Keaton v. Cobb County (545 F. Supp. 2d 1275, 2008)

ORDER

RICHARD W. STORY, District Judge.

This case is before the Court for consideration of the Report and Recommendation [42] of Magistrate Judge Alan J. Bav-erman and Defendants’ Motion for Leave to File Excess Pages [45]. As an initial matter, Defendants’ Motion for Leave to File Excess Pages [45] is GRANTED. After considering the Report and Recommendation (“R & R”) and the Objections thereto, the Court enters the following Order.

Plaintiff, an African-American female filed a civil action against Cobb County, Georgia (“Cobb County”), and Shonell Sfreddo and Michele Marchanb-Wellmon (the “individual Defendants”) in their individual and official capacities (collectively “Defendants”). Plaintiff alleged that Cobb County engaged in race discrimination in violation of the Equal Protection clause of the Fourteenth Amendment and Title VII of the Civil Rights Act of 1964. She also alleged that Sfreddo and Marchanb-Well-mon engaged in race discrimination under color of state law, in violation of the Equal Protection clause of the Fourteenth Amendment. These claims arise from the Defendants’ failure to select Plaintiff for two positions in the Cobb County Juvenile Court: the Clerk of Court position in April 2005 and the Judicial Administrative Supervisor (“JAS”) position also in April 2005.

Defendants filed a Motion for Summary Judgment on all of Plaintiffs claims. Judge Baverman entered an R & R recommending that Defendants’ Motion for Summary Judgment be granted as to all of Plaintiffs claims except Plaintiffs Title VII claim against Cobb County concerning the JAS position and Plaintiffs § 1983 claims against Sfreddo and Marchant-Wellmon concerning the failure to promote Plaintiff to the JAS position. Judge Bav-erman also found that the individual Defendants were not entitled to qualified immunity.

This Court agrees with the conclusions recommending the granting of summary judgment and adopts the findings of fact and conclusions of law of the R & R as to all of those claims. The Court also adopts the findings of fact as to the claims for which denial of summary judgment is recommended. However, the Court sustains Defendants’ objection to the conclusion of law that the facts of the present case warrant an exception to the Eleventh Circuit requirement that a plaintiff must establish pretext for all legitimate, nondiscriminatory reasons for an employment action proffered by a defendant. (R & R at 1312-13).

“Defendant has raised three legitimate, nondiscriminatory reasons for not promoting Plaintiff [to the JAS position]: her interview responses, Walker’s superior supervisory experience, and Walker’s greater experience.” (R & R at 1313.) Although Judge Baverman found that “Plaintiff has not offered any evidence to undermine the veracity of Defendant’s reason that Walker had better experience,” he found this case to be an exception to the “rule that a plaintiff must establish pretext as to each proffered reason.” (R & R at 1313.) He relies upon a footnote in Chapman v. AI Transp., 229 F.3d 1012, 1037 n. 30 (11th Cir.2000)(en banc) to support this exception. (See R & R at 1313.) But, the footnote on which he relies — rather than indicating that such an exception might exist — (1) rejected the dissent’s application of such an exception and (2) expressed no view on its availability in other cases:

The dissenting opinion would carve out a number of exceptions to the well-established rule that a plaintiff must show pretext as to each proffered reason. To the extent this case presents a factual basis for any such exception, we reject that exception. To the extent this case does not present a factual basis for such an exception, we express no view on whether that exception might exist in some case with different facts.

Id. (emphasis added).

Furthermore, seven years after Chapman, a unanimous panel of the Eleventh Circuit appeared to have rejected the notion that the dissent in Chapman advances and the notion on which Judge Baverman relies — namely, that indirect rebuttal evidence may suffice to show discrimination, despite the defendant’s proffer of a legitimate, and unrebutted, nondiscriminatory reason. See Crawford, v. City of Fairburn, 482 F.3d 1305, 1308 (11th Cir.2007). (“If the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment.”). Noting that a plaintiff must meet each reason proffered “head on” and rebut it, the Court rejected the plaintiffs argument that evidence of discriminatory animus could establish pretext:

Crawford erroneously argues that evidence of a discriminatory animus allows a plaintiff to establish pretext without rebutting each of the proffered reasons of the employer. The cases he cites for this proposition are inapposite, because in each case the plaintiff presented evidence that directly rebutted the proffered reasons of the employer.... By failing to rebut each of the legitimate, nondiscriminatory reasons of the City, Crawford has failed to raise a genuine issue of material fact about whether those reasons were pretext for discrimination.

Id. at 1309 (emphasis in original).

Following the decision in Crawford, several district courts within this circuit appear to have rejected the exception proposed by the Chapman dissent. See, e.g., Sabatier v. Suntrust Bank, No. 06-20418-CIV, 2008 WL 108796, at * 15 (S.D.Fla. Jan.4, 2008) (“The Court notes that the governing standard in this Circuit is set forth in Crawford v. City of Fairburn, where the Eleventh Circuit held that ‘[i]f the employer proffers more than one legitimate, nondiscriminatory reason, the plaintiff must rebut each of the reasons to survive a motion for summary judgment.’ ”); Cone v. Health Management Associates, Inc., No. 606CV081, 2007 WL 1702867, at *3 (S.D.Ga. June 11, 2007) (“[A] recent Eleventh Circuit case has altered the analytical framework. Now, when a plaintiff brings only a prima facie case and ‘discriminatory-motivation’ evidence, the defendant is entitled to summary judgment. In other words, ‘unworthy-of-credence’ evidence is required for every articulated legitimate, non-discriminatory reason.” (citing Crawford, 482 F.3d at 1309)).

The Court concludes that Plaintiff is required to rebut each of the legitimate, nondiscriminatory reasons proffered by Defendants to survive summary judgment. “Plaintiff has not offered any evidence to undermine the veracity of Defendants’ reason that Walker had better experience.” (R & R at 1313.) Therefore, Defendants are entitled to summary judgment on Plaintiffs claims relating to the failure to promote Plaintiff to the JAS position.

Based on the foregoing, Defendants’ Motion for Leave to File Excess Pages [45] is GRANTED, and Defendants’ Motion for Summary Judgment [25] is GRANTED as to all claims. Judgment shall be entered in favor of Defendants.

UNITED STATES MAGISTRATE JUDGE’S ORDER AND NON-FINAL REPORT AND RECOMMENDATION

ALAN J. BAVERMAN, United States Magistrate Judge.

Currently before the Court are Defendants’ Motion for Summary Judgment and Motion to Exceed the Page Limit, [Doc. 25], and Plaintiffs Motion for Leave to File Excess Pages. [Doc. 30], For the reasons set forth herein, the Court RECOMMENDS that Defendants’ motion for summary judgment, [Doc. 25], be GRANTED IN PART AND DENIED IN PART. The Court also GRANTS AS UNOPPOSED the parties’ motions to exceed the page limit, [Docs. 25, 30].

I. INTRODUCTION

On June 15, 2006, Donelle Keaton (“Plaintiff’ or “Keaton”), an African-American female, filed a civil action against Cobb County, Georgia (“Cobb County”), and Shonell Sfreddo and Michelle Marehant-Wellmon (the “individual Defendants”) in their individual and official capacities (collectively “Defendants”). Plaintiff alleged that Cobb County engaged in race discrimination in violation of the equal protection clause of the Fourteenth Amendment (enforced through 42 U.S.C. § 1983) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., (“Title VII”). She also alleged that Sfreddo and MarchanUWell-mon engaged in race discrimination under color of state law, in violation of the equal protection clause of the Fourteenth Amendment (enforced through 42 U.S.C. § 1983). [Doc. 1]. Defendants filed an'answer on July 5, 2006. [Doc. 2],

On April 25, 2007, Defendants filed a motion for summary judgment on all of Plaintiffs claims. [Doc. 25]. Plaintiff then filed a response brief, [Doe. 33], and Defendants filed a reply brief, [Doc. 41]. With briefing completed, the Court turns to the merits of Defendants’ motion for summary judgment.

II. STATEMENT OF FACTS

The Court construes the pertinent facts of this case at the summary judgment stage in the light most favorable to Plaintiff as the non-moving party.

A. Plaintiff’s Background

Plaintiff graduated from high school in May 1985. (Keaton Dep. at 8). Plaintiff later obtained her associates degree in arts in 1995 or 1996. (Id. at 9-10). She then received a bachelors degree from Morris College in Sumter, S.C., in May 2000 with a major in organizational management, which involves management training within different organizations. (Id. at 16-17).

After graduating from high school, Plaintiff worked at a mall store, Athletic Warehouse, for three years. (Keaton Dep. at 11). She then became a customer service representative with Provident Finance where she worked for five years. Provident Finance changed names to American General Finance, and Plaintiff worked for American General for approximately three years as a senior customer service representative. (Id. at 11-13). These customer service representative jobs involved processing loan applications, receiving payments on loans, drawing up loan contracts, closing loans, and drawing up contracts for financing cars. (Id. at 13-14). The senior service representative also monitored the customer service representative by reviewing the customer service representative deposits and ensuring that the customer service representative’s drawer balanced at the end of the day. (Id. at 14). Plaintiff was not officially a. supervisor in the senior customer service position, and she did not give performance evaluations or issue discipline. (Id.).

Plaintiff left American General in 1997 because she was offered a job at the Sumter County Magistrate Court. (Keaton Dep. at 18). Plaintiff worked for three years as a Civil Clerk of Court in the Magistrate Court in Sumter County, S.C. (P ¶ 46; Keaton Dep. at 19-20). As a civil clerk for the magistrate court, Plaintiff assisted the three full-time magistrate judges in court, processed summonses and complaints, processed claim and delivery, and dealt with landlord-tenant evictions. (Keaton Dep. at 18-19).

Plaintiff left the civil clerk position to move to the Atlanta region where she found a job as a legal assistant with a law firm. (Keaton Dep. at 20-21). In this position, Plaintiff interviewed clients who were filing lawsuits and helped develop their cases. (Id. at 21-22). Plaintiff worked as a legal assistant for a little over one year. (Id. at 22).

In August 2001, Plaintiff left her legal assistant position to work for the Cobb County Juvenile Court as a Judicial Administrative Tech III (“JAT III” or “courtroom clerk”). (Id. at 27-29, 34; P ¶ 1). As a JAT III, Plaintiff assisted the judges in court, prepared files for court, provided judges with orders at the end of each case, and prepared packets for completed cases. (Id. at 35-36). While working for the Juvenile Court, Plaintiff received recognition as employee of the quarter. Plaintiff also handled the files, paperwork, and calendaring for Juvenile Drug Court, which was a separate duty from the JAT III position. (Id. at 48). Plaintiff further completed the Stepping Up to Supervisor Workshop. (Id. at 48).

B. The Individual Defendants

Marchanb-Wellmon is the Director for the Juvenile Court of Cobb County. (P ¶ 3). As the Director, Marchanh-Wellmon is the primary manager of the Juvenile Court and possesses the ultimate hiring authority for all positions in the court except for judges and their staff. (Mar-chant-Wellmon Dep. at 14; P ¶ 16). She also evaluates employees, issues discipline and provides other supervisory instruction for Juvenile Court functions. (D ¶ 10).

Sfreddo has worked for the Juvenile Court for over 18 years. (D ¶ 15). Sfred-do currently serves as the Clerk of Court for the Juvenile Court of Cobb County (“Clerk”). (D ¶ 5). In this position, she supervises the operation of the Clerk’s office with the help of two Judicial Administrative Supervisors. (P ¶ 21). As the Clerk, Sfreddo reports directly to Mar-chanh-Wellmon. (P ¶20). Prior to becoming the Clerk, Sfreddo did not have supervisory experience, (Marehant-Well-mon Dep. at 32), but she completed the Stepping Up to Supervisor course, (D ¶ 16).

Sfreddo does not possess a four-year college degree, (P ¶ 36), but she does possess a high school diploma, (D ¶ 15). Sfreddo worked as a Clerk Typist II between 1987 and 1991 in the Juvenile Court. She then became a Judicial Administrative Tech II between 1991 and 1994. From 1995 to 2000, Sfreddo worked as a JAT III. (Sfreddo Dep. at 17-18). Thereafter, Sfreddo worked as a Judicial Administrative specialist immediately before becoming Clerk. In this position, she worked for two judges. (Id. at 45). Sfreddo was not assigned to the courtroom and primarily performed clerical duties for the judges such as copying, typing, faxing, scheduling, taking messages, answering phones, and serving as a liaison between the court and the public and attorneys. (P ¶¶ 43^44; Sfreddo Dep. at 14-17).

C. Human Resources and Cobb County Policies

Anthony Hagler has served as the Director of Cobb County’s Human Resources (“HR”) Department since 1999. (D ¶ 3). The HR Department prepares and announces all vacant positions through written job announcements. (P ¶ 7). Cobb County provides supervisors with direction in interviewing and hiring employees on its website. (D ¶ 4). The Juvenile Court follows the HR Department’s guidelines. (D ¶ 6).

When a job announcement states “Degree preferred,” this means that a four-year degree is preferred, but does not require that an applicant have a degree. (D ¶ 7). Cobb County hiring officials are expected to evaluate candidates based upon the preferred criteria in a job announcement. (P ¶ 9).

If a job candidate provides false information on an application, Cobb County policy requires that the candidate be disqualified. (P ¶ 13). Therefore, if a candidate indicated that she had a high school degree, but only had a GED, this might constitute false statement. (Hagler Dep. at 52). However, it might not be false information because an applicant may get confused and think that her GED is the same as being a high school graduate. (Id. at 52-54). Also, if a candidate indicates that she has a degree, this means that she has received a diploma, not a certification. (Id. at 58-59).

It is also against county policy to acquire additional information to justify a hiring decision after the decision has been made, (P ¶ 103); however, a hiring official may seek additional information after selecting a candidate to verify job requirements like educational background, certifications, or other information that needed to be confirmed. (Hagler Dep. at 36).

D. The Clerk of Courts Position

On March 21, 2005, the HR Department advertised for the position of Clerk of Court. (P ¶ 24). The Clerk was responsible for: (1) supervising employees; (2) maintaining the record keeping system; (3) developing and implementing accounting controls; (4) providing information, feedback, or assistance to others in the department; (5) monitoring and communicating policies, procedures, and standards for the department; and (6) planning, allocating, and monitoring time, people, equipment, and other resources to ensure efficient organization and completion of work. (P ¶ 26). The Clerk job announcement stated that a four-year college degree was a preferred criterion, (P ¶ 25), but it was not designated as a deciding factor for promotion, (D ¶ 20). Other considerations for the position were supervisory experience, work record, personnel record, other experience, personal recommendations, and knowledge of the clerk’s unit. (Mar-chant-Wellmon Dep. at 33, 62; P ¶ 34). Marchant-Wellmon was the hiring official for the Clerk position. (D ¶ 9).

There were six applicants for the Clerk position, (D ¶ 12), including: Plaintiff; Sfreddo, a white employee; and Janice Walker, a white employee, (P ¶¶ 28-29). During Plaintiffs interview, she provided Marchant-Wellmon with a portfolio containing, among other items, college degrees, reference letters, and the certificate for the Stepping Up to Supervisor course. (P ¶ 36). Marchant-Wellmon determined that Plaintiff and Sfreddo were the top two candidates for the Clerk position. (P ¶ 31). Walker was not one of the top three candidates for the Clerk position. (P ¶ 32).

Marchant-Wellmon believed that Plaintiff had the advantage over Sfreddo in terms of her education because of Plaintiffs four-year degree. (Marchant-Well-mon Dep. at 65-66). Sfreddo had the advantage regarding: (1) her experience in working in a court setting; (2) her knowledge of the clerk’s unit since Sfreddo had been there for 14 years both on the courtroom side and the records side; and (3) her four-and-a-half years experience in the judicial unit. (Id. at 71-72). Plaintiff and Sfreddo were equal in terms of completing the Stepping Up to Supervisor program and their performance in the oral interviews. (Id. at 72-73). Marchanb-Wellmon selected Sfreddo for the Clerk position on April 18, 2005, (D ¶ 14; P ¶ 33), because she had: (1) a high school degree; (2) completed the Stepping Up course; and (3) 18 years of experience in the Juvenile Court, (P ¶ 41).

E. Judicial Administrative Supervisor Position

1. JAS Job Functions

On March 21, 2005, the HR Department announced an opening for a Judicial Administrative Supervisor (“JAS”) position. (P ¶ 47). The JAS reported to the Clerk and supervised the JAT II and JAT III employees. (P ¶¶22, 51). The essential functions of the JAS position included: (1) ensuring efficient operation of courtrooms and courtroom procedures; (2) carrying out supervisory responsibilities; (3) providing information, feedback, and assistance to others in the department; (4) maintaining updated reports and records; and (5) compiling and maintaining daily calendars for all court hearings. (P ¶ 49). A four-year college degree was a preferred criterion for the JAS position, (P ¶ 48), but the JAS position only required a high school diploma or GED and three years experience. (D ¶ 29). The duties of the JAS are a subunit of the Clerk and are less broad and less complex than the Clerk’s duties. (P ¶¶ 23, 52).

2. Janice Walker’s Background

Plaintiff and Janice Walker, among others, applied for the JAS position in March 2005. (D ¶ 27; Walker Dep. at 7). In Walker’s application, she indicated that she completed high school, and wrote paralegal in the space on the application that asked about the type of degree. (Walker Dep. at 23-25). Walker did not complete high school or have a paralegal degree, but she had paralegal certification. (Id. at 24-25). Walker stated that she failed to clarify that she did not have a paralegal degree because she did not know that a paralegal degree existed. (Id. at 65-66). Walker circled “yes” in indicating that she received a degree because she wanted to indicate that she received her certification and there was no other space to do so. (Id. at 66). Walker did not possess a four-year college degree. (P ¶ 61). Sfreddo knew that Walker had a GED and paralegal certificate at the time of Walker’s interview. (D ¶ 42).

Walker’s work history was as follows. Between 1990 and 1993, Walker worked for Cobb County Records Management in which she supervised inmates who helped transport county and court records between Cobb County departments. (Walker Dep. at 27-29). Walker ensured that the inmates picked up the right documents to transport. (Id. at 29). Walker then moved to the Probate Court from July 1993 to April 1998 where she worked briefly as a clerk and then as a deputy clerk for Judge Dodd. (Id. at 31-32). Walker supervised the deputy clerks in the Probate Court’s training program. (Id. at 34). Walker did not supervise employees in the sense of assigning them day-to-day job duties, performing performance reviews, disciplining employees, and approving leave requests. (Id. at 35, 42). After leaving Probate Court, Walker took a year and a half break and then returned to the Tax Assessor’s office in a clerical position. (Id. at 4142). Walker then joined the Juvenile Court as a JAT III, the same position held by Plaintiff. (Id. at 4243).

In Walker’s prior employment, she never provided supervision in terms of discipline, assigning work, or providing performance reviews. (Id. at 43; P ¶ 90). Walker never took the Stepping Up To Supervisor course, (Walker Dep. at 46), but after being promoted, she completed supervisor training that was mandatory for all Cobb County supervisors, (id. at 4546). Walker had one more year of experience than Plaintiff in the Juvenile Court. (P ¶ 99).

3. The Decision Making Process for the JAS Position

Marchank-Wellmon provided Sfreddo guidance in the promotional process for the JAS, (P ¶ 55), but Sfreddo was the hiring manager while Marchank-Wellmon served in an advisory capacity for the JAS position, (Marchant-Wellmon Dep. at 92-93). Marchant-Wellmon reviewed interview questions with Sfreddo. (D ¶34). Sfreddo interviewed five candidates for the JAS position, all of whom were white except Plaintiff. (D ¶¶ 38-39). Both Sfred-do and Marchant-Wellmon took notes during the interviews. (P ¶¶ 67, 69). Sfreddo with Marchant-Wellmon present interviewed Plaintiff for the JAS position on April 21, 2005. (Keaton Dep. at 69-70).

During Plaintiffs interview, Plaintiff was asked a series of questions about the clerk’s office. (Keaton Dep. at 70). Plaintiff indicated that she wanted more training on courtroom procedures for the clerks. (Id. at 71). Plaintiff stated that it would be okay for a clerk to work from 7:00 am to 4:00 pm if the clerk could complete the work. (Id. at 71-72). Plaintiff suggested that she would not want to bother the Clerk too much because the Clerk had more responsibilities. (Id. at 72-73).

Sfreddo evaluated the candidates along the following criteria: education; work experience; court experience; and supervisory experience. (Sfreddo Dep. at 34-35). Sfreddo chose Plaintiff and Walker as the final two candidates. (P ¶ 57). When Sfreddo informed Marchanb-Wellmon of this information, Marchant-Wellmon indicated that Plaintiff had been very high on the list for the Clerk position, but Mar-chanb-Wellmon did not mention Walker. (Sfreddo Dep. at 28-29). Sfreddo created a written comparative list of Plaintiff and Walker to determine whom to hire. (Id. at 47). She threw this list away once she made her decision. (7d). Within two hours of Plaintiffs interview, Sfreddo informed Plaintiff that she would not be selected for the JAS position because she was not going in the direction that Sfreddo wanted to go. (P ¶ 106).

Sfreddo chose Walker for the JAS position based on the applications, the interviews, Keaton’s portfolio, and the personnel files, (P ¶ 58). Sfreddo did not choose Plaintiff because Plaintiff indicated that: (1) she believed that the clerks could work a flex schedule; and (2) she wanted to supervise and to do her own thing. (Sfreddo Dep. at 42-43). Sfreddo chose Walker because of her 10 years of experience in the legal/court setting, five years of experience with the Juvenile Court, her high school degree, her paralegal certificate, and her prior supervisory experience. (Sfreddo Dep. at 37). Also, Sfreddo believed that Walker was going in the same direction as she. (Id. at 73, 80).

Sfreddo prepared a selection memo for the HR Department concerning Walker’s selection for the JAS position. (D ¶ 50). Sfreddo asked Walker to provide additional information to assist Sfreddo in listing the details of Walker’s experience. (D ¶ 51). After informing Walker that she was the selected candidate, Sfreddo asked Walker to provide supporting documentation about her past supervisory experience, which prompted Walker to provide a letter from Judge Dodd in the Probate Court. (Walker Dep. at 15-16). Sfreddo received Judge Dodd’s letter on or after April 25. (Sfreddo Dep. at 62).

F. Plaintiff’s Complaints of Discrimination

1. Civil Service Appeal

Plaintiff initiated a Civil Service complaint of the JAT III promotion decision. (Keaton Dep. at 104). Plaintiff dropped her Civil Service complaint to pursue her discrimination claims through the Equal Employment Opportunity Commission. (“EEOC”). (Id.)

2. EEOC Proceedings

On June 11, 2005, Plaintiff filed a charge of discrimination with the EEOC concerning Defendants’ Clerk and JAS promotion decisions. (EEOC Charge in Doc. 1 at Exh. A). Cobb County informed the EEOC that it chose Sfreddo for the Clerk position because Sfreddo: (1) had a high school diploma; (2) had 18 years of experience with the juvenile court, which gave her a “wealth of experience”; and (3) received supervisor training. Cobb County noted that Plaintiff only had 3.5 years of experience with the Juvenile Court. (EEOC Position Statement at 3 in Exh. 20, Doc. 34).

Cobb County informed the EEOC that it chose Walker over Plaintiff for the JAS position because Walker was best-suited for the position in that she had: (1) 10 years experience in legal/court settings; (2) 5 years experience at the Juvenile Court; (3) a high school degree; (4) a paralegal certificate; and (5) prior supervisory experience. In contrast, Cobb indicated that Plaintiff did not have prior supervisory experience. (Id. at 4).

The EEOC determined on March 15, 2006, that there was no discrimination in the selection of Sfreddo over Plaintiff for the Clerk position because Sfreddo was more qualified. (EEOC Determ, at Exh. 22, Doc. 34). The EEOC found, however, that it was “more likely than not” that Keaton was discriminated against based on her race for the JAS position because: (1) Plaintiff had the preferred qualification of a four-year degree while Walker only had a GED; (2) Plaintiff had 7-years experience working in a court room and 3 years experience working in a law firm; (3) Walker’s supervisory experience was 7 years prior to her selection for the JAS position; and (4) blacks were under-represented in the Juvenile Court given the number of qualified individuals in the Atlanta region. (Id.).

III. SUMMARY JUDGMENT STANDARD

Summary judgment is proper when no genuine issue as to any material fact is present, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The movant carries the initial burden of “informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact.” Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir.2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). “Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir.1991).

The nonmovant is then required “to go beyond the pleadings” and present competent evidence in the form of affidavits, depositions, admissions and the like, designating “specific facts showing that there is a genuine issue for trial.” Celotex, 477 U.S. at 324, 106 S.Ct. 2548. “The mere existence of a scintilla of evidence” supporting the nonmovant’s case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “[Fjacts must be viewed in the light most favorable to the nonmoving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, — U.S. -, -, 127 S.Ct. 1769, 1776, 167 L.Ed.2d 686 (2007). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Id. If the record does not blatantly contradict the nonmov-ant’s version of events, the court must determine “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented.” See Anderson, 477 U.S. at 252, 106 S.Ct. 2505; see also EPL Inc. v. USA Federal Credit Union, 173 F.3d 1356, 1362 (11th Cir.1999); Duke v. Cleland, 884 F.Supp. 511, 514 (N.D.Ga. 1995).

IV. DISCUSSION

A. Legal Frameworks

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.” 42 U.S.C. § 2000e-2(a)(l). Section 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress....

42 U.S.C. § 1983. Section 1983 does not create any substantive rights, but instead, creates a remedy for the deprivation of Plaintiffs rights under the Equal Protection Clause of the Fourteenth Amendment. See City of Hialeah, Fla. v. Rojas, 311 F.3d 1096, 1103 n. 1 (11th Cir.2002) (citing Almand v. DeKalb County, Ga., 103 F.3d 1510, 1512 (11th Cir.1997)).

When a plaintiff brings Title VII claims and Fourteenth Amendment claims through § 1983, the Eleventh Circuit has stated:

Although the Supreme Court “do[es] not regard as identical the constraints of Title VII and the Federal Constitution,” Johnson v. Transp. Agency, Santa Clara County, Ca., 480 U.S. 616, 632[, 107 S.Ct. 1442, 94 L.Ed.2d 615], ... (1987), “[w]hen section 1983 is used as a parallel remedy for violation ... of Title VII, the elements of the two causes of action are the same.” Hardin v. Stynchcomb, 691 F.2d 1364, 1369 n. 16 (11th Cir.1982) (citing Whiting v. Jackson State Univ., 616 F.2d 116, 123 (5th Cir. 1980)).

Underwood v. Perry County Comm’n, 431 F.3d 788, 793 (11th Cir.2005). As a result, this Court uses the same framework to evaluate Title VII claims and Equal Protection race discrimination claims brought under § 1983. See id.

When a party relies on circumstantial evidence, as in the instant case, courts use the familiar McDonnell Douglas burden-shifting framework to evaluate Title VII and § 1983 claims. Id.; Koch v. Rugg, 221 F.3d 1283, 1297 n. 31 (11th Cir.2000). Under the McDonnell Douglas framework, a plaintiff must first establish a prima facie case of race discrimination. If the plaintiff establishes a prima facie case, the defendant has the burden of producing a legitimate, nondiscriminatory reason for taking the employment decision. Once the defendant meets its burden of production, the plaintiff has the burden of proving by a preponderance of evidence that the defendant’s reason is a mere pretext for discrimination. Harris v. Shelby County Bd. of Edu., 99 F.3d 1078, 1082-83 (11th Cir.1996). Despite this burden-shifting framework, the “ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” Id. (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

In the instant case, Defendants concede for purposes of summary judgment that Plaintiff can establish prima facie cases for both promotion decisions. [Doc. 25-2 at 8]. Plaintiff also appears to concede that Defendants have met their burden of producing legitimate, non-discriminatory reasons for not promoting Plaintiff to the Clerk or JAS positions. [See Doc. 33 at 6 (arguing that a jury could reasonably infer that the falsity of Defendants’ reasons was a cover up for discrimination) ]. As a result, the Court’s discussion below will only examine whether Defendants’ legitimate, nondiscriminatory reasons for not promoting Plaintiff are pretext for race discrimination.

B. Pretext

To establish pretext, a plaintiff must show that the defendant’s proffered reason was not the true reason for the employment decision. Jackson v. State of Ala. State Tenure Comm’n, 405 F.3d 1276, 1289 (11th Cir.2005). This may be done “either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.” Id. (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). The plaintiff must demonstrate “such 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.” Id. (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir.1997)). “The heart of the pretext inquiry is not whether the employee agrees with the reasons that the employer gives for the discharge, but whether the employer really was motivated by those reasons.” Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1333 (11th Cir.1998). A plaintiff meets its burden at summary judgment “by introducing evidence that could form the basis for a finding of facts, which when taken in the light most favorable to the non-moving party, could allow a jury to find by a preponderance of the evidence that the plaintiff has established pretext.” Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 921 (11th Cir.1993). The plaintiff must introduce “significantly probative evidence” showing the defendant’s reasons were pretext. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir.2006).

1. The Clerk Position

Defendants argue Marchant-Well-mon legitimately selected Sfreddo over Plaintiff for the Clerk position because Sfreddo was best-suited for the position. [Doc. 25-2 at 9]. Specifically, Defendants argue that the decision was not race-based because Sfreddo had 15 years more experience than Plaintiff in the Cobb County Juvenile Court. [Id. at 9-10]. Defendants assert that Plaintiffs possession of a four-year degree did not overcome the disparity in experience. [Id. at 11]. Defendants also contend that Plaintiff undermined her race discrimination claim concerning the Clerk position by stating that she would not have believed the decision to be race based if another white applicant had been chosen. [Id. at 10].

Plaintiff responds that she never conceded that had another individual been chosen, she would have considered Mar-chanh-Wellmon’s promotion decision to be without racial animus because she was answering a speculative question. [Doc. 33 at 6 n. 1], Plaintiff next argues that Mar-chanb-Wellmon’s reasons for not promoting her were pretext for discrimination for three reasons. [Id. at 7-10]. First, Plaintiff argues that Marchant-Wellmon deviated from the job announcement by relying on experience instead of the experience related to the Clerk’s job duties. [Id. at 7-9]. Specifically, Plaintiff argues that Sfreddo’s experience in clerical positions was not consistent with the essential qualifications of the Clerk position. [Id. at 7]. Plaintiff notes that Sfreddo primarily performed clerical duties immediately preceding her selection as Clerk while Plaintiff handled deputy clerk duties for six years in Cobb County’s Juvenile Court and Sumter County’s Magistrate Court. [Id. at 7-8]. Plaintiff also asserts that she held a four-year college degree, a preferred criteria for the Clerk position, while Sfreddo had no college degree. [Id. at 8-9]. Plaintiff further contends that she and Sfreddo were equal on the objective criteria such as their interviews, personnel records, work records, and completing the Stepping Up to Supervisor program. [Id. at 9]. Second, Plaintiff appears to argue that she was more qualified than Sfreddo for the reasons stated above. [See id. at 7-9]. Third, Plaintiff argues that Mar-chanh-Wellmon’s long history of not hiring or promoting black employees is evidence of discrimination. [Id. at 9-10].

Defendants reply that Plaintiff cannot demonstrate that Marchant-Wellmon’s promotion decision was discriminatory. [Doc. 41 at 4-6]. First, Defendants argue that there is no evidence that Marchant-Wellmon did anything discriminatory prior to the promotion decision. [M at 4]. Second, Defendants argue that Plaintiffs statistical argument concerning Marchant-Wellmon’s hiring history is without merit because she has not shown that minority applicants applied for positions or that these applicants were better qualified, [let]. Third, Defendants argue that the decision to hire an African-American following Plaintiffs discrimination claim is not evidence of pretext and Plaintiff has failed to cite to any authority to show that it is evidence of pretext. [Id. at 5]. Finally, Defendants argue that Plaintiffs qualifications argument does not demonstrate pretext because Sfreddo has more experience and another white applicant with a college degree was not chosen. [Id. at 5-6].

a. Plaintiff’s Alleged Concession

The Court agrees with Plaintiff that her statement that she would not have believed that she was a victim of race discrimination had another candidate been selected for the Clerk position does not undercut her case. Under the Federal Rules of evidence, relevant evidence is generally admissible evidence. Fed. R.Evid. 402. Relevant evidence is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Fed. R.Evid. 401. That Plaintiff might not have considered Marchant-Wellmon’s decision discriminatory had Marchanfi-Wellmon selected a white candidate is not relevant evidence. The issue before the Court is whether Marchant-Wellmon intentionally discriminated against Plaintiff in promoting Sfreddo over Plaintiff. Therefore, Plaintiffs opinion about a hypothetical selection of another candidate does not make it less probable that the choice of Sfreddo was not discriminatory.

Also, the Court finds that Plaintiffs testimony is not admissible as opinion testimony. Opinion testimony is admissible if it is: (1) rationally based on the perception of the witness; (2) helpful to a clear understanding of a determination of a fact at issue; and (3) not based on scientific, technical, or other specialized knowledge. Fed.R.Evid. 701. As a result, speculative testimony is generally not admissible because it is not based on the witness’s perception. See Washington v. Dep’t of Transp., 8 F.3d 296, 300 (5th Cir.1993). Plaintiffs opinion about an event that did not occur is mere speculation. As a result, Plaintiffs concession is not admissible and therefore cannot undercut her case.

b. Deviation from the Job Announcement

As summarized above, Plaintiff argues that Marchanfi-Wellmon deviated from the job announcement by relying on experience instead of the experience related to the Clerk job duties. [Doc. 33 at 7-9].

Deviation from a policy or procedure may be evidence of pretext if the deviation occurred in a discriminatory manner. See Walker v. Prudential Property and Cas. Ins. Co., 286 F.3d 1270, 1279 (11th Cir.2002) (“The bending of established rules may, of course, be suggestive of discrimination.”); Rojas v. Florida, 285 F.3d 1339, 1344 n. 4 (11th Cir.2002) (“To establish pretext, a plaintiff must show that the deviation from policy occurred in a discriminatory manner.”). As a result, an employer’s deviation from the requirements of its job listing may be evidence of pretext. Mohammed v. Callaway, 698 F.2d 395, 400-01 (10th Cir.1983) (finding employer’s departure from the employment criteria in a job announcement to the detriment of a minority employee was probative of discrimination).

The Court finds no evidence of pretext based on any deviations from the essential functions aspect of the Clerk job announcement. First, the parties do not dispute that Sfreddo met the minimum requirements of the Clerk job. Thus, she is not disqualified from being the Clerk, (see Hagler Dep. at 23), and is at least minimally qualified. Second, the essential requirements for the Clerk job describe the role of the Clerk. The Court is unaware of any evidence that an applicant must meet these essential requirements of a job, but the Court notes that a hiring official is expected to use the essential requirements to evaluate candidates for a position. (See Hagler Dep. at 23-24). Thus, that an applicant does not meet the essential requirements does not demonstrate pretext because there is no evidence that a candidate must meet these essential requirements.

Plaintiff believes Sfreddo’s past work history does not show that she could perform the essential functions of the Clerk job. This argument does not suggest pretext. Instead, it places the Court in the role of comparing Sfreddo’s work history with that of the essential qualifications and comparing Plaintiffs educational and work histories with the essential requirements of the Clerk position. This is a role that the Court particularly is ill equipped to perform. Courts are not super-personnel departments that review the propriety of an employment decision. See, e.g., Wilson, 376 F.3d at 1092 (“The role of this Court ‘is to prevent unlawful hiring practices, not to act as a super personnel department that second-guesses employers’ business judgments.’ ”) (quoting Lee v. GTE Florida, Inc., 226 F.3d 1249, 1254 (11th Cir.2000)). Unlike Marchant-Wellmon, the Court is unfamiliar with the operations of the Juvenile Court and specifically Sfreddo’s various roles in the Court. As a result, the Court cannot determine whether Sfreddo’s roles in the Juvenile Court adequately prepared her for the essential functions of the Clerk position. Nor can the Court determine whether one candidate’s work history is better suited for the essential functions of the Clerk position than the other candidate.

The Court also notes that Marchant-Wellmon’s decision to choose Sfreddo as the Clerk is not implausible given Sfred-do’s background at the Juvenile Court. It is undisputed that Sfreddo’s work for two judges from 2000 to 2005 was clerical. (Marehant-Wellmon Dep. at 45; P ¶¶ 43-44). However, Sfreddo’s work history does not merely encompass clerical work because she had a five-year tenure as a JAT-III, in which she had supervisory experience. (Sfreddo Dep. at 17-18; P ¶ 46). Also, Sfreddo, like Plaintiff, completed the Stepping Up for Supervisor course. (D ¶ 16). With this evidence, this Court simply cannot find that Sfreddo’s experience is incompatible with the essential requirements of the Clerk position. In the absence of evidence showing that Defendants’ comparison of Sfreddo’s employment history with the essential requirements of the Clerk position is discriminatory, Plaintiff essentially argues that Marchanh-Wellmon’s decision was a poor decision. See Rojas, 285 F.3d at 1344 n. 4 (noting that deviation from policy is not pretext unless deviation occurred in discriminatory manner). But, this Court’s role is not to second guess an employer’s judgment. See Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir.2000) (en banc); Nix v. WLCY Radio/Rahall Commc’ns, 738 F.2d 1181, 1187 (11th Cir. 1984) (“While an employer’s judgment or course of action may seem poor or erroneous to outsiders, the relevant question is simply whether the given reason was a pretext for illegal discrimination.”). As a result, the Court fails to find pretext on the basis that Marchanb-Wellmon improperly evaluated Sfreddo’s qualifications when comparing them with the essential functions of the Clerk position.

c. Plaintiffs Qualifications

Plaintiff appears to argue that her superior qualifications demonstrate that Mar-chant-Wellmon’s choice of Sfreddo was discriminatory. [Doc. 33 at 7-9].

“[Qualifications evidence may suffice, at least in some circumstances, to show pretext.” See Ash v. Tyson, 546 U.S. 454, 457, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053 (2006). To make a case of pretext based on qualifications, “a plaintiff must show that the disparities between the successful applicant’s and her own qualifications were ‘of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff.’ ” Brooks, 446 F.3d at 1163 (quoting Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir .2004)).

The Court concludes that Plaintiff cannot establish pretext based on having superior qualifications than Sfreddo. Plaintiff has a four-year college degree, (Keaton Dep. at 16-17), while Sfreddo only has a high school diploma, (D ¶ 15). This disparity in educational levels is not of such weight that no reasonable person could have chosen Sfreddo over Plaintiff given the other evidence in the record. Sfreddo had worked in the Juvenile Court for 18 years, (D ¶ 18), while Plaintiff had only worked at the court for less than 4 years at the time of the promotion decision, (see P ¶¶ 1, 24). Sfreddo, like Plaintiff, worked as a JAT-III and completed the Stepping Up to Supervisor course. (Sfreddo Dep. at 17-18; D ¶ 16). In addition, Sfreddo worked for two judges (albeit performing mostly clerical work). (Marchant-Wellmon Dep. at 45; P ¶¶ 43-44; Sfreddo Dep. at 14-17). Based on Sfred-do’s experience and performance of a variety of jobs in the Juvenile Court, the Court finds that Plaintiff cannot establish pretext by arguing about the disparity in qualifications.

d. Marchanb-Wellmon’s History of Hiring and Promoting

Plaintiff finally argues that Marchanb-Wellmon’s failure to hire or promote African-American individuals is further evidence of discrimination. [Doc. 33 at 9-10].

“Statistical evidence is an appropriate method for demonstrating both a prima facie case of discrimination and pretext.” Brown v. American Honda Motor Co., Inc., 939 F.2d 946, 952 (11th Cir.1991). “Statistics ..., however, without an analytic foundation, are virtually meaningless.” Id. “To say that very few blacks have been selected by [an employer] does not say a great deal about [the employer’s] practices unless [a court] know[s] how many blacks have applied and failed and compare that to the success rate of equally qualified white applicants.” Id.

The Court concludes that Mar-chant-Wellmon’s hiring and promotion history provides no evidence of pretext. Plaintiff has not identified any evidence concerning the racial makeup of the applicant pools for the positions that Marchanb-Wellmon hired. [See Doc. 33 at 9]. It may be true that Marchant-Wellmon has never had an African-American employee directly report to her and has hired only one African-American employee during her 16-year history. (See Marchant-Wellmon Dep. at 21-24). Without information about the applicant pools for these past employment decisions, the Court cannot find that an issue of material fact exists based on this raw data. See Pippin v. Burlington Resources Oil And Gas Co., 440 F.3d 1186, 1198 (10th Cir.2006) (finding no evidence of pretext where Plaintiff showed that 14 of 19 terminated employees were in protected class because this statistic did not consider the different individuals’ circumstances, skills, or prior performances); Roberson v. Snow, 404 F.Supp.2d 79, 91-92 (D.D.C.2005) (finding no evidence of pretext on the basis of a history of not promoting black employees because plaintiff “failed to show actual statistics comparing rates of promotion at [employer] between similarly situated black and white employees, or even statistics comparing rates of hiring black and white applicants to their presence in the applicant pool”); English v. CSA Equipment Co., LLC, No. 05-cv-0312, 2006 WL 2456030, at * 18 (S.D.Ala. Aug.22, 2006) (finding plaintiff failed to show pretext on the basis of employer’s hiring history because he failed to identify evidence that prior decisions were discriminatory); see also Brown, 939 F.2d at 952-53 (holding that although only 2 out of 860 automotive dealers were black, this statistic did not demonstrate pretext because there was no information about the number of blacks who applied for the dealerships).

Based on the above discussion, the Court concludes Plaintiff has failed to demonstrate that Defendants’ legitimate, nondiscriminatory reasons for promoting Sfreddo over Plaintiff is pretext for discrimination. Plaintiffs pretext arguments taken separately or in combination simply fail to create an issue of material fact. Accordingly, the Court RECOMMENDS that summary judgment be GRANTED in Defendants’ favor on Plaintiffs Title VII and § 1983 claims concerning the promotion of Sfreddo over Plaintiff to the Clerk position.

2. The JAS Position

Defendants argue that Walker’s greater experience, prior supervisory experience, and Plaintiffs answers to certain interview questions were legitimate, nondiscriminatory reasons for promoting Walker instead of Plaintiff. [Doc. 25-2 at 14]. Defendants contend that these reasons are not pretextual because: (1) Sfred-do never made any racial comments; (2) Plaintiff never had problems with Sfreddo; and (3) Plaintiff cannot identify any evidence of race-based discrimination. [Id. at 15]. Plaintiff responds with 13 arguments explaining why Defendants’ reasons for not promoting her to the JAS position are pretext for discrimination. [Doc. 33 at 11-25]. Defendants reply that Plaintiffs shotgun approach does not demonstrate pretext, but instead shows only that Plaintiff disagrees with the promotion decision. [Doc. 41 at 6-7].

a. Plaintiffs Declaration

As an initial matter, Defendants object to portions of Plaintiffs declaration because it contradicts her deposition testimony in which Plaintiff allegedly stated that: (1) courtroom clerks could work flexible schedules; and (2) Plaintiff wanted to be left alone to do her job without interference from the Clerk. [Doc. 41 at 8]. “ ‘When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact [for summary judgment], that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.’ ” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir.2003) (quoting Van T. Junkins and Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir.1984)). As a result, a Court may disregard the conflicting affidavit as a sham. Rollins v. TechSouth, Inc., 833 F.2d 1525, 1530 (11th Cir.1987). However, this rule is applied “sparingly” and only when there is an “inherent inconsistency” between the affidavit and the deposition testimony. Id.

Flexible Hours for Clerks

The Court concludes that there is no conflict between Plaintiffs deposition testimony and her declaration testimony concerning flexible hours for clerks. Plaintiff provided the following testimony during her deposition:

Q. Was there any discussion about scheduling?

A. Scheduling?

Q. Flexible schedules?

A. Yes, sir, there was a discussion about flexible schedules.

Q. Can you tell me about that?

A. I believe one of the courtroom clerks was a calendar clerk before she became a courtroom clerk, and when she was a calendar clerk, her hours were seven to four or something. I think she had asked me, did I believe that was fair or okay or something to that effect.

And I told her that I felt that if the employee felt that that time frame enabled them to get their work done, that I didn’t see a problem with it. I think Ms. Marchanh-Wellmon pointed out that if other employees thought, well that’s kind of unfair, we have to leave at five, she can leave at four, what would be my response to that.

I told her, I certainly didn’t want to be unfair to anyone.

Q. Anything else you remember about that portion of the discussion?

A. Ms. Marchant-Wellmon had emphasized, she said yes, because fairness is important. I wouldn’t want anyone to think that they were being treated unfairly or something to that effect. And I agreed. I certainly didn’t want to mistreat anyone.

(Keaton Dep. at 71-72). Plaintiffs declaration states the following:

I did not make any statement during the interview for the JAS position that courtroom clerks could work four-day work weeks or that it was feasible for them to do so. I did not make any statement that could be construed in such a manner.

(Keaton Deck ¶ 7 at Exh. 1, Doc. 34). The declaration and deposition testimony refer to two different situations. The declaration refers to a four-day work week while the deposition testimony refers to a 7:00 am to 4:00 pm work schedule. The Court fails to see how this evidence is contradictory given that it relates to two different schedules, ie., a 7:00 am to 4:00 pm schedule and a 4-day workweek schedule.

Plaintiff’s Preference to Work Alone

The Court concludes that Plaintiffs declaration does not contradict her deposition testimony concerning the interaction between the Clerk and the JAS. Plaintiffs declaration states:

I did not make any statement during the interview for the JAS position that I prefer to work alone and independently or that I wanted to be allowed to supervise [my] division alone or independently. I did not make any statement that could be construed in such a manner.

(Keaton Deck ¶ 6 in Exh. 1, Doc. 34). During Plaintiffs deposition, the following exchange occurred:

Q. Did you and Ms. Sfreddo discuss the relationship between the clerk and the administrative supervisor?

A. I intimated to her that as a supervisor, that I would want to keep as much off of her as possible being the clerk, being that she has an entire office to run, that I wanted to keep as much off of her to deal with as I could if I was selected for the position.

(Keaton Dep. at 72-73).

There is no inherent inconsistency between Plaintiffs declaration statement and her deposition testimony. Plaintiffs deposition testimony essentially indicated that she did not want to bother the Clerk because the Clerk would be busy. The declaration statement addresses whether Plaintiff testified that she wanted to work alone or independently. These two statements are not inherently contradictory, so the Court will consider Plaintiffs declaration.

b. Plaintiff’s Interview Responses

Plaintiff argues that Sfreddo’s decision not to promote her to the JAS position because of interview responses is pretext because Sfreddo’s recollection about her responses is false. [Doc. 33 at 11-14].

An employee does not demonstrate pretext by establishing that the employer made a mistake. Instead, the plaintiff establishes pretext by showing that the employer did not give an honest explanation for its behavior. See Walker v. NationsBank of Fla. N.A., 53 F.3d 1548, 1563 (11th Cir.1995); see also Chapman, 229 F.3d at 1030 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991)); Newman v. Career Consultants, Inc., 470 F.Supp.2d 1333, 1346 (M.D.Ala.2007) (“As long as an employer’s beliefs were honest, they can be mistaken without it implying that the employer acted with discriminatory motive.”). The Court therefore examines whether Plaintiff has created an issue of material fact as to whether Defendants gave an honest explanation for the JAS promotion decision.

Work Schedule

Plaintiff argues that during her interview for the JAS position, she never supported a work schedule that would allow courtroom clerks to work 4 days per week as Sfreddo asserted. [Doc. 33 at 11-13].

The Court concludes that Plaintiff has created an issue of material fact as to whether Sfreddo and Marchant-Wellmon gave an honest explanation concerning Plaintiffs statements about the flexible schedule. Sfreddo and Marchant-Well-mon believed that Plaintiff would have allowed courtroom clerks to work 10 hours per day for 4 days a week. (See D ¶ 47; Sfreddo Dep. at 38; Marchant-Wellmon Dep. at 88). Plaintiff has provided contrary testimony that she did not make any statement during the interview for the JAS position that courtroom clerks could work a four-day work week. (Keaton Decl. ¶ 7 in Doc. 34, Exh. 1). Because Sfreddo and Marchant-Wellmon were both present during Plaintiffs interview, Plaintiffs denial that she made the statement about a four-day work week calls into question Sfreddo and Marchant-Wellmon’s honest belief concerning this issue.

Also, Marchant-Wellmon’s interview notes from Plaintiffs interview state: “4 day work week won’t work for Clerks.” (Keaton Notes in Exh. 15, Doc. 34). This note also suggests that Plaintiff never advocated a four-day work week for courtroom clerks, and that Marchanb-Wellmon was aware that Plaintiff never supported a four-day work week. Given Plaintiffs testimony and Marchanb-Wellmon’s notes, the Court concludes that Plaintiff has created an issue of material fact as to whether the individual Defendants honestly believed that Plaintiff would have allowed court-room clerks to work four-day work weeks.

Finally, the Court is unpersuaded that Plaintiffs deposition testimony supports Defendants’ position concerning flexible schedules. Defendants did not promote Plaintiff to the JAS position because of Plaintiffs alleged “support for a work schedule that would allow courtroom clerks to work a 40-hour schedule four days a week.” [Doc. 25-2 at 14]. The deposition testimony to which Defendants refer involved a flexible schedule in terms of working from 7:00 am to 4:00 pm, not in terms of working a four-day work week. (See Keaton Dep. at 71-72). At the most, this testimony indicates that Plaintiff was willing to allow courtroom deputies to work from 7:00 am to 4:00 pm. Defendants never asserted that Walker was promoted over Plaintiff because Plaintiff believed that courtroom clerks could work this 7:00 am to 4:00 pm schedule. Instead, they focused on Plaintiffs alleged statement that courtroom clerks could work four days per week for ten hours per day. Plaintiffs deposition testimony is therefore of no assistance to Defendants because it does not relate to the ten-hour workday schedule.

Based on the foregoing, Plaintiff has created an issue of material fact as to whether Defendants gave an honest explanation for not promoting Plaintiff.

Plaintiff’s Desire to Work Alone and Independently

Plaintiff argues that, contrary to Defendants’ position, she never asserted during her interview that she preferred to work alone and independently. [Doc. 33 at 13-14].

The Court concludes that Plaintiff has created an issue of material fact concerning whether Defendants honestly believed that Plaintiff preferred to work alone. Concerning Plaintiffs expectations about the Clerk, Sfreddo testified that Plaintiff “wanted to supervise and pretty much be left to do her thing.” (Sfreddo Dep. at 43). Marchanfr-Wellmon similarly testified that Plaintiff indicated that she preferred to work on her own and more independently. (Marchant-Wellmon Dep. at 89).

Plaintiff has provided a sworn statement directly contradicting Sfreddo and Mar-chant-Wellmon’s contentions: “I did not make any statement during the interview for the JAS position that I prefer to work alone and independently or that I wanted to, be allowed to supervise [Sfreddo’s] division alone or independently. I did not make any statement that could be construed in such a manner.” (Keaton Decl. ¶ 6 at Exh. 1 in Doc. 34). Plaintiffs depositio