Perry v. Alabama Alcoholic Beverage Control Board (973 F. Supp. 2d 1263, 2013)

MEMORANDUM OPINION AND ORDER

W. HAROLD ALBRITTON, Senior District Judge.

I. INTRODUCTION

This case is before the court on three Motions for Summary Judgment filed by Defendants Alabama Alcoholic Beverage Control Board (“ABC Board” or “Board”), Jeff Rogers, and Jean Turner on June 28, 2013. The Plaintiff, Kesia Perry (“Perry”), filed a Complaint in this case on June 14, 2011, bringing claims against the ABC Board and against Jeff Rogers (“Rogers”) and Stan Goolsby (“Goolsby”) in their individual capacities. Perry amended her Complaint to add Valencia Aaron (“Aaron”) as a plaintiff and Kenneth Davis (“Davis”), in his individual capacity, as a defendant. A Second Amended Complaint (Doc. # 6) was then filed on June 30, 2011, adding Stacy Taylor (“Taylor”) as a plaintiff and Jean Turner (“Turner”), in her individual capacity, as a defendant. In response to the Second Amended Complaint, the Defendants filed a Motion to Dismiss (Doc. # 18), which the court granted in part and denied in part, resulting in the dismissal of some of the plaintiffs’ claims and Goolsby and Davis as defendants (Doc. #26). The remaining claims are: Count I — Perry’s race discrimination and hostile environment claims against the ABC Board for violation of 42 U.S.C. § 2000e-2(a)(1) (“Title VII”); Count II — Perry’s retaliation claim against the ABC Board for violation of Title VII; Count V — Aaron’s race discrimination and hostile environment claims against the ABC Board for violation of Title VII; Count VI — Aaron’s retaliation claim against the ABC Board for violation of Title VII; Count IX — Taylor’s race discrimination and hostile environment claims against the ABC Board for violation of Title VII; Count X — Taylor’s retaliation claim against the ABC Board for violation of Title VII; Count XI — Taylor’s race discrimination and harassment claim against Rogers and Turner for violation of the Fourteenth Amendment and 42 U.S.C. § 1981; and Count XII — Taylor’s retaliation claim against Rogers and Turner for violation of 42 U.S.C. § 1981. The case is now before the court on three separate Motions for Summary Judgment filed by the Board and by the individual Defendants. They seek summary judgment on all remaining counts.

The court has federal question subject matter jurisdiction over these claims. See 28 U.S.C. § 1331.

For the reasons to be discussed, the Defendants’ Motions for Summary Judgment are due to be GRANTED.

II. SUMMARY JUDGMENT STANDARD

Summary judgment is proper “if there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quotation omitted).

The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion,” relying on submissions “which it believes demonstrate the absence of a genuine issue of material fact.” Id. at 323, 106 S.Ct. 2548. Once the moving party has met its burden, the nonmoving party must “go beyond the pleadings” and show that there is a genuine issue for trial. Id. at 324, 106 S.Ct. 2548.

Both the party “asserting that a fact cannot be,” and a party asserting that a fact is genuinely disputed, must support their assertions by “citing to particular parts of materials in the record,” or by “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1)(A), (B). Acceptable materials under Rule 56(c)(1)(A) include “depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.”

To avoid summary judgment, the non-moving party “must do more than show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). On the other hand, the evidence of the non-movant must be believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

After the nonmoving party has responded to the motion for summary judgment, the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).

III. FACTS

Based on submissions of the parties, the following is an account of the relevant facts with all justifiable inferences drawn in favor of the Plaintiffs:

The ABC Board’s Policies and Personnel Process

The Plaintiffs in this case were employees of the ABC Board. As an agency of the State of Alabama, the ABC Board is subject to the rules and regulations of the State Personnel Department (“SPD”). Both the SPD and the ABC Board have policies that prohibit discrimination against any employee or applicant based on race. The ABC Board’s policy states that any employee or applicant may file a discrimination complaint with the ABC Board. The ABC Board also has a policy that requires employees to testify as needed in conjunction with pre-discipline or grievance hearings. Any employee that refuses to testify or that harasses another employee may be subject to discipline, including dismissal.

The SPD manages the recruitment and testing procedures for all of the ABC Board’s merit-system jobs. A candidate seeking a job or a promotion must first submit an application for examination with the SPD. If the candidate meets the job classification’s minimum qualifications, the SPD either administers an examination or scores the candidate based on experience. The SPD then prioritizes the candidate’s name on the job classification’s hiring/promotion register according to the candidate’s score.

When the ABC Board has a job vacancy, the SPD provides the ABC Board with a Certificate of Eligibles, made up of the top ten names, plus ties, from the hiring register. A candidate may remove himself or herself from the register for any reason. In addition, a candidate may be removed if he or she has noted a restriction, such as an unwillingness to move to a particular geographic location.

To be eligible to receive a promotion, a candidate must 1) rank in the top ten, plus ties, of the hiring register, 2) rank in the top half of the register and successfully perform the current job classification at a higher level for more than three months (the “Upper 50 Rule”), or, 3) having been unable to be in the top ten, plus ties, or the upper fifty percent of the register, perform the job at a particular level for five years or more (the “Five Year Rule”). For promotion through the Upper 50 Rule or the Five Year Rule, the employee’s position is analyzed for reallocation. For reallocations, the ABC Board submits a position classification questionnaire to the SPD’s Classification and Pay Division Manager. Using the questionnaire, the manager then decides whether reallocation is warranted for the particular position. If the questionnaire is insufficient, the SPD may require a desk audit to observe the job personally in making its decision. Ultimately, the SPD’s Classification and Pay Division Manager makes the reallocation decision. If reallocation is warranted, the employee is promoted to a higher classification. If reallocation is unwarranted, the employee remains at his or her current classification.

When an employee is hired, his or her salary is usually set at the minimum for the specified job classification. In special cases when it is deemed impossible to hire a desired qualified person at the minimum rate, the ABC Board may recommend— and the SPD Classification and Pay Division Manager may approve — a higher rate that matches the person’s salary from his or her previous employment.

Plaintiff Kesia Perry

Plaintiff Perry, an African-American, was hired by the ABC Board on August 1, 2007 as an Administrative Support Assistant II (“ASA II”), a position classified as responsible for filing and retrieving documents and answering the telephone. After completing her probationary period, she was assigned the duties of handling labels and sweepstakes authorization. Perry consistently received excellent performance reviews, but, due to a merit raise freeze, she did not receive a raise after her initial probationary period. After several months working as an ASA II, Perry requested the opportunity to be promoted to an ASA III. Perry took the examination to qualify for promotion and scored in Band 3. Based on this score, the SPD prioritized Perry in the top half of candidates on the ASA III promotional register, but her score did not warrant placing her in the top ten, plus ties.

In June 2008, the Chief of the Enforcement Division, Defendant Rogers, white, requested a reallocation of Perry’s position. After reviewing the classification questionnaire and in order to get more information, SPD sent a job analyst to perform a desk audit of Perry’s position. In a letter dated July 3, 2008, SPD notified the ABC Board of its decision not to reallocate Perry’s position. Specifically, the SPD stated that Perry’s job lacked the independent judgment and level of responsibility of an ASA III. Mark Hatfield (“Hatfield”), the Enforcement' Division Lieutenant and Perry’s second-line supervisor, communicated the SPD’s decision to Perry. During this discussion, he also told her that she took too many personal phone calls at work. In a subsequent memo, the contents of which Perry disputes, Hatfield wrote that Perry became visibly angry over the SPD’s decision and over Hatfield’s criticism of her work habits. He also noted that Perry argued about her number of personal calls, stating that every ASA took the same number of personal calls as she did. A few months later, in November 2008, Perry received high scores on a performance appraisal prepared by Diane Sullivan (“Sullivan”), Perry’s direct supervisor.

In July 2009, Hatfield sent the Enforcement Division a memo regarding the chain of command. On the same day, Sullivan sent Hatfield a memo recapitulating a meeting between herself, Hatfield, and Perry. The memo noted that Perry complained of some coworkers’ “racist attitude” toward her. Perry did not mention a specific individual in the meeting, and Hatfield instructed her to report immediately any further racist conduct. In September 2009, Hatfield prepared another memo describing a conversation with Perry about what she -needed to do to be promoted. In that memo, Hatfield wrote that Perry informed him that she no longer wished to be promoted and that she would not take another ASA III examination. In October 2009, Sullivan also wrote a memo describing a conversation she had with Perry concerning a promotion. In that memo, Sullivan noted that Perry no longer wished to be promoted, that she would not retake the examination, and that she wished her new assignments to be taken back. Perry disputes the content of both memos, but it is undisputed that she never retook the examination. Perry also contends that, although Hatfield told her she needed to rank in Band 1 of the register to receive a promotion, this information was incorrect because she was eligible for promotion through the Upper 50 Rule. In November 2009, Sullivan again gave Perry high scores on her performance appraisal, noting that Perry had been assigned additional duties and was performing them competently.

Early in 2010, Sullivan announced her retirement and Perry asked Hatfield and Rogers if she could be cross-trained for Sullivan’s position. Soon after, Rogers requested another ASA II through the SPD. Ultimately, the vacancy was filled by Rogers’ sister-in-law, Summer Childers (“Childers”), a white woman. Childers did not negotiate her salary, but the ABC Board requested that the SPD match Childers’ salary from her previous job with Colonial Bank. Perry argues that Childers was thereafter assigned many of Sullivan’s duties despite Perry’s request for cross-training. Hatfield, however, testified that Sullivan’s duties were either automated or distributed to district lieutenants.

A few months after Childers was hired, Perry and Linda Flores (“Flores”), a white coworker, reviewed their coworkers’ salaries online. Through their review, they learned that Childers’ pay was more than twice Perry’s pay and that Childers’ pay was near the maximum allowable for an ASA II. Early in May 2010, Perry complained to Goolsby and Rogers about the pay discrepancy. At that time, Goolsby explained that the discrepancy was based on the salary-matching policy. After-wards, Rogers told Hatfield to address Perry and Flores’s review of their coworkers’ salaries. Hatfield counseled Perry, thus deciding not to discipline her formally. Flores, on the other hand, was issued a written warning — the first step of the progressive discipline policy.

A few weeks later, Rogers told Perry that she was being transferred to the District 10 office. The transfer appears to have been Hatfield’s idea, purportedly suggested as a means to position Perry for a promotion through more diverse and numerous job responsibilities. Perry told her supervisors that she did not want to be transferred from the Central Office, but that she would accept the transfer and do her best with the new assignment. Even though Rogers said that the transfer was not punitive, he later wrote in an email requesting internet usage reports that he had transferred Perry because of a “disgruntled/diseiplinary issue.” (PI. Ex. 22 at 1.) Once Perry was transferred, the possibility of promotion was never mentioned to her.

Perry began dating Andy Lard (“Lard”), another African-American ABC Board employee, in 2010. Lard was investigated and eventually arrested and indicted for taking seized money from evidence. As part of the investigation, Perry was interrogated about her relationship with Lard. Rogers sent an email to the entire enforcement division that instructed employees not to speak to Lard, and Perry was asked to sign a document stating that she would not remove documents from the ABC Board’s offices. Perry bailed Lard out of jail when he was arrested. Perry believed that she was being followed during this period and that the investigation into her relationship with Lard was racially motivated. Due to the investigation, she says she became overwhelmed with stress and, on advice of her physician, she took medical leave on August 9, 2010.

On August 9, 2010, the same day that she took medical leave, Perry filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”). In her charge, she complained of race discrimination comprised of Childers’ higher pay, the involuntary transfer to District 10, and the perceived harassment related to Lard. Perry also filed a grievance with SPD, asserting racial discrimination comprised of the involuntary transfer to District 10 in retaliation for complaining about the pay disparity. In this grievance, Perry alleged that employees did not communicate their complaints to supervisors because they were afraid of retaliation or termination. In addition, Perry stated that she expected to be retaliated against because of the discriminatory atmosphere at the ABC Board.

Perry’s medical leave lasted until November 2010. When she returned to work, she was transferred from District 10 to the Personnel Division at the Central Office. Goolsby became her direct supervisor. Her position was classified as satisfying either an ASA I or ASA II level. Soon after Perry began working again, the newly appointed ABC Administrator Mac Gipson (“Gipson”), who replaced Emory Folmar (“Folmar”), met with Perry and encouraged her to drop her claims.

Perry filed her initial complaint in this case in June 2011. Beginning in July 2011, Perry worked under Andy Knight (“Knight”). Knight had not supervised an employee for several years. Nevertheless, Goolsby assigned Perry as Knight’s sole subordinate, stating that, due to Perry’s claims, he needed a buffer and that any actions Goolsby took could be deemed retaliatory. He instructed Knight to keep a close watch on Perry and to use progressive discipline if necessary; Knight testified in his deposition that Goolsby stated that “[Perry] would either hang herself or she would become so upset that she would quit.” (PI. Ex. J at 22:19-22.)

Under Knight, Perry was responsible for working the switchboard and ensuring it was properly staffed during breaks. Knight testified that communication problems between Perry and her back-up switchboard operators led to instances where the switchboard was not manned. As a result, Knight held a counseling session with Perry to discuss punctuality, cooperation with coworkers, and compliance with the rules. Perry complained to Knight that her coworker, Linda Caldwell (“Caldwell”), was difficult to work with and did not man the switchboard at the correct time. Knight told Perry that he was not Caldwell’s supervisor but that he had been speaking with Caldwell’s supervisor about the issue. Caldwell continued to cause problems for Perry, and Perry testified that she ultimately lost interest in her position as a result.

During the course of her supervision under, first, Goolsby and, second, Knight, Perry received two disciplinary actions: a written reprimand for tardiness and insubordination and a suspension for violating leave policies and procedures. Very soon after Knight became Perry’s supervisor, Goolsby recommended Knight issue the reprimand. Perry had called Goolsby and said she would not be on time for work: her father had recently had a heart attack and she needed to oversee transferring him to a new medical center. Perry was issued a reprimand for the stated reason that she did not request authorization to be tardy.

On Knight’s recommendation, Perry was suspended from work for three days in January 2012 after failing to comply with the policies regarding leave. Perry was absent several days over December 29, 2011 through January 5, 2012, causing Knight to have to personally fill in for her.

Before Perry left for her suspension, Knight asked her to draft a staffing schedule for the switchboard for the days she would be absent. Perry did not complete the task before her suspension. Knight characterized this behavior as insubordination, and when Perry returned on January 18, 2011, she explained that she forgot to do it. After discussing the matter with Knight, Perry briefly returned to her work station before walking off the job that morning. A few days later, Goolsby sent Perry a letter stating that Perry’s actions constituted job abandonment and voluntary resignation. On January 24, 2012, the ABC Board terminated Perry’s employment. Knight testified that, after Perry was terminated, Goolsby and Rogers congratulated him.

Plaintiff Valencia Aaron

ABC Enforcement Agent Valencia Aaron, an African-American, submitted her first application for employment to the ABC Board on October 25, 2004. She was first contacted for a physical abilities examination on October 1, 2005. After declining an initial employment offer in Mobile, Alabama, Aaron was appointed to an ABC Enforcement Agent position in Birmingham, Alabama on December 20, 2005. She began work for the Board on January 21, 2006. She was hired at a salary two steps above the minimum for the position, so as to match her pay at her previous employment.

After Aaron was hired, she attended the ABC Academy in Selma, Alabama. While there, she was required to qualify in using a handgun with which she had no experience. Aaron was told during the Academy that someone did not want her to qualify, and Aaron believed this to mean that Rogers and then-Administrator Folmar were against her. However, after training with a white officer, she qualified with the handgun on her second attempt.

On April 7, 2006, Aaron received a job evaluation recommending that her probationary status be extended. The stated reason for extending her probation was “to adequately observe, document and appraise her performance in a manner fair to both her and the agency.” (Doc. # 129-11 at 3.) Specifically, her probation was extended because she lacked the necessary certification for handling a firearm as an enforcement officer. On June 22, 2006, Folmar asked the SPD to extend Aaron’s probationary period by three months, and the request was subsequently approved.

Aaron attained permanent agent status on October 20, 2006. She continues to hold this position today. On November 20, 2006, Aaron requested a transfer from Jefferson County to the Drug Unit in Montgomery, Alabama to be closer to her husband and child. On March 17, 2007, Rogers notified Aaron that her transfer request had been approved.

While at the Drug Unit, Aaron conducted undercover drug purchases. In addition, she asked Captain Vance Patton (“Patton”), a white male, and Sergeant James Collins (“Collins”), an African-American male, about serving as a trainer during this period. She was interested in a trainer opportunity because of her experience as a trainer in the military. However, Collins only responded that there was not an application for the training task force. Instead, Collins said that trainers were simply selected. Patton never responded to Aaron’s inquiry.

Aaron notified Patton on June 13, 2008 that she was pregnant. She did not disclose her pregnancy earlier due to concern that she would not be allowed to continue working. After initially being told that she would not be allowed to perform light-duty work for the Board during her pregnancy, Aaron was assigned to light-duty work with renewals. Her supervisor, on orders of Rogers, kept close watch over Aaron’s productivity during this time. On October 1, 2008, Aaron was involuntarily transferred in the same building from the Drug Unit to the District Ten Enforcement Office, also in Montgomery County. Aaron was transferred because her Drug Unit salary was paid for by a federal grant that required her to do undercover drug work. Because she was doing renewals and not drug work, her salary was no longer covered by the grant. However, Aaron’s transfer became permanent.

On March 2, 2009, Aaron submitted an application for promotion to sergeant. Another agent, Scottie Chandler (“Chandler”) was promoted to sergeant off of a Certificate of Eligibles generated by the SPD on February 27, 2009, a few days before Aaron’s application. Aaron was not on this Certificate of Eligibles. Darick Wilson (“Wilson”) was promoted from agent to sergeant off of a Certificate of Eligibles generated on May 12, 2009. Neither Aaron nor any other African-American agent was on the May 12, 2009 Certificate of Eligibles.

After he made complaints of corruption in the office, Aaron’s supervisor, Dennis Hill (“Hill”), was removed from District Ten on October 23, 2009. His replacement, Defendant Turner, white, “had a reputation as being the person who would terminate employees that Chief Rogers wanted gone.” (Doc. # 132 at 17; Doc. # 128-1 at 580:5-16.) Soon after arriving in District Ten, Turner told Aaron that she was not there to “get” Aaron. (Doc. # 128-1 at 580:14-16.) Aaron believed this was a threat to two other African-American agents, Stephen McKitt (“McKitt”) and Taylor.

Around the time Turner became supervisor, Agent Richard Holston (“Holston”), white, was transferred to District Ten. Holston requested the transfer to be close to his grandmother, who was ill. However, once he arrived, Holston told Aaron that Rogers and her main District Ten supervisor, Lieutenant Davis, had instructed him to keep watch over Aaron. He also said that he “knew people thought he was a ‘mole’ and there to ‘snitch’ on other employees.” (Doc. # 132 at 18; Doc. # 128-1 at 301:18-302:22.)

On May 29, 2010, the SPD issued a Certificate of Eligibles for an Enforcement Sergeant position. The ABC Board intended to promote a new Enforcement Training Coordinator (“ETC”) through this sergeant position. On the Certificate, both Aaron and Jason Roberts (“Roberts”), a white male, were ranked in Band Two. However, Roberts, and not Aaron, was chosen. The Board says it chose Roberts because of his extensive firearms training experience. By her admission, Aaron lacked Roberts’ level of firearms training and experience. To Rogers, firearms training experience was critical for a person who would oversee other firearms training instructors. On June 2, 2010, Aaron was notified that she was not selected for the sergeant position.

On August 9, 2010, while on FMLA leave prior to knee surgery, Aaron traveled with Perry to the EEOC office to fill out an intake questionnaire. Aaron’s intake questionnaire indicated that she was denied promotion to Roberts’ position on the basis of her race and sex. (Doc. # 101-23 at 1.) That same day, she filed a Charge with the EEOC containing the same allegations. (Doc. # 131-4 at 3.) On August 10, 2010, Aaron filed a grievance with the SPD alleging race discrimination. The EEOC notified the Board of Aaron’s Charge on August 12, 2010.

After filing her Charge, and while still on FMLA leave, Aaron says she noticed several instances of ABC surveillance in her neighborhood. She also says that she saw an ABC agent following her during a shopping trip. She testified in deposition to being afraid that the ABC Board might poison her office water bottle or take some other action to hurt her.

During Aaron’s FMLA leave, Davis completed a performance review of Aaron. The appraisal contained lower scores than prior evaluations but still stated that Aaron met standards. Aaron only saw the contents of this review after receiving her personnel file in preparation for her SPD hearing. According to Goolsby, Davis had a deadline for submitting the completed appraisal to the SPD. (Doc. # 101-28 at 17:11-15.)

On September 28, 2010, Roberts sent an email to the entire Enforcement Division soliciting interested candidates to apply for a training instructor position. Aaron did not respond to this request. Prior to Aaron’s complaints, no procedure existed whereby interested persons could apply to become training instructors.

After returning from FMLA leave and her knee surgery, Aaron was assigned twice to work football games at a store in Auburn, Alabama. Aaron argued against the assignment for several reasons. First, it put unnecessary strain on her knee. Second, she had done two game assignments prior to taking leave to ensure that she would not have to do that work after her surgery. Finally, she identified at least one white agent who had not done any game assignments by that time. Regardless, Collins told Aaron that Davis was requiring Aaron to do the assignments to make up for missed work during her leave.

Aaron also noticed at this time that Davis was returning her and another African-American agent, Stephen McKitt’s, paperwork with multiple red marks. Some of the criticisms noted by Davis were instances where Davis was incorrect. Collins at one point researched and printed multiple examples of instances where Davis had made mistakes in his paperwork. According to Aaron, Davis would never return paperwork to two white agents, Jeremy Peterson (“Peterson”) and Craig Shook (“Shook”), despite serious errors. (Doc. # 128-1 at 315:7-21.)

The SPD held a hearing on Aaron’s grievance on December 16, 2010. The next day, Davis held a meeting with the District Ten agents and announced a list of policy changes. Among those changes was a requirement that all personnel be finished with breakfast by 8:00 A.M. A few days before, Davis had seen McKitt and Aaron having breakfast together in the break room. Despite several times in the past when Davis had seen Holston, Shook, Peterson, and another white agent, Mark Barber (“Barber”), eating breakfast in the break room and said nothing, Davis told Aaron and McKitt that they would no longer be able to have breakfast together. To Aaron, Davis’ new policy was another example of harassment.

On January 7, 2011, Aaron attended the normal District Ten meeting. During the meeting, Davis asked everyone to express their opinions on how the office was being run. In response, Aaron told Davis that she thought his actions were retaliatory. The next day, January 8, 2011, Rogers sent an email to Davis stating that Aaron was being disruptive and that her conduct in the workplace was making other employees uncomfortable. Later that day, Rogers announced his intent to have Aaron “written up” for her actions. (Doc. # 131-5 at 22.) A final counseling form was submitted on January 21, 2011. Aaron submitted a rebuttal on January 26, 2011 that stated she did not consider her actions disruptive.

On January 10, 2011, Davis sent out an email to all District Ten enforcement personnel announcing a new physical training policy. In the past, agents could use time at the beginning or end of his or her shift to work out. Aaron and McKitt were the only two agents who used the morning and afternoon time slots. Under the new policy, agents were barred from using those.

On June 14, 2011, Kesia Perry filed the initial Complaint in this case. On June 20, 2011, the Complaint was amended to add Aaron as a plaintiff. On July 21, 2011, Rogers, through his attorney, sent an email to Aaron concerning interviews for a vacant sergeant position. The email instructed Aaron to respond in writing if she was not interested in the position. On August 1, 2011, Rogers sent Aaron another email reminding her that she needed to respond in writing if she was not interested in an interview. On August 3, 2011, Aaron responded that she was not interested in interviewing for the position. In her email, Aaron wrote that it was her “belief that due to the present and past treatment, interviewing and accepting this position would only enable exploitation [of her] probationary status.” (Doc. # 131-5 at 46.) Rogers responded later that day and said that Aaron’s fears of being exploited were unfounded.

During this same timeframe, two sergeants of unspecified races were promoted to lieutenants. The two sergeants were first named acting supervisors of their respective districts on July 14, 2011. Then, on August 31, 2011, the two sergeants were announced as having been promoted permanently to lieutenant.

On November 10, 2011, Aaron, Holston, and another white agent, Gary Humphrey (“Humphrey”), answered a call and made five arrests related to a series of thefts in District Ten. Although Aaron made the arrests, Humphrey and Holston were given equal credit. Aaron received a letter of praise for her undercover work. Humphrey and Holston were promoted shortly thereafter.

On December 1, 2011, the Board announced that Collins was promoted to lieutenant and three white agents had been promoted to sergeant positions. On December 5, 2011, Lieutenant William Carson (“Carson”) announced to all of the District Ten agents that they would have the opportunity to perform sergeant-level duties. As explained in a December 6, 2011 email, the opportunity was intended to expose interested persons to the sergeant position; participation would not lead to an enhanced chance of promotion. On January 17, 2012, Captain John Richardson (“Richardson”), an African-American, sent an email to the Enforcement Division soliciting applications to provide security for the Speaker of the Alabama House of Representatives. Aaron did not apply for this position because it was a part-time position assisting an ABC sergeant.

On January 31, 2012, Aaron requested FMLA leave for lower back pain. Her request was granted. On March 1, 2012, Carson asked if Aaron could return to work to help with applications. On March 19, 2012, Aaron gave Carson a return-to-work form that prohibited her from heavy lifting. On March 20, 2012, Goolsby wrote to Carson and explained that light-duty assignments were not available unless the injury occurred on the job. That day, Aaron requested that the ABC Board complete a job injury report so that SPD Risk Management could evaluate whether Aaron’s injury occurred on the job. On April 6, 2012, Risk Management determined that the injury was not work-related.

On April 10, 2012, Goolsby sent Aaron a letter stating that her FMLA leave would be exhausted on April 23, 2012. The letter was a form letter sent to all employees whose FMLA leave was nearly exhausted, and it said that Aaron could either request an extension of her leave or she could resign. On April 15, 2012, Aaron sent Goolsby an email claiming that his and the Board’s refusal to allow her to work light-duty assignments was retaliation.

On July 16, 2012, Carson announced that Holston had been- promoted to sergeant in District Ten. Following the announcement, Carson sent an email to Richardson on July 17, 2012 that said there had been opposition to Holston’s promotion. Richardson met with District Ten personnel on August 13, 2012 and explained the promotion process. In a memo he wrote on August 13, 2012 to describe the meeting, he noted that everyone in “the group said their previous concerns [had] been discussed and worked out with [Sergeant] Holston and [that] they [would] support him as their immediate supervisor.” (Doc. #131-8 at 20.)

Aaron states that throughout 2011, Holston harassed her. As evidence of this, Aaron points to “the ‘grievance’ letter he sent to Lieutenant Davis on August 23, 2011.” (Doc. # 132 at 44.) In that letter, Holston complains that he believes Aaron and McKitt are given less work than white agents and that McKitt, especially, “is allowed to do anything and everything he wants with no recourse.” (Doc. # 131-8 at 42.) In addition, Holston notes that he had “expressed [his] concern and disapproval to [Sergeant] Collins on several occasions when other agents were present,” but that Collins had done nothing in response. (Id.) There is no indication that Holston was investigated or disciplined for having complained to Collins in the presence of other agents.

Finally, on October 29, 2012, in response to an email from Rogers reminding everyone that they could not take adverse actions against McKitt or Aaron, Holston wrote a memorandum to his file that discussed two interactions between himself and Aaron. First, Aaron was scheduled to work at a store in Auburn on October 17, 2012. That morning, Collins contacted Holston because Aaron had not arrived at her assigned store. Holston then contacted Aaron and told her that Collins was looking for her. Second, Holston contacted Aaron about a payment request on October 29, 2012. Holston believed the payment request should have been higher than what Aaron had reported. According to Holston, “Agent Aaron was noticeably aggravated at being questioned.” (Doc. # 131-8 at 24.) As part of that conversation, Holston “checked the agents manual and discovered that there is no standard, but that agents need to have their payment amounts approved.” (Id.) During this discussion, Holston felt threatened by Aaron.

Plaintiff Stacy Taylor

ABC Enforcement Agent Stacy Taylor, an African-American, was hired by the ABC Board on January 19, 2007, with an effective date of March 1, 2007. He was working as a Montgomery County Deputy Sheriff at the time he was hired. His first appointment was to the ABC Board’s District Three office located in Birmingham, Alabama. While in Birmingham, Taylor believed he experienced a racist atmosphere. He was the only African-American in that office at the time. The other agents would split into separate work details and would exclude him, and they would not include him in any after-work social activities. Ultimately, Taylor discussed his exclusion with the other agents, and they began to include him.

In September of 2007, Taylor requested a transfer to District Thirteen, the drug unit of the ABC Board based in Montgomery. The request was addressed to Rogers, Assistant Director of ABC Enforcement at that time. A few days later, Rogers denied Taylor’s request because the Board was not accepting transfers to the drug unit. In his denial, Rogers encouraged Taylor to reapply when the Board sent notice that it was accepting transfer requests. However, the Board never sent notice for transfers until after Taylor had left the ABC Board.

A few weeks after his initial request for a transfer, in late September, Taylor sent a new request, but this time for District Ten in Montgomery. Taylor cited an ongoing divorce and the need to be close to his children as reasons for the request. Taylor subsequently followed up with another request for a transfer to District Ten on October 5, 2007. Finally, Taylor again requested a transfer to the drug unit on December 17, 2007. Rogers never responded to any of these additional requests.

In early January, 2008, Chief Roy Houlton transferred Taylor from Birmingham to District Ten in Montgomery. In June, the Board placed a GPS device on another African-American agent’s state-issued car. That agent, Stephen McKitt, told Taylor that Taylor’s state-issued car was being tracked with a GPS device as well. Another African-American employee at the Central Office, Anthony Thornton, also told Taylor that his car was tracked with a GPS device. The Board admits that it put a GPS device on McKitt’s car but denies having put a device on Taylor’s car.

On July 10, 2008, Taylor sent yet another request to Rogers for a transfer to the drug unit. The next day, Taylor’s supervisor, Lieutenant Dennis Hill, forwarded Taylor’s request to Rogers along with a note in support of the transfer. Taylor was never transferred to the drug unit.

While in District Ten, Taylor’s assigned area focused mostly on Bullock County. According to Taylor, the county has few licensees or applicants due to local poverty and sparse population. In addition, Taylor says that problems in his area further decreased because his thoroughness in inspections led to widespread compliance. Finally, Taylor at one point maintained a field office in a strip mall in the county. The office was old and musty, and it did not have a telephone. Ultimately, a business owner called and said the office was no longer available to the ABC Board. Despite this, Taylor says that he performed all of the duties expected of him in Bullock County while also helping other agents with their investigations and inspections.

During his time at District Ten, Taylor was assigned to drive an Alabama state senator and an ABC Board captain. Both the senator and the captain are African-American. Taylor complained of the senator assignment to Hill, but Hill responded that the African-American senator wanted an African-American agent to drive him.

In December 2008, Taylor was assigned to work in the ABC Board warehouse for one week. Warehouse assignments are undesirable; they are hot and dirty. Hill assigned Taylor to the warehouse as discipline for Taylor’s low statistics. Taylor argued that his statistics were fine; he was ranked in the middle of all agents statewide. However, the Board argues it made its decision based on the number of cases Taylor made prior to that point. Based on this statistic, Taylor was at the bottom, of the statewide agent rankings.

Taylor complained to Hill that the assignment was based on race. Hill communicated this concern to the Central Office, but Taylor was assigned to the warehouse anyway. While working in the warehouse, a white agent refused to allow Taylor access to the office or to a golf cart used for riding around the warehouse. Taylor saw white agents using the golf cart on numerous occasions, but he never saw African-American agents using the golf cart.

On February 5, 2009, Goolsby requested that white agents Chandler and Wilson’s positions be reallocated from agent to sergeant. The SPD approved these reallocations on February 27, 2009 and a Certificate of Eligibles was created. Chandler was on this certificate, but Wilson did not meet the minimum requirements because he had not worked with the Board long enough. On March 2, 2009, Taylor submitted an application for promotion to sergeant. On May 11, 2009, Chandler was notified of his promotion to sergeant. On May 12, 2009, a new Certificate of Eligibles was generated that listed Wilson. That same day, Wilson was notified of his promotion to sergeant. No African-Americans, including Taylor, were on either Certificate of Eligibles.

On June 3, 2009, Taylor was involved in an incident concerning his ex-wife, a Montgomery Police Officer, and his girlfriend. His girlfriend, a Montgomery County Sheriffs Deputy, went to his ex-wife’s home and demanded to know whether the ex-wife had been seeing Taylor. After leaving, the girlfriend returned to Taylor’s home, brandished her weapon, and demanded Taylor come outside. Taylor verbally reported this incident to Hill, his immediate supervisor, and to his girlfriend’s supervisor at the Sheriffs Department. Despite this report, Internal Affairs, through Captain Vance Patton, began an investigation. Patton did not contact Hill but instead received notice of the incident through Captain Richardson. Richardson had discovered the incident from the Montgomery County Sheriffs Department. After a subsequent interview, Patton noted that “Taylor could not provide a reason he did not notify his supervisors, although Agent Taylor did notify [his girlfriend’s] supervisor.” (Doc. # 137-35 at 2.)

At first, ■ the Administrator wanted a five-day suspension as discipline. Patton disagreed with the Administrator and suggested a three-day suspension. According to Patton, Rogers spoke with the Administrator on Taylor’s behalf and convinced the Administrator to give Taylor a two-day suspension. In memoranda from both Patton and Rogers, the ultimate disciplinary action recommended was a two-day suspension. Taylor states that he informed Rogers of his report to Hill; he does not mention whether he informed Patton. Finally, Taylor implies that he accepted the suspension based on another African-American sergeant’s recommendation. (Doc. # 137-13 ¶ 27.) The other sergeant warned Taylor that, “if [Taylor] fought the suspension, [Rogers and Patton] might get mad and fire [Taylor].” (Id.) Ultimately, on June 10, 2009 Taylor received notice of a two-day suspension, and he declined a hearing into the matter. (Doc. # 137-38 at 2.)

On October 23, 2009, Defendant Turner replaced Hill as the District Ten supervisor. Turner had a reputation for terminating employees that Rogers or the Administrator wanted removed. Shortly after arriving, Turner and Lieutenant Davis discussed the number of cases on which Taylor had been working.

On November 9, 2009, a white sergeant noted a small dent on Taylor’s state-issued car’s door. Taylor had not noticed the dent prior to that moment. Subsequently, Taylor wrote a brief memorandum stating that he had not noticed the dent nor had he any idea as to how the dent occurred. On November 18, 2009, Taylor received a written warning for failing to maintain his state equipment.

On December 8, 2009, Turner asked Taylor to meet with her and two others about Taylor’s case files. In the meeting, Turner told Taylor that he was not performing his job correctly and that he would be transferred to Dothan. In Do-than, there were fewer licensees, and he would be supervised more closely to ensure he did his job properly. Turner reviewed Taylor’s statistics with him. The statistics showed that Taylor had made few cases during Hill’s tenure as supervisor. Despite this, Turner did not contact Hill to inquire about Taylor’s work performance. Furthermore, Turner rejected Taylor’s protests concerning the financial hardships attendant to moving to Dothan. After the meeting, Rogers agreed to Taylor’s transfer. Rogers then sent a letter to Taylor on December 11, 2009 confirming the transfer to Dothan with an effective date of February 1, 2010.

The day after meeting with Turner, Taylor completed an EEOC intake questionnaire. The EEOC received the questionnaire on December 15, 2009. Two days later, the EEOC sent Goolsby a notice that Taylor had filed a grievance related to alleged race discrimination. No details of the grievance were disclosed, and Goolsby stated that he did not disclose the notice to anyone other than the Administrator and a few people on his legal staff. There is no cited evidence that Rogers or Turner knew of this notice from the EEOC.

Taylor submitted a letter of resignation on January 25, 2010. In that letter, Taylor stated that he was resigning from the ABC Board because of financial hardship related to his pending transfer to Dothan. Thereafter, the District Ten agents met and convinced Taylor to rescind his letter of resignation. The agents then met with the supervising lieutenant, Davis, and asked him to intervene on Taylor’s behalf. Davis sent an email to Rogers stating that the agents wished Rogers to reconsider Taylor’s transfer. Rogers responded that Taylor’s decision to resign was personal and that Taylor had not discussed any financial hardships with him. Taylor made one telephone call to Rogers which Rogers did not answer. Taylor did not send any emails, did not call multiple times, and did not attempt to communicate in any other way with Rogers. Taylor finished that work week and his employment ended.

As early as February 3, 2010, Goolsby requested that Davis prepare a memorandum recounting the events surrounding Taylor’s resignation. Davis complied and sent Goolsby an email containing his statement. Of particular note, Davis stated that he encouraged Taylor to speak with Rogers directly about the transfer. Taylor specifically disputes that Davis ever suggested he speak with Rogers at any time. (Doc. # 137-13 ¶ 48.)

After his employment with the ABC Board ended, Taylor filed his first Charge with the EEOC on February 18, 2010. In this Charge, he alleged race discrimination, with the most recent discrimination occurring on December 8, 2009. (Doc. # 137-62.) He filed an Amended Charge on October 5, 2010. In this Amended Charge, he alleged continuing race discrimination and, for the first time, retaliation. (Doc. # 137-71.)

IV. DISCUSSION

Title VII prohibits an employer from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” 42 U.S.C. § 2000e-2(a)(1). The Supreme Court in McDonnell Douglas Corp. v. Green provided the traditional framework for evaluating cases where, as here, a plaintiff only offers circumstantial evidence in support of his or her retaliation and discrimination claims. Under this framework, the plaintiff must establish a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). After the plaintiff has established a prima facie case of discrimination, the burden of production is placed upon the employer to articulate a legitimate, nondiscriminatory reason for its employment action. Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). Once the employer has met this “exceedingly light” burden, the “plaintiff must demonstrate by a preponderance of the evidence that the employer had a discriminatory intent.” Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1019 (11th Cir.1994). The plaintiff may seek to demonstrate that the proffered reason was not the true reason for the employment decision “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. at 256, 101 S.Ct. 1089; Combs v. Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir.1997). A plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). That is, even if a plaintiff establishes a prima facie case and offers sufficient evidence of pretext as to each of the proffered reasons, summary judgment “will sometimes be available to an employer in such a case.” Chapman v. AI Transp., 229 F.3d 1012, 1025 n. 11 (11th Cir.2000).

A. Kesia Perry’s Claims

Plaintiff Kesia Perry (Perry) sets out two separate general claims for relief in her Second Amended Complaint. Although Perry’s counts are vague, this court has gleaned the following causes of action from Perry’s Second Amended Complaint.

1. Count I

In Perry’s first count of her Second Amended Complaint, entitled “Plaintiff Kesia Perry’s Claims of Race Discrimination against the ABC Board (State of Alabama) in Violation of Title VII”, she alleges that she “has been discriminated against on the basis of her race in violation of Title VII in promotions, pay, job and work assignments, discipline, evaluations, transfers and in all other terms and conditions including a hostile environment because of racial harassment by her employer, the ABC Board.” (Doc. 6 ¶ 184.) For the following reasons, the ABC Board’s Motion for Summary Judgment on Perry’s first count is due to be GRANTED.

a. Perry’s Promotion Claim

1. Perry’s promotion claim is time-barred.

For a court to consider a Title VII claim, “a plaintiff must first file an administrative charge with the EEOC within 180 days after the alleged unlawful employment practice occurred.” Pijnenburg v. W. Ga. Health Sys., Inc., 255 F.3d 1304, 1305 (11th Cir.2001) (citing 42 U.S.C. § 2000e-5(e)(l)). A filing with the EEOC is “a requirement that, like a statute of limitations, is subject to waiver and estoppel.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393, 102 S.Ct. 1127, 71 L.Ed.2d 234 (1982). One area where “strict compliance with Title VII[’s filing requirement] is unnecessary is where the plaintiff has filed a charge with the EEOC, but in her judicial action the plaintiff raises related issues as to which no filing has been made.” Wu v. Thomas, 863 F.2d 1543, 1547 (11th Cir.1989). “Judicial claims which serve to amplify, clarify, or more clearly focus earlier EEO complaints are appropriate,” while “Allegations of new acts of discrimination, offered as the essential basis for the requested judicial review[,] are not appropriate.” Id. (internal quotation omitted). As such, “[t]he proper inquiry [¶]... ] is whether [the plaintiffs] complaint was like or related to, or grew out of, the allegations contained in [his or] her EEOC charge.” Gregory v. Ga. Dep’t of Human Res., 355 F.3d 1277, 1280 (11th Cir.2004). The purpose of the exhaustion requirement is to allow the EEOC priority in effecting voluntary compliance and conciliation between the parties. Id. at 1279.

Perry’s promotion claim is time-barred. The alleged failure to promote her from ASA II to ASA III occurred in May 2008, but the first EEOC charge was not filed until August of 2010. A charge must be filed within 180 days of the alleged unlawful employment practice. 42 U.S.C. § 2000e-5(e)(l). Because Perry has not pointed to any reason why the filing requirement should be tolled or otherwise waived for her failure to promote claim, and because the claim was not filed until two years later, this claim is barred.

Even if this claim were not time-barred, however, there are other reasons that the claims fails.

2. Perry has not shown that she was qualified for a job for which the employer was seeking applicants.

Even if Perry’s promotion claim were not time-barred, she has failed to show an intentional failure to promote. To state a prima facie case of intentional discrimination in a failure to promote case, the plaintiff must demonstrate “1) that she belongs to a protected class; 2) that she was qualified for a job for which the employer was seeking applicants; 3) that, despite her qualifications, she was rejected; and 4) that, after her rejection, the employer continued to seek applicants or filled the position with a person outside of the plaintiffs protected group.” Gaddis v. Russell Corp., 242 F.Supp.2d 1123, 1135 (M.D.Ala.2003). At issue here are the second and fourth elements of the prima facie case.

Perry was not qualified for a job for which the ABC Board was seeking applicants. It is undisputed that an ABC Board employee is promoted in one of three ways. First, through taking a test, an employee may place in the top ten of persons eligible for a position, including ties for any of the top ten spots. These persons are included in a list turned over to the hiring supervisor in order to help with the decision and are automatically eligible for promotion. Second, any employee in the top fifty percent of test-takers can be promoted after three months in a position, following a reallocation evaluation by the SPD. If the SPD determines that an upgrade of an employee’s current position is unwarranted, then there would not be any chance for an employee under this rule to be promoted. Finally, and regardless of where the employee is on the test-taker list, an employee who has served five years or more at a particular positipn is eligible for promotion following a reallocation evaluation.

In this case, Perry took the relevant test but failed to place in the top ten. Instead, Perry placed in the top fifty percent and was told that she should retake the examination to improve her chances. Despite this advice, Perry never retook the examination. Thus, in order to be qualified for a promotion, Perry had to either pursue a reallocation or remain in her position for at least five years and request a reallocation at that time. It is undisputed (a) that Perry’s supervisors requested a reallocation, but that the SPD (not the ABC Board, as Perry argues in her reply brief) determined that an upgrade was unwarranted, and (b) that Perry had not worked in her position for at least five years. Thus, based on the available promotion process, Perry was not qualified for the ASA III job because she was not eligible for a promotion. Thus, Perry cannot meet the requirements for a prima facie case for failure to promote.

3. Perry has not shown that, after ■her rejection, the ABC Board either continued seeking applicants or filled any position with someone outside of Perry’s protected class.

The ABC Board next argues that Perry has not shown that the ASA III position Perry was seeking was either filled with someone outside of Perry’s protected class or that the ABC Board continued seeking applicants for the ASA III position after rejecting Perry. In Perry’s brief, she does not mention any other person who received an ASA III position. Instead, it is undisputed that the only person mentioned, Childers, remains an ASA II with the Board. Perry’s -conclusion that Childers has been kept in an ASA II position as a strategic move in response to this case is irrelevant to her racial discrimination claim: Perry has not shown that someone outside of the protected class has been promoted. Furthermore, there is no indication that there was a specific ASA III opening available in the Central Office. Rather, the potential for a promotion appears to have been a general possibility available to Perry. Thus, there is no indication that the Board continued' to seek applicants for an ASA III position for which Perry had been rejected. Thus, Perry fails to establish the fourth element of the prima facie case.

A Perry has not shown the ABC Board’s legitimate, nondiscriminatory reason for failing to promote her to be pretextual.

The Board offers the legitimate, nondiscriminatory reason that Perry was not promoted because she did not fit into any of the categories for promotion. This business protocol is a legitimate, nondiscriminatory reason that is generally applicable to all ABC employees.

A plaintiff may demonstrate that a defendant’s reasons for not promoting were pretextual by revealing “such weaknesses, implausibilities, inconsistencies, incoherencies or contradictions in the defendant’s proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Cooper v. Southern Co., 390 F.3d. 695, 725 (11th Cir.2004), cert. denied, 546 U.S. 960, 126 S.Ct. 478, 163 L.Ed.2d 363 (2005) (quoting Combs, 106 F.3d at 1538). However, a reason is not pretext for discrimination “unless it is shown both that the reason was false, and that discrimination was the real reason.” Brooks v. Cnty. Comm’n of Jefferson Cnty., 446 F.3d 1160, 1163 (11th Cir.2006) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993)) (emphasis in original).

In response to the Board’s articulated reason, Perry argues that “the ABC Board made every little move necessary to get [two other employees, Chandler and Wilson] promoted from agent to sergeant and on to lieutenant in a little more than one year.” (Doc. 120 at 34.) Moreover, Perry argues that “[t]he fact that Rogers and Goolsby continued to mislead Perry and give her false encouragement suggests intentional discrimination and is also evidence of pretext.” (Doc. 120 at 33.) However, Perry has failed to argue how these actions by the Board, even if true, amounted to a bypassing of the typical promotion scheme for employees. In other words, Perry has not shown that these actions allowed Chandler and Wilson to be promoted despite not meeting one of the three promotional criteria. Furthermore, Perry has not argued different treatment for herself in this regard. While Perry does say that the Chief personally delivered Chandler and Wilson’s applications to the SPD, Perry does not provide evidence that this was what got the other employees their jobs or that the Chief did not help Perry in other ways to get her a promotion. Rather, Perry even admits that she had been encouraged by the Chief to take the ASA III test. (PI. Ex. A at 92:15-17.) Finally, she presents no evidence showing that Rogers and Goolsby continued to mislead Perry. Specifically, she does not present any evidence that, had she taken the test and scored in the top ten plus ties, she still would not have been eligible for promotion to an available ASA III position.

While seemingly confusing a claim for disparate pay with a claim for failure to promote, Perry discusses whether the Board’s reason for failing to promote Perry was pretext in her discussion of disparate pay. In that section, Perry argues that she can demonstrate pretext because “(1) the ABC Board was able to assign job duties which would have resulted in a promotion, (2) Perry requested additional duties during her first few years as an employee, (3) the ABC Board declined to assign Perry those job duties until Sullivan announced her plan to retire, (4) the ABC Board hired Childers and gave Sullivan’s job duties to Childers, and (5) Rogers, Goolsby and Hatfield either misrepresented or, in Hatfield’s case misunderstood, what Perry needed to do to get a promotion.” (Doc. 120 at 36.) While it is undisputed that the Board could have assigned additional duties so that a desk audit of Perry’s position would have been more favorable for a promotion, Perry has failed to show what job duties, besides Sullivan’s, she requested or whether the Board actively rejected her requests. Furthermore, the evidence indicates that Sullivan’s jobs were not reassigned to Childers; rather, the duties associated with that position were either automated or distributed throughout the districts. (PI. Ex. D at 168:4-12.) Finally, there is no indication that Rogers, Goolsby, or Hatfield misrepresented or misunderstood the requirements to get a promotion. For Perry to be eligible for an automatic promotion, she needed to score better on the test. If she were to receive a promotion through a reallocation, then her supervi