Clark v. APAC Mid-South, Inc. (912 F. Supp. 2d 1273, 2012)

United States District Court for the Northern District of Alabama 2012-12-06

The Public Health and Welfare

Citations

Full opinion text

MEMORANDUM OPINION

HARWELL G. DAVIS, III, United States Magistrate Judge.

On December 11, 2009, plaintiff Jeffery A. Clark, III, (“Clark”) an African-American, initiated this civil action with a two-count complaint filed in the Northern District of Alabama against defendant APAC Mid-South, Inc., (“APAC”) alleging race discrimination and retaliation in violation of 42 U.S.C. § 1981 (“Section 1981”) and Title VII of the Act of Congress, 42 U.S.C. § 2000e et seq. (Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991) (“Title VII”). Clark demands a trial by jury, monetary damages, and injunctive relief.

This case is before the undersigned magistrate judge pursuant to the parties’ consent. See 28 U.S.C. § 636(c); Rule 73(a) of. the Federal Rules of Civil Procedure; LR 73.2; and the General Orders of Reference dated July 25, 1996, May 8, 1998, as amended July 27, 2000, specifically at ¶ 3. APAC has filed a motion for summary judgment, briefs, and evidentiary submissions. (Docs. 18, 19 & 20). Clark tendered a response and evidentiary submissions. (Docs. 27 & 28). APAC filed a reply brief and additional evidentiary submissions. (Doc. 30). The parties have supplemented their evidentiary submissions at the direction of this court. (Docs. 36 & 37).

I. APPLICABLE LAW

A. Summary Judgment — General Standard

Summary judgment is proper when no genuine issue as to any material fact is present, and the moving party is entitled to a judgment as a matter of law. Federal Rule of Civil Procedure 56(a). APAC 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 Ft. Lauderdale, 232 F.3d 836, 840 (11th Cir.2000) (citing Celotex Corporation 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 non-moving party then is required “to go beyond the pleadings” and present competent evidence in the form of affidavits, depositions, admissions and the like designating “specific facts showing 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 non-movant’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).

The reviewing court’s function is not to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial. Id. at 248, 106 S.Ct. 2505. “[F]acts must be viewed in the light most favorable to the non-moving party only if there is a ‘genuine’ dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 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 facts for the purpose of ruling on a motion for summary judgment.” Id. If the record does not blatantly contradict the non-movant’s versions 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).

B. Title VII and Section 1981 Claims— General Analytical Framework

Clark relies upon Title VII and Section 1981 to support his race-based employment discrimination claims. Title VII prohibits employers from discriminating against any individual with respect to the terms of employment on the basis of race. Title VII also contains a separate anti-retaliation provision that forbids an employer from intentionally discriminating against an employee for engaging in activity protected by Title VII. Section 1981 prohibits race-based discrimination and retaliation in the making and enforcement of contracts. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 445-46, 128 S.Ct. 1951, 170 L.Ed.2d 864 (2008). Since both laws have the same proof requirements, unless otherwise noted, all claims shall be addressed under the Title VII moniker. See Bryant v. Jones, 575 F.3d 1281,1307 (11th Cir.2009) (quoting Standard v. A.B.E.L. Services, 161 F.3d 1318, 1330 (11th Cir.1998) (“stating that Title VII and § 1981 ‘have the same requirements of proof ...’ ”)).

A plaintiff may establish a claim of discrimination or retaliation by direct, circumstantial, or statistical evidence. For claims based only upon circumstantial evidence, as is the case in the present action, the Eleventh Circuit Court of Appeals has adopted the three-step burdenshifting framework established in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802-08, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1087 (11th Cir.2004); Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir.2000) (en banc). This analytical framework applies to Clark’s Title VII and Section 1981 claims.

Under the framework, the plaintiff bears the initial burden of proving a prima facie case. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. Once a prima facie case is established, the burden then shifts to the employer to state a legitimate, nondiscriminatory reason for the challenged action. Id. at 802-03, 93 S.Ct. 1817. An employer’s burden to articulate a non-discriminatory reason for its action is a burden of production, not of persuasion. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This burden involves no credibility determination, St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), and therefore it is an “exceedingly light” burden. Perryman v. Johnson Prod. Co., 698 F.2d 1138, 1141 (11th Cir.1983).. The employer must simply articulate “a clear and reasonably specific” non-discriminatory basis for its actions to discharge its burden of production. Burdine, 450 U.S. at 254-55, 101 S.Ct. 1089. After the employer discharges its burden, the burden shifts back to the plaintiff to show that the reason offered by the employer was a pretext for discrimination or retaliation. McDonnell Douglas Corp., 411 U.S. at 804, 93 S.Ct. 1817. At the pretext stage, the court’s concern is not whether the employment decisions are prudent or fair but whether unlawful discriminatory or retaliatory animus motivates the challenged employment decision. Damon v. Fleming Supermarkets of Florida, 196 F.3d 1354, 1361 (11th Cir.1999).

In other words, once a defendant articulates a legitimate, non-discriminatory reason for its action, the initial inference of discrimination “drops” from the case. See St. Mary’s Honor Ctr. v. Hicks, 509 U.S. at 510-11, 113 S.Ct. 2742. The burden then- shifts back to the plaintiff to show that the proffered reason was pretext for intentional discrimination and that the defendant intentionally discriminated against him. Burdine, 450 U.S. at 256, 101 S.Ct. 1089; Chapman, 229 F.3d at 1024. Plaintiffs evidence must reveal “such weaknesses, implausibilities, inconsistencies, incoherences or contradictions in the employer’s proffered legitimate reasons for its actions that a reasonable fact-finder could find them unworthy of credence.” Cooper v. Southern Co., 390 F.3d 695, 725 (11th Cir.2004).

The plaintiff may not simply quarrel with the wisdom of the reason proffered “but must meet it head on and rebut it.” Chapman, 229 F.3d at 1030. Federal courts “do not sit as a super-personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high handed its decisional process, no matter how mistaken the firm’s managers,” the courts do not interfere. Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991) (quoting Mechnig v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir.1988) (citations omitted)). A plaintiff may show pretext and survive summary judgment by “presenting evidence sufficient to demonstrate a genuine issue of material fact as to the truth or falsity of the employer’s legitimate, nondiscriminatory reasons.” Evans v. McClain of Georgia, Inc., 131 F.3d 957, 965 (11th Cir.1997) (citations omitted); Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir.1999).

II. STATUTES OF LIMITATION, ABANDONED AND UNPLED CLAIMS

A. Statutes of Limitation

1. Any adverse decisions arising in 2005 are untimely under Section 1981 and Title VII

Out of an abundance of caution, APAC argues that to the extent Clark may be

attempting to make any [Section 1981] claims related to alleged adverse employment actions occurring in 2005, such claims are due to be dismissed as untimely because plaintiff filed the lawsuit in the instant case on December 11, 2009, more than four years from the date of any of the alleged 2005 actions. See e.g., Summerlin v. M & H Valve Co., [2005 WL 6132650, at] *10-12 (N.D.Ala. Jan. 31, 2005) (citing Jones v. R.R. Donnelley & Sons Co., 541 U.S. 369, 382 [124 S.Ct. 1836, 158 L.Ed.2d 645] (2004) and explaining that statute of limitations for Section 1981 claims is either two or four years depending on nature of claim). Any of plaintiffs [Title VII] claims related to his first EEOC Charge that was filed in November of 2005 and was dismissed with a Notice of Right to Sue in September 2006, are likewise untimely because plaintiff did not file this lawsuit within 90 days of the issuance of the Right to Sue Notice. See 42 U.S.C. § 42 U.S.C. § 2000e-5(f)(1).

(Doc. 19 at 12) (citation omitted) (brackets added).

Clark’s complaint does not appear to state any Section 1981 or Title VII claims arising from a 2005 EEOC charge. (Doc. 1 at 1-8). Moreover, he does not dispute that any claims determined to have arisen in 2005 would be barred by the longest possible limitations period applicable to Section 1981 and that he did not file a Title VII lawsuit against APAC within 90 days of his receipt of the September 2006 EEOC dismissal. (Doc. 27). In fact, Clark does not address any of APAC’s timeliness arguments in his response. (Id.).

Accordingly, to the extent that Clark may be attempting to aver Title VII or Section 1981 causes of action pertaining to any adverse employment decisions that occurred in 2005, those causes of actions are barred by the applicable statutes of limitations discussed above. As such, APAC’s motion for summary judgment as to any Section 1981 and Title VII claims that arose in 2005 is due to be GRANTED and those claims are due to be DISMISSED WITH PREJUDICE.

2. Clark’s 2007 failure to promote claims are untimely under Section 1981

APAC declares that Clark’s 2007 failure-to-promote claims under Section 1981 are untimely because the “decisions that, involved promotions from hourly non-management jobs to salaried management positions were made no later than July of 2007 ..., and . [Clark] filed this lawsuit more than two years from the date of those promotional decisions.” (Doc. 19 at 13) (citing Summerlin v. M & H Valve Co., [2005 WL 6132650, at] *10-12 (N.D.Ala. Jan. 31, 2005)). Clark’s opposition contains no reasoned argument to counter APAC’s contention that the 2007 failure-to-promote claims are subject to and therefore barred by Section 1981’s two-year statute of limitations. (Doc. 27). For the reasons following, this court finds APAC’s motion to be well-founded.

It is well known that a plaintiff is not required to exhaust his administrative remedies before filing an action under 42 U.S.C. § 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 181, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), superseded by statute as stated in Jones v. R.R. Donnelley & Sons, Co., 541 U.S. 369, 383, 124 S.Ct. 1836, 158 L.Ed.2d 645 (2004). Nevertheless, the suit still must be timely filed. Prior to 1990, courts were to apply the most analogous state statute of limitations to § 1981 claims, which was two years under Alabama law. Goodman v. Lukens Steel Co., 482 U.S. 656, 661-62, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987), superseded by statute as stated in Jones, 541 U.S. at 383, 124 S.Ct. 1836; Moore v. Liberty Nat’l Life Ins. Co., 267 F.3d 1209, 1219 (11th Cir.2001). In 1990, Congress enacted 28 U.S.C. § 1658(a), which created a default four-year limitations period for federal causes of action created after that date. 28 U.S.C. § 1658. One year later, as part of the Civil Rights Act of 1991, Congress amended § 1981 to include a cause of action for race discrimination in the terms and conditions of employment. 42 U.S.C. § 1981.

In Jones v. R.R. Donnelley & Sons Co., the Supreme Court determined that Congress’s 1990 enactment of § 1658 changed the limitations period to four years for some claims under ■;§ 1981. Jones, 541 U.S. at 377-80, 124 S.Ct. 1836. The Court explained that to the extent that the Civil Rights Act of 1991 created new causes of action not previously cognizable under § 1981, such claims are subject to the four-year “catchall” statute of limitations of § 1658. Id. at 380-83, 124 S.Ct. 1836.

Prior to the Civil Rights Act of 1991, a failure-to-promote claim was actionable under § 1981 “[o]nly where the promotion rises to the level of an opportunity for a new and distinct relation' between the employee and employer.” Patterson, 491 U.S. at 185-86, 109 S.Ct. 2363. Clark does not dispute that the skilled positions he performed at APAC were hourly, non-supervisory positions at APAC, while the Foreman and Superintendent positions were salaried positions- with managerial functions.

The 2007 promotions described in Clark’s complaint rise to the level of an opportunity for a new and distinct relation between Clark and APAC and thus would have been actionable under § 1981 prior to the Civil-Rights Act of 1991. See id. Any action brought pursuant to the ■ 2007 promotions under § 1981 must have been filed by 2009 to be timely. See Moore, 267 F.3d at 1219. Therefore, the court' concludes that, to the extent Clark claims that APAC failed to promote him to the 2007 Foreman and Superintendent positions, the claims are time barred under § 1981.

•APAC’s motion for summary judgment as to any discrete Section 1981 failure-to-promote claims that arose in 2007 is due to be GRANTED and these claims DISMISSED WITH PREJUDICE.

B. Abandoned Claims

“When a party moves for final ... summary judgment, ‘it [becomes] incumbent upon the [nonmovant] to respond by, at the very least, raising in their opposition papers any and all arguments or defenses they felt precluded judgment in [the moving party’s] favor.’ ” Case v. Eslinger, 555 F.3d 1817, 1329 (11th Cir.2009) (quoting Johnson v. Bd. of Regents, 263 F.3d 1234, 1264 (11th Cir.2001)). Moreover,

[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Blue Cross & Blue Shield v. Weitz, 913 F.2d 1544, 1550 (11th Cir.1990). Rather, the onus is upon the parties to formulate arguments; grounds alleged in the complaint but not relied upon in summary judgment are deemed abandoned. Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir.1994) (citing Lazzara v. Howard A. Esser, Inc., 802 F.2d 260, 269 (7th Cir.1986)), cert. denied, 513 U.S. 868, 115 S.Ct. 189, 130 L.Ed.2d 122 (1994).

Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th Cir.1995).

With these principles in mind, the court finds that Clark has abandoned three claims.

1.Title VJI/Section 1981 race discrimination in discipline, and termination between December 2007 and February 2008

APAC declares that Clark did not respond to its motion for summary judgment regarding his race-discrimination claims with the underlying basis being three discrete acts of discipline and termination between December 2007 and February 8, 2008. (Doc. 18 at 2-3, ¶¶ 6-8 & 11-12); (Doc. 19 at 15-16, 21-23 & 24-25); (Doc. 30 at 6). APAC is correct, and these claims are due to be dismissed with prejudice.

2. Title VII race discrimination for failure to promote to 2007 Asphalt Superintendent position

APAC also moves for summary judgment as to Clark’s race-discrimination failure-to-promote claim in connection with the 2007 Asphalt Foreman positions and the Asphalt Superintendent position. (Doe. 18 at 1-2, ¶¶ 2-3); (Doc. 19 at 15-21). Clark’s opposition to the motion for summary judgment is dedicated exclusively to 2007 Asphalt Foreman positions. (Doc. 27 at 28-32). There is no mention of or argument in opposition to APAC’s motion for summary judgment as to the Asphalt Superintendent position. (Id.). Since Clark has abandoned the Asphalt Superintendent failure-to-promote claim, it is due to be dismissed with prejudice.

3. Title VH/Section 1981 discrete retaliation claim, with the underlying allegation being a rescinded January 10, 2008, reprimand

APAC additionally moves for summary judgment with regard to Clark’s assertion that Asphalt Foreman David Wright issued him a written reprimand on January 10, 2008, in retaliation for his having filed an EEOC charge on December 14, 2007. (Doc. 18 at 2, ¶¶ 6-7); (Doc. 19 at-16-17, 22). APAC declares that Clark never signed the reprimand,, and the document was rescinded by Wright’s immediate supervisor, Asphalt Superintendent David Smith. (Doc. 19 at 16-17). Since Clark was not subjected to any adverse employment action, APAC declares the claim is due to be dismissed. (Id.). Clark makes no arguments concerning retaliation and the rescinded January 10, 2008, reprimand in his opposition to APAC’s motion for summary judgment. Thus, he has abandoned this claim, and it is due to be dismissed with prejudice, as well.

In conclusion, the onus is upon Clark to formulate arguments in opposition to APAC’s motion for summary judgment. Clark has -failed to do so in connection with each of the claims described above. Accordingly, APAC’s motion for summary judgment is due to be GRANTED and these claims DISMISSED WITH PREJUDICE.

C. Unpled Claims

In his opposition to APAC’s motion for summary judgment and brief, Clark either makes or references arguments concerning causes of action that clearly were not alleged in his complaint. (Doc. 27). First, at the end of his argument in support of his race discrimination failure-to-promote claims he writes, “the disparate treatment and disparate impact of failing to train Plaintiff in electronics is also a violation of his Title VII rights.” (Id. at 32). There is no semblance of a failure to train claim in his complaint. While “the Supreme Court has mandated a liberal pleading standard for civil eomplaints under Federal Rule of Civil Procedure 8(a)[, t]his standard ... does not afford plaintiffs with an opportunity to raise new claims at the summary judgment stage.” Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1314 (11th Cir.2004) (citing Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002)). Accordingly, the unpled Title VII failure to train claim SHALL NOT BE CONSIDERED.

Additionally, after its argument in support of summary judgment against Clark as to the race discrimination failure-to-promote claims, APAC proclaims “[t]o the existent that plaintiff is claiming that his [2007] denial of promotions is retaliatory” for Clark having filed EEOC charges in 2005, “this claim likewise fails.” (Doc. 19 at 20-21). However, Clark’s complaint does not contain any claim that APAC denied him the 2007 promotions in retaliation for having engaged in any protected activity. (Doc. 1 at 5-6). In his opposing argument to APAC’s motion for summary judgment Clark, points out that “[t]he defendants argue only that Plaintiff cannot establish one element of h[is] claims: the c[aus]al connection between h[is] engagement in protected activity and the denial of promotions and his termination.” (Id. at 33) (brackets and emphasis added). The remainder of Clark’s opposition argument is dedicated only to the retaliatory probation/termination claims he did plead in his compláint. (Doc. 27 at 33-34). Thus, even though he pointed out arguments made by APAC, Clark himself does not argue against summary judgment for a retaliation claim based on the 2007 denial of promotions nor is he attempting to adopt claim that is not pled in the complaint. For all of the foregoing reasons, this court finds that there is no claim that the refusal to promote Clark in 2007 was a discrete act of retaliation. Therefore, such a claim SHALL NOT BE CONSIDERED.

The claims in Clark’s complaint that remain and are subject to summary judgment review are:

Count I — APAC violated Title VII in July 2007 when it failed to promote Clark to two asphalt foreman positions on the basis of his race, and

Count II — APAC retaliated against Clark for filing EEOC charges in violation of Title VII and Section 1981 when it disciplined Clark on February 1, 2008, and terminated him on February 8, 2008.

III. COUNT I

Race Discrimination — Failure to Promote to Asphalt Foreman

The burden-shifting analysis applicable to this claim begins with the “formulation of the elements of a prima facie case,” which depends on the theory underlying a particular discrimination claim. Rioux v. City of Atlanta, Ga., 520 F.3d 1269, 1275 (11th Cir.2008) (italics added). When a failure to promote is alleged as the discrete discriminatory act, the plaintiff may establish a prima facie case by showing that: (1) he is a member of a protected class, (2) that he applied for and was qualified for the position, (3) despite his qualifications he was rejected, and (4) the position was filled by someone outside the protected class. Springer v. Convergys Customer Management Group, Inc., 509 F.3d 1344, 1348 n. 2 (11th Cir.2007) (citing McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817; Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 (11th Cir.2005)).

If a plaintiff makes the requisite showing, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. See Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The employer “need not persuade the court that it was actually motivated by the proffered reasons.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Rather, if the employer “articulates] one or more reasons, then the presumption of discrimination is rebutted, and the burden of production shifts to the plaintiff to offer evidence that the alleged reason of the employer is a pretext for illegal discrimination.” Wilson, 376 F.3d at 1087.

Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1174 (11th Cir.2010).

A. Facts

All facts relevant to this claim are construed in the light most favorable to Mr. Clark with all reasonable inferences drawn in his favor. Where a fact is undisputed by either party, inferences are drawn in favor of Mr. Clark. Where a “fact” may be disputed, Mr. Clark’s version of that fact is presumed to be true. Skop v. City of Atlanta, Ga., 485 F.3d 1130, 1136 (11th Cir.2007).

In June 2007, Clark applied for two asphalt foreman positions with APAC, his employer of approximately 14 years. Two other APAC employees, David Wright and Chris Waldrep, also applied for the positions. Wright and Waldrep are white, and both had been APAC employees for less than two years. All three applicants were given a written test as part of the process. This written test was created by Sam Head, the Area Manager and sole decision-maker. Clark, Wright, and Waldrep took this examination on or about June 18, 2007. Wright scored highest on the test, followed by Waldrep and .then Clark. Thereafter, Head chose Wright and Waldrep for the positions.

1. The education and employment history of the 2007 asphalt foreman applicants.

a. Jeffery Clark

Jeffery Clark is a 1981 graduate of Anniston High School with one year of studies at Jacksonville State. Between 1985 and 1992, Clark mostly held janitorial positions with several companies. He also was a combat engineer with the Alabama National Guard from 1984 until May 1991. In 1992, Clark became employed as a Laborer at APAC and he performed skilled positions such as “flagging, raking [and] traffic control.” (Clark, Doc. 20-1 at 25). Several years later, he moved up to Quality Control (which is not an asphalt position) and in 1997 he moved “back to asphalt” as a Distributor Operator. (Id. at 26). Clark also has identified himself as being a Screed Operator. All of these positions are hourly non-managerial placements on the asphalt crew.

A Distributor Operator, also known as a Tack Truck Operator, is responsible for operating a tack truck. at the job site. (Clark, Doc. 20-1 at 8-10 & 13). A Screed Operator runs the screed, also known as a paver. (McKibbon, ■ Doc. 20-6 at 22-25). There are “two ways to run a screed: [m]anually or with electronics, automation.” (Head, Doc. 20-2 at 38-39). With regard to the Distributor Operator position, Clark testified that “you have to tack before you actually pave,” (id. at 12) and that

on the tack truck, you shot for different materials. Some materials calls for more attention than others. For instance, like AC, you have to get around 300 degrees. And if you let it get below a certain temperature, production is messed up for the whole day. So a lot of times I had to stay in the tack truck.

(Id. at 20). If Clark did not have to remain in the tack truck or had completed tacking, he helped with other skilled positions such as “reporting] back to the spreader after-tacking[,]” 1.. “running the crew, running the screens, running the paver, running the distributor, sometimes running the shuttle buggy, very seldom running the roller.” (Id. at 145).

In addition to the skilled positions heretofore discussed, from 1999 to 2004, Clark acted as a temporary asphalt foreman for two or three weeks out of the year and never was told that there were problems with his work. Clark testified that he would take on this position when the Asphalt Foreman at the time (his brother John Clark) reported to National Guard camp. (Doc. 27 at 28); (Clark, Doc. 20-1 at 26-27).

b. David Wright

David Wright’s education and employment history show that after graduating high school in 2000, Wright worked at a cabinet shop in Childersburg and then as a forklift operator at New South Express. (Wright, Doc. 20-4 at 1-14); (Doc. 20-4, Ex. 1 & 2 at 15-26). From 2003 to 2005, Wright worked for McCartney Construction. Wright described his position as a “Heavy Equipment Operator/Assistant Foreman” whose responsibilities were “running heavy equipment” and “managing work crew when foreman is absent.” (Doc. 20-4, Ex. 2). Under the “skills” section of his resume, Wright declares that he was able to operate the following equipment: asphalt paver, roller, broom, chip paver, milling machine and screws on paver. (Id. at 24-25).

In 2005, Wright left McCartney Construction to become an employee at APAC. Wright was initially hired at APAC as a screed operator. (Head, Doc. 20-2 at 41-42). Wright- and Clark worked together on the same asphalt crew from 2005 to 2007 under then asphalt foreman Dannie McKibbon. (Clark, Doc. 20-1 at 46-47). In his 2007 application for asphalt foreman, Wright asserted that he could operate “all paving equipment.” In his May 15, 2007, application Wright described his job and duties as “multiskilled operator— have managed crew while foreman was on vacation.” (Doc. 20-4, Ex. 2 at 18).

c. Chris Waldrep

The only information known about Waldrep’s education and employment history is found in the deposition testimony of other employees, infra., and a completed copy of the June 18, 2007, asphalt foreman test from Waldrep’s personnel file. (Doc. 20-8 at 10-12).

2, The 2007 Asphalt Foreman Test and Applicant Results

The asphalt foreman test and scores for applicants Clark, Wright, and Waldrep can be found at Attachments 1-3 to Doc. 20-8. The test contains a total of eleven questions. Questions one and two ask the applicant if he can read and comprehend construction plans, as well as calculate area and material volumes. To these, Clark answered, “yes, somewhat”;Wright answered, “yes”; and Waldrep answered, “yes, very well,” and “yes.” Question three asks whether the applicant is proficient in the set up of electronic grade and slope systems. Clark answered, “No, because mangement (sic) chose not to let me learn the new system.” Wright answered, “yes,” and Waldrep answered, “Yes, have knowledge of setting up (and or) calibrating system 5 electronics.”

Question four asks the applicant to state why he believes that he is qualified for the position. Clark answered, “My experience with asphalt.” Wright answered, “Because I can run anything on the paving crew, I am an exellent (sic) leader. I have been a mentor. I have also ran the crew many times when Foreman was absent. Foreman looks to me for answers. I also set the electronics for every state job.” Waldrep stated, “I feel I could be very pruductive (sic) on the job and getting the job done with great quality and perfection. In to making this company more money and making the work stand out.” Questions five to eleven are calculations questions. The number of correct answers for each individual are: Wright five, Waldrep four and Clark two. Clark testified that he did not know how he had done on the test until David Smith told him several months later that he did not do well. (Clark, Doc. 20-1 at 115).

B. Analysis

1. Whether Clark can establish prima facie intent to discriminate on basis of race

The only prima facie element of this claim that is disputed is whether Clark was qualified for the asphalt foreman positions. Clark alleges that he was qualified because he worked on an asphalt crew at APAC for well over a decade and because he acted as temporary foreman for two or three weeks out of the year for the years 1999-2004. APAC disputes that Clark’s experience establishes that he was qualified to be an asphalt foreman. Instead, APAC declares that Clark was not qualified because he

was unable to run the electronics on the APAC [paver] — a factor that Sam Head, the individual making the decision to fill the jobs, considered the single most important skill for the jobs. ([Head, Doc 20-2 at] 7-8, 17). Therefore, [Clark] cannot demonstrate that he was qualified for the job. See e.g., Greer [v. Birmingham Beverage Co., Inc.], 291 Fed.Appx. [948] at 945 [ (11th Cir.2008) ] (holding that plaintiff could not establish prima facie case of discrimination where plaintiff failed to meet minimum qualifications for job).

(Doc. 19 at 15-16). Head testified that Clark was “not qualified” to be an asphalt foreman, explaining that “[t]he whole issue of qualification for a foreman is [to] be able to run electronics on a paver on DOT work or federal work. That is the number one qualifying thing.” (Head, Doc. 20-2 at 17).

Clark never has denied he was unable to run the electronics on the paver and that doing so is necessary on DOT contracts. He also does not deny that he only got two answers correct on the asphalt foreman test. Nonetheless, Clark contends the posted asphalt foreman job description did not mention electronics as a duty and that APAC “did not dispute that he was qualified in” its October 2007 letter to him and the February and October 2008 responses to his EEOC charges. (Doc. 27 at 28-29). Each shall be examined in turn.

a.The Asphalt Foreman Job Description

Asphalt Paving Supervisor/Foremen (construction): Supervises and coordinates activities of workers engaged in spreading, rolling, and tamping asphalt or similar material to form surfaces of highways, streets, parking lots, and aircraft landing strips: Calculates number of trucks required to haul asphalt from mix plant according to capacity of vehicles, traffic conditions, distance from work site, and productivity of drivers. Tours work site to ascertain progress in meeting time schedules and to detect insufficient utilization of workers and equipment. Measures slope and thickness of paving to verify compliance with contract. Employee is responsible for complying with all company and governmental environmental, safety, and health policies and regulations. May supervise workers engaged in patching asphalt paving and be designated Supervisor, Patching (construction.).... Should employee be required to operate company vehicle, employee must meet the APAC, Inc. Driver Qualification Standards. The job duties described herein are not exhaustive and may be supplemented.

(Doc. 20-8, Ex. 15)(emphasis added).

b.The October 2007 letter from APAC to Clark

On August 5, 2007, Clark sent a letter to APAC in which he complained, among other things, that he was not promoted to the 2007 asphalt foreman positions because of his race. An internal investigation ensued and thereafter, on October 8, 2007, APAC sent Clark a letter expressing that it had found no evidence of discrimination in the promotion process. (Doc. 28-1, Ex. 11 at 28-30). Clark points to one sentence of that letter which reads, “As you are aware, the selection of foremen is based on several criteria, including experience running the type of machines that APAC uses.” (Id. at 29). The letter is signed by Dana Gortney, Human Resources Director, but was written by Heather Harper, APAC counsel. (Gortney, Doc. 20-5 at 15-16). Before the letter was written, Clark’s complaints were addressed in an individual interview with Heather Harper, APAC counsel, as witnessed by Dana Gortney. (Id. at 12). Gortney explained that the sentence pointed out by Clark referred to “electronics on our paver and screed that have to be operated when you’re on certain jobs.” (Id.). Clark admits that in 2007 he met with Gortney “once on the job site, [and once] at the Childersburg office.” (Clark, Doc. 20-1 at 155). He also testified that he understood the Gortney letter was in response to the information he gave her or the office meeting. (Id.).

c.APAC’s responses to Clark’s 2007 and 2008 EEOC charges

On February 11, 2008, and October 29, 2008, APAC formally responded to Clark’s December 2007 and February 2008 EEOC charges concerning the asphalt foreman promotions. The responses are essentially the same. (Doc. 28-1, Ex. 12 and 13). The Fall 2007 internal investigation was referenced, and APAC asserted that the

Charging Party ... alleges that he was not promoted because of his race and that “no reason was given for my non-selection.” This is inaccurate. In fact, Charging Party was informed that the reason he was not chosen to fill the supervisory position[2] was his low score on a paving skills test given to applicants for this particular position and his qualifications and expected performance level relative to the other applicants.

[2] This test contains questions about the road-building process such as interpreting construction plans and calculating efficiency rates for paving machines.

(Doc. 28-1, Ex. 12 at 33).

Even if these exhibits are construed in a light most favorable to Clark, the court cannot find that they create a disputed, much less undisputed, genuine issue of material fact that shows APAC did not consider electronics to be an important qualifier and that Clark was qualified for the asphalt foreman positions. . Instead, when the job description and exhibit excerpts are examined in context, the documentation clearly, shows that APAC desired a foreman who could ensure that his crew efficiently performed the tasks before it in compliance with government regulations and that Clark had not displayed the ability to do so during the testing process.

Reasonable inferences from these facts should be construed in Clark’s favor. However, the inferences he desires the court to draw from these documents in an effort to establish the prima facie element at issue (qualification) are not reasonable. When the exhibits are considered in context and conjunction with Clark’s knowledge of the industry (developed from 13 years of performing many skilled positions on an APAC asphalt crew), the inferences Clark desires the court to draw are even more unreasonable. One cannot reasonably conclude that APAC did not consider knowledge of electronics to be an important qualifier simply because the word electronics is not mentioned in the job description. Clark was made aware that he was not chosen because of his poor performance on the foreman exam and that APAC desired someone who could run the types of machines that company utilized. Clark is aware that use of electronics on DOT contracts is required. Common sense dictates that a paving company would desire DOT work and therefore would be eager to have an asphalt foreman who could ensure his crew performed well on federally-funded paving projects. The reasonable inference from this information is that APAC believed Clark was not qualified and told him so.

The only evidence Clark can rely upon to establish that he was qualified to be Asphalt Foreman is 13 years of experience with asphalt and acting as temporary foreman for two or three weeks out of the year between 1999 and 2004. Considering the required qualifications for the asphalt foreman position, this court finds that Clark’s personal belief in his own experience to show that he was qualified is insufficient to establish a presumptive intent to discriminate.

2. Whether APAC has produced legitimate non-discriminatory reasons for its hiring decisions

Even assuming arguendo that Clark’s lengthy experience with asphalt and tenures as temporary foreman meet his initial burden to establish the prima facie elements of his failure to promote claims, APAC has produced legitimate, nondiscriminatory reasons for its hiring decisions. (Doc. 19 at 18-19). As stated earlier, this burden of production is exceedingly light. Sam Head, then Area Manager, was the sole decision-maker in the hiring process for the two Asphalt Foreman positions. Head considered David Wright and Chris Waldrep “to be the best qualified [candidatés for the jobs] based on their test scores and experience and ability to run the electronics on the APAC vehicles and Head did not consider plaintiff qualified for the job because of his test score and his inability to run electronics.” (Id. at 18) (citations omitted).

3. Whether Clark has met his burden of persuasion to show that APAC’s stated reasons are pretext to discriminate

Clark argues that “there is ample evidence from which a jury could find that the articulated reason for non-selection is pretextual.” (Doc. 27 at 28-32). The court divides this evidence into logical categories for disposition purposes.

a. Documentary evidence

The first category is comprised of the three exhibits Clark pointed to in support of his prima facie case. (Id. at 29-30). However, for the reasons already discussed, supra, the documents are not inconsistent with APAC’s position or Head’s stated reasons simply because the precise words “electronics” and “not qualified” do not appear therein.

b. Inconsistencies in Head’s testimony and the asphalt foreman test

Second, Clark points to inconsistencies in Head’s testimony with regard to the reason he developed the asphalt foreman test. Head continually testified that running paver electronics on DOT work or federal work was the most important qualifier for asphalt foreman positions that were open in 2005 and 2007. (Id. (citing Head, Doc. 20-2 at 17-18 & 24)). According to Clark, Head touted this importance as the reason he gave a written test for the 2007- positions. (Id. at 24). Yet, despite the same asserted importance when an asphalt position was open in 2005, Head did not administer a test to then applicant Scott Rich (white). (Id.).

APAC declares that the evidence does not reveal the inconsistency Clark alleges. (Doc: 30 at 8). Examination of the testimony cited by Clark shows that APAC is correct. After testifying that the most important qualifier in 2005 and 2007 was knowledge of electronics and specifications, Head was directly asked why he chose to. administer a test in 2007 when he had not in 2005. Head answered,

The difference [in 2007] was the type of work we had going on, and it absolutely required somebody to be able to run electronics very well and know specifications. Because of the changes specification-wise, penalty-wise with the DOT, that was the reason.- I thought that was the best way to ensure that we -had the best candidate.

(Head, Doc. 20-2 at 24). That Head wanted an asphalt foreman who could comply with DOT specifications and avoid penalties is a legitimate non-discriminatory reason to create a test to discern 'the best candidate for the asphalt foreman position. Clark does not deny that there is a valid and important connection between DOT specifications and penalties and the use of paver electronics on DOT asphalt jobs. Nor does he deny that DOT regulations and penalties became more strict around the time period at issue. Clark has failed to establish any inconsistency in APAC’s position because Head implemented an asphalt foreman test in 2007 when he did not in 2005.

c. Statements from Supervisors about Head and Race

Clark argues that two supervisors made comments that led him to believe he would not be and was not promoted because he is black. APAC argues that these statements are “unsubstantiated hearsay” from “individuals who had no involvement in the actual promotion decisions” and thus are nothing more than stray remarks. (Doc. 30 at 8). Clark counters that these are “admissible statements against interest” because the statements were made by supervisors. (Doc. 27 at 30). Thus, Clark is arguing the statements are not defined as hearsay under Federal Rule of Evidence 801(d)(2)(D). . That rule instructs that when “an opposing, party’s statement is offered against that party and the statement was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed,” such a statement is not hearsay. (Id.). Therefore, to the extent the admissibility of Clark’s proffered statements turn on the application of 801(d)(2)(D), the nature and timing of the supervisory positions is a determining factor.

Clark alleges that in 2005 Assistant Asphalt Foreman Dennis Jackson stated that Clark would not be promoted to asphalt foreman because of the color of his skin. Although Jackson is referred to as an assistant foreman, Clark testified that Jackson actually was not in any management position, but was a co-worker Clark talked with after work hours. (Clark, Doc. 20-1 at 112). The statement also is not based on. any personal knowledge, and Clark has not proffered an affidavit or testimony from Jackson. Clark has not established that the statement is non-hearsay as defined by Federal Rule of Evidence 801(d)(2)(D). For such a statement to be considered a statement against interest by a part opponent, the supervisor must be speaking of “a matter within the scope of [their] employment or agency.” City of Tuscaloosa v. Hararos Chemicals, Inc., 158 F.3d 548, 562 (11th Cir.1998). There is no evidence to establish that a comment made by a co-worker in 2005 rendered him knowledgeable about or a decision-maker involved in the hiring of an asphalt foreman in 2007. For all of the foregoing reasons, Clark cannot establish that Jackson’s statement could ever be admissible at trial. It is rank hearsay and the content of it, made by a co-worker two years before Clark applied for the asphalt foreman positions, is nothing more than stray gossip..

Clark also alleges that in Fall 2007 his new supervisor, Asphalt Foreman David Wright, told Clark that Head didn’t hire Clark because he . was black. (Clark, Doc. 20-1 at 47-48, 112-13). The court finds that even though Wright was Clark’s supervisor at the time the statement was made, Wright could not have been speaking on a matter that was within the scope of his agency or employment. Wright was nothing more than Clark’s co-worker and competitor for the Asphalt Foreman positions in June and July 2007. Regardless of timing, the- undisputed evidence shows that only Head, as an Area Manager, had the authority to direct the manner in which the Asphalt Foreman hiring process was carried out and he alone decided who was hired for those positions in June and July 2007. The content of Wright’s statement does not show that' it was based on personal knowledge or anything he heard about or from Head. Wright denied ever making such a statement in his deposition. Again, the statement Clark attributes to Wright is hearsay which eannot be reduced to admissible form at trial and therefore cannot be considered as evidence. ■

d. Head never hired an African-American for a management position

Clark alleges a fact-finder could determine that Head’s reasons are a pretext for race discrimination because Head never promoted an African-American to a management position in his 15 years with APAC. (Doc. 27 at 30 (citing Head, Doc. 20-2 at 78)). But “ ‘for this fact to be relevant,’ ” a plaintiff has “ ‘to present evidence that blacks applied and were rejected and evidence of the success rate of equally qualified white applicants.’ Evans v. McClain of Georgia, Inc., 131 F.3d 957, 963 (11th Cir.1997) (quoting Howard v. B.P. Oil Co., Inc., 32 F.3d 520, 524 (11th Cir.1994)). Clark has not done so, and as such this contention is irrelevant.

e. Other

i. Statements by supervisors about Head and retaliation

ii. Demonstrations of lack of credibility regarding other matters

The remaining evidence proffered to show that Head’s reasons for non-promotion are pretext involve Head’s general credibility. First, Clark declares that supervisors told him in 2005 and in the Fall of 2007 that Head wanted to get rid of him or get back at him. (Doc. 27 at 30 (citing Clark, Doc. 20-1 at 38-39, 52, 183-84 and 188-89)). Clark also points to other inconsistencies in Head’s testimony about other subjects to show Head is, in general, not credible’. For instance, Clark points to a “retaliatory transfer and demotion which was not for training.” (Id. at 30). Clark declares Head’s

claims that he transferred Plaintiff [to another asphalt crew in 2005] so that he could receive training are completely refuted by the defendant’s own supervisor who disavowed any knowledge of the plan to train plaintiff in electronics coupled with the retaliatory movement to laborer and to working with someone who had made allegations of sexual harassment against the plaintiff all cas[t] doubt on his credibility.

(Id. at 30-31).

Next, Clark points out that Head claimed that he had nothing to do with the decision to terminate Clark [in February 2008], but that APAC’s interrogatory responses and Asphalt Superintendent David Smith’s testimony “cast doubt on [Head’s] credibility.” (Id. at 31).

None of this proffered information in this subsection is material to the claim being analyzed because the content of the information would not establish that the decision not to promote Clark was a pretext for race discrimination. In other words, Clark’s burden is to establish race discrimination was the reason for his non-selection. That cannot be established by presenting evidence that Head wanted to get back at or get rid of him for complaints he made two years earlier. Nor would Clark’s assertions that Head has demonstrated inconsistent positions in connection with a 2005 transfer to another crew and that Head and APAC have been inconsistent about who was decision-maker in Clark’s termination in February 2008. In short, none of this other evidence effectively rebuts head-on the reasons APAC declares that Clark was not promoted for the 2007 asphalt foreman positions.

Even if this other evidence could be considered to have some relevance in the pretext arena of this race discrimination claim, no reasonable juror would be moved to disbelieve APAC’s proffered reasons for Clark’s non-promotion based on it. Clark’s admission that he cannot operate the screed electronically necessarily demonstrates that he cannot supervise and ensure someone else’s proper use of it. Moreover, Clark performed very poorly on the asphalt foreman test, a test which clearly tested a range of skills expressly listed in the posted job description.

C. Conclusion

For all of the foregoing reasons, Clark has failed to meet his burden of persuasion with regard to his failure-to-promote claims. The defendant has proffered legitimate non-discriminatory reasons for Clark’s non-selection, and Clark has not met his burden to show that those reasons were a pretext for race discrimination. That Clark believes that his lengthy experience at APAC and brief stints as temporary foreman rendered him as qualified or more qualified for the positions is irrelevant under the circumstances because the defendant has offered legitimate business reasons for the decision it made. Clark “cannot prove pretext by asserting baldly that [ ]he was better qualified than the person at issue.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1090 (11th Cir.2004) (citing Alexander v. Fulton County, 207 F.3d 1303, 1339 (11th Cir.2000)). Clark has produced no evidence to show “ ‘disparities in qualifications [between himself, Wright, and Waldrep that are] of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen [Wright and Waldrep] over the plaintiff for the job in question.’ ” Woodard v. Fanboy, L.L.C., 298 F.3d 1261, 1266 (11th Cir.2002) (quoting Alexander, 207 F.3d at 1340) (brackets added).

Accordingly, APAC’s motion for summary judgment as to Count I of Clark’s complaint is due to be and is due to be GRANTED and the claim DISMISSED WITH PREJUDICE.

IV. COUNT II

Retaliatory Discipline and Termination

In the burden-shifting analysis applicable to this claim, Clark bears the initial burden of establishing a prima facie case of retaliation by showing that (1) he engaged in a statutorily protected activity; (2) he suffered a materially adverse action; and (3) there was a causal link between his protected activity and the adverse action. See Davis v. Coca-Cola Bottling Company Consolidated, 516 F.3d 955, 978 (11th Cir.2008); Goldsmith v. Bagby Elevator Company, 513 F.3d 1261, 1277 (11th Cir.2008); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir.2007).

The third element requires a plaintiff to demonstrate that “the decisionmaker[s] [were] aware of the protected conduct, and that the protected .activity and the adverse action were not wholly unrelated.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 590 (11th Cir.2000) (alterations in original) (quotations omitted); see also Griffin v. GTE Fla., Inc., 182 F.3d 1279, 1284 (11th Cir.1999) (“At a minimum, [a plaintiff] must show that the adverse act‘followed the protected conduct; this minimum proof stems from the important requirement that the employer was actually aware of the protected expression at the time it took adverse employment action.”) (quotations omitted). We have found that “ ‘close temporal proximity’ may be sufficient to show that the protected activity and the adverse action were not ‘wholly unrelated.’ ” Gupta, 212 F.3d at 590 (quoting Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir.1999)).

McCann v. Tillman, 526 F.3d 1370, 1376 (11th Cir.2008). If the plaintiff establishes his prima facie case, then

the burden of production shifts to the defendant to rebut the presumption by articulating a legitimate, nondiscriminatory reason for the- adverse employment action. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted and drops from the case.- After the defendant makes this showing, the plaintiff has a full and fair opportunity to demonstrate that the defendant’s proffered reason was merely a pretext to mask discriminatory actions.

Brown v. Alabama Dept. of Transp., 597 F.3d 1160, 1181 (11th Cir.2010) (quoting Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir.2009) (omitting internal citations and quotation marks)).

A. The February 1,2008, Disciplinary

Clark alleges that once he “filed EEOC charges [on December 14, 2007,] alleging discrimination in [the 2007] promotions, he began to be reprimanded.” (Doc. 1 at 3, ¶ 10). Specifically, on February 1, 2008, he “was given [a] written reprimand and placed on a six-month probationary period.” (Id. at 3, 5, ¶¶ 10, 21-22) (brackets added). Clark claims that APAC’s “reason for its action[ ] is pretext for retaliation.” (Id. at 6, ¶ 23).

APAC does not deny Clark participated in protected activity when he filed his December 14, 2007, EEOC charge nor does APAC deny that Clark suffered an adverse employment action when he was found to be at fault for and placed on six months probation for a work accident. APAC does assert that Clark cannot-establish a prima facie case of retaliation with “respect to the December 2007 discipline because the decision maker was unaware of [Clark’s] complaints.” (Doc. 18 at 3, ¶ 9); (Doc. .19 at 23-24). Alternately, APAC declares that Clark cannot “produce evidence sufficient to permit a reasonable fact finder to disbelieve [it]’s proffered legitimate, nónretaliatory reasons” for Clark’s discipline because Clark admitted that he violated the company' policy by “backing up an APAC vehicle.” (Doc. 18 at ¶¶ 10); (Doc. 19 at 23).

1. Facts

The following facts are undisputed, or if disputed, Clark’s version of events is credited. All reasonable inferences are dráwn in favor of Clark. On November-8, 2007, Clark was involved in an on-site collision with another APAC vehicle. On December 14, 2007, Clark filed an EEOC charge. On December 21, 2007, Anthony Nicholson, Area Safety Director, signed a written reprimand. (See Doc. 20-1 at 72). Asphalt Foreman David Wright also signed as Clark’s supervisor. Nicholson listed “carelessness” and “backing accident” as the nature of Clark’s violation and found that Clark “collided with another APAC vehicle while backing [the] tack-truck on [the] job site.” (Id.). Nicholson found Clark to be at fault for the accident and placed Clark on six months’ probation,, which would take effect upon Clark’s receipt of the reprimand.

Clark received the written reprimand on February 1, 2008, and disputed that the accident was his fault, writing, “I FEEL THAT I WAS NOT AT FAULT IN ANY WAY.” The road was closed with' a fl'agger. If the other employee would have simply with [ (sic) ] around, blew his horn. We wont [ (sic) ] be discussing this. How could I be at fault when backing is part of the' daily routine while tacking?” (Id.) (brackets added).

2. Analysis — Whether Clark can satisfy his presumptive burden and burden of persuasion to establish retaliation

APAC argues that Clark cannot establish a causal connection between any protected activity (ie. Clark’s Fall 2007 internal complaint or the December 14, 2007, EEOC charge) and the reprimand because the decision-maker, - APAC Area Safety Director Anthony Nicholson, “was unaware of the alleged protected activity and as such, was incapable of retaliating against” Clark. (Doc. 19 at 24). In his declaration, Nicholson attests, •

I was employed with APAC Mid-South, Inc. (“APAC”) as its- Area Safety Director from 2002 to 2009. I had responsibility for safety matters, including accident investigations, for a large portion of the state of Alabama, including Birmingham, Oxford, Anniston, Montgomery, and surrounding areas.

During my employment with APAC, I recall investigating an accident involving Jeffery Clark which occurred on November 8, 2007. Following the accident, I conducted an investigation that took approximately five weeks and determined that Mr. Clark was at fault in the November 8, 2007 accident.

On December 21, 2007, I prepared and signed an Employee Warning Record for Mr. Clark. During my employment with ■ APAC, including - when I prepared and- signed the Employee Warning Record, I had' no knowledge that Mr. Clark had filed an EEOC charge alleging - discrimination or had ever made any complaints alleging that he had been discriminated against on the basis of his race.

David Wright did not assist in the investigation of Mr. Clark’s accident, and did not influence or participate in the decision to discipline Mr. Clark. Mr. Wright signed the Employee Warning Record as a matter of standard practice because he was Mr. Clark’s immediate supervisor.

Because my position required me to travel to different areas of the state and the fact that Mr. Clark’s crew also moved, I did not see Mr. Clark until February 1, 2008, and was therefore not able to issue the disciplinary action contained in the Employee Warning Notice prior to February 1, 2008.

(Nicholson, Doc. 20-9) (brackets added).

To the extent he addresses this claim in his opposition argument, Clark makes the following declaration: “the retaliatory probation for an accident that occurred two months earlier after an internal investigation of plaintiffs complaints of discrimination coupled with the outright lie of no knowledge of plaintiffs racial complaints is more than adequate to support a finding of retaliation.” (Doc. 27 at 34). Clark does not follow this conclusory declaration with any citations. The best this court can determine from this sentence, when compared to Clark’s responses to APAC’s Statement of Facts on the subject, is that Nicholson’s declared lack of knowledge of his discriminatory complaints and EEOC charges are not credible. (Doc. 27 at 9, ¶¶ 31-33). The facts that can be gleaned from the cross-comparison are organized into three categories,

a. The knowledge of other employees

Clark points to the testimony of David Smith and David Wright, who agreed Clark’s racial discrimination complaints were common knowledge at APAC. (Id. at ¶ 31). Still, Smith and Wright were Clark’s daily eo-workers/supervisors at APAC’s Construction Department, Anniston Branch. Clark does not dispute that as Area Safety Director of APAC’s Safety Department, Nicholson was not at the Anniston Branch on a daily basis nor was he co-worker or supervisor to Clark on the road construction side of APAC Anniston/Childersburg. Smith and Wright’s knowledge cannot be imputed to Nicholson. See Brochu v. City of Riviera Beach, 304 F.3d 1144, 1156 (11th Cir.2002) (“neither a court nor a jury may impute knowledge to a decision-maker who has sworn he had no actual knowledge”).

b. A 2005 telephone complaint to HR and the August-October 2007 internal investigation

Aso lacking is Clark’s assertion that Nicholson’s declaration contains an outright lie based on the fact that Nicholson personally was called to address a 2005 internal complaint by Clark about the “discriminatory punishment” Clark received in connection with a 2004 work accident. (Doc. 27 at 9, ¶ 31). Clark points to an HR notation written by APAC EEO Officer Charlene Robinson as evidence in support of his contention. (Doc. 28-1, Ex. 1, at 2-3). In it, Robinson expressed that Clark

told me that he had another problem that he needed to discuss. He said when he had his accident last year, he was suspended from work by our safety manager, Tony Nicholson. He said that lots of others had had accidents since that time (he mentioned Debra Pogue and Lee Stanley) and said that they had not been suspended. He didn’t think it was fair and that if they weren’t going to suspend' them, he wanted his 3 days back. I told him that I was not safety and could not speak for them but would be happy to contact them and ask them to give him an answer as to -why he was suspended and others weren’t.

When I hung up from talking to Mr. Clark I called Mary Day, Division Safety Manager an