Ronnie Smith v. Thomasville Georgia

• Court: Court of Appeals for the Eleventh Circuit
• Decided: October 2, 2018
• Docket: 16-16848
• Status: Unpublished

Opinion

Case: 16-16848 Date Filed: 10/02/2018 Page: 1 of 44

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 16-16848 ________________________

D.C. Docket No. 7:14-cv-00112-HL

RONNIE SMITH, ELMA J. JOHNSON, DEREK COLSON, ALLEN D. POWELL, CURTIS BRADSHAW,

Plaintiffs-Appellants,

versus

THOMASVILLE GEORGIA, a government entity, THOMASVILLE GEORGIA FIRE DEPARTMENT, a government entity, BRYAN CROFT, Individually, TIM CONNEL, Individually, DOES, 1 through 10, Inclusive,

Defendants-Appellees. Case: 16-16848 Date Filed: 10/02/2018 Page: 2 of 44

________________________

Appeal from the United States District Court for the Middle District of Georgia ________________________

(October 2, 2018)

Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.

PER CURIAM:

This appeal involves a lawsuit filed by five firefighters in the City of

Thomasville: Derek Colson, Curtis Bradshaw, Allen Powell, Elma Johnson, and

Ronnie Smith. At the time that their lawsuit was filed they were the only black

firefighters in the City. Each of them raises several claims under Title VII,

42 U.S.C. § 1981, and state law. Most of the claims assert discrimination against

the plaintiffs by then-Fire Chief Bryan Croft, then-Assistant Fire Chief Tim

Connell, and the City. The district court granted summary judgment to all of the

defendants. All of the plaintiffs now appeal.

I. BACKGROUND

A. FACTS

The facts underlying most of the claims are unique to each plaintiff,

although some of them overlap. For the sake of clarity, we will go over some

background information about the fire department’s structure and then separately

detail the facts material to each plaintiff. Except that the intertwined facts

2 Case: 16-16848 Date Filed: 10/02/2018 Page: 3 of 44

underlying the claims of plaintiffs Colson and Bradshaw make it easier to discuss

them together. It also makes more sense to save the recounting of the facts

involving the five plaintiffs’ disparate pay claims for the discussion section.

1. Structure of the Fire Department

A firefighter’s duties in the Thomasville Fire Department depend on his rank

and what we’ll call his “position.” The rank is the firefighter’s place in the

department hierarchy. That hierarchy appears to go in some order like this, from

lowest to highest: Firefighter, Driver-Engineer, Lieutenant, Captain, Battalion

Chief/Assistant Chief, and Fire Chief.

Promotions to the ranks of Driver-Engineer, Lieutenant, and Captain are

based on testing. All of the tests are based on the International Fire Service

Training Association testing manuals (IFSTA for short). IFSTA is “the nationally

recognized fire organization that prints the training material[s] . . . for the fire

service.” The fire department uses a random question generator that bases the

questions in tests on the information covered in the IFSTA materials. The program

comes up with a new set of questions each time it is prompted to generate a test.

As a result, no one in the department can manipulate the tests to favor one test

taker over another.

After the candidates take the test, the Human Resources department gives

the Fire Chief a list of the “top” applicants ranked from the highest score down.

3 Case: 16-16848 Date Filed: 10/02/2018 Page: 4 of 44

Although the Chief has the “final say” on promotions, where there was a test for

the position, he always selected the person with the highest score on the test.

A firefighter’s position is not the same as his rank, but instead is his specific

job in the department. There are two categories of position that are relevant here:

suppression and prevention. Suppression is what most people would think of as

regular firefighter duties: putting out fires. Most firefighters in suppression work

24-hour on, 48-hour off shifts. (They get paid for both sleeping and waking hours

while they are on shift.) Prevention positions, by contrast, focus on efforts to

prevent fires and to educate citizens. Unlike suppression, prevention positions

usually involve regular 8 a.m. to 5 p.m. work days. Certain positions require

specialized certifications and training, and firefighters usually must get permission

from the Fire Chief to take certification and training courses.

2. Derek Colson and Curtis Bradshaw

a. Background and history of Colson’s and Bradshaw’s positions and promotions within the fire department

Thomasville hired Derek Colson as a firefighter on November 27, 2000. In

his time with the fire department, Colson has received three promotions. His first

was in December 2003, to the position of Driver-Engineer. His second came

around two years later, when Colson was promoted to the position of Life Safety

Educator and the rank of Lieutenant. The Life Safety Educator is a position that

focuses on educating people on how to stop and prevent fires. It also involves 4 Case: 16-16848 Date Filed: 10/02/2018 Page: 5 of 44

assisting the Fire Inspector in performing inspections around town. Unlike the 24-

hour on, 48-hour off shifts for suppression positions, the Life Safety Educator is an

8 a.m. to 5 p.m. job.

The following year, in 2006, Colson received his final promotion to the

position of Fire Inspector, which is the head of prevention. It, too, is an 8 a.m. to 5

p.m. job. The most important part of the job, of course, is conducting fire

inspections at the City’s hazardous facilities and its 1,300 businesses. Colson’s

white predecessor as Fire Inspector, Clay Phillips, received a promotion in rank

from Lieutenant to Captain when he moved from the Life Safety Educator position

to the Fire Inspector position. Colson did not. Colson presented no evidence to

show how long Phillips was a Lieutenant before he was promoted to Captain. And

there is no evidence in the record that Colson ever took the Captain’s promotional

test or completed the other steps necessary to be considered for a promotion to

Captain.

Thomasville hired plaintiff Curtis Bradshaw as a firefighter on April 5,

2004. Two years later he sought and received the position of Life Safety Educator,

on Chief Croft’s recommendation. 1 Croft, who is white, recommended Bradshaw

for the promotion even though there were other applicants with more experience.

As Life Safety Educator, Bradshaw helped plaintiff Colson perform Fire

1 Croft served as Fire Chief from 2005 to 2012. 5 Case: 16-16848 Date Filed: 10/02/2018 Page: 6 of 44

Inspections throughout the City. Bradshaw’s promotion came with a raise from

$7.96 an hour to $12.50 an hour. But unlike Colson, Bradshaw was not promoted

to Lieutenant. Bradshaw believed that because other Life Safety Educators were

Lieutenants, he should have also been promoted to Lieutenant, as Colson was. But

when he was made Life Safety Educator, Bradshaw had not completed the required

coursework to be considered for a promotion to Lieutenant. He later testified that

he was not being considered for that promotion because he had not completed the

required coursework.

b. Colson and Bradshaw ask to get certified as Arson Investigators

In 2008 plaintiffs Colson and Bradshaw wanted to become certified as arson

investigators. To do that, they needed to take two courses. And they needed Chief

Croft’s permission to take each of them. As part of the first course, a firefighter

had to complete classroom work and ten arson investigations under the supervision

of a certified arson investigator. Colson and Bradshaw finished the classroom

work for the first course. But Colson had not completed any of the ten required

arson investigations, and Bradshaw had completed only three. So Croft did not

give either of them permission to take the second course. According to Croft,

Colson and Bradshaw had been given the opportunity to complete the arson

investigations but did not do them.

6 Case: 16-16848 Date Filed: 10/02/2018 Page: 7 of 44

Croft had allowed two white firefighters to take the second part of the

course: Jeff Huntley and Craig Dukes. But both had completed their classroom

work and the ten arson investigations before he allowed them to take the second

course.

Croft has concerns with Colson’s and Bradshaw’s performance

i. The June 15 meeting

Sometime in the middle of 2011, Chief Croft started having concerns with

Colson’s and Bradshaw’s performance in fire inspections. He was worried that the

commercial fire inspections were not getting done in a timely manner and that the

records of inspections were not being properly maintained in the department’s

computer system. 2 Croft raised his concerns with the head of the City’s HR

department, Kha McDonald, and the two established some benchmarks to give

Colson and Bradshaw an opportunity to improve their work. On June 15, 2011,

Chief Croft and Assistant Chief Tim Connell met with Colson and Bradshaw to

discuss Croft’s concerns and give them the benchmarks they should use to improve

their performance. Croft also told them that instead of getting their usual annual

2 Croft had sampled 15 of the 1,300 businesses in town. Some of those business had not been inspected in the last four or five years. Even though one of the defendants, Assistant Chief Tim Connell, testified that it would be impossible to inspect all 1,300 of Thomasville’s businesses in a year (or even two years), based on the number of years that Colson and Bradshaw had worked in fire prevention, Chief Croft testified that they should have inspected every business “at least once.” 7 Case: 16-16848 Date Filed: 10/02/2018 Page: 8 of 44

“merit increase” of 3% of their salary, they would each get only a 1.5% raise. But

if they successfully met the benchmarks, they would get the full 3%.

ii. Colson and Bradshaw file their first EEOC charges on August 25, 2011

On August 25, 2011, Colson and Bradshaw filed their first EEOC charges.

In the charges, the two claimed that they had been discriminated against based on

their race and that the City paid them less than their white coworkers. Both

complained that the June 15 meeting amounted to a negative performance

evaluation. After the charges were filed, Croft called a meeting of all the Battalion

Chiefs, including another plaintiff, Allen Powell, and promised them that the

charges would “never make it to court.”

iii. The September 30 meeting

According to Colson and Bradshaw, after they filed their EEOC charges a

series of events took place that they contend were retaliatory. The first involved

their reassignment from the positions of Fire Inspector and Life Safety Educator,

which were prevention positions, back to suppression. That string of events began

on September 30, 2011, when Colson and Bradshaw had another meeting with

Chief Croft to discuss their performance since the June 15 meeting.

At that meeting, Croft followed up on some of the benchmarks that were

set for the pair back at the June 15 meeting, focusing on the most important areas.

That included, among other things, the hazardous facilities and commercial

8 Case: 16-16848 Date Filed: 10/02/2018 Page: 9 of 44

building inspections. Croft asked them “if all of the [h]azardous facilities within

[Thomasville] have been inspected” and if the contact information and chemicals

for those facilities had been entered into the fire department’s computer system.

Both replied that they had done all of that. But when Croft checked the computer

system, he “found their answers to be untrue.” There was “very little contact

information[,] if any,” and no hazardous chemicals were listed.

Croft then allowed Bradshaw to leave the meeting and asked Colson to stay

“a little longer” to do a “quick random audit” of businesses in the City to see when

they were last inspected. Out of thirteen businesses in the audit, two had been

inspected within the last year — which was acceptable — but the other eleven had

not been inspected since 2005. And out of those eleven, three businesses did not

have any records of inspections at all. Colson and Bradshaw have since explained

that the reason there was no record of inspections on the department’s computer

system was that they kept only paper records. They speculated that someone could

have broken into their office and taken some of their paper records, but they did

not have any knowledge that had happened.

c. Colson and Bradshaw are reassigned to suppression

A few days after the meeting, Chief Croft wrote again to the head of HR,

Kha McDonald, saying that Colson and Bradshaw’s failure to timely perform and

document inspections showed a “lack of accountability and professionalism.”

9 Case: 16-16848 Date Filed: 10/02/2018 Page: 10 of 44

Because of that, he told her, there was no reason to approve the remaining part of

the merit raise for Colson or Bradshaw. He also recommended that a planned

reorganization of the fire department be put into place immediately because, in his

eyes, Colson’s and Bradshaw’s poor performance was also a safety issue.

On November 14, 2011, Colson and Bradshaw were removed from their

roles as Fire Inspector and Life Safety Educator and put back into suppression.

That same month, Colson was replaced by Captain Tommy Benton, who is white.

Benton suffered from early onset Alzheimer’s disease and needed another

firefighter to drive him around to do inspections. Although Croft knew that

Benton had some “medical issues” that he understood were “mental,” he testified

that he did not know that Benton had Alzheimer’s when he chose him to replace

Colson. Connell, the firefighter who drove Benton, testified that Benton’s

condition, whatever it was, had not affected his ability to conduct fire inspections.

As a result of being removed from their positions and put back into

suppression, Colson’s and Bradshaw’s scheduled hours and hourly pay rates

changed. Their hours changed from regular 8 a.m. to 5 p.m. days to shifts of 24-

hours on, and 48-hours off. Colson’s hourly rate went from $17.09 to $12.21 an

hour, and Bradshaw’s went from $14.57 to $10.41 an hour. Despite that, because

firefighters are paid for both sleeping and waking hours while on shift, Colson and

10 Case: 16-16848 Date Filed: 10/02/2018 Page: 11 of 44

Bradshaw did not earn any less on an annual basis than they had in their prevention

positions, but they did work more hours to earn the same pay.

d. Colson is investigated for stealing funds meant for charity

Later in the fall of 2011, Colson became the target of an investigation into

the alleged theft of funds from the department’s charitable recycling program. One

of his duties as a Fire Inspector was to manage that program for the department.

Colson and Bradshaw would recycle aluminum cans that were donated by the

public and give the proceeds to the Georgia Burn Victims Foundation on behalf of

the fire department. At some point someone from the Foundation told the fire

department that it had not received any donations since 2005, even though cans

had been collected from the fire department all of that time.

The fire department reported the crime to Thomasville police who, in order

to avoid a possible conflict of interest, referred it to the Georgia Bureau of

Investigation. The investigation found that records showed that Colson had

collected cans on at least two occasions when the money was never turned over to

the Foundation. According to investigators, on one of those occasions Colson

instructed the recycling center to make the check out to him personally instead of

the fire department. The Foundation never received that money. And in

November 2011, GBI agents eventually arrested Colson for theft, though the

charges were later dropped.

11 Case: 16-16848 Date Filed: 10/02/2018 Page: 12 of 44

Colson says that the investigation was nothing more than a way to

undermine his EEOC charge. He testified at his deposition that he gave all of the

recycling proceeds to Chief Croft, though GBI never considered Croft a suspect.

After his arrest, the City suspended Colson from work, and he was placed on paid

leave beginning on November 23, 2011, for about a year while the investigation

was being conducted. 3

e. Colson and Bradshaw file their second EEOC charge, and the EEOC gives them Notice of Right to Sue

Colson filed a second EEOC charge on March 20, 2012, and Bradshaw did

so on April 6, 2012. In their second charges, they contended that they had been

denied merit raises and were demoted in retaliation for filing their first EEOC

charges. On April 17, 2014, the EEOC issued Colson and Bradshaw a Notice of

Right to Sue for their first two charges.4

3 In their brief to this Court, Colson and Bradshaw also point to other evidence that they contend supports their allegation that Chief Croft acted with a racially discriminatory motive. That evidence included: (1) an email that Croft forwarded to Colson predicting that, due to the stresses of the Presidency, the recently elected Barack Obama would look like the actor Red Foxx in the sitcom “Sanford and Son” by the time he left office; (2) that Croft gave his spare City credit card to a less senior white employee to use during a business trip instead of giving it to Colson or Bradshaw; and (3) that Croft once remarked to a white co-worker that “when he became Chief . . . he would get rid of the blacks and old timers.” 4 In August 2014, over two years after he filed his second EEOC charge, Bradshaw was transferred to another fire station, Engine 1, which according to him responds to the majority of the fire department’s calls. Bradshaw eventually filed a third EEOC charge on January 8, 2015, alleging that that transfer was in retaliation for his earlier charges. Bradshaw was eventually fired. And he filed his fourth EEOC charge on July 9, 2015, alleging that he was “subjected to more severe discriminatory treatment” and that he was fired in retaliation for his earlier EEOC charges and because of his race. But in this appeal Bradshaw does not raise any claims with respect to his transfer to Engine 1 or his termination. 12 Case: 16-16848 Date Filed: 10/02/2018 Page: 13 of 44

3. Allen Powell

Allen Powell is one of the longest tenured firefighters in the department.

He’s been a firefighter in Thomasville since 1990 and has risen through the ranks

over that time to become a Battalion Chief. As a Battalion Chief, the only member

of the department who outranks Powell is the Chief. Powell’s complaints of

discrimination in this appeal focus on the denial of training and promotional

opportunities, and on disparity in pay (which we will address later in this opinion).

a. Powell asks Croft for the Opportunity to Train as an Arson Investigator

Like Colson and Bradshaw, Powell asserts that Chief Croft denied him the

opportunity to train as an arson investigator. According to Powell, in 2007, 2009,

and 2010, he asked to take the second part of the arson investigation course, but

Croft never allowed him to. He asserts that Croft “wanted to send his friends

first,” like Craig Dukes and Jeff Hundley, who are both white and were allowed to

take the second part of the course.

Chief Croft recalls Powell asking him twice about arson investigation

training. When Powell first approached Croft about training as an arson

investigator, Croft said that the training would take too long, and that he needed

Powell at the firehouse. When Powell asked a second time, Chief Croft agreed that

he could do the training but told Powell that he could not be the official arson

investigator for the fire department. Croft explained that it would be a conflict of

13 Case: 16-16848 Date Filed: 10/02/2018 Page: 14 of 44

interest for Powell to investigate a fire that he had helped to put out. Powell

understood that it would be perceived as a conflict, but he wanted to take the

training anyway.

b. Powell is not considered for the jobs of Assistant Chief and interim Chief

Powell also contends that he was denied two promotional opportunities

because of his race: one for Assistant Chief and one for interim Fire Chief.5 In

2009, Chief Croft created the position of Assistant Chief to oversee the fire

department when he was not there. Like Battalion Chiefs, the Assistant Chief

reported directly to the Fire Chief. But unlike Battalion Chiefs, the Assistant Chief

was an administrative position that was on an 8 a.m. to 5 p.m. schedule instead of

the 24-hour on, 48-hour off shifts of the Battalion Chiefs. Croft had Tim Connell,

who is white, in mind for the position. At the time, Connell was a Captain and the

training officer for the fire department. Because the Assistant Chief position was

not posted, other firefighters could not apply for it. Powell believed that he should

5 In his brief to this Court, Powell also appears to argue that he should have been promoted to Fire Chief (and not just interim Fire Chief) because the City had a practice of promoting from within the department. But Powell testified in his deposition that his complaint involved the interim Chief (and not the permanent) position. Powell did not argue to the district court that he should have been promoted to the permanent Fire Chief position. So that argument, if Powell is making it, was not properly preserved. Juris v. Inamed Corp., 685 F.3d 1294, 1325 (11th Cir. 2012) (“[I]f a party hopes to preserve a claim, argument, theory, or defense on appeal, she must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it.”); id. (“A federal appellate court will not, as a general rule, consider an issue that is raised for the first time on appeal.”) (quotation marks omitted). And, in any event, Powell did not present evidence that Chris Bowman, whom the City ultimately hired as Chief, was not more qualified than he was. 14 Case: 16-16848 Date Filed: 10/02/2018 Page: 15 of 44

have been considered for the job over Connell because he had ten years more

experience than Connell did. But after Connell’s appointment, Powell never

complained to Chief Croft or to the City’s HR department about not being

considered for Assistant Chief.

In 2012, after Croft resigned as Chief, the City needed to appoint an interim

Chief. It chose Battalion Chief Bobby Hart, who is white, for the position. Hart

was chosen because he had the most seniority within the fire department (even

more than Powell). There is no evidence in the record that the interim Chief

position was posted or advertised. Hart was placed in it without any formalities.

And he served as interim Chief until the City hired Chris Bowman as the

permanent replacement for Croft. Powell did not object to Hart being named

interim Chief, but he says that he should have been given the opportunity to apply

for the position. Powell had applied for the permanent Chief position every time it

came open in the past. The last time the Chief position was open, Powell

interviewed for it with Steve Sykes, the same City Manager who selected Hart to

be interim Chief.

c. Powell’s EEOC Charge

Powell filed an EEOC discrimination charge on November 2, 2012. In it he

alleged that he “was not given the opportunity to apply for the position of [interim]

Chief,” because “[t]he position was not posted, but a similarly situated White male

15 Case: 16-16848 Date Filed: 10/02/2018 Page: 16 of 44

was hired.” Although Powell alleged in the charge that he complained about the

posting and selection process for interim Chief and Assistant Chief, he later

testified that those complaints were generally made to “guys in the department”

and not through any official channel. On April 17, 2014, the EEOC issued Powell

a Notice of Right to Sue.

4. Elma Johnson

Elma Johnson has worked as a firefighter for the City of Thomasville since

August 4, 1985, even longer than Powell, who was hired in 1990. He was

promoted to the rank of Lieutenant in 1997 after he had the highest score on the

promotional test. In 2005, two Captain spots came open in the department.

Although Johnson applied for the promotion, he did not get it. Two white

firefighters, Tim Connell and Mark Sealy, got the promotion because of their

higher test scores. Johnson asserts that Croft and Connell conspired to create and

rig the test to prevent him from getting the promotion, but he has provided no

evidence of that.

Johnson tried for a promotion again in 2011 when another Captain position

came open. He took the test, and of the applicants he ranked third on the test and

second in seniority. But another firefighter, Marty Butler, who is white, got the

promotion. Although Johnson presented no evidence of Butler’s test score, he

contends that he was discriminated against because Chief Croft made the

16 Case: 16-16848 Date Filed: 10/02/2018 Page: 17 of 44

promotion decision. But Croft testified that he always selected the applicant with

the highest score on a promotion test, and there is no evidence to dispute that.

Johnson also claims that he was not considered for the position of Fire

Inspector after Colson and Bradshaw were reassigned and that he was not allowed

to train to be an arson investigator. But he admits that he never expressed any

interest in either position to anyone in a position of authority.

After Colson was reassigned to suppression, Chief Croft selected Tommy

Benton, who is white, for the Fire Inspector position. Croft filled that position

without posting any notice that it was available. At the time, Benton was suffering

from dementia as a result of early onset Alzheimer’s disease. But, as we have

already mentioned, Croft testified that he did not know Benton’s specific condition

at the time. He knew only that Benton was suffering from “medical issues” that

were “mental.”

After Johnson learned that Croft had selected Benton for the Fire Inspector

position without posting it, he complained to Kha McDonald in HR. McDonald

addressed Johnson’s concerns in a memo, explaining that Benton had been selected

as Fire Inspector “to fill an immediate need for the work that needs to be done

while, at the same time, accommodating the uncertainties of [Benton’s] existing

medical condition.”

17 Case: 16-16848 Date Filed: 10/02/2018 Page: 18 of 44

Johnson filed an EEOC charge of discrimination on June 13, 2012, alleging

that he was “treated less favorably regarding training and promotion due to [his]

race.” On April 17, 2014, the EEOC issued Johnson a Notice of Right to Sue.

5. Ronnie Smith

Ronnie Smith is a driver-engineer in the fire department. He has worked for

the City since 1990 and for the fire department since 1993. Smith’s main

contention is that the department does not give black firefighters as much help

preparing for promotional tests as it gives white firefighters. Smith took, and

failed, the Lieutenant test several times. Even after Connell gave Smith a copy of

the IFSTA test books to study (the books from which the test questions are drawn),

Smith still did not pass.6 According to Smith it was because what he studied in the

books was not on the tests. He claims he passed the test only after getting copies

of some of the materials that Connell had given to white firefighters (though

Smith’s score was still not high enough to merit a promotion to Lieutenant).

Smith testified that he never complained to his superiors about not being promoted

after passing the test.

According to Connell, the fire department library had “at least one” copy of

each of the relevant IFSTA books. Any firefighter could borrow at any time those

6 Smith’s deposition testimony contains a transcription error. He testified that he was given the “Ithaca Firefighter IV book,” but throughout the record those materials are referred to as the IFSTA handbooks. And that is what we will assume Smith meant. 18 Case: 16-16848 Date Filed: 10/02/2018 Page: 19 of 44

books to study for the promotional tests. And again, because the tests are

randomly generated by a computer, the results cannot be manipulated. See supra at

3.

Smith filed an EEOC complaint on January 3, 2012, alleging that he was

discriminated against because white firefighters were given answers to test

questions for promotional tests and he was not. On October 16, 2012, the EEOC

gave Smith a Notice of Right to Sue.7

B. PROCEDURAL HISTORY

The five plaintiffs filed a consolidated complaint on July 16, 2014, claiming

that the City, Chief Croft, and Assistant Chief Connell had discriminated and

retaliated against them in violation of Title VII of the Civil Rights Act of 1964, 42

U.S.C. § 2000e, et seq., 42 U.S.C. § 1981, and Georgia Code § 45-19-29. All five

plaintiffs raise claims that the fire department discriminated against them on the

basis of race in promotions and pay. They also brought hostile work environment

claims. In addition, Colson, Bradshaw, Powell, and Johnson brought disparate

treatment claims involving Croft’s refusal to allow them to train as arson

investigators. Finally, Colson and Bradshaw claimed that the defendants retaliated

against them for filing their first EEOC charges.

7 The defendants never raised any issue about the timeliness of Smith’s claims in the district court. 19 Case: 16-16848 Date Filed: 10/02/2018 Page: 20 of 44

The defendants moved for summary judgment, which the district court

granted on all claims. The plaintiffs have appealed the district court’s judgment

against them on all of the claims — except the hostile work environment claims,

which they have abandoned.

II. STANDARD OF REVIEW

We review de novo the district court’s grant of summary judgment.

Crawford v. Carroll, 529 F.3d 961, 964 (11th Cir. 2008). “Summary judgment is

appropriate only if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” Hamilton

v. Southland Christian Sch., Inc., 680 F.3d 1316, 1318 (11th Cir. 2012) (quotation

marks omitted). In viewing the evidence, we draw all reasonable inferences in the

light most favorable to the nonmovant. Crawford, 529 F.3d at 964.

III. DISCUSSION

The legal bases for the racial discrimination claims are three statutes: Title

VII, 42 U.S.C. § 1981, and Georgia Code § 45-19-29. The Title VII analytical

framework applies to all of them. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d

1318, 1330 (11th Cir. 1998) (explaining that claims under Title VII and § 1981

“have the same requirements of proof and use the same analytical framework”);

Finney v. Dep’t of Corr., 434 S.E.2d 45, 45–46 (Ga. 1993) (“[I]n construing

20 Case: 16-16848 Date Filed: 10/02/2018 Page: 21 of 44

[§ 45-19-29], our courts may seek guidance from federal decisions construing

similar federal statutes.”).

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

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

employment, because of such individual’s race, color, religion, sex, or national

origin.” 42 U.S.C. § 2000e-2(a)(1). The plaintiff bears the burden of establishing

a prima facie case of race discrimination. See Holifield v. Reno, 115 F.3d 1555,

1561 (11th Cir. 1997). That can be done with either direct or circumstantial

evidence. Id. at 1561–62.

In this case, as in most cases, the plaintiffs rely on circumstantial evidence.

Claims based on circumstantial evidence typically use the familiar burden-shifting

framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93

S. Ct. 1817 (1973). Under that framework, a plaintiff must set forth “facts

adequate to permit an inference of discrimination.” Holifield, 115 F.3d at 1562.

That can be done by establishing a prima facie case which creates a rebuttable

presumption that the employer unlawfully discriminated against the employee.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir. 2004).

Once a plaintiff has established a prima facie case, the burden shifts to the

employer to produce “legitimate, nondiscriminatory reasons for the challenged

employment action.” Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th

21 Case: 16-16848 Date Filed: 10/02/2018 Page: 22 of 44

Cir. 1997). Producing evidence (whether ultimately persuasive or not) of

legitimate nondiscriminatory reasons for its actions is enough for the employer to

satisfy its burden. See id.

If a defendant carries its burden of production, the initial presumption of

discrimination established by the plaintiff’s prima facie case evaporates. Wilson,

376 F.3d at 1087. “[A]nd the burden of production shifts to the plaintiff to offer

evidence that the alleged reason of the employer is a pretext for illegal

discrimination.” Id. “If the proffered reason is one that might motivate a

reasonable employer, a plaintiff cannot recast the reason but must meet it head on

and rebut it.” Id. at 1088.

With that in mind, we will take up each of the plaintiffs’ claims, starting

with the ones involving failure to promote and disparate treatment in training. We

will then go to Colson’s and Bradshaw’s retaliation claims. And we will end with

the plaintiffs’ wage discrimination claims.

A. FAILURE TO PROMOTE

All five of the plaintiffs raise failure to promote claims. They contend that

the defendants are not entitled to summary judgment because there is a genuine

issue of material fact about whether the fire department gave promotional

opportunities to white firefighters that were denied to black firefighters. The

district court found that none of the plaintiffs had established a prima facie case.

22 Case: 16-16848 Date Filed: 10/02/2018 Page: 23 of 44

To make out a prima facie case of racial discrimination based on a failure to

promote, a plaintiff must establish “(1) that he is a member of a protected class; (2)

that he was qualified for and applied for the promotion; (3) that he was rejected;

and (4) that other equally or less qualified employees who were not members of

the protected class were promoted.” Combs, 106 F.3d at 1539 n.11.

Colson’s, Bradshaw’s, and Smith’s claims all involve promotions that were

exclusively based on the IFSTA tests. Some of Johnson’s claims involve the tests

and some do not. And Powell’s promotion claims do not involve the tests at all.

1. Promotions Based on Tests

Colson’s, Bradshaw’s, Johnson’s, and Smith’s test-based claims fail because

none of them has pointed to evidence creating a genuine issue of material fact that

he was qualified for the promotions at issue. As a result, none of these plaintiffs

has made out a prima facie case of discrimination. See id.; see also Vessels v.

Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005) (“[T]o demonstrate

that he was qualified for the position, a Title VII plaintiff need only show that he or

she satisfied an employer’s objective qualifications.”).

Colson complains that he was not promoted from Lieutenant to Captain

when he moved from the Life Safety Educator position to the Fire Inspector

position, while white firefighters, like Colson’s predecessor Clay Phillips, were

promoted to Captain when they made that move. Bradshaw makes a similar

23 Case: 16-16848 Date Filed: 10/02/2018 Page: 24 of 44

complaint about not being promoted to Lieutenant when he became Life Safety

Educator. But Colson and Bradshaw point to no evidence that they took (let alone

passed and scored the highest on) the relevant promotional tests for Captain

(Colson) or for Lieutenant (Bradshaw). Without that, they have failed to show that

they met the fire department’s objective qualifications for a promotion in rank. In

addition, Colson also hasn’t shown that he was as qualified as Phillips was for the

promotion to Captain –– that is, he has not shown that Phillips also failed to take

the promotional test. And Bradshaw hasn’t pointed to any employee outside of his

protected class who was promoted to Lieutenant without taking the required

promotional test.

Johnson claims that he was denied a promotion to Captain because of his

race. He applied for a promotion to Captain in 2011. Even though Johnson did

well on the test — ranking third — Marty Butler, who is white, got the promotion.

Chief Croft testified that he always promoted the employee with the highest score

on the promotion test, and Johnson presented no evidence to rebut that testimony.

He presented no evidence that Butler had not scored first or second on the test, and

without that evidence there is no genuine issue of material fact that Butler was not

more qualified than Johnson.8 See Combs, 106 F.3d at 1539 n.11 (explaining that

8 Johnson also made the unsupported assertion that Croft and Connell conspired to create and rig the test to prevent him from getting a promotion. Because he did not assert that claim on appeal, it is abandoned. See AT&T Broadband v. Tech Commc’ns., Inc., 381 F.3d 1309, 1320 n.14 (11th Cir. 2004). But even if he had preserved it, the defendants presented evidence that the 24 Case: 16-16848 Date Filed: 10/02/2018 Page: 25 of 44

the plaintiff must establish that “other equally or less qualified employees who

were not members of the protected class were promoted”).

The same is true for Smith. Although he eventually passed the Lieutenant’s

test, he, like Johnson, failed to produce any evidence that his test score was the

same or higher than the score of the person who was promoted. And because

Smith failed to show that, he has not created a genuine issue of material fact that he

was the most qualified person for the promotion.9

Even if the plaintiffs had presented adequate prima facie cases, they would

still lose because their failure to bring forward evidence of test scores as high or

higher than the employees who were promoted also serves as the defendants’

proffered race-neutral reason for not promoting them. A plaintiff’s lower

promotional test score is a legitimate and nondiscriminatory reason for not

promoting the plaintiff. And none of the plaintiffs has pointed to any evidence

showing that proffered reason is pretextual. As a result, the district court properly

granted summary judgment against Colson, Bradshaw, Johnson, and Smith on their

claims for discriminatory failure to promote.

Promotions Not Based on Tests

tests are randomly generated by a computer, so the questions and results cannot be manipulated. Johnson does not cite any evidence to the contrary. 9 In the district court, Smith also appeared to raise a claim involving the testing procedures and preparation. But he has not pursued it on appeal, so it is abandoned. See AT&T Broadband, 381 F.3d at 1320 n.14. 25 Case: 16-16848 Date Filed: 10/02/2018 Page: 26 of 44

a. Powell

Powell contends that he was denied two promotional opportunities because

of his race. One was for the position of interim Chief in 2012 and another was for

Assistant Chief in 2009. Powell was qualified for both of those positions, but they

went to Bobby Hart and Tim Connell respectively, both of whom are white. The

district court ruled that Powell could not make out a prima facie case on the failure

to promote him to either position because he never expressed an interest in them.

Powell argues that he did not have to apply for or express an interest in those

positions because neither job was posted. Unlike promotions to Lieutenant and

Captain, there is no evidence that the department ever formally announced

openings for interim Chief or Assistant Chief. Both were filled informally. In

Carmichael v. Birmingham Saw Works, we explained that when an employer uses

informal procedures for determining who would be offered a promotion, a

“plaintiff [is] not required to ask specifically for [a] job when he did not know

about it and where there was no formal mechanism for expressing his interest.”

738 F.2d 1126, 1132–33 (11th Cir. 1984). We held that in those circumstances a

plaintiff makes out a prima facie case “as long as he establishes that the [employer]

had some reason or duty to consider him for the post.” Id. at 1133. If the

employee establishes that, the employer “cannot avoid a Title VII violation by

showing that it incorrectly assumed that the plaintiff was uninterested in the job.”

26 Case: 16-16848 Date Filed: 10/02/2018 Page: 27 of 44

Id. at 1133–34. Such a rejection is not a legitimate nondiscriminatory reason when

the plaintiff has “no notice of or opportunity to apply for [a] job” when informal

procedures are used. Id. at 1134 (quotation marks omitted); see also Vessels, 408

F.3d at 768 (“[W]here 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 he applied for the position—only that

the employer had some reason to consider him for the post.”).

i. The interim Chief Position

To be sure, even though there was no formal notice for the availability of the

interim Chief position, Powell would have had constructive notice that it was

available once Chief Croft, his boss, resigned. So the Carmichael informality

exception doesn’t apply, and to make out a prima facie case Powell still has to

show that he asked to be considered for the position. Cf. Carmichael, 738 F.2d at

1132–33 (explaining that the “plaintiff [is] not required to ask specifically for [a]

job when he did not know about it”) (emphasis added).

And even if Powell could establish a prima facie case, his interim Chief

promotion claim would still fail because he cannot show pretext. The City

proffered that the reason it promoted Hart to the position is that he was the most

senior member of the fire department. Powell does not offer any argument or

evidence to rebut that reason. As a result, the defendants are entitled to summary

27 Case: 16-16848 Date Filed: 10/02/2018 Page: 28 of 44

judgment on Powell’s claim of discriminatory failure to promote him to interim

Chief.

ii. The Assistant Chief Position

Unlike the interim Chief position, Powell did not know or have any reason

to know that the newly-created Assistant Chief job was going to become available.

Chief Croft did not post or otherwise announce the availability of that position.

So Powell cannot be faulted for not applying. As a result, if Croft had reason to

believe that Powell would be interested in the position, the Carmichael exception

applies because of the “duty to consider . . . all employees who might reasonably

be interested in the position.” Id. at 1134.

The district court decided that Chief Croft did not have any reason to believe

that Powell might be interested in the “promotion” because it would not actually

have been a promotion for him. The court reached that conclusion because both

the Battalion Chief and Assistant Chief reported directly to the Chief. It found that

there was “no evidence [the defendants] knew of [Powell’s] desire to make what

otherwise would have been a lateral move.”

We have never exhaustively discussed what distinguishes a purely lateral

transfer from a promotion, but we have explained that a job with “better working

conditions” is considered a promotion even though it may not represent an

immediate increase in pay. Id. at 1134–35. To Powell, the Assistant Chief

28 Case: 16-16848 Date Filed: 10/02/2018 Page: 29 of 44

position would have represented a change from suppression duties to an

administrative role and from shifts of 24-hours on, followed by 48-hours off to a

regular 8 a.m. to 5 p.m. work schedule, which would mean that Powell would have

been on duty 800 fewer hours a year. Given that, Chief Croft had reason to believe

that Powell could have considered the Assistant Chief’s position a promotion and

might reasonably have been interested in applying for it (as Powell insists he

would have been).

And we cannot say that the Assistant Chief position is not above that of

Battalion Chief in the department hierarchy. Both do report directly to the Chief.

But the supervisor to whom a person reports is not the only fact that determines

position in the employment hierarchy.

In this case, Chief Croft created the Assistant Chief position in part so that

there would be someone in a permanent position to act on his behalf and oversee

the fire department when he was absent. Because Connell got the Assistant Chief

position, Powell would have to report to him when Chief Croft was not there.

Meaning that, on those occasions, Connell would be Powell’s direct supervisor,

instead of the other way around if Powell had been selected.

We’ve recognized that a lateral transfer can be a demotion if it involves a

“reduction in . . . prestige or responsibility.” Hinson v. Clinch Cty., Ga. Bd. Of

Educ., 231 F.3d 821, 829 (11th Cir. 2000); see also Forsyth v. City of Dallas, 91

29 Case: 16-16848 Date Filed: 10/02/2018 Page: 30 of 44

F.3d 769, 774 (5th Cir. 1996) (concluding that a lateral transfer to a position that

was less prestigious, with less favorable working hours, and less interesting work

was a demotion). The flipside is that a lateral transfer can be a promotion if it

involves an increase in prestige or responsibility. See Stewart v. Ashcroft, 352

F.3d 422, 427 (D.C. Cir. 2003) (concluding that “a position with substantially

greater supervisory authority” is a promotion even if it otherwise would be a lateral

transfer in the employer’s hierarchy).

The only reason the defendants give for not considering Powell for the

Assistant Chief position is that he did not express any interest in it. But according

to our Carmichael decision, that is not a “legitimate” reason when a position is

filled through informal procedures, and the plaintiff had no notice or opportunity to

apply for the position. 738 F.2d at 1133–34. The defendants do not offer any

other reason to explain why Powell was not considered and selected over Connell,

who had 10 years less experience and was at lower rank in the department at the

time. So we are left with Powell’s prima facie case, and the unrebutted

presumption of discrimination that comes with it. As a result, the district court

erred in granting summary judgment to the defendants on Powell’s failure to

promote claim with respect to the Assistant Chief position.10

10 The parties dispute whether the defendants waived their statute of limitations defense to all of the claims. The defendants point to a footnote in their motion for summary judgment which they argue raised the statute of limitations issue at least as to some of Powell’s claims. But that footnote is only a footnote, and it never mentions Powell or asserts that any of the events 30 Case: 16-16848 Date Filed: 10/02/2018 Page: 31 of 44

b. Johnson

Johnson contends that he was denied an opportunity to be promoted to Fire

Inspector after Colson was transferred back to suppression in November 2011.

The Fire Inspector position was never posted and was given to Tommy Benton,

who is white.

The defendants make the same argument as to Johnson that they did about

Powell, asserting that Johnson failed to make out a prima facie case because he

never expressed an interest in the Fire Inspector position. But because the position

was unposted, Johnson need only show that the defendants had reason to believe

he would be interested in that position and that he had no notice that it was

available or no opportunity to apply. See id. at 1132–33. Johnson’s twenty-six

year tenure in the department, along with his recent application for the open

Captain position earlier that same year, is reason enough for the defendants to have

known that he would be interested. See id. (concluding that the employer had a

reason to consider the plaintiff for a promotion when he had expressed a desire for

involving him are outside the statute of limitations. So the defense is waived as to that claim. Juris, 685 F.3d at 1325; In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight Attendant Weight Program Litig., 905 F.2d 1457, 1462 (11th Cir. 1990) (“[I]f a party hopes to preserve a claim, argument, theory, or defense for appeal, she must first clearly present it to the district court, that is, in such a way as to afford the district court an opportunity to recognize and rule on it.”); United States v. Ramirez-Flores, 743 F.3d 816, 821 (11th Cir. 2014) (to preserve an issue for appeal a party “must raise that point in such clear and simple language that the trial court may not misunderstand it.”) (quotation marks omitted).

31 Case: 16-16848 Date Filed: 10/02/2018 Page: 32 of 44

similar promotions in the past). And it is undisputed that they did not consider

Johnson for the position.

Even though the position was not posted, the defendants argue that the

Carmichael exception is inapplicable because Johnson would have been aware that

the Fire Inspector position was open after Colson was transferred back to

suppression. But the only evidence in the record on that point shows that the Fire

Inspector position was filled quickly, and Johnson’s uncontradicted testimony is

that he did not know it was available until the announcement that Benton had been

selected for it. When Johnson complained about the position being filled without

being posted, he received a memo from HR stating that Benton had been selected

as Fire Inspector “to fill an immediate need for the work that needs to be done

while, at the same time, accommodating the uncertainties of his existing medical

condition.”11 Because the Fire Inspector position was filled quickly and without

notice of its availability, Johnson would not have had any way of knowing that it

was available.

The only remaining question about Johnson’s prima facie case is whether he

was at least as qualified for the position as Benton, who is white. See Combs, 106

F.3d at 1539 n.11. Johnson asserts that he was at least as qualified (or even more

11 The defendants did not proffer the immediate need to fill the Fire Inspector position or the need to accommodate Benton’s medical condition as a legitimate nondiscriminatory reason for filling it with him instead of Johnson. 32 Case: 16-16848 Date Filed: 10/02/2018 Page: 33 of 44

qualified) for the position of Fire Inspector as Benton. He points out that Benton

was suffering from dementia in the form of early onset Alzheimer’s disease when

he was named Fire Inspector. The defendants insist that there is no evidence that

Benton had been diagnosed with Alzheimer’s when he was promoted or that his

condition prevented him from adequately performing the job (besides needing to

be driven around by Connell). But Chief Croft admitted in his deposition that,

even if he did not know that Benton had early onset Alzheimer’s when Benton

was promoted to Fire Inspector, he knew at the time that Benton had some

“medical issues” that were “mental.” And, in any event, it is undisputed that

Benton was not more qualified than Johnson was for the Fire Inspector position.

So Johnson has made out a prima facie case of failure to promote him to the

Fire Inspector position. The sole nondiscriminatory reason that the defendants

proffered is that Johnson never expressed an interest in that position, which, as we

have explained, the Carmichael exception excuses under these circumstances. 738

F.2d at 1132–34. Like Powell’s claim regarding the Assistant Chief position,

Johnson’s prima facie case is unrebutted. As a result, summary judgment should

not have been granted to the defendants on Johnson’s discriminatory failure to

promote claims as to the Fire Inspector position.

B. DISPARATE TREATMENT IN TRAINING

33 Case: 16-16848 Date Filed: 10/02/2018 Page: 34 of 44

Four of the plaintiffs, Colson, Bradshaw, Johnson, and Powell, raise

disparate treatment claims, asserting that the defendants discriminated against them

on racial grounds by denying them the opportunity to complete their training as

arson investigators while allowing white firefighters to do so. In order to establish

a prima facie case of disparate treatment, a plaintiff must establish that (1) he

belongs to a protected class; (2) he suffered an adverse effect on his employment;

(3) his employer treated similarly situated people outside of the protected class

more favorably; and (4) he was qualified for the benefit sought. Burke-Fowler v.

Orange County, Fla., 447 F.3d 1319, 1323 (11th Cir. 2006).

None of the plaintiffs can make out a prima facie case of disparate treatment.

Colson and Bradshaw had not completed ten fire investigations, which was

required before they could take the course that would complete their training. So

they were not qualified to take that course, which was the second part of training.

Johnson never expressed a desire to take the course. And even if Powell had taken

the course, he would not have been able to be an arson investigator because, as a

Battalion Chief, it would have created a conflict of interest –– he would have been

investigating fires that he had helped put out. So being denied that training

opportunity did not amount to, or result in, any adverse effect on his employment.

See Shannon v. Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002)

(explaining that an adverse employment action is “conduct that alters an

34 Case: 16-16848 Date Filed: 10/02/2018 Page: 35 of 44

employee’s compensation, terms, conditions, or privileges of employment”)

(emphasis added) (quotation marks omitted). The defendants were, as the district

court concluded, entitled to summary judgment on the plaintiffs’ disparate

treatment claims. 12

C. RETALIATION

Colson and Bradshaw contend that the defendants are not entitled to

summary judgment on the retaliation claims. To make out a prima facie case of

retaliation, Colson and Bradshaw must establish that they engaged in protected

activity, suffered a materially adverse action, and that there was some causal link

between the two events. Dixon v. Hallmark Cos., 627 F.3d 849, 856 (11th Cir.

2010).

Both Colson and Bradshaw argue that they were reassigned from Fire

Inspector and Life Safety Educator to suppression duties in retaliation for filing

their initial EEOC charges. 13 There is no dispute that the two of them engaged in

12 The plaintiffs contend that the fire department was operated in a way that deprived every black firefighter equal opportunity for advancement. They argue that they have presented a “convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination” by the fire department against every black firefighter. Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). We disagree. Whether the evidence is considered individually or collectively, it does not raise a reasonable inference of discriminatory intent with respect to the plaintiffs’ disparate treatment claims. Nor does it raise a reasonable inference of discriminatory intent with respect to the plaintiffs’ failure to promote claims — with the exceptions of Johnson’s claim about the Fire Inspector position and Powell’s claim about the Assistant Chief Position. See id. 13 Colson also contends that the 2011 GBI investigation into the missing recycling proceeds was also done in retaliation for his EEOC charge. He argues that Chief Croft accused him of stealing the money meant for the Burn Foundation and called the police. But that string 35 Case: 16-16848 Date Filed: 10/02/2018 Page: 36 of 44

protected activity when they filed their initial EEOC charges, and reassigning

them to suppression was a materially adverse action. 14

The district court still concluded that Colson and Bradshaw did not make out

a prima facie case because there was no causal connection between their initial

EEOC charges and their reassignments. Causation can be shown by a close

temporal proximity between the statutorily protected activity and the adverse

action. Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir.

2000). But without more, the activity and adverse action must be “very close” in

time to create a genuine issue of causation. Clark Cty. Sch. Dist. v. Breeden, 532

U.S. 268, 273, 121 S. Ct. 1508, 1511 (2001).

The district court determined, and the defendants argue, that the 82 days

between Colson’s and Bradshaw’s August 25, 2011 EEOC charges and their

reassignment to suppression on November 14, 2011 of that same year is too much

of events began when the Burn Foundation asked about the lack of donations from the fire department in recent years. One of Colson’s duties was to manage that charitable program for the department, and the Burn Foundation inquired, stating that it had not received the donations. It was the Burn Foundation’s actions that led to the investigation of Colson, not his EEOC charge. 14 The district court only assumed without deciding that Colson and Bradshaw’s reassignment to suppression was a materially adverse action. Even though the positions were paid about the same amount annually, the transfers came with a change from regular 8 a.m. to 5 p.m. days to less desirable 24-hour on, 48-hour off shifts and a decrease in their hourly wage. They had to work 800 hours more a year to make the same amount of money. A change to a less desirable shift with an increase in working hours is materially adverse. See Burlington N. & Santa Fe Ry. Co. v. White, 126 U.S. 53, 68, 126 S. Ct. 2405, 2415 (2006) (explaining that a materially adverse action is anything that might dissuade “a reasonable worker from making or supporting a charge of discrimination”). 36 Case: 16-16848 Date Filed: 10/02/2018 Page: 37 of 44

time for an inference of retaliation. Maybe. See Thomas v. Cooper Lighting, Inc.,

506 F.3d 1361, 1364 (11th Cir. 2007) (“A three to four month disparity between

the statutorily protected expression and the adverse employment action is not

[close] enough.”). But the picture is clouded some by evidence indicating that the

actual decision to reassign Colson and Bradshaw did not happen in November but

instead shortly after their meeting with Chief Croft on September 30. That would

reduce the time distance between the protected conduct and the adverse action

from 82 days to 37 days.

A strong argument can be made that where the decision to take adverse

action occurs on a different date than the taking of the action, what counts is the

proximity of the protected activity to the decision to take adverse action, not the

proximity of the protected activity and the action. See Breeden, 532 U.S. at 272,

121 S. Ct. at 1511; Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (“We

hold that, in a retaliation case, when an employer contemplates an adverse

employment action before an employee engages in protected activity, temporal

proximity between the protected activity and the subsequent adverse employment

action does not suffice to show causation.”). If so, the lack of temporal proximity

between protected conduct and adverse action will not defeat a plaintiff’s prima

facie case if the defendant decided to take the adverse action soon after the

protected conduct but did not actually take it until later.

37 Case: 16-16848 Date Filed: 10/02/2018 Page: 38 of 44

We need not base our decision on that idea or decide the temporal proximity

and causation issues here but can instead assume that the plaintiffs Colson and

Bradshaw have made out a prima facie case of retaliation. Our assumption does

not matter because the defendants have proffered a nondiscriminatory reason for

the transfers that has not been shown to be pretextual.

The defendants assert that the reason Chief Croft reassigned Colson and

Bradshaw was because of their poor performance. Even before they filed their first

EEOC charges on August 25, Croft was concerned about Colson and Bradshaw’s

performance. He had learned at the June 15 meeting that they were not properly

doing hazardous materials and commercial building inspections. He also learned

that they were not properly entering records of the inspections they did do into the

department’s computer system. Those concerns were the subject of the September

30 meeting. And that meeting led to Colson and Bradshaw’s reassignment to

suppression on November 14. Unsatisfactory job performance is a legitimate

nondiscriminatory reason that will rebut a prima facie case. See Damon v.

Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999).

Legitimate, nondiscriminatory reasons for the transfers having been

proffered, it was up to Colson and Bradshaw to provide sufficient evidence for a

reasonable factfinder to infer that those reasons were pretextual. See Crawford,

529 F.3d at 976. To do that, Colson and Bradshaw had to demonstrate “such

38 Case: 16-16848 Date Filed: 10/02/2018 Page: 39 of 44

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its action that a reasonable

factfinder could find them unworthy of credence.” Alvarez v. Royal Atl.

Developers, Inc., 610 F.3d 1253, 1265 (11th Cir. 2010) (quotation marks omitted).

Colson and Bradshaw do not dispute that they were behind on inspections

and that they had failed to properly enter the inspections they did make into the

computer system. Instead, they argue that they were never reprimanded for

deficient performance before they filed their EEOC charges. But to the extent a

reprimand was required, what happened at their June 15 meeting with Chief

Colson amounted to a verbal reprimand, or at least a warning. As Colson and

Bradshaw state in their August 25 EEOC charges, at the June 15 meeting they were

told that they “need[ed] to improve [their] performance.”

Colson argues that the defendants’ assertions about his poor performance are

a pretext for racial discrimination and that replacing him as Fire Inspector with

Tommy Benton, who is white and had early onset Alzheimer’s disease, shows that.

As we have mentioned before, when Benton was chosen as Fire Inspector, the

defendants did not know that he had Alzheimer’s. But whatever the defendants

knew or should have known about Benton’s mental condition at the time he was

selected to replace Colson does not rebut their proffered reasons for removing

Colson from that position. The undisputed evidence shows that Chief Croft

39 Case: 16-16848 Date Filed: 10/02/2018 Page: 40 of 44

warned Colson about what he viewed as poor performance before Colson made an

EEOC charge. Given the undisputed evidence of Colson’s performance problems,

the fact of Benton’s health problems at the time he was chosen to fill the Fire

Inspector position is not enough to create a genuine issue of material fact that the

defendants’ legitimate, nondiscriminatory reason for reassigning Colson is

pretextual. It is, after all, the removal of Colson from the position, not the failure to

select him instead of someone else to the position after he was removed, that is at

issue.

No evidence Colson and Bradshaw point to casts doubt on the reasons that

the defendants gave for removing them from the positions in which they were not

properly performing. They are “quarreling with the wisdom” of the defendants’

decision, but that is not enough to create a genuine issue of material fact about

pretext. Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).

The defendants are entitled to summary judgment on Colson and Bradshaw’s

retaliation claims. See Crawford, 529 F.3d at 976; see also Thomas, 506 F.3d at

1364 (“We may affirm the district court’s judgment on any ground that appears in

the record, whether or not that ground was relied upon or even considered by the

court below.”).

D. DISPARATE PAY

40 Case: 16-16848 Date Filed: 10/02/2018 Page: 41 of 44

All five plaintiffs contend that the district court erred in granting summary

judgment against them on their claims of wage discrimination. To establish a

prima facie case on that type of claim, a plaintiff must show that he was paid less

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

receive the higher wage. See Cooper v. Southern Co., 390 F.3d 695, 734–35 (11th

Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454,

126 S. Ct. 1195 (2006). A plaintiff and the comparator he identifies must be

similarly situated in all relevant respects. Holifield, 115 F.3d at 1562.15 If the

plaintiff cannot show that there is a similarly situated employee, then the

defendants are entitled to summary judgment “where no other evidence of

discrimination is present.” Id. (emphasis omitted). That’s the case here.

Powell does not offer any comparators at all. He simply says that he was

discriminated against because, out of the 23 employees in the City at Powell’s pay

grade, only he and one other were black. But he does not provide any evidence

that he was discriminated against in his pay based on his race. The district court

15 In Lewis v. Union City, No. 15-11362, this Court has granted en banc rehearing to decide how similar comparators must be. The parties in that case have been asked to brief: “What standard does the phrase ‘similarly situated’ impose on the plaintiff: (1) ‘same or similar,’ (2) ‘nearly identical,’ or (3) some other standard?” However the Court answers that question, it will not change the fate of the disparate pay claims in this case because under any reasonable standard, the plaintiffs have not identified any appropriate comparators.

41 Case: 16-16848 Date Filed: 10/02/2018 Page: 42 of 44

properly entered summary judgment against Powell on his disparate pay claim. See

id.

The other four plaintiffs, Colson, Bradshaw, Johnson, and Smith, all offer

several other white firefighters as comparators. To do that they rely mainly on a

spreadsheet that lists the name, job title, paygrade, salary, race, sex, and hire date

for all of the firefighters in the department over a five year period, from 2010 to

2014. All of the comparators were hired at the same time or at some point after

each of the plaintiffs were. The gist of their argument is that those white

firefighters had not served in the department as long as they had but were paid

more for the same work.

But length of service in the department alone is not the only proper measure

for determining pay. See Cooper, 390 F.3d at 745 (explaining that the plaintiff’s

disparate pay claims failed because she did not show that her proposed

comparators had similar levels of experience, education, or responsibility, but

instead relied on the conclusory assertion that they were “lower” employees).

And the plaintiffs have not provided any other information besides that on the

spreadsheet. For example, there is nothing showing that the comparators had

similar levels of experience in their careers or similar levels of education or similar

job responsibilities. See id.

42 Case: 16-16848 Date Filed: 10/02/2018 Page: 43 of 44

If anything, the spreadsheet appears to show that their chosen comparators

routinely were higher ranked or had more experience or had other certifications

that justify disparity in pay. For example, two of the plaintiffs, Smith and Johnson,

point to Mark Sealy as a comparator. Sealy was a Captain and was promoted to

Battalion Chief during the five-year period at issue, while Smith was a driver-

engineer and Johnson was a lieutenant during that time. So the proffered

comparator did not hold the same rank as those two plaintiffs did, and there is no

showing that he did not achieve that higher rank based on a competitive test or

other non-discriminatory criterion.

Others offered as comparators had previous experience that justified a higher

starting salary. For example, Jonathan Paschall, whom Colson relies on as a

comparator, was hired at a higher starting salary than Colson because of Paschall’s

“previous experience as [a] driver” with an EMS agency. The pay records also

show that the department gave financial incentives for completing certain

certifications. For example, a hazmat certification resulted in an extra 62 cents an

hour, and an EMT certification resulted in a five percent increase in pay. The

plaintiffs do not show that they had similar certifications, or that the relevant

comparators’ pay would have been higher even without the certifications. And

because annual merit raises were based on a percentage of the firefighter’s pay,

43 Case: 16-16848 Date Filed: 10/02/2018 Page: 44 of 44

pay disparities caused by legitimate, non-discriminatory factors would be increased

over time.

Because they have not identified any similarly situated comparators and

have failed to present other evidence sufficient to create an inference of

discrimination, their claims of racially discriminatory pay disparity fail. See id.

V. CONCLUSION

We REVERSE the district court’s judgment on Powell’s claim of racially

discriminatory failure to promote him to the rank of Assistant Chief and on

Johnson’s claim of racially discriminatory failure to promote him to the Fire

Inspector position. We AFFIRM the district court’s judgment on all of the

plaintiffs’ other claims. And we REMAND the case to the district court for further

proceedings consistent with this opinion.