-WWD WEAKS v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION et al, No. 1:2009cv00580 - Document 36 (M.D.N.C. 2011)

Court Description: MEMORANDUM OPINION AND ORDER signed by JUDGE THOMAS D. SCHROEDER on 1/25/2011, that Defendants" motion for summary judgment (Doc. 19 ) is GRANTED and that this matter be, and hereby is, DISMISSED WITH PREJUDICE. A separate Judgment will be entered. (Butler, Carol)

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-WWD WEAKS v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION et al Doc. 36 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF NORTH CAROLINA MICHAEL F. WEAKS, ) ) ) ) ) ) ) ) ) ) ) ) Plaintiff, v. NORTH CAROLINA DEPARTMENT OF TRANSPORTATION, “NCDOT” DIVISION OF MOTOR VEHICLES, “NC DMV” LICENSE AND THEFT BUREAU, Defendants. 1:09cv00580 MEMORANDUM OPINION AND ORDER THOMAS D. SCHROEDER, District Judge. Plaintiff Michael F. Weaks (“Weaks”) brings this action for declaratory and monetary relief under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”), 42 U.S.C. § 1983, and 28 U.S.C. §§ 2201 and 2202, for alleged failure to promote and disparate treatment. 1.) (Doc. Before the court is the motion for summary judgment by Weaks employer, Defendants Transportation (“NCDOT”), North Carolina Division of Motor Department Vehicles of (“DMV”), “NC DMV” License and Theft Bureau (collectively “Defendants”). (Doc. 19.) replied Weaks filed an opposition (Doc. 23) and Defendants (Doc. 28). For the reasons set forth herein, Defendants motion will be granted. Dockets.Justia.com I. BACKGROUND On motion for summary judgment, the court views the evidence in the light most favorable to Plaintiff Weaks as the nonmoving party. Shaw v. Stroud, 13 F.3d 791, 798 (4th Cir. 1994). A. Weaks’ Prior Employment Weaks is an African-American employed by Defendants since 1994, when Officer. ¶ VII.) he was hired the position of DMV Enforcement (Doc. 1, Complaint (“Cmplt.”) ¶ VII; Doc. 7, Answer His employment included patrolling state highways and enforcing traffic laws. Weaks to Application).) Section and “became (Doc. 20-3, Ex. C (Michael Fitzgerald Weaks the joined immediate the Weight supervisor Enforcement for the officers hired as well as the Field Training Officers.” joined the Drug Interdiction Team. new He also (Doc. 24, Weaks Decl. ¶ 3.) In April 2003, Weaks was promoted to Emissions Inspector in District II (Cumberland County), where he set up stations in the Emissions Program, certified Emissions Technicians, performed Over Audits as well as Covert Observations. Subsequently, headquarters, Weaks where transferred he to “co-managed” the agency s Districts 1 and (Id.) Raleigh through 8, “reviewed investigations,” and handled correspondence received from the Governor and others. with legislators and During this period, Weaks spoke consumers, 2 explaining DMV s policy and procedures as well as related North Carolina General Statutes. (Id. ¶¶ 3, 4.) In 2006, Weaks was promoted to Emissions Law Enforcement Supervisor in Greensboro. In that position, eleven employees and other field personnel. he supervised (Id. ¶ 5.) He also served as the statewide Manager/Emissions Coordinator for all districts for six months, trained DMV personnel who attended the Basic School on the Emissions Program, and supervised the DMV Safety/Emissions Unit Call Center. He also continued to speak with legislators and consumers on a daily basis. (Id. ¶ 6.) At the direction of Deputy Director Debbie Brewer, Weaks also led the “E-Sticker” Emissions Program and worked with various agencies and companies to develop it. He also wrote proposed legislation relating and legislative committees, to Motor Vehicle Committee. B. the program lawmakers, the met NCDOT with Board, various and the (Id. ¶¶ 7, 8.) Position of Assistant Director-Emissions In September 2008, Weaks applied for a promotion to one of two positions: Assistant Director-Emissions in the License and Theft Bureau; and if unsuccessful, Law Enforcement Manager of Emissions.1 (See Doc. 20-3, Ex. C.) 1 The parties and documents use the phrase “Law Enforcement Manager” to refer both to the latter position, to which Weaks was promoted, as well as to the position for which Weaks was rejected in 2008 that is the subject of this lawsuit (Assistant Director-Emissions). Defendants explain, and Weaks does not dispute, that both positions 3 The Assistant Director-Emissions is responsible for oversight and administration of DMV s Emissions Program. 20-2, Norman Blake (“Blake”) Aff. ¶¶ 3, 4.) the (Doc. The position is equivalent to the former rank of Major, two grades higher than Weaks position at the time of selection.2 Aff. ¶ 6.) (Doc. 20-2, Gardner The posting for the position stated the following duties: Description of Work This position is Asst Director & is responsible for the operations & investigative programs within the L & T [License and Theft] Bureau. Duties include the development, organization & administration of the safety/emissions program; advise & support the Director in the evaluation & development of the L & T Bureau, legislative proposals & internal policy procedures; develops & recommends for adoption enforcement strategies & methods; provide technical staff provisions & specialized for field operations, clerical staff & evaluate the performance of affected geographic districts & make the appropriate recommendations concerning the statewide enforcement of Chapter 20 & Rules & Regs specifically pertaining to the motor safety inspection maintenance emission program & the enforcement of Federal Clean [Air] Act; Plan, prepare & oversee budget for the inspection maintenance program. are considered “Law Enforcement Manager” by Defendants Human Resources office. (See Doc. 20-2, Joseph I. Gardner, Jr. (“Gardner”) Aff. ¶ 5.) 2 The parties use the terms Lieutenant, Captain and Major to reflect the relative seniority ranks of various positions, although these terms are no longer used. A Major is a higher rank than Captain which, in turn, is a higher rank than Lieutenant. (E.g., Doc. 20 at 11; Doc. 20-2, Gardner Aff. ¶¶ 6, 7.) While the position of Assistant Director-Emissions is a “Major”-level position, Weaks position at the time of his application in 2008 was a “Lieutenant”-level position. (Doc. 20 at 11; Doc. 20-2, Gardner Aff. ¶ 6.) 4 (Doc. 20-3, Ex. A (application procedure omitted); Doc. 25, Ex. A (same).) In addition to the description of work, the posting for Assistant Director-Emissions stated: Knowledge, Skills And Abilities Management prefers knowledge &/or experience with a safety/emissions program. . . . Inform & clarify policies, procedures, statutes & goals internally & externally; plan & conduct meetings; analyze statistical data to allocate statewide resources; coordinate & manage statewide operations; manage assigned criminal, civil & admin investigations as delegated to specialty unit supervisors; develop & implement technical admin investigations as delegated to specialty unit supervisors; develop & implement technical solutions to maintain & enhance program success; ensure adequate training programs . . . . (Doc. 20-3, Ex. A (emphasis added); Doc. 25, Ex. A (emphasis added).) listed The various Knowledge, Skills investigatory and and Abilities law enforcement abilities associated with the position. section skills also and (Id.) William Tracy Keel (“Keel”), a Caucasian, also applied for the position. Application).) Keel had supervisory been (Doc. 20-3, Ex. B (William Tracy Keel At the time of the application, Weaks concedes, employed experience with by Defendants Defendants, longer, and was had in a more higher position (Keel was already a Captain; Weaks was a Lieutenant). (Doc. 20-3, Ex. D; see Doc. 20-2, Blake Aff. ¶ 7.) service as an Enforcement Officer 5 in 1987 and Keel began subsequently attained the position employees. In of he 1991, Sergeant, was where promoted he to supervised Lieutenant four in Enforcement Section, where he supervised six employees.3 the (Doc. 20-2, Blake Aff. ¶ 12, Gardner Aff. ¶ 7; Doc. 20-3, Ex. B.) Beginning in June 1996, Keel became Captain of Motor Carrier Enforcement for DMV. In this position, he supervised the agency s Motor Carrier Weight Enforcement program and managed a $2.3 million dollar budget from the federal government. (Doc. 20-2, Blake Aff. ¶ 11; Doc. 20-3, Ex. B.) In 1997, Keel became Supervisor/Captain (Manager) of the License and Theft Bureau s Training and Development Section. (Doc. 20-2, Blake Aff. ¶ 10, Keith King (“King”) Aff. ¶ 5; Doc. 20-3, Ex. B.) to learn and That position required that he have “the ability interpret the State and Federal laws and regulations as they relate to the duties of DMV License and Theft Bureau Agents and to transfer this information in training of employees.” ¶ 7; see Doc. (Doc. 28-1, Jack D. Coltrane (“Coltrane”) Aff. 28-3, Ex. F (“Position Description Form: Enforcement Officer III – Training and Development”).) Keel was charged with training personnel on North Law Thus, Carolina emissions laws and DMV s policies regarding the Motor Vehicle Safety Inspection and Exhaust Emissions Programs. 3 (Doc. 28-1, Defendant s Memorandum of Law in support of the Motion for Summary Judgment incorrectly states the date as 2001, rather than 1991, as reflected in a supporting affidavit and Defendant s Exhibit B. 6 Coltrane Aff. ¶ 8.) This required knowledge of the Emissions Program. Keel to have a working (Doc. 20-2, King Aff. ¶ 5.) During this period, in 2000, Keel was certified by the North Carolina Office of State Personnel as a Public Manager. (Doc. 20-2, Blake Aff. ¶ 13; Doc. 20-3, Ex. B.) In January 2006, seven-county area. Keel became District Supervisor of a The District Supervisor s responsibilities and duties are extensive and are set forth in a 12-page document that includes the following as to emissions: The District Supervisor, through the staff, administers the safety/emissions inspection program within the district. . . . Undercover investigations are conducted on stations that are deficient and to meet the Division of Air Quality (DAQ) requirements. The District Supervisor causes an investigation to be made . . . regarding the safety/emissions inspection program and reviews the resulting reports to determine if the field personnel have taken proper corrective actions. The District Supervisor reviews and evaluates reports to ensure that all federal requirements for the emissions program are met. These include overt inspections of all licensed emission mechanics on a yearly basis and covert investigations of all licensed emission stations semi[-]annually. The District Supervisor monitors and counsels local community colleges in conducting training schools for safety and emission inspection mechanics and station owners. (Doc. 28-1, Coltrane Aff. 4; Doc. (“Position As District Supervisor, Keel was required to be responsibilities,” which all aspects included 7 - E Office”).) with Manager Ex. Form: familiar Enforcement 28-2, Description “totally Law ¶ of management District Field the Section s of operations involving vehicle theft, title fraud, and various other types of fraud, as well governing, as among enforcement other of things, the rules vehicle and safety regulations and emissions inspection stations (which required knowledge of the Bureau s Emissions Program). (Doc. 20-2, Blake Aff. ¶ 9; Doc. 20-3, Ex. B; Doc. 28-2, Ex. E.) He supervised twenty-five employees, was required to have “a working knowledge of each position s duties and the ability and skill to provide this information and expertise to subordinates,” and was ultimately “accountable for the success assigned or to emissions. failure” the License of and all of Theft the District s Bureau well programs beyond (Doc. 20-3, Ex. B; Doc. 28-2, Ex. E.) just For four months during this period, he also undertook responsibility for an adjoining District.4 (Doc. 20-2, Blake Aff. ¶ 9; see Doc. 20- 3, Ex. B.) In February 2008, Keel became Supervisor (Captain) of the License and Theft Bureau s Fraud Unit, which identifies fraud with respect registration. His duties enforcement to drivers licenses, vehicle titles, and (Doc. 20-2, Blake Aff. ¶ 7; Doc. 20-3, Ex. B.) included agencies meeting to with combat 4 fraud state and and federal law incorporating that Defendants state that Keel managed District IV from June to September 2008, although this year appears to be a typographical error, as Keel was not a District Supervisor after February 2008. (See Doc. 20-3, Ex. B.) 8 information into the agency s operations. Aff. ¶ 8.) (Doc. 20-2, Blake In this position he supervised nine subordinates and managed the agency s Identity Lab. (Doc. 20-3, Ex. B.) Thus, at the time of his application in 2008, Keel had been a sworn law enforcement officer for 27 years, had supervised other agency employees for 17 years, and had been the designated manager of entire programs or Districts for the agency for 12 years. For 12 years, he had been not only a Supervisor, but he had supervised other supervisors. C. Selection Process Pursuant candidates for to published the position guidelines of (Doc. Assistant 27, Ex. E), Director-Emissions appeared before an interview committee (also referred to as an interview panel). The interview committee consisted of three members: (1) Norman Blake, an African-American Supervisor over the Greensboro District; (2) Greg Lockamy, a Caucasian who was Deputy Director of the License and Theft Bureau; and (3) Brian Bozard, a Caucasian who was the Director of the License and Theft Bureau. (Doc. 24, Weaks Decl. ¶ 16.) Each candidate was required to complete an application and answer a questionnaire, which the interview committee used for its deliberations. Personal interviews of each candidate were also conducted. Defendants rated the applications of both Weaks and Keel as “Most Qualified.” (Doc. 20-3, Exs. B, C.) 9 “Most Qualified” is defined as “the group of applicants who, to the greatest extent, possess qualifications described in the which vacancy exceed the minimum announcement.” (Doc. requirements 27.) The consensus of the interview committee, without dissent, was to recommend Keel for the Assistant Director-Emissions position.5 (Doc. 20-2, Blake Aff. ¶ 21.) Ultimately, Keel was promoted to the position (although neither Weaks nor Defendants indicates who made the decision). Although Weaks was not selected for the position of Assistant Director-Emissions, in approximately October 2008 he was promoted to the other position he sought – Law Enforcement Manager of Emissions, a Captain s position. (Doc. 1, Cmplt. ¶ VII; Doc. 20-2, Blake Aff. ¶ 23, Gardner Aff. ¶¶ 3, 4.) is equivalent to the rank Keel had held since 1996. This (Doc. 20-2, Blake Aff. ¶ 23.) On or about March 17, 2009, Weaks submitted a charge of racial discrimination Commission. to the Equal Employment Opportunity Defendants admit that a “notice of right to sue letter” was issued and that this lawsuit was brought timely. (Doc. 1, Cmplt. ¶ I(4); Doc. 7, Answer at 1 (admitted).) 5 Blake, who is African-American, states that to his knowledge the race of the applicants played no part in the selection process, including in his own decisionmaking. (Doc. 20-2, Blake Aff. ¶ 22.) However, the court will not consider at the summary judgment stage general assertions by the Defendants that they did not discriminate. 10 Weaks contends that Defendants discriminated against him by failing to promote him to the position of Assistant DirectorEmissions in 2008. he was treated He also contends generally that since 2006 more harshly because of his race. The Complaint s sole count claims that Defendants are liable “for subjecting treatment [Weaks] due to to race race in discrimination the terms and and disparate conditions of his employment in violation of Title VII of the Civil Rights Act of 1964, and as amended in 1991 and 42 USC 1983.” at 5.) He requests that the court (Doc. 1, Cmplt. declare the practices complained of unlawful and seeks a permanent injunction against Defendants for any applicable law.” conduct (Id.) “shown to be in violation of He also seeks compensatory damages, including pecuniary loss, emotional pain, and mental suffering, as well as back pay and punitive damages. II. (Id. at 1, 5.) ANALYSIS A. Section 1983 Claims Weaks seeks recovery pursuant to 42 U.S.C. § 1983 as well as under Title VII. (Doc. 1, Cmplt. ¶¶ I(2), V.) Defendants assert that they are not “persons” within the meaning of section 1983 (and section 1981) for purposes 11 of recovering monetary damages. (Doc. 7, Answer (First Defense).) Neither party has briefed the issue,6 although the law is clear. In Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989), the Supreme Court held that a state is not a “person” under section 1983. Id. The court also held that the Eleventh Amendment bars section 1983 suits unless the state has waived its immunity. Id. at 66-67. This state immunity extends to governmental entities that are considered “arms of the State” for Eleventh Amendment purposes. Id. at 70. are arms of the State of North Carolina. Here, Defendants See Brown v. N.C. Div. of Motor Vehicles, 166 F.3d 698, 705 (4th Cir. 1999) (noting that DMV, “as a department of the state, is immune from suit unless Congress has abrogated that immunity”); Bennett v. N.C. Dep t of Transp., No. 1:05CV0764, 2007 WL 4208390, at *4 (M.D.N.C. Nov. 26, 2007) (dismissing section 1983 claims for racial discrimination and hostile work environment against NCDOT). Weaks has not alleged that Defendants consented to suit.7 Defendants are therefore immune 6 from a direct action under Weaks opposition brief references section 1983 in a heading and in the concluding paragraph of its discussion of the interview panel. (Doc. 23 at 5, 15.) In a footnote, Weaks states that claims under 42 U.S.C. 1981 “are analyzed using the McDonnell Douglas standard.” (Id. at 4 n.1) Section 1981 is not mentioned in Weaks Complaint or in his opposition except for the footnote reference. Otherwise, Weaks opposition addresses only the Title VII claim. (See id. at 58.) 12 section 1983 in this court regardless of the relief sought.8 See Kentucky v. Graham, 473 U.S. 159, 167 n.14 (1985) (state cannot be sued in its own name regardless of the relief sought unless it waives its Eleventh Amendment immunity or Congress has overridden it).9 B. Summary Judgment Standard Summary affidavits, judgment and other is appropriate proper discovery where the pleadings, materials demonstrate that no genuine dispute as to any material fact exists and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-33 (1986). initially The party seeking summary judgment bears the burden of demonstrating material fact. the absence of Celotex, 477 U.S. at 323. a genuine issue of If this burden is met, the nonmoving party must then affirmatively demonstrate a 7 The State Employee Federal Remedy Restoration Act waives sovereign immunity, with limitations, with respect to certain actions that do not include section 1983. See N.C. Gen. Stat. § 143-300.35. 8 The Complaint does not name as defendant a state officer, either in an official or individual capacity. Thus, this action does not fall under the exception announced by the Supreme Court in Ex Parte Young, 209 U.S. 123 (1908), which permits a federal court to issue prospective injunctive relief against a state officer to prevent ongoing violations of federal law. See McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010). 9 In contrast, Weaks may bring an action against Defendants under Title VII. Fitzpatrick v. Bitzer, 427 U.S. 445, 456-57 (1976). However, any claim against Defendants for punitive damages would be barred. See 42 U.S.C. § 1981a(b)(1) (barring Title VII recovery of punitive damages from a government agency); Bennett, 2007 WL 4208390, at *4 (same). 13 genuine issue of material fact which requires trial. Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. Matsushita 574, 587 (1986). Federal Rule of Civil Procedure 56(e), in effect at the time of this motion and Weaks opposition, required that “affidavits submitted by the party defending against a summaryjudgment motion contain specific facts, admissible in evidence, from an affiant competent to testify, „showing that there is a genuine issue for trial. ”10 Pension Benefit Guar. Corp. v. Beverley, 404 F.3d 243, 246-47 (4th Cir. 2005) (quoting 10B Charles Allen Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2740, at 399 (1998)). for trial unless sufficient evidence There is no issue favoring the nonmoving party exists for a fact finder to return a verdict for that party. 257 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, (1986) (there must be “sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party”); Sylvia Dev. Corp. v. Calvert Cnty., 48 F.3d 810, 817 (4th Cir. 1995). Moreover, on summary judgment, the nonmoving party is entitled to have the “credibility of his evidence as forecast assumed, his version of all that is in dispute accepted, all 10 Rule 56(c)(4), effective December 1, 2010, continues to require that affidavits (or declarations) be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant (or declarant) is competent to testify on the matters stated. Fed. R. Civ. P. 56(c)(4) (effective Dec. 1, 2010). 14 internal conflicts in it resolved favorably to him.” Metric/Kvaerner Fayetteville v. Fed. Ins. Co., 403 F.3d 188, 197 (4th Cir. 2005) (quoting Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979)). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no „genuine issue for trial. ” Matsushita, 475 U.S. at 587. C. Weaks’ Title VII Claims Title VII makes it an unlawful employment practice for an employer, including a state agency, “to . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because individual s race.” 42 U.S.C. § 2000e-2(a)(1). plaintiff position in Weaks may survive a motion through one of two avenues of proof. of such A Title VII summary judgment A plaintiff may establish through direct or circumstantial evidence that race, though not the sole reason, was a “motivating factor” in the denial of a promotion. Diamond v. Colonial Life & Accident Ins. Co., 416 F.3d 310, 318 (4th Cir. 2005). Alternatively, he or she may use the burden-shifting proof scheme established by the Supreme (1973). Court in McDonnell Douglas Diamond, 416 F.3d at 318. v. Green, 411 U.S. 792 Though acknowledging the first avenue, Weaks legal analysis in opposition to Defendants motion for summary judgment proceeds under the latter framework. 15 Under McDonnell Douglas, the plaintiff must first establish a prima facie case of discrimination, at which point the burden shifts to the defendant to articulate some “legitimate, nondiscriminatory Plumbing reason” Prods., Inc., for its 530 action. U.S. 133, Reeves 142 v. (2000). Sanderson If the employer carries its burden of production, the presumption of discrimination raised by the prima facie case “drops out of the picture” and the ultimate burden remains with the employee to “prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not the true reasons, but were a pretext for discrimination.” Id. at 142-43 (quoting Tex. Dep t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). To prevail, a plaintiff must ultimately prove he or she was treated less favorably than other applicants because of race. Anderson v. Westinghouse Savannah River Co., 406 F.3d 248, 268 (4th Cir. 2005); Carter v. Ball, 33 F.3d 450, 456 n.7 (4th Cir. 1994). To establish pretext, a plaintiff cannot focus on “minor discrepancies that do not cast doubt on the explanation s validity, or by raising points that are wholly irrelevant to it.” Hux v. City of Newport News, 451 F.3d 311, 315-16 (4th Cir. 2006). Weaks Assistant focuses his claim Director-Emissions on in his 2008. failure He to be contends hired he as was treated more harshly “than similarly situated white employees 16 under the same or similar circumstances,” and that the interview committee criteria was to “impaneled form the improperly, basis of relied their on subjective recommendation, ultimately discriminated against him due to his race.” at 7-8.) and (Doc. 23 He claims he was the most qualified person for the position and that Defendants, “rel[ying] heavily on subjective criteria,” selected a less-qualified white male, Keel, for the position. (Doc. 1, Cmplt. ¶ IX; Doc. 23 at 9-10.) 1. Proof of Prima Facie Case To establish a prima facie case under McDonnell Douglas, the plaintiff must prove that he (1) is a member of a protected group, (2) qualified applied for for the position, giving circumstances the rise position discrimination. and to in (4) an question, was (3) rejected inference of was under unlawful Anderson, 406 F.3d at 268; Williams v. Giant Food Inc., 370 F.3d 423, 430 (4th Cir. 2004). establish a onerous.” Burdine, 450 U.S. at 253. Here, prima Weaks, facie as an case of disparate “The burden to African-American, treatment is a is member not of a protected group and applied for the Assistant Director-Emissions position at issue. Defendants further admit he was qualified 17 for the position.11 To satisfy the fourth prong, a plaintiff need only show that the position was filled by a person not in the protected class. F.3d at 458. Thus, Weaks See, e.g., id. at 253 & n.6; Carter, 33 The position was filled by Keel, a Caucasian. has established a prima facie case of a discriminatory refusal to promote. 2. Under Defendants’ Articulation Discriminatory Reason McDonnell Douglas, once a of a Legitimate, plaintiff Non- establishes a prima facie case, the burden shifts to the defendant to produce a non-discriminatory explanation for the decision. on Defendants at this stage is one of The burden production, not persuasion, and the court s analysis “can involve no credibility assessment.” St. Mary s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Defendants proffer that Keel was selected for the position of Assistant Director-Emissions qualified candidate. for “the operations because he was the better- Noting that the position is responsible and investigative programs” within the License and Theft Bureau, Defendants represent that the position required “first enforcement and foremost managerial a experience 11 person with and someone Weaks also contends he received exceptional evaluations, which Defendants generally acknowledge. ¶ IX.) 18 significant with a law basic job performance (Doc. 7, Answer knowledge of the Emissions program.” (Doc. 20 at 3-4.) This is consistent with Defendants posted description of work for the position. (Doc. 20-3, Ex. A; Doc. 25, Ex. A.) Defendants managerial limited point to experience supervisory in Keel s diverse experience extensive areas, of supervisory comparing Weaks. it to and the Specifically, Defendants point to Keel s approximately 27 years as a sworn law enforcement officer and his supervisory work history of nearly eighteen years, a period longer than Weaks had been employed by Defendants. 1996,12 Defendants also point to Keel s experience since which included being a manager, that is, one who supervises supervisors -- experience which Weaks did not have at the time of his application Director-Emissions. for the position of Assistant (See Doc. 20 at 7; Doc. 20-1, Blake Aff. ¶ 13.) Keel had managed seven counties and for four months assumed additional responsibility for nine other counties. Finally, Defendants note that Keel had eleven years experience with emissions law and regulations as a District Supervisor and as Captain/Supervisor of the Training and Development Unit. Defendants contrast Keel s experience with that of Weaks. At the time of his application, Weaks had formally supervised others for only two years, beginning 12 with his promotion to Defendants briefing notes Keel being a Captain “since 1994” (e.g., Doc. 20 at 15) although the supporting documents make clear he became a Captain in 1996. 19 Lieutenant in 2006. Thus, he held for only two years supervisory type of position Keel had held since 1991. the While Weaks became a Captain in 2008, Keel had held that position for more than a decade. subordinate to By Weaks own admission, his position was Keel s at the Assistant Director-Emissions.13 time of the application for (Doc. 20-3, Ex. D.) Based on the record, the court finds that Defendants have carried their burden of producing a legitimate, discriminatory reason for promoting Keel over Weaks. non- Because Defendants have met their burden of production, the burden of persuasion is upon Weaks to show pretext. See Anderson, 406 F.3d at 269 (requiring plaintiff to show employer s explanation that selected applicant was best candidate was a pretext for racial discrimination and citing Hicks, 509 U.S. at 511). 3. Once an legitimate, attempt Pretext to employer meets the non-discriminatory establish discrimination by that he showing burden reason, was that the the of “the victim producing plaintiff of employer s a may intentional proffered explanation is unworthy of credence.” Reeves, 530 U.S. at 143 (internal The quotation marks omitted). 13 ultimate burden of Weaks reports he supervised 120 while employed as a Correctional Officer by the North Carolina Department of Corrections, but as Defendants point out, and Weaks does not dispute, those were not employees but were inmates. (Doc. 20 at 9 n.2; see Doc. 26, Ex. C.) 20 persuasion remains on the plaintiff at all times. U.S. at 252-53. Burdine, 450 The question, therefore, is whether Weaks has presented or forecast evidence that Defendants reason was not the true reason, but was a pretext for discrimination, sufficient to survive the summary judgment motion. See Reeves, 530 U.S. at 143. Prior plaintiff to Reeves, claiming the Fourth discrimination Circuit with required respect to that a a denied promotion establish that he or she was the better qualified candidate for the position sought. Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 960 (4th Cir. 1996). In Anderson v. Westinghouse Fourth Savannah River Co., however, the Circuit observed: We followed Reeves in Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 648-49 & n.4 (4th Cir. 2002), and determined that a plaintiff in a failure to promote case is not necessarily required to meet the test in Evans Technologies Applications & Service Co., 80 F.3d 954, 960 (4th Cir. 1996), that a plaintiff “must establish that she was the better qualified candidate for the position sought.” . . . “Reeves plainly instructs us to apply a contrary approach [to Evans] by affirming that it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer s explanation.” 406 F.3d at 269 (citations omitted). Thus, “[a] plaintiff alleging a failure to promote can prove pretext by showing that he was better qualified, or by amassing circumstantial evidence 21 that otherwise undermines stated reasons.”14 the credibility of the employer s Heiko v. Colombo Savings Bank, F.S.B., 434 F.3d 249, 259 (4th Cir. 2006) (citing Anderson, 406 F.3d at 269); Dennis v. Columbia Colleton Medical Center, Inc., 290 F.3d 639, 648-49 & n.4 (4th Cir. 2002). The court, therefore, will address whether Weaks has forecast sufficient evidence for a jury to conclude that (1) he was the better qualified candidate or (2) Defendants stated reason for promoting Keel over him was pretextual. a. Weaks as Better Qualified Applicant Weaks asserts that he was the better qualified candidate for the position, based on his knowledge of and experience in emissions. argues (Doc. 23 at 9-10; Doc. 24, Weaks Decl. ¶ 12.) that the interview committee “used subjective criteria” to justify Keel s hiring. He ever-changing (Doc. 23 at 14.) He points to the interview and questions in which, he asserts, “a lot however, of the emphasis job was placed posting clearly on supervisory indicated importance of knowledge of emissions.” and experience; stressed the (Doc. 24, Weaks Decl. ¶ 19.) 14 There are exceptions, however, such as when the record conclusively reveals some other, nondiscriminatory reason for the employer s decision, or when the plaintiff creates only a weak issue of fact as to whether the employer s reason is untrue and there is abundant and uncontroverted independent evidence that no discrimination has occurred. Reeves, 530 U.S. at 148. 22 When a plaintiff relies on his qualifications to establish pretext, similar he or must only do more slightly eventually selected. plaintiff because provided One show superior his to qualifications those of the were person Heiko, 434 F.3d at 261-62 (finding that sufficient plaintiff s superior”). than way evidence qualifications to prove a of possible were plaintiff s pretext “demonstratively case under the theory that he is the better qualified candidate is to show that his qualifications were “so plainly superior that the employer could not have preferred another candidate.”15 at 648 2815742, n.4; Hill v. at *1, *5 Magistrate s Leavitt, Case (M.D.N.C. recommendation, No. Sept. including Dennis, 290 F.3d 1:05cv00582, 24, finding 2007) that 2007 WL (adopting plaintiff failed to show he was “so plainly superior that the employer could not have preferred another candidate”); see Ash v. Tyson Foods, Inc., 546 U.S. 454, 458 (2006) (declining to “define more precisely what standard should govern pretext claims based on superior qualifications”). Ultimately, it is not within the federal court s authority “to dictate the factors that employers 15 “[A]n equally valid way to prove pretext is to provide evidence that the employer s proffered reason was not the actual reason relied on, but was rather a false description of its reasoning – albeit one based on a real difference in qualifications – manufactured after the fact.” Dennis, 290 F.3d at 648 n.4. Weaks has not articulated his argument as such. 23 must weigh in making a promotion” under Title VII. Hux, 451 F.3d at 318. In Diamond, supra, the court addressed an employee s claim that the employer s experience evidence as of “failure management to „recognize experience discriminat[ory] intent, should and [her] be that prior considered this evidence [was] sufficient to show that [the employer s] stated reasons for not promoting her were a pretext for discrimination.” F.3d at 319 (third and fourth alterations added). 416 The court disagreed, finding it was unable to conclude that the plaintiff could show pretext even assuming she had more management experience than the employee who was promoted. The court noted that some according to the stated qualifications, management experience was “preferred,” but such experience was not regarded as essential. “Thus, while management experience was a factor to be considered in awarding the promotion, it clearly was not intended to be dispositive.” Id. Here, Weaks focuses on the following job posting criteria: Management prefers knowledge of &/or experience with a safety/emissions program; must have experience in developing & evaluating internal policies & procedures; respond daily to inq[uiries] . . . public, legislature, other state agencies, & judicial officials; inform & clarify policies, pro[cedures] . . . statutes & goals internally & externally. (Doc. 23 at 9; see Doc. 20-3, Ex. A.) He argues that “[t]hese are precisely the skills held by the plaintiff.” 24 (Doc. 23 at 9.) He notes his promotion in 2006 to Law Enforcement Supervisor in Greensboro, where he supervised eleven employees as well as field personnel. For six months, he also served as statewide Manager/Emission Coordinator for all districts, became Manager/Emissions Coordinator for the western part of the state, supervised the correspondence Safety/Emission with the Unit Governor, Call Center, Secretary of handled State, and Commission, spoke with legislators and consumers daily regarding statutory issues, worked with the state air quality divisions, and led the “E-Sticker” Emissions Program (including writing new program specifications and technical changes to legislation, and giving presentations to various groups). Weaks also emissions licenses.16 received specialist, emissions and held (Doc. 23 at 9-10.) training, several was a certified emissions-specific (Doc. 24, Weaks Decl. ¶ 9.) Weaks asserts baldly, without any explanation, that Keel had “absolutely no experience in Emissions.” (Doc. 23 at 9.) As noted earlier, however, the uncontested record demonstrates that Keel indeed had experience in emissions that appears to 16 Weaks' affidavit also references letters of recommendation he submitted as exhibits which are dated in February and March 2009, several months after his September 15, 2008, application. He provides no evidence, however, that the letters were provided to the interview committee or decisionmaker filling the position of Assistant DirectorEmissions. To the extent they are relevant, see DeJarnette v. Corning, Inc., 133 F.3d 293, 299 (4th Cir. 1998), the letters indicate that Weaks was qualified for the position in question, a fact admitted by Defendants. 25 have been much longer (eleven years) than, though perhaps not as intensive as, Weaks experience. For example, most recently Keel served two years as a District Supervisor, during which time he managed the emissions program in seven counties and which required “extensive knowledge of the emissions program.” (Doc. 20-2, Blake Aff. ¶¶ 9-10.) He was required to know each position s duties (including those related to the emissions) to be able to provide the expertise to subordinates. Ex. E.) (Doc. 28-2, This experience expanded to nine more counties for four months, when he temporarily took responsibility for an adjoining district. (Id. ¶ 9.) He also had nine years experience as Supervisor (Captain) of the Training and Development Section of the License and Theft Bureau (a position senior to that held by Weaks), which required that he be involved in and knowledgeable about emissions training. (Id. ¶ 10, King Aff. ¶ 5; Doc. 28-1, Coltrane Aff. ¶ 8.) Weaks states summarily that the job posting for Assistant Director-Emissions on its face “clearly indicated and stressed the importance of knowledge of emissions.” (Doc. Decl. that ¶ prefers program.” (same).) 19.) However, knowledge &/or the posting experience states with a 24, Weaks “Management safety/emissions (Doc. 20-3, Ex. A (emphasis added); Doc. 25, Ex. A As in Diamond, a criterion that is “preferred” but not required is not essential and, therefore, not intended to be 26 dispositive. While emission knowledge plainly is relevant to the position, an employee “cannot establish [his] own criteria for judging [his] qualifications for the promotion. compete for the promotion based established by [his] employer.” on the [He] must qualifications Anderson, 406 F.3d at 269. Thus, in rebutting Defendants reliance on job qualifications, Weaks cannot simply compare himself to another employee on the basis of a self-selected evaluative factor “artificially severed from the employer s focus on multiple factors in combination.” Hux, 451 F.3d at 315. Here, Defendants have set forth their criteria for the job in the posting, and Weaks has not proffered any evidence that they were a sham.17 In addition to a preference for emissions knowledge, those criteria included law enforcement, supervisory, and management experience. (Doc. 25.) As noted in more detail in the previous discussion as to Defendants articulation of a nondiscriminatory reason, at the time of applications for the position of Assistant Director-Emissions in September 2008 Keel not only had substantial emissions knowledge, he had been a sworn law enforcement officer for over twenty-five years, had formally supervised employees for seventeen years, and had been designated Manager (formerly Captain) of programs and Districts 17 Weaks does attack the application of those job duties by the interview committee in the questionnaire, which is addressed infra. 27 for more than a decade. Manager. position By contrast, Weaks had been employed in the lower of Law Enforcement over two years. positions He was also certified as a Public as a Supervisor (Lieutenant) for just Prior to that time, he had served in line Vehicle Enforcement Officer, a Motor Carrier Officer, and, from April 2003 until his promotion to Supervisor in 2006, a Law Enforcement Agent/Inspector. application, Weaks had not been a Manager At the time of his (Captain) of any program within the License and Theft Bureau. Both Weaks and Keel were indisputably qualified for the position of Assistant Director-Emissions. As noted by interview panelist Blake, while “[t]he application of Michael Weaks also reflects a progression of increasingly responsible positions with the License and Theft Bureau, however, his progression is not as long as Mr. Keel s, and his level of responsibility was not as high, and his positions were of a lower level.” (Doc. 20-2, Blake Aff. ¶ 14.) Weaks also argues that “questions 2-10 of the interview focus almost entirely (Doc. 23 at 14.) on issues pertaining to supervision.” He contends that “[t]here are only three (3) questions specific to the position of Emissions.” (Id.) This, Weaks surmises, required or permitted the interview panel to make subjective evaluations to suit a racial motive. 28 To the extent Weaks suggests that supervisory experience is not a bona fide criteria, or that an employer cannot consider subjective criteria, his argument fails. See Amirmokri v. Baltimore Gas & Electric Co., 60 F.3d 1126, 1130 (4th Cir. 1995) (noting that “[e]ven if [the plaintiff's] education and outside experience were objectively superior to [the other candidate's], [the employer] objective could factor performance . . . properly of [the take other into account candidate s] both the outstanding and the more subjective factors like his good interpersonal skills and his ability to lead a team”). Surely Defendants can consider a candidate s supervisory experience in seeking to fill a supervisory position. Weaks also argues that the interview committee members could write anything they chose regardless of what the candidate stated in the interview, suggesting “[a] better method” would have the candidate write his or her own answers. 15.) (Doc. 23 at Of note, Weaks includes the interview sheet prepared by interview committee member Blake but points to no notation by him that did not match Weaks interview answers. 2.) Further, Defendants observe that (See Doc. 24- interviewers make contemporaneous notes prior to proceeding to the next question. DMV policy provides that interview notes are to be taken in pen, not pencil, with no use of correction tape or white-out. 28-1, Coltrane Aff. ¶ 15; Doc. 29 28-4, Ex. G (“DMV (Doc. Policy Recruitment and Selection: Interview Panels” (July 30, 2009)).) Needless to say, the court declines Weaks urging to micromanage Defendants interview process.18 In summary, even assuming that Weaks had more emissions knowledge and experience, he has failed to demonstrate sufficient evidence from which a jury could conclude that he was the better qualified candidate. Defendants were “entitled to focus on the applicants qualifications taken as a whole – a judgment not rendered pretextual by the fact that one among many factors is allegedly in dispute.” crucial issue in a Title Hux, 451 F.3d at 319. VII action is an “The unlawfully discriminatory motive for a defendant s conduct, not the wisdom or folly of its business judgment.” Id. (quoting Jiminez v. Mary Washington Coll., 57 F.3d 369 (4th Cir. 1995)). As is oft- stated, this court “does not sit as a kind of super-personnel department weighing the prudence of employment decisions made by firms charged with employment discrimination.” Corning, Inc., 133 F.3d quotation marks omitted). 293, 299 (4th Cir. DeJarnette v. 1998) (internal Thus, Weaks has failed to demonstrate sufficient evidence of pretext on this basis. 18 Weaks references “the disparate impact theory” in his discussion of the nature of the interview questions and the manner in which the answers were recorded. (Doc. 23 at 15.) Weaks does not provide or forecast evidence in support of his “conten[tion] that the interview panel s method had a disparate impact on him in this instance.” (Id.) 30 b. Circumstantial Evidence Alleged to Undermine Defendants’ Articulated Reason Weaks presents circumstantial evidence in addition to his claim that he was the better-qualified candidate. This evidence relates to his allegations regarding: (1) improper inclusion of Blake on the interview committee; (2) lack of interview committee member emissions expertise; (3) pre-selection of Keel; (4) improper policy promotion regarding of Keel employees in light supervising of or the Defendants holding positions which could influence the employment of a family member; (5) disparate treatment following Weaks 2006 statistical evidence of discrimination. promotion; and (6) (Doc. 23 at 10-15.) Each is addressed in turn. i. Weaks asserts Inclusion Committee that Blake s of Blake on the Interview inclusion on the interview committee violated a DMV policy that committee members must have an equal or a higher rank than that of the position for which interviews are conducted. ¶ 16.) Weaks promotion committee. claims practices (Doc. 23 at 13; Doc. 24, Weaks Decl. that by “Deviation Defendants including from regular deviated Blake in procedures example of evidence used to show pretext.” the is from their interview a classic Johnson v. City of Charlotte, 229 F. Supp. 2d 488, 495 (W.D.N.C. 2002) (citing Vaughan v. Metrahealth, 145 F.3d 197 (4th Cir. 1998), abrogation 31 on other grounds recognized by Leake v. Ryan s Family Steakhouse, 5 F. App x 228, 232 (4th Cir. 2001)). Weaks does not cite or provide a copy of the portion of any DMV policy which sets out the alleged DMV mandate requiring each panel member to hold an equal or higher rank than that of the position for which the interviews were conducted (in this case, the rank of Major or above). DMV Deputy Director for Personnel and Administration Jack D. Coltrane, who has been employed in DMV s License and Theft Bureau since 1985, stated on personal knowledge that “the License and Theft Bureau has never had a policy that the interview panel members „would have equal or a higher rank than that of the position for which the interviews were being conducted. ” DMV s affidavit, official as (Doc. 28-1, Coltrane Aff. ¶ 11.) policy expressed is Selection: Interview Panels.” accord with “DMV in in Coltrane s Policy Recruitment and (Id. ¶¶ 11, 12; Doc. 28-4, Ex. G.)19 According to DMV policy, job interviews are conducted by three panel managerial consists of members staff a chosen approved chairperson from to a list conduct and 19 two of supervisory interviews. additional and A panel members. The The DMV Policy presented to the court is dated 2009, the year after the selection of Keel to the position of Assistant Director-Emissions. Defendants assert through affidavit that the policy “mirrors” that in effect at the time the interview panel was created. (Doc. 28-1, Coltrane Aff. ¶ 12; Doc. 28-4, Ex. G.) Weaks also presents an excerpt from a 2009 document relating to the selection process. (Doc. 27, Ex. E (Revised 2/10/09).) 32 chairperson “will be a supervisor or manager of the position for which interviews are being held and will serve as the „technical expert for the area to which the position is assigned.” (Doc. 28-4, Ex. G.) DMV s official policy also provides that “[t]wo (2) additional panel members will be selected from other sections within DMV.” (Id.) The court has not located a provision of the DMV policy that the additional panel members must hold a rank at or above that of the interview position, and Weaks has not directed unsupported the court assertion, to any particularly such in provision. the face Weaks of DMV s official policy on selecting interview committee members, cannot create Blake s a genuine dispute eligibility to of material serve on the fact with interview respect to committee. Further, Weaks has presented no evidence that even if such a policy existed, Blake s inclusion on the panel is evidence of pretext or disparate treatment. Rather, the inclusion of Blake, who is African-American, was in accord with DMV policy that “[t]o the fullest extent possible, DMV interview panels will represent diversity of race” and other characteristics.20 20 (Id.) Indeed, the expected assertion would be just the opposite: that in lieu of someone on a hiring panel who was the same race or gender as a plaintiff, the employer placed someone of lesser qualifications who was not. In his briefing, Weaks fails to identify anyone of his race who he contends should have been included on the panel in lieu of Blake. 33 ii. Weaks challenges Alleged Lack of Emissions Expertise the credentials of Interview panel Panel members with respect to emissions experience, claiming that Blake had little experience and the other two members had none. (Doc. 23 at 13.) Weaks further states that “I believe the only reason Blake was selected for the interview panel is because of his race, since he lacked the knowledge and understanding of emissions to make a sound decision for the position and DMV wanted to have diversity on the panel.” By virtue (Doc. 24, Weaks Aff. ¶ 17.) of their positions, however, all three panel members administered or oversaw the Emissions Program for their respective areas of responsibility.21 ¶ 13.) As noted above, interview committees “technical expert” and DMV (Doc. 28-1, Coltrane Aff. policy designated required applicable the that generally chairperson the chairperson as be to the the supervisor or manager of the position for which the interview is conducted. is tasked As the designated technical expert, the chairperson with providing necessary information additional panel members. (Doc. 28-4, Ex. G.) DMV that Policy contemplates 21 some committee to the two In other words, members will Blake was District Supervisor and administered the License and Theft Bureau s Emissions Program in nine counties, while Deputy Director Lockamy and Director Bozard oversaw the entire License and Theft Bureau, including the Emissions Program. (E.g., Doc. 28-1, Coltrane Aff. ¶ 14; see Doc. 28-2, Ex. E.) 34 initially have little or no expertise in certain areas relevant to the job evidence position. indicating Weaks that has provided or procedure the not forecast followed was not in accord with the Defendants policy with respect to information relating to the position of Assistant Director-Emissions. A policy which designates the supervisor or manager of the open position as the “technical expert” and provides that such supervisor or manager will provide necessary information to the other panel members does not evidence a design to disadvantage any candidate based on race. Weaks statements regarding an alleged lack of expertise on the part of the panel members does not raise a genuine dispute of material fact sufficient to evidence pretext. iii. Pre-Selection Rumor Weaks asserts that there were rumors that Keel had been pre-selected to be Assistant Director-Emissions. 13; Doc. 24, Weaks Decl. ¶ 18.) Rumors, prototypical examples of inadmissible hearsay. (Doc. 23 at however, are See Greensboro Prof l Fire Fighters Ass n v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. inadmissible 1995) hearsay; (holding such that evidence unattributed is neither rumors admissible are at trial nor supportive of an opposition to a motion for summary judgment). establish Further, rumors “are wholly insufficient evidence to a claim of discrimination 35 as a matter of law.” Mbadiwe v. Union Mem l Reg l Med. Ctr., Inc., No. 3:05CV49-MU, 2007 WL 1219953, at *2 (W.D.N.C. Apr. 24, 2007) (quoting Mitchell v. Toledo Hosp., 964 F.2d 577, 585 (6th Cir. 1992)), aff d, 265 F. App x 147 (4th Cir. 2008) (per curiam). Even so, pre-selection does not violate Title VII when the pre-selection is based on the qualifications of the pre-selected candidate, and not on some basis prohibited by Title VII. See Mackey v. Shalala, 360 F.3d 463, 468-69 (4th Cir. 2004) (citing Kennedy v. Landon, 598 F.2d 337, 341 (4th Cir. 1979)); see also Moore v. (“Although Mukasey, the 395 F. App x pre-selection of 111, 117 (4th Cir. [one candidate] 2008) may have violated the rules and regulations of [the employer], it does not evidence the type of discrimination that is prohibited by Title VII.” (quoting Kennedy, 598 F.2d at 341)). the Fourth Circuit has stated that “[t]he In addition, argument that a supervisor may have preselected an employee for a promotion „is not sufficient evidence for jurors reasonably to conclude that the Defendant s explanation for hiring [another candidate] was pretext” when based on qualifications not prohibited by Title VII. Anderson, 406 F.3d at 271 (quoting Mackey, 360 F.3d at 468-69). “If one employee was unfairly preselected for the position, the preselection would work to the detriment of all applicants for the job, black and white alike.” Anderson, 406 F.3d at 271 (quoting Blue v. U.S. Dep t of the Army, 914 F.2d 36 525, 541 (4th Cir. 1990)). Thus, while pre-selection may establish that an employee was “unfairly treated, it does not by itself prove racial discrimination.” Anderson, 406 F.3d at 271 (quoting Blue, 914 F.2d at 541). Regardless of whether pre-selection might be relevant in the presence of other evidence of discrimination, in this case Weaks offers only a “rumor” of pre-selection and, after the close of discovery, forecasts no admissible evidence that preselection occurred. Thus, he fails to raise a genuine dispute of material fact sufficient to support a pretext challenge or to show disparate treatment. iv. DMV Policy Regarding Supervision Employee by Family Member Employee of Weaks asserts that Keel should not have been promoted to Assistant Director-Emissions because, according to the Office of State Personnel/DMV policy, “members of an immediate family shall not be employed within the same Agency if such employment will result in one member supervising another member of the employee s immediate family” or if one family member will occupy a position employment. that has influence over the other member s (Doc. 23 at 12-13; see Doc. 24, Weaks Decl. ¶ 15.) Presumably, his point is that this is evidence that Defendants sought to promote, or not to promote, based on race even in the 37 face of an anti-nepotism policy. Weaks does not provide a copy of or quote from the DMV policy in question. Defendants, through DMV License and Theft Bureau Deputy Director for Personnel and Administration Coltrane, assert that Keel was not married to an emissions employee at the time of his application and promotion and, when he subsequently married an emissions auditor in District III, a position which he did not supervise, the License and Theft Bureau believed “it would be better if his wife found a new position within the Agency. However, before this happened, Keel announced his retirement and has since retired from state employment.” Aff. ¶ 10.) (Doc. 28-1, Coltrane Importantly, this statement agrees with Keel s application for the position at issue, in which he discloses that his ex-wife was a DMV Examiner. (Doc. 27-1, Ex. F (noting “X-wife” and bearing a name different from that of the alleged wife).) spouse On its face, the application discloses no then-current (or Carolina. committee other (Id.) did not relation) working for the State of North Thus, the information before the interview implicate DMV policy, even as alleged by Weaks.22 22 Nepotism may in some cases violate Title VII under a “disparate impact” theory, a theory referenced in Weaks filings only with respect to the interview questions asked and the method of writing down a candidate s answers (see Doc. 23 at 15), claims addressed above. See Holder v. City of Raleigh, 867 F.2d 823, 825-26 (4th Cir. 1989). Here, Weaks does not allege nepotism in the selection of Keel as Assistant Director-Emissions. That is, Weaks does not allege that 38 Weaks statement provides that promotion. no evidence DMV He policy also has other should not than have tied any violation to discriminatory conduct. a conclusory prevented alleged Keel s DMV policy Therefore, he does not raise a genuine dispute of material fact sufficient to support a pretext challenge or to show disparate treatment based on an alleged relationship between Keel and a family-member employee. v. Although Defendants Weaks failure Disparate Treatment Following Promotion to Supervisor focuses to his briefing him promote and Assistant to Weaks’ declaration on Director- Emissions, his complaint alleges disparate treatment beginning in 2006. Weaks contends that “after being promoted to the position of supervisor in 2006, he was treated differently than non-minority, similarly contends that among support, authority, work environment race.” as situated other things, promotional the supervisors he not opportunities, non-minority (Doc. 1, Cmplt. ¶ VIII.) was . . . [and] provided the privileges and supervisors due to his He states generally that he “was regularly excluded from important business meetings, not involved in the decisionmaking process, and [his] subordinates were allowed to go over [his] head to discuss matters over which one employee s position in DMV brought about the promotion of another family member or friend to Assistant Director-Emissions. Rather, Weaks asserts that the promotion of Keel itself violated DMV policy. 39 [he] was in charge.” (Doc. 24, Weaks Decl. ¶ 13.) He complained to “Keel about these matters and he responded that he was told to exclude me from „some things. ” Defendants urge as “noteworthy” (Id.) the fact that Weaks supervisor in 2006 was Gordon Ziegler, an African-American, and that the Director of the License Robinson, was also African-American. and Theft Bureau, John (Doc. 20 at 10; Doc. 20-2, Blake Aff. ¶ 24, Gardner Aff. ¶ 2.) Defendants contend that Weaks claims lack merit because his immediate supervisor and ultimate boss were African-Americans, like him. Weaks replies only that at the time of his application for the position of Assistant Director-Emissions (i.e., September 2008), Gordon Zieglar was not the Director of the License and Theft Bureau and John Robinson had retired. (Doc. 24, Weaks Decl. ¶ 11.) The existence of some adverse employment action is required to state a claim regardless of the route a plaintiff follows in a Title VII action. James v. Booz-Allen & Hamilton, Inc., 368 F.3d 371, 375 (4th Cir. 2004). a discriminatory act which An adverse employment action is “adversely affect[s] „the terms, conditions, or benefits of the plaintiff s employment.” Id. While can “[c]onduct short of ultimate employment decisions constitute adverse employment action,” id. at 375-76 (quoting Von Gunten v. Maryland, 243 F.3d 858, 865 (4th Cir. 2001), abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. 40 v. White, 548 U.S. 53 (2006)) (internal quotation marks omitted), the “typical requirements for a showing of an „adverse employment action ” are “discharge, demotion, decrease in pay or benefits, loss of job title or supervisory responsibility, or reduced opportunities for promotion,” 253, 255 (4th Cir. 1999). Boone v. Goldin, 178 F.3d For example, the Fourth Circuit has held that a reassignment only constitutes an “adverse employment action” if the reassignment effect” on the plaintiff. Weaks promotion assertions decision employment action. do has a “significant Id. at 256. of not generalized rise to conduct the level his evidence allegations to prior of to an the adverse Further, he forecasts no evidence sufficient for a trier of fact to find in his favor. offers detrimental support of his disparate failure To the extent Weaks treatment to since promote 2006 claim, as their cumulative effect with other circumstantial evidence falls short of that sufficient from which a jury could find that Defendants articulated reason for not promoting him was false. vi. Anecdotal & Statistical Evidence Finally, Weaks asserts that he has produced “evidence that the Defendant had a pattern and practice of disparate treatment toward black employees.” (Doc. 23 at 10.) Specifically, he claims that “DMV has a history of promoting white employees over blacks at a much faster pace,” 41 listing “for example” nine employees who were “promoted to high ranking positions since 2005” and states that blacks and other minorities “were frequently denied an interview and rejected for positions for which they applied,” listing three (Doc. 24, Weaks Decl. ¶¶ 20-21.) there were Defendants ten promotions individuals to “upper within management” an month period, none involved black employees. In disparate treatment “unquestionably relevant.” examples. Weaks also claims that though Headquarters Raleigh as cases, at unspecified the nine- (Id. ¶ 22.)23 statistical evidence Carter, 33 F.3d at 456. is It may be used to show that an employer s stated nondiscriminatory reason is nothing more than a pretext. However, the Fourth Circuit s “broad statistical pronouncement that evidence is „unquestionably relevant in a Title VII case cannot be read to foreclose the exclusion of evidence with little or no probative value.” Id. “In a case of discrimination in hiring or promoting, the relevant comparison is between the percentage of 23 Defendants request that the court “strike and disregard” a number of statements in Weaks Declaration, including those relating to these figures, primarily on the ground that he lacks personal knowledge and/or that his statements are conclusory. (Doc. 28 at 4.) While portions of Weaks declaration appear conclusory, because Weaks claim ultimately fails the court will assume, without deciding, that Weaks employment with Defendants put him in a position to have personal knowledge of the promotions and circumstances at DMV to the extent he has stated. Cf. Bond v. Health Sys. Grp. First Data Corp., Case No. 3:96CV418-P, 1998 U.S. Dist. LEXIS 6391, at *14-*16 (W.D.N.C. 1998) (striking portions of employee s affidavit not shown to be based on personal knowledge). 42 minority employees applicants in and the the percentage qualified labor of potential pool.” Id. minority Further, depending on the type of statistical evidence proffered, expert testimony as to methodology or relevance to a plaintiff s claim may be necessary to avoid exclusion. In Carter, the Fourth Id. Circuit held that statistical evidence that none of the employer s thirty managerial positions was held by African-Americans was properly excluded from consideration at trial because the plaintiff-employee presented no supporting evidence relating to the pool of African-Americans qualified Circuit for those reasoned positions. that the Id. absence at of 456-57. minority The Fourth employees in upper-level positions was insufficient to prove discrimination absent a comparison positions. with Id. at 456. the relevant labor pool for those The court specifically rejected the plaintiff s arguments that (1) the presence of African-Americans in the relevant pool could be inferred from the plaintiff s own qualifications management, and the (2) the “inexorable discriminatory motive. total lack zero,” of African-American constituted proof of Id. at 457.24 24 Although Carter addressed the district court s decision to exclude the statistical data in question, the language has been applied in the summary judgment context. E.g., Luh v. J.M. Huber Corp., 211 F. App x 143, 149 (4th Cir. 2006); Diamond v. Bea Maurer, Inc., 128 F. App x 968, 971 (4th Cir. 2005); Mills v. N.C. Dep t of Transp., No. 5:06-CV97-F, 2007 WL 2461634, at *1 (E.D.N.C. Aug. 24, 2007), aff d, 283 F. App x 169 (4th Cir. 2008) (per curiam). 43 In the instant case, Weaks provides the names, titles and (in some cases) limited other information regarding nine white employees allegedly promoted “since 2005” as well as for three “black and other minority employees” who were not. Weaks Aff. ¶¶ 20-21.) qualified labor pool. He provides no facts (Doc. 24, regarding the See Lowery v. Circuit City Stores, Inc., 158 F.3d 742, 764 (4th Cir. 1998) (rejecting statistical study because it failed to control for factors other than race that could account for disparity in promotions), vacated and remanded in part on other grounds, 527 U.S. 1031 (1999). The importance of this omission is underscored by the fact that the License and Theft Bureau alone employs between 292 and 502 individuals. (Compare Doc. 25-1 at 2 with Doc. 28-3 at 3; see Doc. 1, Cmplt. ¶ IV (NCDOT employs over 14,000 persons).) Nor does he represent that these are the only employees, white or black (or other minority), who were promoted or denied promotions since 2005. So, the court is unable to determine that this anecdotal recitation of employment actions by itself is probative of any discriminatory treatment. Moreover, his claim of a “nine month period” during which no black employee was promoted to “upper management” while ten others were is not defined at all either as to what constitutes “upper management” or as to time to indicate what connection, if any, it has with the timeframe of Weaks claim. It also suffers from a lack of articulation as to 44 the race of those who were allegedly promoted and as to the qualified labor pool. promoted at a Finally, as to his claim that blacks were slower “pace,” Weaks fails to provide any meaningful comparators from which a jury could infer such a conclusion. Even assuming that Weaks representations are based on a proper foundation, this anecdotal/statistical similar to that considered in Carter. evidence is These representations are ambiguous, generalized, and nonspecific, thus failing to provide a basis from which any conclusions sufficient to withstand summary judgment can be drawn. This is not to say, however, that anecdotal or statistical evidence admissible cannot be considered evidence, such justifications for its action. the an as in presence employer s of other inconsistent In such cases, the cumulative effect may be sufficient to create a jury question with respect to the alleged discrimination. See, e.g., Wright v. N.C. Dep t of Health & Human Services, 405 F. Supp. 2d 631 (E.D.N.C. 2005); Jordan v. Shaw Indus., Inc., Case Nos. 6:93CV542, 6:93CV543, 6:93CV544, 6:93CV545, 1996 WL 1061687 (M.D.N.C. Aug. 13, 1996). Here, Weaks anecdotal information cannot save his claims because he lacks sufficient other evidence with which it could be considered cumulatively to 45 undermine the credibility of Defendants articulated reason for not promoting him to Assistant Director-Emissions. D. Summary Weaks, by virtue of his record and experience, was qualified to hold the position of Assistant Director-Emissions, as Defendants admit. But so was Keel. Viewing the record as a whole in the light most favorable to him, Weaks has failed to demonstrate a genuine dispute of material fact that Defendants nondiscriminatory reasons for selecting Keel were pretext. That is, considering all the job requirements, Weaks has failed to present or forecast sufficient evidence from which a jury could find that he was more qualified or that Defendants asserted justification is false. III. CONCLUSION For the reasons set forth above, the court finds no genuine dispute of material fact as to Weaks claims, and Defendants are entitled to judgment as a matter of law. IT IS THEREFORE ORDERED that Defendants motion for summary judgment (Doc. 19) is GRANTED and that this matter be, and hereby is, DISMISSED WITH PREJUDICE. A separate Judgment will be entered. /s/ Thomas D. Schroeder United State District Judge January 25, 2011 46

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