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IN THE UNITED STATES DISTRICT COURT FOR THE 

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION,

Plaintiff,

v. Case No. 3:10cv378/MCR/CJK

WEST CUSTOMER MANAGEMENT

GROUP, LLC,

Defendant.

_______________________________/

ORDER

Plaintiff Equal Employment Opportunity Commission (“EEOC”) has filed suit

pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5, as amended, see

42 U.S.C. § 1981a, on behalf of Derrick Roberts, who claims that Defendant West

Customer Management Group, LLC (“West”) engaged in employment discrimination by

refusing to hire him because of his national origin. See 42 U.S.C. § 2000e-2(a)(1)

(proscribing, in relevant part, discrimination on grounds of national origin). Pending before

the court is the EEOC’s motion for partial summary judgment on West’s first affirmative

defense (doc. 100), and West’s motion for summary judgment against the EEOC (doc.

110). Both motions are opposed. Also pending are motions by both parties to strike

declarations and expert testimony and West’s objections to the EEOC’s evidence in

support of its opposition to summary judgment (see docs. 105, 111, 123, 125, 128). 

Having fully considered the matter, the court denies the motion for summary judgment and

motion for partial summary judgment because genuine issues of material fact exist on the

record before the court. The remaining objections and motions to strike are therefore

either moot or better addressed at the pretrial conference. 

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Background1

This suit arises out of the claim of Plaintiff Derrick Roberts that in 2008, he was

rejected for employment as a Customer Service Representative (“CSR”) with West

because of national origin discrimination. The undisputed facts are as follows. Roberts

was born in Jamaica and graduated from high school there. He moved to the United

States in 1989 and became a United States citizen in 1999. His first and only language

is English, but he speaks with an accent. Prior to moving to the United States, Roberts

worked for 11 years as a civilian employee for the United States military at Guantanamo

Bay, Cuba, as a mechanic and in a laundromat for a short time, making change and giving

out soap. After moving to Florida in 1989, Roberts was employed as a mechanic from

1990 until 2001, and from 2003 through 2004. He also worked for the Escambia County

Area Transit from October 2004 until 2006, when he injured his back on the job. Roberts

testified that this resulted in a permanent medical restriction prohibiting him from lifting

more than 10 pounds. In September 2008, Roberts completed a four-month course in 2

information technology and received an information technology certification.

West provides customer service to corporate clients and employs customer service

representatives to resolve by telephone billing questions and technical repair issues for

customers of West’s clients. The successful candidate for a CSR position must

satisfactorily complete an online computer skills assessment test and must have a high

school diploma or GED, previous customer service experience, familiarity with a computer

keyboard and mouse, a flexible schedule, and the ability to communicate using a clear,

distinct voice. On November 18, 2008, Roberts completed an online application for a CRS

position and a computer skills assessment test. He was interviewed the following day,

November 19, 2008, by Employment Specialist Steven Henry, who asked questions about

For the limited purposes of this summary judgment proceeding, the court views “the evidence and

1

all reasonable inferences drawn from it in the light most favorable to the nonmoving party," which in this case

is the plaintiff. Martin v. Brevard County Pub. Sch., 543 F.3d 1261, 1265 (11th Cir. 2008) (internal marks

omitted). The court is mindful that “what is considered to be the facts at the summary judgment stage may

not turn out to be the actual facts if the case goes to trial.” Cottrell v. Caldwell, 85 F.3d 1480, 1486 (11th Cir.

1996).

 EEOC contends this injury prevents Roberts from working as a mechanic, and W est disputes this

2

fact. This dispute is not material to the outcome of the summary judgment motions.

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his experience with computers and customers, specifically inquiring about how he had 3

dealt with customers in particular instances in the past. During the interview, Henry asked

Roberts a series of prepared questions and took notes on his answers. In question 3B,

Henry asked Roberts to describe how he had dealt with a challenging customer situation

in the past. According to Henry's notes, Roberts recalled a time when he was working as

a mechanic and had diagnosed a mechanical problem but the customer disagreed with his

conclusion and thought the problem was something else. Henry recorded that Roberts

said he told the customer he could only fix what he sees, and “if someone else thinks it is

something else, let them fix it.” Henry viewed this as rude. Roberts denied answering in

this manner and said the notes did not accurately reflect what he had said. According to

Roberts, he recalled answering simply that the customer said her dad thought something

else was wrong, but Roberts replied he had to fix the car according to his own diagnostics,

and she ended up allowing him to fix it. Roberts was never asked what country he was

from and he did not tell Henry he was Jamaican, although it is indicated on his high school

diploma, which Henry reviewed because it was a job requirement to have a high school

diploma. Roberts said Henry never asked him to repeat his answers. At the end of the

interview, Roberts said that a woman asked him some of the same questions relating to

computers. Then, according to Roberts, Henry informed him that he did not have the

requisite computer skills and told him he had “a deep accent.” (Doc. 100-3, at 13; Roberts

Depo. at 52). Roberts also said Henry told him he was worried that Roberts would upset

an angry customer. Later in his deposition testimony, Roberts stated he believed West

refused to hire him because Henry had told him that his “thick accent” “would make matters

worse to a customer” and that he did not have the requisite computer skills. (Doc. 100-3,

at 25). Roberts asserts that no one had ever previously told him they could not understand

him.

According to Henry, he had difficulty understanding Roberts and had to ask some

Henry inquired about Roberts's computer skills, specifically his familiarity with the computer

3

programs Internet Explorer, Microsoft W ord, and Excel. Roberts testified by deposition that he explained he

was still learning but that he used Internet Explorer for checking email and reading the paper, and that his

experience with W ord included typing letters and accounting coursework discussion questions; and he knew

Excel was used for creating spreadsheets.

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questions several times before understanding Roberts’s response. Henry testified that the 4

ability to communicate clearly and be understood were important considerations for the

hiring decision, as well as the answer to question 3B, illustrating rudeness to a customer

and weak computer skills. Because of his difficulty understanding Roberts, Henry at some

point asked a nearby co-worker, Pamela Thomas, to listen to the interview to hear if she

had difficulty understanding Roberts. She testified by deposition that she tried to listen and

could hear that Roberts was talking, but it was difficult for her to hear him well enough to

understand Roberts during the interview. Henry testified that when he concluded asking

Roberts the prepared questions, he advised Employment Supervisor Andreina Fowler that

he had a gentleman whom he was having difficulty understanding, and he asked for her

opinion on the matter. Fowler testified that this was unusual, but she then asked Roberts

some questions and agreed Roberts was difficult to understand and had difficulty

communicating. Fowler also testified by deposition that, upon reviewing Roberts’s answers

regarding customer service and computers, she felt he was not a qualified applicant. 

Henry testified that he may have commented on Roberts’s accent at the end when he

informed Roberts he would not be considered for the position; Henry testified that Roberts

“suddenly got very loud” and demanded to know the reasons. (Doc. 112-2, at 29). Toward

the end of his deposition, Henry testified that Roberts got loud after Henry advised him he

would not be considered but was eligible to reapply after six months. Roberts disputes 5

that he was told he could reapply. 

Following the interview, Henry completed a candidate disposition form, which listed

options for the interviewer to select as reasons why this candidate would not be

considered. Henry selected “lacked experience/knowledge as indicated by answers to

interview questions,” and “other,” and he specifically noted Roberts’s computer skills and

customer service experience as the reason. Henry further wrote on this form that Roberts

 To the contrary, Roberts could not recall during his deposition any point during the interview when

4

Henry requested he repeat an answer or otherwise indicated that he did not understand Roberts' response

to a question.

Thomas testified that although she heard Henry go through the questions, she could not hear

5

Roberts's answers; however, she did hear Roberts raise his voice at the end of the interview. Thomas did

not recall Henry giving any particular reasons for rejecting Roberts as a candidate.

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was “very difficult to understand” and had a “heavy accent,” and noted that Fowler

confirmed his impressions. (Doc. 112-2, at 72). Henry testified that he rejected Roberts 6

based on three considerations: Roberts gave a deficient answer to question 3B on the

prepared interview questions, regarding how he had dealt with a difficult customer; he was

concerned about Roberts’s computer skills because he had replied that he was “not versed

on maneuvering through the computer;” and Henry was concerned about Roberts’s 

communication skills. (Doc. 112-2, at 41). 

The record shows that in November 2008, West was busy hiring for several training

classes at one time. Henry testified that he and other interviewers were interviewing 10 to

15 persons on a typical day at that time. According to West’s representative, Penny Ann

Majeski, and documentary evidence, West hired 1,405 CSRs in Pensacola, Florida,

between May 1, 2008 and January 31, 2009. Fowler testified that she did not know of any

Jamaicans who were hired at any time since she began working for West in October 2005.

According to Majeski, West did not hire anyone with problems it identified in Roberts, that

is, having weaknesses in customer service skills, computer skills and difficulty

communicating clearly. She identified that the minimum computer skills would require a

candidate to be able to identify basic trouble-shooting procedures, such as pressing

“control-alt-delete” for a frozen screen; Roberts stated that he would “reboot.” EEOC,

however, identified records of West containing interviewer notes and candidate disposition

reports reflecting that West had hired candidates despite answers indicating a lack of

customer service experience or lack of computer troubleshooting skills, according to the

criteria Majeski and Henry described as critical in the decision not to hire Roberts, and

showing that other candidates who were rejected for a lack of communication skills were

allowed to reapply in six or twelve months. Roberts stated he was not told he could 7

reapply, and the EEOC presented evidence that one other applicant rejected for poor

Henry testified that Roberts became loud when advised he would not be considered for

6

employment. The EEOC, however, points out that this is not recorded in his notes or the candidate disposition

form. EEOC also notes that Henry did not testify in his deposition that a lack of customer service experience

formed part of his decision, though this is written on the candidate disposition form.

Henry was the interviewer on some of these records but not on any where the candidate was

7

rejected for poor communication skills.

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communications skills who likewise received no notation that she could reapply was a

candidate reportedly from Puerto Rico.

Following West’s rejection of Roberts for the CSR position, he searched for another

position by applying for jobs online, checking with other employers, and interviewing for

three different jobs. He worked for Lock Pro doing light roadside assistance work for one

month in 2009 but left because they did not pay him. He also worked as a driver for two

weeks in 2010, and has attempted to engage in self-employment as a roadside assistant. 

Since February 2011, Roberts has worked for Securitas as a security guard, at a rate of

pay of $7.50 per hour. 

Roberts filed an EEOC discrimination charge against West, asserting discrimination

on the basis of his national origin, and the EEOC found reasonable cause to conclude that

West violated Title VII in refusing to hire Roberts. The EEOC filed this suit on September 8

30, 2010. West filed a motion for summary final judgment, arguing there is no direct

evidence of discrimination and no circumstantial evidence, because it articulated a

legitimate business reason for not hiring Roberts. Also, the EEOC filed a motion for partial

summary judgment on West’s affirmative defense that Roberts failed to mitigate damages

by not seeking comparable positions.

In response to West’s motion, the EEOC has proffered the expert witness testimony

of Dr. Shurita Thomas-Tate, a speech pathologist and with special knowledge regarding

variations of English. She conducted a speech evaluation of Roberts on February 25,

2011, administering a standard battery of tests, including word level analysis, standardized

reading samples, and a conversational language sample. She also developed and

administered a simulated phone task to provide further information. In her opinion,

Roberts’s speech intelligibility at the word level, conversational level, and over the

telephone is greater than 99%. Dr. Tate further opined that at the age of 51 and having

After receiving the EEOC determination, W est requested a discussion with the EEOC and a

8

conference call was held on September 20, 2010. Majeski filed a declaration stating that during this

conference call with EEOC representatives, the EEOC investigator admitted that during the investigation, she

and the director had to ask Roberts to repeat information on several occasions, although ultimately, they were

able to understand him. The investigator also admitted that the EEOC had not interviewed anyone at W est

or any other witnesses prior to making the cause determination. This declaration is the subject of a motion

to strike by the EEOC on grounds of administrative privilege.

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been in the United States for over 20 years, his pattern of language usage is stable and

would not have changed since his interview with West in 2008 absent professional

intervention, which she said he reportedly had not received. She concluded that Roberts’s

speech and accent pose no barrier to his ability to communicate effectively. West has

moved to strike or exclude this expert testimony on grounds that it is not scientifically

reliable and that any probative value it may have is outweighed by its prejudicial effect. In

support of the motion, West proffered the expert declaration of Dr. Rajka Smiljanic, a

linguist, who expresses the opinion that Dr. Tate’s testing was inadequate on several

grounds. EEOC has moved to strike or exclude Dr. Smiljanic’s testimony, arguing that, as

a linquist, she is unqualified to express opinions concerning the methods and conclusions

of a speech pathologist, such as Dr. Tate, and that Dr. Smiljanic’s opinions are not

sufficiently reliable.

Discussion

Motions to Strike and Objections

Before addressing the pending summary judgment motions, it is necessary to

consider the motions to strike and objections to evidence in the record. The objections

West has raised to statements of fact and evidence set forth by the EEOC largely consist

of additional argument on grounds that the EEOC has mischaracterized testimony or

provided incomplete or misleading portions of testimony. The court has set forth above the

material facts, taking these objections into consideration as necessary but overruling them

for the most part because they relate to the weight or context of the evidence as opposed

to its admissibility. The court has viewed the record in the light most favorable to the

EEOC on West’s motion and in the light most favorable to West on EEOC’s motion for

partial summary judgment. 

As to West’s objections to EEOC’s exhibits J through GG on grounds of hearsay,

authenticity, and lack of personal knowledge, the court concludes for reasons that follow

that they should be overruled. Exhibits J through GG consist of West’s own records and 9

interviewer notes that it produced in discovery regarding candidates who were hired or

W est argues that these candidates were not similarly situated to Roberts, however, this argument

9

is not a proper ground on which to exclude the evidence.

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rejected. The rule of authentication merely requires the proponent to produce “sufficient

evidence to make out a prima facie case that the proffered evidence is what it purports to

be.” United States v. Caldwell, 776 F.2d 989, 1001-02 (11th Cir. 1985); Fed. R. Evid.

901(a). While authentication may be accomplished by means of a witness with knowledge,

courts also have admitted documents produced during discovery as authentic when offered

by the party opponent. See Slone v. Judd, No. 8:09cv1175, 2011 WL 1124618, at *2 (M.D.

Fla. 2011) (“Documents produced during discovery are deemed authentic when offered by

a party opponent.” (internal marks omitted)) (unpublished); Sklar v. Clough, No. 106cv627, 

2007 WL 2049698, at *4 (N.D. Ga. 2007) (same) (unpublished); see also Snyder v.

Whittaker Corp., 839 F.2d 1085, 1089 (5th Cir. 1988) (affirming the admission of notes of

a corporate employee produced during discovery). EEOC’s exhibits J through GG are

personnel interview records and notes recorded on the very same form as was used during

Roberts’s interview, with West’s logo, and produced by West during discovery. West has

not argued that these notes are not what they purport to be. Also, the court may consider

a hearsay statement on summary judgment if the statement could be reduced to an

admissible form at trial. See Macuba v. Deboer, 193 F.3d 1316, 1322 (11th Cir. 1999). 

Thus, the fact that evidence currently may be in an inadmissible form does not prevent

consideration of the evidence at summary judgment. The interview notes and candidate

disposition forms were written by West’s own interviewers, who made hiring decisions on

West’s behalf, and therefore, they are either business records, see Fed. R. Evid. 803(6),

or are admissible as statements of a party opponent, made by an agent within the scope

of that relationship, and are not hearsay, see Fed. R. Evid. 801(d)(2)(D). Some of the

statements also are not offered for the truth of the matter asserted. 

West and EEOC both seek to exclude their opponent’s expert witness. Expert

testimony by one who is qualified by knowledge, skill, experience, training, or education,

is admissible if scientific or specialized knowledge will help the trier of fact to understand

the evidence and if the testimony is based on sufficient facts or data and is the product of

reliable principles and methods applied to the facts of the case. Fed. R. Evid. 702; see

also Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Daubert and Rule 702

impose certain gatekeeping responsibilities on the trial judge with regard to expert evidence

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“to ensure the reliability and relevancy of expert testimony.” Kumho Tire Co. v. Carmichael,

526 U.S. 137, 152 (1999). The court must “make certain that an expert, whether basing

testimony upon professional studies or personal experience, employs in the courtroom the

same level of intellectual rigor that characterizes the practice of an expert in the relevant

field.” Id. To this end, the court engages in a three-part inquiry before admitting an

expert’s opinion, considering (1) whether the expert is qualified to testify regarding the

matter; (2) whether the methodology used in reaching the expert’s conclusions is

sufficiently reliable under a Daubert inquiry; and (3) whether the testimony will assist the 10

trier of fact, through scientific, technical, or other specialized expertise, to understand the

evidence or to determine a fact in issue. See Hendrix ex rel. G.P. v. Evenflo Co., 609 F.3d

1183, 1194 (11th Cir. 2010); Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d

1333, 1340-41 (11th Cir. 2003); see also Fed. R. Evid. 702. The proponent of the expert

testimony “bears the burden of showing, by a preponderance of the evidence, that the

testimony satisfies each prong.” Hendrix, 609 F.3d at 1194.

West seeks to exclude the expert opinion testimony of the EEOC’s expert witness,

Dr. Tate, a speech pathologist who assessed Roberts’s speech intelligibility and concluded

that his speech and accent pose no barrier to his ability to communicate effectively and

that his speech patterns would not have changed since his interview with West absent

professional intervention. West argues that Dr. Tate’s testimony should be excluded on

each of the three prongs relevant to admitting expert opinion testimony – qualifications,

methodology, and helpfulness. Although the bulk of the parties’ arguments focuses on the

first two prongs, the court finds the third prong to be dispositive and that, with the exception

of one narrow issue discussed below, expert testimony is not helpful in this case.

Therefore, it is not necessary to address the first two prongs at this time, and the court

addresses only the third factor, that is, whether the testimony will assist the trier of fact. 

 The Daubert factors useful in determining whether expert testimony is reliable include whether a 10

theory or technique can be or has been tested, whether it has been subjected to peer review or publication,

whether it has gained widespread acceptance within a relevant community of experts, and consideration of

the known or potential rate of error of a technique. See 509 U.S. at 593-94. These factors are a

nonexhaustive list of potential considerations that may shape the trial judge’s flexible Rule 702 inquiry; they

are not a “definitive checklist.” Id. at 594.

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The advisory committee notes to Rule 702 describe this as a “common sense inquiry,”

requiring consideration of “whether the untrained layman would be qualified to determine

intelligently and to the best possible degree the particular issue without enlightenment from

those having a specialized understanding of the subject involved in the dispute.” Fed. R.

Evid. 702 (advisory committee notes) (internal marks omitted). Opinions that are unhelpful

are “therefore superfluous and a waste of time.” Id. (internal marks omitted). “Expert

testimony helps the jury ‘if it concerns matters that are beyond the understanding of the

average lay person.’” Tardiff v. Geico Indem. Co., Slip Op. No. 11-15450, 2012 WL

2924042, at * 2 (11th Cir. Jul. 19, 2012) (quoting United States v. Frazier, 387 F.3d 1244,

1261 (11th Cir. 2004) (en banc)) (unpublished). 

Consideration of these principles leads to the conclusion that expert testimony on

the issue of speech intelligibility is not helpful in this case. Determining whether Roberts’s

speech was intelligible is the type of common-sense determination that an untrained

layman is qualified to make intelligently without the aid of an expert. The ultimate issue

here is whether West intentionally discriminated against Roberts or made a legitimate

nondiscriminatory business judgment that his speech would be difficult to understand in

a telephone customer service conversation. There is no contention that Roberts had a

speech disorder of some type that would require expert testimony or specialized

knowledge, nor is it necessary to understand the technical peculiarities of a Jamaican

accent or speech pattern in order for a layman to determine whether the sound of a

person’s accent so obstructed the intelligibility of his speech that it was a legitimate reason

not to hire him for a CSR position. In other words, whether an accent or culturally

distinctive speech pattern is sufficiently intelligible for the average person to understand

is a matter squarely within the competency of the average juror. Therefore, the court 11

The Eleventh Circuit recently reversed a district court’s decision to exclude expert testimony on

11

grounds that it was unhelpful in Rosenfeld v. Oceania Cruises, Inc., 654 F.3d 1190 (11th Cir. 2011), reh’g en

banc denied, 682 F.3d 1320 (11th Cir. 2012); but the facts of that case are distinguishable. There, a slip and

fall case, the court reversed because the plaintiff’s negligence theory (that the defendant failed to choose an

adequate flooring surface for a particular area) involved an issue of the slip resistance and surface friction of

a particular flooring, which was a proper subject for an expert. Id. at 1193. Here, by contrast, the issue is one

of intentional discrimination and whether an accent was difficult to understand, which does not involve a

scientific or technical question outside the experience of the jurors. The dissent from the denial of rehearing

en banc in Rosenfeld characterized the issue in that case as merely requiring a determination of whether the

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concludes that Dr. Tate’s opinions regarding the issue of speech intelligibility are not

admissible, and thus West’s motion to exclude this testimony will be granted both for

purposes of this summary judgment motion and trial. 

The court, however, finds that Dr. Tate’s expert opinion that Roberts’s speech

pattern or accent would not likely have changed in the intervening years since his interview

with West is an appropriate subject for expert testimony in this case and would be helpful

to the jury. As to this narrow issue, the court must then examine Dr. Tate’s qualifications

and experience to determine whether she is qualified to offer this opinion. The Eleventh

Circuit has explained that these are separate inquiries and emphasized that “‘[i]f the

witness is relying solely or primarily on experience, then the witness must explain how that

experience leads to the conclusion reached, why that experience is a sufficient basis for

the opinion, and how that experience is reliably applied to the facts.’" Frazier, 387 F.3d at

1261 (quoting Fed. R. Evid. 702, advisory committee notes, and commenting that

admissibility is not “established merely by the ipse dixit of an admittedly qualified expert). 

The court is not in a position to make a final ruling on the admissibility of this narrow

opinion on the existing record without a hearing, but finds that a decision on this issue is

not necessary to the court’s summary judgment ruling. The court reserves ruling on 12

whether Dr. Tate’s education and professional experience render her qualified to offer the

opinion that Roberts’s speech patterns or accent would not have changed during the

intervening time period since his interview with West. The parties may submit

supplemental briefing on the issue fourteen days prior to the pretrial conference, with any

responsive supplemental briefing due no later than seven days prior to the pretrial

conference.

floor was wet or dry, and concluded that in such a situation, expert testimony was not needed, because where

the issue involves “a common sense observation” or “something a typical juror would have known as a matter

of everyday life experience,” expert testimony typically is not required or allowed. Rosenfeld, 682 F.3d at 1331

(Tjoflat, Circuit Judge, dissenting from the denial of rehearing en banc). W hile Judge Tjoflat’s dissenting

characterization of the fact at issue did not prevail among the circuit judges in that instance, his observations

are instructive nonetheless: W here “the analysis lies within common sense . . . expert testimony on the

subject will not assist the trier of fact to understand anything more than he already does.” Id.

As discussed below, material issues of fact exist outside of this issue that require the denial of

12

summary judgment. It is not necessary to consider the expert testimony when ruling on the summary

judgment motions.

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West designated Dr. Smiljanic as a rebuttal expert, and the EEOC has moved to

exclude her testimony. Her report and testimony appear to be limited to rebutting the

methodology underlying Dr. Tate’s opinions regarding speech intelligibility tests, which the

court has excluded; as such, the motion to exclude her testimony will be denied as moot. 

But, to the extent her testimony is relevant to rebut Dr. Tate’s testimony on the narrow

issue on which the court has reserved ruling, the court will likewise reserve ruling as to Dr.

Smiljanic’s expert opinion and will address the issue at the pretrial conference.

Plaintiff moves to strike West’s declaration of Penny Majeski, West’s Vice President

of Employee Relations, who alleged that during a conference call in which she participated

with Arlene Gorcey, the EEOC investigator, Gorcey admitted that she and her director had

to ask Roberts to repeat information on several occasions during their investigation, but

that they ultimately were able to understand him, and that the EEOC had not interviewed

anyone at West or any other witnesses prior to making the cause determination. Plaintiff

argues that this evidence is inadmissible because the statements were made during the

EEOC investigatory or conciliation process, and thus, they are within the scope of the

agency’s deliberative process privilege or are protected as work product privilege pursuant

to EEOC statutory and regulatory protections. West argues that the statements are

admissible because they were made voluntarily to a West representative, so any assertion

of privilege has been waived and the statements are admissible as statements against

interest. West asserts that the statement regarding Roberts being difficult to understand

directly contradicts theEEOC’s position that Roberts could clearly communicate, and West

asserts it has the right to use these voluntarily made statements to rebut any inference the

jury may draw that the case is meritorious simply because it is brought by the EEOC after

an agency investigation. 

For purposes of summary judgment, the court will not consider the EEOC

investigator’s statements to Majeski. The issue on summary judgment is whether there is

direct or sufficient circumstantial evidence of intentional discrimination on the part of West 

to allow the case to go to the jury. Statements by the EEOC investigator are not probative

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of West’s intent to discriminate in the hiring process. Therefore, because the court finds 13

this evidence is not relevant to the summary judgment determination, the court will deny

the motion to strike the declaration of Penny Majeski as moot at this stage of the

proceedings, but the denial is without prejudice to the issue being raised in a motion in

limine and addressed prior to trial.

Summary Judgment Standard

When reviewing more than one motion for summary judgment, the court views the

facts in the light most favorable to, and draws inferences in favor of, the non-moving party

with respect to each motion. See Am. Bankers Ins. Group v. United States, 408 F.3d

1328, 1331 (11th Cir. 2005). Summary judgment is appropriate “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). See Celotex Corp. v. Catrett, 477 U.S. 317, 322

(1986). “[T]he substantive law will identify which facts are material” and which are

irrelevant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is

material if it is a legal element of the claim under the applicable substantive law which

might affect the outcome of the case. See id. 

At the summary judgment stage, a court’s function is not to weigh the evidence to

determine the truth of the matter, but to determine whether a genuine issue of fact exists

for trial. See Anderson, 477 U.S. at 249. A genuine issue exists only if sufficient evidence

is presented favoring the nonmoving party for a jury to return a verdict for that party. See

id. “If reasonable minds could differ on the inferences arising from undisputed facts, then

a court should deny summary judgment.” Miranda v. B & B Cash Grocery Store, Inc., 975

F.2d 1518, 1534 (11th Cir. 1992) (citing Mercantile Bank & Trust Co. v. Fidelity & Deposit

Co., 750 F.2d 838, 841 (11th Cir. 1985)). Although the court must view all the evidence,

and all factual inferences reasonably drawn from the evidence, in the light most favorable

to the nonmoving party, see Hairston v. Gainesville Sun Publ’g Co., 9 F.3d 913, 918 (11th

Cir. 1993), the court is not obliged to deny summary judgment for the moving party when

To the extent this evidence would support the legitimacy of W est's nondiscriminatory reason for

13

not hiring Roberts, the EEOC bears the burden of demonstrating pretext at this stage of the proceedings, and

the court finds below that there is a question of fact as to pretext. Therefore, summary judgment will be

denied without a need to consider this evidence.

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the evidence favoring the nonmoving party is “merely colorable” or “is not significantly

probative,” Anderson, 477 U.S. at 249. A mere scintilla of evidence in support of the

nonmoving party’s position will not suffice to demonstrate a material issue of genuine fact

that precludes summary judgment. See Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir.

1990) (citing Anderson, 477 U.S. at 252). 

Defendant West’s Motion for Summary Judgment

West asserts that the EEOC has failed to present direct or circumstantial evidence

of discrimination to survive summary judgment. As the Eleventh Circuit has explained,

direct evidence of discrimination is “evidence, which, if believed, proves the existence of

a fact in issue without inference or presumption. Evidence that only suggests

discrimination, or that is subject to more than one interpretation, does not constitute direct

evidence.” Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997) (internal

marks and citations omitted). In order to constitute direct evidence, the evidence must

“reflect[ ] a discriminatory or retaliatory attitude correlating to the discrimination or

retaliation complained of by the employee.” Van Voorhis v. Hillsborough Cnty. Bd. of Cnty.

Com'rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (internal marks omitted) (finding direct

discrimination of age discrimination based on the allegation that an interviewer said he

“didn’t want to hire any old pilots”). “[O]nly the most blatant remarks, whose intent could

be nothing other than to discriminate on the basis of [race], . . . constitute direct evidence

of discrimination.” Id. (Internal marks omitted). “Evidence that merely suggests a

discriminatory motive is, by definition, circumstantial evidence.” Hawthorne v. Baptist

Hosp. Inc., 448 Fed. Appx. 965, 967 (11th Cir. 2011) (unpublished) (citing Burrell v. Bd. of

Trustees of Ga. Military Coll., 125 F.3d 1390, 1393-94 (11th Cir. 1997)).

Under Eleventh Circuit precedent, a direct and discriminatory comment on a job

applicant's accent can be direct evidence of national origin discrimination. See Akouri v.

State of Fla. Dep't of Transp., 408 F.3d 1338, 1347 (11th Cir. 2005) (finding direct evidence

where a supervisor turned down a Lebanese plaintiff for a promotion, stating the white co

workers were "not going to take orders from you, especially if you have an accent"). On

the other hand, relying on authority from other circuits, the Eleventh Circuit has also

explained that “an employee’s heavy accent or difficulty with spoken English can be a

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legitimate basis for adverse employment action where effective communication skills are

reasonably related to job performance.” Tseng v. Fla. A&M Univ., 380 Fed. Appx. 908, 909

(11th Cir. 2010) (unpublished) (finding remarks by supervisors that a Taiwanese 14

professor's accent was difficult to understand or that he needed to work on his English

skills were not direct evidence of discrimination where no disparaging remarks were made

about Taiwanese generally and none of the statements specifically referred to Tseng’s

nationality), cert. denied, 131 S. Ct. 2161 (2011); see also Fragante v. City and Cnty. of

Honolulu, 888 F.2d 591, 596-97 (9th Cir. 1989) (“There is nothing improper about an

employer making an honest assessment of the oral communications skills of a candidate

for a job when such skills are reasonably related to job performance.”) (cited with approval

by the Eleventh Circuit in Tseng), cert. denied, 494 U.S. 1081 (1990). In the present case,

as in Tseng, although the interviewer, Henry, denied employment in part because of

Roberts’s “thick accent,” there is no indication Henry made any disparaging remarks about

Jamaicans and his one comment about Roberts’s accent did not explicitly refer to his

nationality. In light of the whole context and the job requirements for a CSR, requiring a

clear and distinct voice to help resolve customer complaints by telephone, the court finds

the EEOC has "failed to identify any ‘blatant remarks or actions whose intent could be

nothing other than to discriminate." Tseng, 380 Fed. Appx. at 910 (internal marks omitted);

see also Van Voorhis, 512 F.3d at 1300. Thus, the EEOC has not presented direct

evidence of discrimination.

Because the comment is subject to more than one interpretation, however, the court

must consider whether the plaintiff has created a prima facie case of discrimination under

the burden-shifting framework established by the Supreme Court in McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), and Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S.

248 (1981). “The first step of the McDonnell Douglas framework requires the plaintiff to

make out a case sufficient to withstand a motion for summary judgment (or a motion for

judgment as a matter of law) – i.e., a ‘prima facie case.’” Smith v. Lockheed-Martin Corp.,

W hile unpublished opinions are not considered binding precedent, they may be considered as

14

persuasive authority. See 11th Cir. R. 36-2; see also United States v. Futrell, 209 F.3d 1286, 1289 (11th Cir.

2000).

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644 F.3d 1321, 1325 (11th Cir. 2011); see also Crawford v. Carroll, 529 F.3d 961, 970

(11th Cir. 2008). In order to do so, the plaintiff must establish the following four elements:

(1) he is a member of a protected class; (2) he applied for and was qualified for the

position; (3) despite his qualifications, he was rejected; and (4) the position was filled with

an individual outside the class who was equally or less qualified or the position remained

open. See Schoenfeld v. Babbitt, 168 F.3d 1257, 1267 (11th Cir. 1999); Vessels v. Atlanta

Indep. Sch. Sys., 408 F.3d 763, 768 & n.3 (11th Cir. 2005) (also emphasizing that the

McDonnell Douglas burden-shifting framework is one method of proving discrimination by

circumstantial evidence, but not the only method). If the plaintiff establishes a prima facie

case of discrimination, a rebuttable presumption arises that the employer unlawfully

discriminated against him and the burden shifts to the employer to produce evidence of a

legitimate, nondiscriminatory reason for the employment decision. See Smith, 644 F.3d

at 1325-26. If the employer meets this burden, the plaintiff must present evidence 15

tending to show that the proffered legitimate reason is a mere pretext for unlawful

discrimination. See id. at 1326. The plaintiff can show pretext “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.” 

Brooks v. Cnty. Comm’r of Jefferson Cnty., Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)

(internal marks omitted). With respect to the latter, “the plaintiff must demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable fact finder could

find them unworthy of credence.” Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004)

(internal marks omitted), overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S.

454, 457 (2006); see also Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000)

A trier of fact does not have to believe the employer’s proffered reason in order to find that the

15

employer has met its burden, “[f]or the burden-of-production determination necessarily precedes the

credibility-assessment stage.” St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993). Nor is an employer

required to persuade the court its reason is “legitimate.” Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004),

overruled on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454, 457 (2006). The employer is required

only to present evidence which, taken as true, permits a reasonable fact finder to conclude there was a

legitimate nondiscriminatory reason for the employment action. St. Mary’s Honor Ctr., 509 U.S. at 509;

Cooper, 390 F.3d at 725.

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(en banc). “If the proffered reason is one that might motivate a reasonable employer, a

plaintiff cannot recast the reason but must meet it head on and rebut it.” Wilson v. B/E

Aerospace, Inc., 376 F.3d 1079, 1088 (11th Cir. 2004). Also, the Eleventh Circuit has

clearly stated that “the plaintiff will always survive summary judgment if he presents

circumstantial evidence that creates a triable issue concerning the employer's

discriminatory intent.” Smith, 644 F.3d at 1328.

It is undisputed for purposes of summary judgment that the plaintiff is in a protected

class, was objectively qualified, and suffered an adverse employment action of being

16

rejected for employment. West argues that the EEOC has not set forth a prima facie case

of discrimination because there is no evidence that an equally or less qualified applicant

outside of his protected class was hired for the position of CSR. This case presents a

close call. The EEOC has identified candidates who were hired despite showing weakness

in answers regarding computer skills and customer service comparable to the weaknesses

identified by West in answers given by Roberts. The EEOC identified four candidates who

were rejected for a lack of skills or knowledge as well as communication difficulties, such

as being soft spoken. Unlike Roberts, the candidate disposition forms for these candidates

indicate clearly that the candidate could reapply or reinterview within six or twelve months,

whereas Roberts claims he was not told this nor is it reflected on the interviewer’s notes

or his candidate disposition form. The only other candidate identified as having been

rejected for poor communication skills and who, like Roberts, had no notation that the

candidate could reapply in six or twelve months, was a candidate who had recently moved

to the Unites States from Puerto Rico. Viewing these facts in the light most favorable to

the EEOC, the facts show that the interviewer expressly commented on Roberts’s “thick

accent” without inviting him to reapply or reinterview when others who were soft spoken but

did not have accents appear to have been given this courtesy. The court finds that the

 Roberts had a high school diploma and some customer service experience, although his answer

16

to question 3B was disapproved by the interviewer; and he had passed the initial computer screening test,

though he told the interviewer he was still learning his way around computers. W est argues that Roberts was

not qualified because he did not communicate using a clear and distinct voice, but W est acknowledges that

this is a subjective consideration, which is not considered at the prima facie stage. See Vessels, 408 F.3d

at 768-69.

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EEOC has set forth a prima facie case of discrimination. 

17

West asserts that the refusal to hire Roberts was based on legitimate

nondiscriminatory reasons, including that he was difficult to understand and the job

required him to speak clearly over the telephone with already frustrated customers, he

lacked the requisite computer skills, and he offered a weak answer to the question

designed to demonstrate his customer service skills or experience. To survive summary

judgment, the EEOC must demonstrate evidence of pretext. The EEOC asserts that a

reasonable juror could find the nondiscriminatory reason to be a pretext because West

gave false, shifting and inconsistent explanations of its employment decision at various

times. Viewing the evidence in the light most favorable to EEOC, the court agrees. Henry

and Fowler testified that Henry had to ask Roberts to repeat answers to questions and

Fowler had difficulty understanding Roberts, yet Roberts testified that he was never asked

to repeat an answer and never before had been told he was difficult to understand. A

reasonable juror could find that this explanation was false based on Roberts’s testimony

and a common-sense evaluation of his speech. Also, West’s records reasonably support

an inference that Roberts was treated differently than others who were rejected for

communication deficits because written comments indicate others were invited to reapply

but Roberts, like the applicant from Puerto Rico, was not. The EEOC identified additional

inconsistencies as well. Regarding computer skills, West admits Roberts was objectively

qualified and determined that his computer skills were adequate through an online test, his

computer skills appear to have been comparable to others who were hired, and Henry

testified he would not have refused to hire Roberts because of his computer skills alone;

yet, a lack of computer skills was referenced as a reason for not hiring Roberts. Regarding

customer service experience or skills, Henry said he weighed heavily Roberts’s answer

regarding how he handled a difficult customer (question 3B), but Majeski, a West

representative, stated by deposition that question 3A had been significant, in which

Roberts failed to identify a time when he went above and beyond what was expected to

Even if these other applicants are not considered sufficiently similarly situated in all relevant

17

respects to give rise to the McDonnell Douglas inference, the court finds alternatively that the circumstantial

evidence as a whole raises a reasonable inference of discriminatory intent in this case.

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offer good customer service. While the inconsistencies cited by the EEOC appear minor

in isolation, the court must view the facts in the light most favorable to the nonmoving party,

and when taken together with the totality of the circumstances, most notably the fact that

there is a dispute regarding whether Roberts’s accent interferes with his ability to be

understood clearly and that only Roberts and the Puerto Rican applicant received no

notation that they were invited to reapply, the record presents a question of material fact

on the issue of pretext. Admittedly, this case presents a close call factually, “but on

summary judgment, close calls go to the non-moving party.” Russaw v. Barbour Cnty. Bd.

of Educ., No. 2:11cv611, 2012 WL 3733368, at *11 (M.D. Ala. Aug. 28, 2012). Therefore,

West’s motion for summary judgment will be denied.

Plaintiff EEOC’s Motion for Partial Summary Judgment

EEOC moves for partial summary judgment on West’s first affirmative defense, in

which West claims that Roberts failed to mitigate damages. The EEOC argues it is

undisputed that Roberts searched for alternate employment. West contends that Roberts

failed to mitigate damages because he did not seek jobs that were comparable to the CSR

position. Viewing the evidence in the light most favorable to the non-moving party, which

in this instance is West, the court concludes that questions of fact exist as to whether the

jobs can be considered comparable. Accordingly, the EEOC’s motion for partial summary

judgment will be denied.

Accordingly:

1. Plaintiff’s motion for partial summary judgment (doc. 100) is DENIED.

2. Defendant’s motion for summary judgment (doc. 110) is DENIED.

3. Defendant’s motion to exclude the report and testimony of Dr. Shurita

Thomas-Tate (doc. 111) is GRANTED, consistent with this order; and Plaintiff’s motions

to exclude or to strike the Supplemental Declaration of Rajka Smiljanic (docs. 105 & 125)

are DENIED as moot, but without prejudice. 

18

This order excluding the expert testimony of Dr. Tate applies to her opinions regarding speech

18

intelligibility. As to the narrow issue on which the court has reserved ruling– that is, whether Roberts’s speech

pattern or accent would have changed in the intervening period of time – the parties will be permitted to

present this issue through supplemental briefing or motions in limine to be addressed at the pretrial hearing.

Likewise, the parties will be permitted to revisit the admissibility of Dr. Smiljanci’s testimony at that time to

determine the extent to which it is relevant to rebut any portion of Dr. Tate’s opinion testimony found to be

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4. Plaintiff’s motion to strike the Declaration of Penny Majeski (doc. 123) is

DENIED as moot, but without prejudice.

5. Defendant’s objections to Plaintiff’s sealed evidence submitted in support of

its opposition to Defendant’s motion for summary judgment (doc. 128) are overruled,

consistent with this order.

6. Trial and a pretrial conference date will be set by separate order. 

7. The parties may submit motions in limine or supplemental briefing regarding

outstanding issues no later than fourteen (14) days prior to the pretrial conference, with any

responses or responsive supplemental briefing due no later than seven (7) days thereafter.

DONE and ORDERED this 26th day of September, 2012.

M. Casey Rodgers 

M. CASEY RODGERS

CHIEF UNITED STATES DISTRICT JUDGE

admissible.

Case No. 3:10cv378/MCR/CJK

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