IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

NORTHERN DIVISION

ANTHONY BERNARD MOORER, )

)

Plaintiff, )

)

v. ) CASE NO. 2:06-CV-672-WKW

) (WO)

CITY OF MONTGOMERY, et al., )

)

Defendants. )

ORDER

On February 15, 2008, the Magistrate Judge filed a Recommendation (Doc. # 34) that

the Defendants’ Motion for Summary Judgment (Doc. # 24) be GRANTED. In the

Recommendation, the Magistrate Judge determined that (1) the plaintiff failed to state a

prima facie case of disparate treatment based on race; (2) even if the plaintiff had put forth

a prima facie case, the defendants had a legitimate non-discriminatory reason for any

disparate treatment, which was not pretextual; and (3) going to the ultimate issue there was

no discrimination. On February 28, 2008, the plaintiff Anthony Moorer (“Moorer”) filed an

objection (Doc. # 36), challenging each of these determinations. 

First, the Magistrate Judge was correct in finding that the Moorer failed to establish

a prima facie case. The Magistrate ruled that to state a prima facie case the plaintiff must

establish: (1) he is a member of a protected class; (2) he was qualified for the position; (3)

he suffered an adverse employment action; and (4) he was replaced by a person outside his

protected class or was treated less favorably than a similarly-situated individual outside his

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protected class. Moorer contends the Magistrate Judge incorrectly analyzed whether Moorer

was replaced by a person outside of his class when the Magistrate should have analyzed

whether Moorer was treated less favorably than similarly situated individuals outside of his

class. Again, Moorer misunderstands the Magistrate Judge’s recommendation, which found

that Moorer had failed to prove he was treated less favorably than similarly-situated

individuals. Accordingly, the Magistrate’s analysis was correct, and Moorer failed to state

a prima facie case. 

Even if Moorer had stated a prima facie case, the Magistrate’s analysis that the

defendants put forth a legitimate, non-discriminatory reason, which Moorer failed to prove

was pretextual, is correct. Moorer claims that the Magistrate Judge incorrectly relied on a

“self-serving affidavit” from defendant Harris. However, Harris’s affidavit put forth

legitimate non-discriminatory reasons about why Moorer was made to do the “high work”

on the paint crew, including that he was the newest member of the crew and that Harris

thought it was the best use of his manpower. The court finds these reasons sufficient.

In his objection, Moorer for the first time alleges facts to challenge the defendants’

stated reasons as pretextual. However, these facts are not properly before the court, as

Moorer failed to raise them in his response to the motion for summary judgment. Even if the

court does considers these allegations now, they are insufficient to create a disputed issue of

material fact.

Even if the defendants stated reasons were pretextual, the Magistrate Judge’s

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conclusion that there was no discrimination is correct. In his objection, Moorer alleges facts

for the first time regarding the way his supervisor treated him; this should have been raised

in Moorer’s response to the motion for summary judgment. However, even considering these

facts, the court finds they are bare allegations not supported by evidence and fail to create a

genuine issue of material fact. 

After an independent and de novo review of the record, it is the ORDER,

JUDGMENT and DECREE of the court that:

1. The plaintiff’s objection (Doc. # 36) is OVERRULED;

2. The Recommendation of the Magistrate Judge (Doc. # 34) is ADOPTED;

3. The Defendants’ Motion for Summary Judgment (Doc. # 24) is GRANTED.

An appropriate judgment will be entered.

DONE this 13th day of March, 2008.

 /s/ W. Keith Watkins 

UNITED STATES DISTRICT JUDGE

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