Brown v. Mercedes-Benz US International Inc

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

WESTERN DIVISION

LAURIE ANN PLUMLEY BROWN, )

)

Plaintiff, )

)

v. )

) Case No. 7:18-cv-01785-SGC

MERCEDES-BENZ U.S. )

INTERNATIONAL, INC., et al., )

)

Defendants. )

MEMORANDUM OPINION1

Plaintiff Laurie Ann Plumley Brown initiated this matter by filing a

complaint against Mercedes-Benz U.S. International, Inc. (“MBUSI”). (Doc. 1).2

Brown asserts claims for race discrimination under Title VII of the Civil Rights

Act of 1964, 42 U.S.C. § 2000e (“Title VII”), and the Civil Rights Act of 1866, 42

U.S.C. § 1981, as well as age discrimination under the Age Discrimination in

Employment Act, 29 U.S.C. § 621 (“ADEA”), and the Alabama Age

Discrimination in Employment Act, Ala. Code § 25-1-20, et seq (“AADEA”).

Brown also asserts a claim of retaliation pursuant to Title VII, § 1981, the ADEA,

1 The parties have consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c).

(Doc. 11).

2 Citations to the record refer to the document and page numbers assigned by the court’s

CM/ECF electronic document system and appear in the following format: (Doc. __ at __).

and the AADEA. Presently pending is MBUSI’s motion for summary judgment,

which is fully briefed and ripe for adjudication. (Docs. 63-65; Docs. 68-70). As

explained below, MBUSI’s motion for summary judgment is due to be granted in

its entirety.

I. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment

is proper “if the pleadings, depositions, answers to interrogatories, and admissions

on file, together with the affidavits, if any, show that there is no genuine issue as to

any material fact and that the moving party is entitled to judgment as a matter of

law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party asking for

summary judgment always bears the initial responsibility of informing the court of

the basis for its motion and identifying those portions of the pleadings or filings

which it believes demonstrate the absence of a genuine issue of material fact. Id. at

323. Once the moving party has met its burden, Rule 56 requires the non-moving

party to go beyond the pleadings and by her own affidavits, or by the depositions,

answers to interrogatories, and admissions on file, designate specific facts showing

there is a genuine issue for trial. See id. at 324.

The substantive law identifies which facts are material and which are

irrelevant. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). All

reasonable doubts about the facts and all justifiable inferences are resolved in favor

of the non-movant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir.

1993). A dispute is genuine “if the evidence is such that a reasonable jury could

return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. If the

evidence is merely colorable, or is not significantly probative, summary judgment

may be granted. See id. at 249.

II. Material Facts

Brown, a White female born in 1958, has worked for many years in the field

of human resources. (Doc. 65-1 at 4; Doc 68 at 3). In February 2014, she

interviewed for and was hired as a Team Relations Specialist (“TRS”) for North

American On-Site, LLC (“NAOS”). (Doc. 68 at 3).3 NAOS is a staffing

contractor which provided contract employees, including the human resources TRS

position, to MBUSI. (Doc. 65-4 at 11). Brown held the TRS role throughout her

employment with NAOS. (Doc. 68 at 3).

A TRS works with other team members onsite at MBUSI. (Doc. 65-4 at 13).

Among other things, a TRS advocates for team members, helps to facilitate

relationships and to resolve conflict between team members and management, and

provides information to team members about company policies, guidelines, and

benefits. (Doc. 65-4 at 13). The TRS position is one of great autonomy, and it

includes spending a considerable amount of time on the plant floor to build

3 NAOS was previously a party to this lawsuit but has been dismissed. (Doc. 51).

relationships with team members and management, as well as to stay aware of

pending and potential issues. (Doc. 65-4 at 13; Doc. 65-8 at 7-8).

Both MBUSI employees and NAOS employees filled TRS positions for

MBUSI, with the NAOS TRS positions described as “contingent”. (Doc. 65-4 at

11). Typically, an MBUSI TRS interacts with MBUSI team members, and an

NAOS TRS interacts with NAOS team members. (Doc. 65-4 at 13). The

differences between the roles are “minor,” however, and there is often overlap

between the positions. (Doc. 65-4 at 13). MBUSI Team Relations Senior Manager

David Olive (White male, born 1967) described the roles as “interchangeable.”

(Doc. 65-4 at 13).

When Brown applied to NAOS in 2014, Olive interviewed her. (Doc. 65-4 at

16). He did not object to NAOS hiring Brown, and it hired her. (Doc. 65-4 at 16).

In 2014, MBUSI hired Zina Cooper (Black female, born 1967) as the Team

Relations Manager after Olive was promoted to Team Relations Senior Manager.

(Doc. 65-4 at 9, 20; Doc. 65-5 at 5). As Team Relations Manager, Cooper

managed both MBUSI and NAOS TRSs, including Brown. (Doc. 65-6 at 6).

As Brown’s supervisor, Cooper found Brown to be an average employee

who did not take initiative or step outside of her comfort zone. (Doc. 65-6 at 8-

10). Cooper also observed Brown did not work independently and would often ask

others to assist with challenging tasks. (Doc. 65-6 at 21). Cooper sometimes

found Brown to be argumentative, though she could not recall a particular incident.

(Doc. 65-6 at 9). At times, Cooper received feedback from other personnel

indicating Brown spent less time on the plant floor than other TRSs. (Doc. 65-6 at

10). However, Cooper never disciplined or formally addressed these issues with

Brown because Cooper believed they did not rise to a formal disciplinary level.

(Doc. 65-6 at 9).

MBUSI occasionally had open positions for permanent, MBUSI-employed

TRSs. (Doc. 64 at 7-16). It generally posted those positions internally first

(meaning MBUSI employees had priority to apply), but it would typically post the

positions both internally and externally. (Doc. 64 at 6; Doc. 65-4 at 12; Doc. 65-8

at 22). NAOS TRSs were generally eligible to apply for a permanent MBUSI

position as “external” applicants. (Doc. 65-4 at 11-12). MBUSI has hired or

“promoted” NAOS TRSs as MBUSI TRSs. (See Doc. 64 at 7-16).4 Brown

considered NAOS as an entry to a permanent MBUSI position because, when

MBUSI had open positions, it often hired NAOS employees. (Doc. 65-1 at 29).

MBUSI TRSs were more highly compensated than their NAOS counterparts and

had a different benefits package. (Doc. 65-4 at 12).

4 The parties sometimes refer to MBUSI’s hire of NAOS team members as a “promotion.” See,

e.g., Doc. 64 at 23-25.

In February 2016, MBUSI hired Frank Walls (Black male, born 1967), an

NAOS TRS, as an MBUSI TRS. (Doc. 65-4 at 26; Doc. 65-5 at 46). Brown

applied for this position, and she was interviewed but not permitted to take an

assessment of her HR skills (at times, the assessment was a component of the

application process). (Doc. 65-1 at 26-27). Cooper recommended Walls for the

position because he performed well in the interview process, showed initiative,

made himself available to plant employees, had a calm demeanor, helped keep

other employees calm in difficult situations, and had good HR experience. (Doc.

65-6 at 17, 24, 32-33). Olive considered Cooper’s recommendation and

independently came to the same conclusion to hire Walls. (Doc. 65-4 at 26).

Ashley Jefferson (Black female, born 1983) interviewed for the position

ultimately filled by Walls. (Doc. 65-1 at 28; Doc. 65-5 at 46). In April 2016,

MBUSI hired her as an MBUSI TRS. (Doc. 65-6 at 24). Jefferson was an external

candidate who did not have prior experience with NAOS or MBUSI. (Doc. 65-7 at

131). Cooper recommended Jefferson for the April 2016 open position because

Jefferson had been impressive in her prior interview, had experience at Target, and

had a strong HR background. (Doc. 65-6 at 23, 31). Olive considered Cooper’s

recommendation and independently came to the same conclusion to hire Jefferson.

(Doc. 65-4 at 108-09; Doc. 65-9 at 3). At this time, Olive was interested in having

someone with experience outside the MBUSI plant, as he believed a new

perspective could be beneficial. (Doc. 65-9 at 3). While it appears this opening

was not posted for application, Brown testified there may have been two open

positions when Walls was hired, implying she applied for both positions at once.

(Doc. 65-1 at 28-29).

In the spring of 2017, MBUSI hired William Harden (Black male, born

1975) as an MBUSI TRS. (Doc. 65-4 at 31; Doc. 65-5 at 46). At the time of his

hiring, Harden was an NAOS TRS. (Doc. 65-4 at 31). Brown also applied for this

position. (Doc. 65-1 at 31). Cooper recommended Harden for the open position

because he had a strong HR background, had been a career counselor in the

military, showed strong initiative, had an energetic attitude, and was proactive in

solving problems. (Doc. 66-5 at 31). Olive considered Cooper’s recommendation

and independently reached the same conclusion to hire Harden. (Doc. 65-4 at 31;

Doc. 65-9 at 3).

Both Brown and Brenda Jackson (Black female, born 1970, an NAOS TRS)

were considered for the role ultimately filled by Harden and were disappointed

they were not selected. (Doc. 65-1 at 32; Doc. 65-5 at 46). Following the Harden

hire, Jackson regularly met with Cooper for feedback about how to improve. (Doc.

65-6 at 33). Cooper observed Jackson implementing the feedback, in particular by

changing her notetaking, learning more, and taking more initiative on complex

activities, such as various larger HR projects. (Doc. 65-6 at 33-35). Because of

this improvement in performance, Cooper recommended Jackson be hired for an

open MBUSI TRS position in July 2017. (Doc. 65-6 at 28, 33). Olive considered

Cooper’s recommendation and independently came to the same conclusion to hire

Jackson. (Doc. 65-4 at 40). Additionally, Olive thought Jackson had good

experience and was viewed favorably by and had good rapport with other

employees. (Doc. 65-4 at 40). Like the position filled by Jefferson, it is not clear

this opening was posted for application. Brown testified that no one applied for the

job, but it was understood management was deciding between Jackson and Brown.

(Doc. 65-1 at 32-33).

According to Cooper, Brown would not meet with Cooper to receive

specific feedback about how to improve. (Doc. 65-6 at 33). Brown did, however,

take on various projects following the Jackson hire. (Doc. 65-1 at 35).

Cooper resigned from MBUSI in 2017, and Steve Shiew (White male, born

1967) replaced her as Team Relations Manager. (Doc. 65-6 at 5; Doc. 65-8 at 5).

In late 2017, another TRS position came open. It is unclear whether Brown

applied for this position. She testified the position was not formally posted for

application but the employees knew there was an opening. (Doc. 65-1 at 35).

However, one of Shiew’s emails suggests Brown did apply for this opening. (Doc.

65-8 at 59). Ultimately, MBUSI hired Clevette Ellis (Black female, born 1964) to

fill this position. (Doc. 65-8 at 13). Ellis was an “external” employee who had not

been previously employed with MBUSI or NAOS. (Doc. 65-5 at 44-45). She had

a long history of HR experience and automotive experience, including acting as the

regional HR manager at an automotive logistics company. (Doc. 65-5 at 44-45;

Doc. 65-8 at 15). Shiew wanted to hire Ellis for the open position, and Olive

agreed. (Doc. 65-4 at 40; Doc. 65-8 at 13). Olive also noted he was interested in

someone with experience and perspective outside MBUSI. (Doc. 65-4 at 40).

Ellis was selected for the position in November 2017, and her hiring was

announced sometime in December 2017. (Doc. 65-1 at 47; Doc. 65-8 at 60).

After Shiew announced he was hiring Ellis, Brown informed Shiew she

believed she was being discriminated against because of her age. (Doc. 65-1 at

36). Shiew asked Brown for specifics regarding her comments about unfair

treatment, but she did not provide specific examples. (Doc. 65-8 at 9-10). Shiew

informed Brown she was not hired because management did not believe she was

the best person for the job, but Ellis was considered a good hire. (Doc. 65-1 at 36;

Doc. 65-8 at 9). Shiew did not investigate Brown’s claim of age discrimination.

(Doc. 65-8 at 9-10). On December 22, 2017, Brown filed a charge of

discrimination with the Equal Employment Opportunity Commission (“EEOC”),

claiming she was denied promotions based on race and age. (Doc. 27-1).

In June 2018, MBUSI hired OJ Roberts (Black male, 52) for an open

MBUSI TRS position. (Doc. 65-1 at 37; Doc. 65-5 at 46). At the time of his

hiring, Roberts was an MBUSI employee (and thus an “internal” employee) who

had previously held the TRS position, at which he excelled, for seven years. (Doc.

65-4 at 42; Doc. 65-9 at 4). When this opening was posted, several internal

candidates applied. (Doc. 65-9 at 4). Olive decided to hire Roberts because

Roberts had been a good TRS, and Olive was glad to have him return to this

position. (Doc. 65-4 at 42). The position was filled internally, and so MBUSI did

not consider external candidates. (Doc. 65-8 at 14). Brown, however, testified she

was a candidate for the position, but the job posting was later changed to disqualify

her. (Doc. 65-1 at 37-38). The record does not clearly reflect whether this position

was posted only internally before being filled.

In September 2018, Brown expressed some concerns to Shiew, though the

substance of those concerns is unclear. (Doc. 65-8 at 45). Shiew acknowledged

those concerns via email and asked Brown for specific instances so he could

investigate the facts. (Doc. 65-8 at 45). The record does not reflect whether

Brown responded.

Jack Joiner, a former MBUSI employee, believed Brown to be helpful and

visible on the plant floor. (Doc. 69-1 at 1). Brown worked with Joiner to resolve

any issues he brought to her. (Doc. 69-1 at 1). Joiner stated during his time with

MBUSI, he observed a culture of White employees being treated differently than

Black employees. (Doc. 69-1 at 1). He believed this to be pervasive throughout

the organization. (Doc. 69-1 at 1). Joiner did not, however, provide any facts or

specific instances of this alleged differential treatment.

On October 19, 2018, Brown filed a second EEOC charge, in which she

claimed to suffer race discrimination, age discrimination, and retaliation. (Doc.

27-3). Brown filed this action on October 26, 2018, and amended her complaint on

June 13, 2019. (Docs. 1, 27). Brown resigned from NAOS effective May 13,

2019. (Doc. 65-1 at 23).

III. Discussion

A. Race and Age Claims

Title VII makes it unlawful for an employer to refuse “to hire . . . or

otherwise to discriminate against any individual [ ] because of such individual’s

race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Section

1981 grants all persons the right to make and enforce contracts, “which in an

employment context means protection against discrimination based on race and

color.” Flores v. Devry Univ., Inc., 573 F. App’x 833, 835 (11th Cir. 2014); 42

U.S.C. § 1981.

The ADEA, which protects individuals between the ages of 40 and 70, makes it

unlawful for an employer “to refuse to hire . . . or otherwise discriminate against

any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s age . . .” 29 U.S.C. § 623(a). The

AADEA similarly prohibits an employer from discriminating against “a worker 40

years of age and over in hiring, job retention, compensation, or other terms or

conditions of employment.” Ala. Code § 25-1-21.

1. Some of Plaintiff’s claims are barred by the statute of

limitations.

To the extent Brown is challenging each MBUSI hire outlined above, at least

some of those claims are untimely. To bring a claim in federal court under Title

VII or the ADEA, an Alabama plaintiff must first file a charge of discrimination

with the EEOC within 180 days of the challenged conduct. See Reed v. Winn

Dixie, Inc., 677 F. App’x 607, 610 (11th Cir. 2017). If a plaintiff does not timely

file her EEOC charge, her claims are barred. See id. Here, Brown filed her first

EEOC charge on December 22, 2017, which was 180 days after June 25, 2017.

Accordingly, any Title VII, ADEA, and AADEA5 claims based on conduct

occurring prior to June 25, 2017, are untimely, and only the Jackson, Ellis, and

Roberts hires may be challenged under these three theories.

A plaintiff is not required to exhaust administrative remedies prior to filing a

discrimination action under § 1981. See Chandler v. Volunteers of Am., N. Ala.,

Inc., 598 F. App’x 655, 665 (11th Cir. 2015). MBUSI characterizes this case as

5 The AADEA statute of limitations is the same as that authorized by the ADEA, but AADEA

plaintiffs are not required to pursue an administrative remedy before filing suit. See Ala. Code §

25-1-29; Perry v. Batesville Casket Co., 551 F. App'x 987, 989 (11th Cir. 2014).

one concerning a failure to promote, rather than a failure to hire. Further, MBUSI

summarily concludes Brown’s §1981 “promotion” claims are subject to a two-year

statute of limitations and therefore any complaints about conduct occurring prior to

October 26, 2016, are time-barred. (Doc. 64 at 19). However, depending on the

circumstances surrounding the promotion, Brown’s claims may be subject to either

a two- or four-year statute of limitations.

Section 1981 does not contain an explicit statute of limitations. Prior to

1991, the proper statute of limitations for § 1981 claims was “the most appropriate

or analogous state statute of limitations.” Goodman v. Lukens Steel Co., 482 U.S.

656, 660 (1987), superseded by statute as recognized in, Jones v. R.R. Donnelley &

Sons Co., 541 U.S. 369 (2004). In Alabama, the most analogous statute of

limitations is the two-year personal injury statute of limitations contained in Ala.

Code § 6-2-38. See Price v. M & H Valve Co., 177 F. App’x 1, 10 (11th Cir.

2006). Congress altered the limitations period for civil causes of action brought

under federal statutes in 1990 by passing 28 U.S.C. § 1658, which sets forth a four-

year statute of limitations. Id. This four-year period, however, applies only to

those § 1981 claims made possible by a post-1990 enactment. Jones, 541 U.S. at

383. If a party could have brought her claim prior to the 1991 amendment, the

original state-related limitations period applies. See Price, 177 F. App’x at 10.

Prior to 1991, a plaintiff could not use § 1981 to challenge the terms and

conditions of her employment. See, e.g., Patterson v. McLean Credit Union, 491

U.S. 164, 185 (1989) (superseded by statute as recognized by Rivers v. Roadway

Express, 511 U.S. 298, 303 (1994)). Rather, the critical inquiry at that point was

“whether the employer, at the time of the formation of the contract, in fact

intentionally refused to enter into a contract with the employee on racially neutral

terms.” Id. at 184.

Before the 1991 amendment, a plaintiff could not necessarily challenge her

employer’s failure to promote her. Instead, whether a plaintiff could bring a

failure-to-promote claim under § 1981 depended on “whether the nature of the

change in position was such that it involved the opportunity to enter into a new

contract with the employer.” Patterson, 491 U.S. at 185 (1989). “Only where the

promotion rises to the level of an opportunity for a new and distinct relation

between the employee and the employer is such a claim actionable under § 1981.”

Id. Put simply, Brown’s promotion claim is subject to the two-year statute of

limitations if the promotion she sought would create a “new and distinct”

relationship between MBUSI and Brown. Otherwise, the statute of limitations is

four years pursuant to § 1658. See Young v. Hyosung USA, Inc., No. 5:18-CV-

507-LCB, 2020 WL 5645813 (N.D. Ala. Sept. 22, 2020). This is a fact-specific

analysis which may consider factors such as the position’s pay, duties,

responsibilities, and required qualifications. See id.

Viewing the facts in the light most favorable to Brown, her “promotion”

would have established a new and distinct relationship with MBUSI. The MBUSI

TRSs were paid more and had different benefits. They were employed directly by

MBUSI and were permanent, as opposed to contract, employees. They were also

entitled to priority consideration for job postings as “internal” employees.

Consequently, Brown’s § 1981 claims are subject to a two-year statute of

limitations, and her claims concerning activity before October 26, 2016, are time-

barred. Thus, Brown may challenge the Harden, Jackson, Ellis, and Roberts hires

under § 1981.

2. Brown can state a prima facie case of race and age

discrimination.

Brown admits her race and age discrimination claims rest on circumstantial

evidence (Doc. 68 at 16) and are thus subject are subject to the familiar McDonnell

Douglas framework. See Lewis v. City of Union City, Ga., 918 F.3d 1213, 1217

(11th Cir. 2019) (McDonnell Douglas applies to both Title VII and § 1981 claims);

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 141–42 (2000)

(applying McDonnell Douglas to ADEA claims); Robinson v. Ala. Cent. Credit

Union, 964 So. 2d 1225, 1228 (Ala. 2007) (adopting ADEA evidentiary framework

to AADEA claims). The following analysis will apply equally to Plaintiff’s race

and age claims.

Under the McDonnell Douglas framework, a plaintiff must satisfy her prima

facie case to create an inference of discrimination. See Lewis, 918 F.3d at 1221.

Once a plaintiff establishes a prima facie case, the burden shifts to the employer to

articulate a legitimate, nondiscriminatory reason for the employment decision. Id.

This is a burden of production rather than of proof, and it can involve no credibility

determination. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). “It

is important to bear in mind, however, that the defendant’s burden of rebuttal is

exceedingly light; the defendant need not persuade the court that it was actually

motivated by the proffered reasons [but] it is sufficient if the defendant’s evidence

raises a genuine issue of fact as to whether it discriminated against the plaintiff.”

Perryman v. Johnson Prods. Co., 698 F.2d 1138, 1142 (11th Cir. 1983) (internal

citations and quotations omitted). So long as the employer articulates a “clear and

reasonably specific” non-discriminatory basis for its actions, it has discharged its

burden. Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248, 258 (1981).

If an employer articulates one or more legitimate, nondiscriminatory reasons

for the employment action, the plaintiff must show the proffered reason was

pretext for illegal discrimination. Lewis, 918 F.3d at 1221. If the proffered reason

is one that might motivate a reasonable employer, a plaintiff cannot quarrel with

the wisdom of the reason but instead must “meet that reason head on and rebut it.”

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). A plaintiff can

show pretext by casting sufficient doubt on the employer’s proffered reasons to

permit a reasonable factfinder to conclude some other reason actually motivated its

conduct. Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994). To

demonstrate pretext, the plaintiff can also show the proffered reason was false and

discrimination was the real reason for the employer’s action. St. Mary’s Honor

Center, 509 U.S. at 515.

MBUSI claims Brown’s prima facie case requires her to show (1)

membership in a protected class; (2) an adverse employment action; (3) a

similarly-situated comparator outside the protected class was treated more

favorably than plaintiff; and (4) the plaintiff was qualified for the position. (Doc.

64 at 20). In Smith v. Vestavia Hills Board of Education, the Eleventh Circuit

analyzed the plaintiff’s termination claim using these factors; however, it analyzed

the plaintiff’s failure-to-hire claim under a different set of prima facia

requirements. 791 F. App’x 127, 130, 132 (11th Cir. 2019). Given the Eleventh

Circuit’s distinction here, the court will proceed under the more tailored failure-to-

hire analysis used in Smith.

Because this is a failure-to-hire/promote case, Brown must establish her

prima facie case by demonstrating: (1) she is a member of a protected class; (2) she

applied and was qualified for the relevant employment position; (3) she was not

hired, despite her qualifications; and (4) the person who received the promotion

has lesser or equal qualifications and was not a member of her protected group (or

in the case of age, by someone “substantially younger,” even if that individual is

also over the age of 40). See id. at 132.6 The parties agree Brown was a member of

a protected class and was not hired. They dispute whether Brown was qualified.

Because MBUSI analyzed Brown’s claim using different criteria, the parties did

not truly address the fourth element, nor did they address whether Brown applied

for all the positions at issue.

a. For purposes of summary judgment, the court will

assume Brown applied for the positions at issue.

When an employer uses a formal process to announce positions and identify

candidates, the plaintiff must show she applied for the position. Williams v. Waste

Mgmt., Inc., 411 F. App'x 226, 228 (11th Cir. 2011). “However, where an

employer does not formally announce a position, but rather uses informal and

subjective procedures to identify a candidate, a plaintiff need not show under the

second prong that [s]he applied for the position—only that the employer had some

6 See O’Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996) (“Because the ADEA

prohibits discrimination on the basis of age and not class membership, the fact that a replacement

is substantially younger than the plaintiff is a far more reliable indicator of age discrimination

than is the fact that the plaintiff was replaced by someone outside the protected class.”).

reason to consider [her] for the post.” Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d

763, 768 (11th Cir. 2005).

As the moving party, MBUSI bears the burden of demonstrating Brown

cannot meet an element of her prima facie case. As observed above, the record is

not clear whether Brown applied for each of the positions at issue, and neither

party addresses this issue in their briefs. Thus, for purposes of summary judgment,

the court will assume Brown can put forth evidence demonstrating she applied or

MBUSI had reason to consider her for the positions at issue.

b. Brown met the initial, objective requirements for the

open MBUSI TRS positions.

MBUSI argues Brown was not qualified for at least some of the open

positions because MBUSI wanted an external perspective for these hires. The

record, however, does not indicate external experience was an objective

requirement for the position. See Kidd v. Mando Am. Corp., 731 F.3d 1196, 1204

(11th Cir. 2013) (employee is qualified if she can show that “she satisfied an

employer’s objective qualifications”) (emphasis added).

In Kidd, the plaintiff challenged her employer’s hire of an outside candidate

for an assistant accounting manager position. Id. at 1201. The employer did not

formally announce the open position, and the plaintiff was not aware the employer

was actively seeking to fill the position. Id. at 1200. The employer claimed it

sought to hire someone with auditing experience, which the plaintiff did not have.

Id. at 1204. While the trial court found the plaintiff’s lack of auditing experience

disqualified her from the position, the Eleventh Circuit disagreed because the

employer had not objectively defined or publicized the required qualifications for

the open position. Id. The court held that “where the qualifications for the job are

neither objectively verifiable nor easily obtainable or within the plaintiff’s

possession, the plaintiff need not satisfy this portion of the prima facie case.” Id.

(internal quotations and citations omitted). Because the employer only expressed

the need for auditing experience in internal discussions, its hiring criteria was not

objectively verifiable nor easily within the plaintiff’s possession, and thus the

plaintiff did not have to demonstrate she possessed auditing experience. Id.

Viewed in the light most favorable to Brown, the following facts suggest

MBUSI’s “requirement” that certain positions be filled by individuals with

external experience was not a requirement at all: (1) there is no reference to

external experience as a requirement in the job postings (Doc. 65-5 at 27-28); (2)

Brown, an external candidate with internal experience, applied for the position

filled by Jefferson (Doc. 65-1 at 32-33); (3) at least some evidence suggests

“internal” applicants were permitted to apply for the position filled by Ellis, such

as the October 27, 2017 email from Shiew asking for the names of internal

applicants for the position (Doc. 65-8 at 59); (4) Brown applied for the position

filled by Ellis (Id. at 34); and (5) there is no evidence MBUSI ever formally posted

or publicized its desire to hire outside the plant as a requirement of the position.

MBUSI’s desire for a new perspective is certainly relevant to its ultimate decision

on who to hire among various candidates and may be considered at the second

stage of McDonell Douglas. See Kidd, 731 F.3d at 1205. However, the proper

inquiry at the prima facie stage is whether Brown met the initial, objective

requirements. See id. MBUSI has not established that the hiring criteria it relies

upon to disqualify Brown was either objectively verifiable or easily obtainable or

otherwise within Brown’s possession, and Brown need not satisfy this portion of

the prima facie case. See Kidd, 731 F.3d at 1204.

c. The open MBUSI positions were filled by non-White

employees who were substantially younger than

Brown.

All the positions at issue were filled by Black employees, and so Plaintiff

can meet the fourth element of her prima facie case for her race discrimination

claims. Plaintiff can also meet the fourth element of her prima facie case for her

age claims because all the successful applicants were at least six years younger,

and thus “substantially younger,” than Brown. See Carter v. City of Miami, 870

F.2d 578, 582–83 (11th Cir. 1989) (holding three years age difference meets

“substantially younger” requirement”).7 Thus, Brown has demonstrated a prima

7 As noted above, Brown may only challenge the Jackson, Ellis, and Roberts hires based on age;

however, Walls, Harden, and Jefferson were also substantially younger than Brown.

facie case of race and age discrimination, and MBUSI must offer a legitimate, non-

discriminatory reason for each of the contested hires.

3. MBUSI offered a legitimate, non-discriminatory reason for

each hire.

MBUSI’s burden to articulate a legitimate, nondiscriminatory reason for its

employment decisions can involve no credibility determination and is “exceedingly

light.” See St. Mary’s Honor Ctr., 509 U.S. at 509; Perryman, 698 F.2d at 1142.

MBUSI must only articulate a “clear and reasonably specific” non-discriminatory

basis for its actions. See Tex. Dep’t of Cmty. Affs., 450 U.S. at 258. The burden at

this stage is one of production, rather than of proof. Perryman, 698 F.2d at 1142.

MBUSI offers the following legitimate, non-discriminatory reasons for each

contested hire:

• Spring 2017 – MBUSI hired Harden. As an NAOS TRS, Harden showed

strong initiative, had an energetic attitude, and was proactive in solving

problems. He also had a strong HR background, including serving as a

career counselor in the military. As with the comparison to Walls, in this

selection, Brown was viewed as someone who demonstrated less initiative

and was less available to plant employees than Harden.

• July 2017 – MBUSI hired Jackson. As an NAOS TRS, Jackson had sought

feedback about how to improve after not having previously been hired into

the MBUSI TRS role. She implemented the feedback she received and

improved her performance, which contributed to the decision to hire her into

the MBUSI role. In contrast, Brown had not taken the initiative to seek

feedback from Cooper to improve her performance.

• January 2018 – MBUSI hired Ellis, who had extensive HR and automotive

experience outside of MBUSI. As with Jefferson, Olive was interested in

the external perspective Ellis would bring to MBUSI. Compared to Ellis,

Brown would not have brought a new, outside perspective to the role.

• June 2018 – MBUSI hired Roberts, an MBUSI employee who had

previously held the TRS role. Consistent with its general policy, MBUSI

gave priority to Roberts as an “internal” candidate. Further, Olive was

familiar with Roberts’s past performance in the TRS role and was excited

for him to return to that position. Compared to Roberts, Brown was

considered an “external” candidate. Roberts’s selection filled the open

position before it opened to external candidates.

MBUSI offers clear and specific reasons to support its decision for each

challenged hire. These reasons are well within MBUSI’s business judgment

regarding the candidates’ qualities, and MBUSI has established legitimate, non-

discriminatory reasons for each hire. Therefore, Brown must demonstrate these

reasons are pretext for discrimination.

4. There is no evidence to demonstrate MBUSI’s legitimate,

non-discriminatory reasons are pretextual.

To rebut MBUSI’s legitimate, non-discriminatory reasons for each hire and

demonstrate these reasons are pretextual, Brown must demonstrate both (1)

MBUSI’s reasons were false and (2) discrimination was the real reason. See St.

Mary’s Honor Ctr., 509 U.S. at 515. Brown cannot simply argue she was better

qualified than the candidates who were ultimately selected, but she must instead

demonstrate the disparities between their qualifications and her own 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.” See Bailey

v. City of Huntsville, 517 F. App’x 857, 863 (11th Cir. 2013) (internal citation

omitted). Neither can she show pretext by simply substituting her business

judgment for MBUSI’s. See id. at 864. Where, as here, “the proffered reason is

one that might motivate a reasonable employer,” Brown must directly rebut that

reason; she cannot simply quarrel with MBUSI’s reasoning. See id. Even if she

can demonstrate MBUSI’s reasons are false, Brown must also show the hiring

decisions were in fact motivated by age or race. See St. Mary’s Honor Center, 509

U.S. at 515.

Brown does not meet this burden. She complains MBUSI’s reasons are

vague, subjective, and unsupported by documentation, but MBUSI gave specific

feedback about each candidate’s strengths relative to Brown.8 Brown does not

challenge the qualifications of each selected candidate or compare their

qualifications to her own. She is required to make at least some specific

comparison between each candidate and herself but she has not done so.

Consequently, the court cannot conclude Brown’s qualifications are so superior

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

chosen the candidate(s) selected over” Brown. See Bailey, 517 F. App’x at 863.

Brown also complains that MBUSI’s reasons are pretextual because she was never

disciplined or offered feedback about the weaknesses in her job performance. But,

a lack of formal discipline does not necessarily demonstrate Brown had superior

qualifications, particularly where there is no evidence regarding the disciplinary

history of the selected candidates. Nor does Brown’s lack of formal discipline

necessarily require MBUSI to hire/promote her.

Joiner’s testimony that Brown was helpful and visible on the plant floor and

worked with him to resolve any issues he brought to her does not help Brown’s

claim of pretext, and it does not lead to a conclusion that Brown was substantially

more qualified than the other candidates. MBUSI does not claim Brown was never

on the plant floor and never resolved issues for MBUSI employees. Rather, in

8 Some of the proffered reasons for selection do not appear to be documented, but Brown cites no

authority finding a lack of documentation permits a finding of pretext.

comparison to the other TRSs, MBUSI believed Brown spent less time on the plant

floor and took less initiative. Joiner’s testimony does not rebut MBUSI’s proffered

reasons for each of its hires.

Thus, Brown has not shown the disparities between her own qualifications

and those of the selected candidates 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.” See Bailey, 517 F. App’x at 863. Moreover,

Brown has introduced no evidence to permit the court (or any factfinder) to find

that race and/or age were the true motives for MBUSI’s hire of each candidate.

Accordingly, Brown has failed to show MBUSI’s proffered reasons for not

selecting her for the various open positions were a pretext for race and age

discrimination.

For the foregoing reasons, there are no genuine issues of material fact

concerning Brown’s race and age discrimination claims (Counts One and Two),

and MBUSI is entitled to judgment as a matter of law.

B. Retaliation

Title VII makes it unlawful for “an employer to discriminate against any of

his employees . . . because he has opposed any practice made an unlawful

employment practice by this subchapter, or because he has made a charge,

testified, assisted, or participated in any manner in an investigation, proceeding, or

hearing under this subchapter.” 42 U.S.C. § 2000e–3(a). Both the ADEA and

AADEA contain similar anti-retaliation provisions. See 29 U.S.C. § 623(d); Ala.

Code § 25-1-28. To establish a prima facie case of retaliation under Title VII, §

1981, the ADEA or the AADEA, Brown must prove: (1) she engaged in statutorily

protected conduct; (2) she suffered an adverse employment action; and (3) the

adverse action was causally related to the protected expression. See Butler v. Ala.

Dep’t of Transp., 536 F.3d 1209, 1212–13 (11th Cir. 2008) (Title VII and § 1981);

King v. CVS Caremark Corp., 2 F. Supp. 3d 1252, 1264 (N.D. Ala. 2014) (ADEA);

Robinson, 964 So. 2d at 1228 (adopting ADEA evidentiary framework to AADEA

claims). To demonstrate a causal connection, a plaintiff must show his “protected

activity was a but-for cause of the alleged adverse action by the employer.” Univ.

of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 362 (2013). The causal connection

may be shown by temporal proximity alone, but a plaintiff taking this route must

show the events occurred “very close” in time. See Higdon v. Jackson, 393 F.3d

1211, 1220 (11th Cir. 2004). “If there is a substantial delay between the protected

expression and the adverse action in the absence of other evidence tending to show

causation, the complaint of retaliation fails as a matter of law.” Debose v. USF

Board of Trustees, 811 F. App’x 547, 557 (11th Cir. 2020) (noting a three-to-four-

month delay is too large a gap to prove causation).

Brown claims she continued to be denied promotions by MBUSI after she

complained to Shiew about discrimination. It appears this complaint occurred in or

around December 2017, following MBUSI’s announcement it would hire Ellis for

the open TRS position, but certainly after MBUSI’s November 2017 decision to

hire Ellis. Brown’s first EEOC complaint was also filed around this time, on

December 22, 2017. Consequently, the only promotion at issue in the retaliation

context is the June 2018 Roberts hire. The time gap between the December 2017

complaints and the June 2018 Roberts hire is too long to establish a causal

connection, and Brown offers no other evidence to link her complaints to the fact

that she was not selected for the position ultimately filled by Roberts. Because

there is no evidence of a causal connection, Brown cannot establish a prima facie

case of retaliation. Even if Brown could show causation, the analysis above

applies equally here: MBUSI offered a legitimate, non-retaliatory reason for hiring

Roberts, and Brown failed to rebut MBUSI’s reasoning with any evidence that the

reasons were pretext for discriminatory or retaliatory conduct. See, e.g., Debose,

811 F. App’x at 558.

Brown may have again complained about discrimination in September 2018;

however, Brown alleges no adverse action or position for which she was not hired

occurring after this date. Therefore, she cannot show that this complaint resulted

in retaliatory activity.

For the foregoing reasons, there are no genuine issues of material fact

concerning Brown’s retaliation claims (Counts Three and Four), and MBUSI is

entitled to judgment as a matter of law.

C. Damages

As discussed above, Brown has failed to show MBUSI’s reasons for not

selecting Brown for each of the open positions were pretext for race or age

discrimination. MBUSI is consequently entitled to judgment as a matter of law for

Brown’s race and age discrimination claims under Title VII, § 1981, the ADEA,

and the AADEA. Similarly, Brown failed to demonstrate a prima facie case of

retaliation for her complaints of race and age discrimination, and MBUSI is

entitled to judgment as a matter of law for Brown’s retaliation claims. Because

these rulings are fully dispositive of Brown’s claims, it is unnecessary to address

MBUSI’s argument that Brown has not proven damages.

IV. Conclusion

For all the foregoing reasons, viewing the facts in the light most favorable to

Brown, there are no genuine issues of material fact, and MBUSI is entitled to

judgment as a matter of law. Accordingly, MBUSI’s motion for summary

judgment will be granted in its entirety and all of Brown’s claims will be dismissed

with prejudice. A separate order will be entered.

DONE and ORDERED this 4th day of March, 2022.

Lies: A. Centdae!—

TACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

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