; see also Stewart, 806
F. App’x at 741 (relying on Morgan). And a “failure to promote” is a discrete act
that “constitutes a separate actionable ‘unlawful employment practice’” and that

must fall within the filing period. Morgan, 536 U.S. at 114. Now to the merits.
12
B. The four promotion decisions
Shine appears to rely on four of UAB’s promotion decisions. The Court will
address each decision in turn.
1. 2019 Data Center Network Manager

UAB contends that it never hired anyone for the Network Manager position
in 2019. (Doc. 66-12 at 4 ¶ 6, 67 at 9 ¶ 30). Thomas conceded during his deposition
that he didn’t know whether UAB ever filled the position (doc. 66-5 at 40), and he

hasn’t argued otherwise in his summary-judgment opposition. As a result, Thomas
cannot show that “the position was filled with an individual outside the protected
class,” and therefore cannot satisfy Step 1 of the McDonnell-Douglas framework.
See Vessels, 408 F.3d at 768. Nor has Thomas explained how UAB’s failure to

promote him to a position that UAB didn’t fill constitutes intentional discrimination.
Nor has he detailed “a ‘convincing mosaic’” of circumstantial evidence to permit an
inference of intentional discrimination as for this position. See Lewis, 918 F.3d at

1220 n.6. So the 2019 position cannot get Thomas past summary judgment.
2. 2016 Communication Engineer III
UAB’s failure to promote Thomas to Communication Engineer III in 2016
cannot get him past summary judgment because (1) it is time-barred and (2) Thomas

has not provided enough evidence to allow a reasonable juror to find in his favor.
13
1. Timeliness: Thomas did not file this claim with the EEOC; he instead relies
on co-plaintiff Michael Shine’s May 2018 EEOC charge. (Doc. 32 at 6 ¶ 10; Doc.
1-1). The “single-filing” rule permits Thomas to “piggyback onto [Shine’s] timely
filed EEOC complaint” if “(1) the letter was valid and (2) the discriminatory

treatment was similar and took place in the same time frame.” Stone v. First Union
Corp., 371 F.3d 1305, 1310–11 (11th Cir. 2004). But the single-filing rule applies
only “to those plaintiffs who allege discriminatory treatment within 180 or 300 days

before the representative charge is filed.” Hipp v. Liberty Nat’l Life Ins. Co., 252
F.3d 1208, 1220 (11th Cir. 2001). And for a “[d]iscrete act[]” such as “failure to
promote,” Thomas may rely on it for his discrimination claim only if it “‘occurred’
within the appropriate time period.” Nat’l R.R. Passenger Corp., 536 U.S. at 114.

Alabama is a non-deferral state, so Thomas had to file his EEOC charge within
180 days of UAB’s decision. See Jones v. Dillard’s, Inc., 331 F.3d 1259, 1263 (11th
Cir. 2003). But Thomas’s claim based on the 2016 Communication Engineer III

decision falls outside the temporal scope of Shine’s 2018 EEOC charge. So
Thomas’s cannot reply on Shine’s 2018 charge, making Thomas’s claim
procedurally barred.
2. Merits: Thomas cannot make a summary judgment showing of intentional

discrimination based on the 2016 Communication Engineer III decision, either under
14
McDonnell Douglas or the convincing mosaic framework.
First, McDonnell Douglas. Assuming that Thomas could meet his Step 1
burden of presenting a prima facie case, he cannot meet his Step 3 burden of proving
pretext for discrimination. UAB provided a legitimate, nondiscriminatory reason for

hiring Otis Perkins over Thomas—i.e., Perkins was “the best qualified candidate and
performed the best during the interview as compared to Weaver and Thomas.” (Doc.
66-15 at 2–3; see also Doc. 67 at 8).

Thomas makes no effort to explain how UAB’s nondiscriminatory reason is
pretextual. Thomas “cannot prove pretext by simply arguing or even by showing that
he was better qualified than the [person] who received the position he coveted.”
Springer v. Convergys Customer Mgmt. Grp., Inc., 509 F.3d 1344, 1349 (11th Cir.

2007). To show pretext, the “plaintiff must show that the disparities between the
successful applicant’s and his 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.’” Id. at 1349 (quoting Cooper
v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004), overruled on other grounds by
Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58 (2004)). But Thomas has not (and
cannot) make that showing based on the evidence here. So he cannot satisfy the

McDonnell-Douglas framework.
15
Nor has Thomas presented “a ‘convincing mosaic’ of circumstantial evidence
that warrants an inference of intentional discrimination.” Lewis, 918 F.3d at 1220
n.6. Even if Thomas were qualified for this position (he does not explain how he was
qualified), it is not intentional discrimination to select someone else. There is no

record evidence to suggest that Thomas’s race played any role in his non-selection.
And Thomas makes no effort to explain otherwise.
For these reasons, this promotion decision does not get Thomas past

summary-judgment either.
3. 2016 Communication Analyst Manager
Thomas’s reliance on the 2016 Communication Analyst Manager decision
fails for the same two reasons: it is time-barred and meritless.

1. Timliness: UAB’s decision to hire someone other than Thomas for this
position occurred more than 180 days before Shine filed his 2018 EEOC charge. It
therefore falls outside the temporal scope of Shine’s charge, and Thomas’s reliance

on this event is procedurally barred. See Hipp, 252 F.3d at 1220.
2. Merits: Thomas cannot make a summary-judgment showing of intentional
discrimination for this promotion decision, either.
First, Thomas cannot satisfy the McDonnell-Douglas framework because,

even if Thomas could make a prima facie case in Step 1, he did not make a summary-
16
judgment showing of pretext in Step 3. UAB offered legitimate, nondiscriminatory
reasons for its decision to select Jennifer Dodson for this position—i.e., her
interview performance, prior work as an analyst and engineer, and her prior work
supervising other analysts when she worked as a Coordinator of Telecommunication

Services. (Docs. 66-15 at 3 ¶ 4, 67 at 6 ¶ 16). By contrast, UAB says that Thomas
performed poorly during his interview, lacked recent experience as an analyst, and
lacked any experience as an engineer. (Docs. 66-15 at 3 ¶ 4, 67 at 6 ¶ 17).

Even if Thomas were qualified (which he said he was, Doc. 66-5 at 16–17),
Thomas has not shown or explained how he was so much more qualified than
Dodson “that no reasonable person, in the exercise of impartial judgment, could have
chosen [Dodson].” Springer, 509 F.3d at 1349. He therefore cannot satisfy the

McDonnell-Douglas framework.
Thomas has not presented a “convincing mosaic,” either. Lewis, 918 F.3d at
1220 n.6. Thomas’s subjective belief that he was more qualified does not make it

discrimination to select another qualified applicant. And Thomas made no effort to
explain how race played any role in the decision.
For these reasons, Thomas’s reliance on this decision does not survive
summary-judgment.

17
4. 2012 Communication Analyst Manager
Finally, Thomas’s reliance on UAB’s failure to promote him to
Communication Analyst Manager in 2012 fails because it is time barred. This
decision falls outside the scope of Shine’s 2018 EEOC charge. It is thus procedurally

barred. See Hipp, 252 F.3d at 1220.
* * *
In summary, none of the four promotion decisions permit Thomas’s

promotion-discrimination claim to survive summary judgment because each is time
barred, meritless, or both. As for Thomas’s other arguments, Thomas has not
explained how UAB’s use of an interview panel, which he claims was unfair and
discriminatory (doc. 66-5 at 20; id. at 24–27), constitutes evidence of intentional

discrimination. And that Thomas became discouraged by his inability to obtain these
promotions does not amount to intentional discrimination. Thomas has simply
offered no evidence that his race played a role in his inability to obtain a promotion

at UAB. As a result, the summary-judgment record cannot support a finding that
UAB intentionally discriminated against Thomas on account of his race in the
context of promotions.

18
III. Disparate Impact
Thomas’s other claim is disparate-impact discrimination. But this claim fails
for the same reasons that it failed for Michael Shine. The Court incorporates and
adopts its disparate-impact analysis in Shine’s summary-judgment opinion. (Doc. 85
at 24—28).
ok ok ok

For the reasons above, 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 Thomas’s claims (doc. 65).
DONE on December 30, 2021.
Lived. lag
COREY EL. MAZE
UNITED STATES DISTRICT JUDGE

19

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9990788. Public record. Not legal advice.