1 The Court’s task on summary judgment has been complicated by the parties’

unfocused submissions. From a garden-variety Title VII case featuring relatively

straightforward claims and facts, the parties have managed to produce nearly 110 pages of

briefing and in excess of 60 exhibits (totaling more than 500 pages). The net result is a

bewildering array of arguments and facts, many of which bear (at best) tangential significance to

the issues of concern.

2 As originally configured, the Complaint named as an additional defendant

International Longshoremen’s Association, Local 1459 (the “Union”) and brought similar claims

against it; however, on April 21, 2006, the Union and English filed a Joint Stipulation (doc. 51)

whose purpose and effect was to dismiss plaintiff’s claims against the Union with prejudice. 

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

RUFUS ENGLISH, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 05-0312-WS-B

 )

CSA EQUIPMENT COMPANY LLC, )

 )

Defendant. )

ORDER

This matter is before the Court on defendant CSA Equipment Company LLC’s Motion

for Summary Judgment (doc. 45) as well as defendant’s Motion to Strike (doc. 60) portions of

plaintiff’s response in opposition to the Motion. Both Motions have been briefed extensively,

and are now ripe for disposition.1

I. Nature of this Action.

On May 27, 2005, plaintiff Rufus English filed a Complaint (doc. 1) against CSA

Equipment Company LLC (“CSA”) alleging that CSA had discriminated against him in

employment decisions on the basis of his race (black) and age (60 at the inception of this suit), in

violation of Title VII of the Civil Rights Act of 1963, 42 U.S.C. §§ 2000e et seq. (“Title VII”);

42 U.S.C. § 1981 (“Section 1981”); and the Age Discrimination in Employment Act, 29 U.S.C.

§§ 621 et seq. (“ADEA”).2

 In addition to the federal statutory claims, English proffers a state

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 1 of 42
(See doc. 52.) Because the Union is no longer a party to this action, the undersigned need not

and will not consider English’s claims against that defendant, but instead will focus exclusively

on those against CSA.

3 The parties use the terms “company clerk” and “regular clerk” interchangeably in

their filings. This Order will follow the same convention.

-2-

law claim for outrage in which he alleges that CSA’s pattern of race and age discrimination

constitutes extreme and outrageous conduct which caused him severe emotional distress.

The Complaint is centered on an employment decision in March 2004, wherein CSA

passed over English’s application for a promotion from an on-call “Free Lance Clerk” position to

a full-time “Company Clerk” position.3 Although the Complaint also mentions a January 2002

employment decision in which CSA laid off English and another January 2002 employment

decision in which CSA re-hired a less senior furloughed white employee without calling back

English, a plain reading of the Complaint reflects that those are mere background allegations,

and not the basis of any substantive claims. Numerous passages in the Complaint confirm this

construction. Indeed, the “Preliminary Statement” characterizes this case as a “hybrid

hire/promotion case” because English was “an on call replacement worker seeking a permanent

position.” (Complaint, at 1.) This language necessarily excludes the 2002 layoff. Moreover, in

the “Exhaustion of Administrative Remedies” section, English refers only to the 2004

employment decision and his exhaustion of remedies pertaining to same. (Id., ¶ 5.) The body of

the Complaint discusses the 2004 decision at length, as compared to a single paragraph devoted

to the 2002 decisions. (Id., ¶¶ 17, 26-34.) Finally, in the causes of action themselves, the

Complaint focuses exclusively on the 2004 hiring decision. (Id., ¶¶ 39-40, 50-51, 61-62, 65.) 

Under no reasonable reading does the Complaint state discrimination claims against CSA

relating to the January 2002 decisions.

Unfortunately, both parties lose sight of this fact in briefing the Motion for Summary

Judgment. Plaintiff claims that “[i]t is the employment decision to lay him off in the first

instance, and the continuing refusal to rehire him, which are the focus of English’s plea for

relief.” (Plaintiff’s Brief (doc. 54), at 2.) Notwithstanding the liberal pleading standard for civil

complaints under Rule 8(a)(2), Fed.R.Civ.P., a brief opposing summary judgment is not a proper

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 2 of 42
4 See Gilmour v. Gates, McDonald and Co., 382 F.3d 1312, 1315 (11th Cir. 2004)

(“A plaintiff may not amend her complaint through argument in a brief opposing summary

judgment.”); Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 1286, 1297 (11th Cir.

2006) (having proceeded through discovery without seeking to amend complaint to reflect new

theory of cause of action, plaintiff “was not entitled to raise it in the midst of summary

judgment”).

-3-

mechanism for amending a complaint.4

 Had CSA objected to English’s de facto amendment of

the Complaint in his summary judgment opposition brief, this claim likely would have been

rejected outright pursuant to the foregoing principles. Far from objecting, however, CSA echoes

plaintiff’s description of his claims, which it summarizes as follows: “English claims that CSA

released him from his job as a company clerk in January 2002, failed to hire him as CSA’s

Assistant Chief Clerk shortly thereafter, and failed to hire him as a company clerk in March

2004, because of his race and age.” (Defendant’s Brief (doc. 50), at 17.) The law is clear that

“issues not raised in the pleadings may be treated as if they were properly raised when they are

tried by express or implied consent of the parties.” Steger v. General Elec. Co., 318 F.3d 1066,

1077 (11th Cir. 2003); see also Price v. M&H Valve Co., 2006 WL 897231, *11 n.7 (11th Cir.

Apr. 7, 2006) (dismissing claim raised by plaintiff for first time in summary judgment opposition

brief, but only because defendant objected on that basis). Defendant’s failure to object to the de

facto amendment of the Complaint to include claims arising from the January 2002 incidents,

and its acknowledgment that those claims are at issue in this action, constitutes implied consent

to having them be tried in these proceedings; therefore, the Gilmour/Hurlbert line of authority is

inapplicable, and the Court will consider plaintiff’s substantive claims predicated on the 2002

employment decisions, notwithstanding their omission as substantive claims in the Complaint, as

well as those arising from the 2004 hiring decision.

II. Defendant’s Motion to Strike.

At the close of the summary judgment briefing, CSA filed a hotly contested Motion to

Strike (doc. 35), in which it sought to excise portions of plaintiff’s opposition brief as well as

excerpts from plaintiff’s declaration. Because any summary judgment evaluation necessarily

hinges on the type and nature of facts in the record and on the arguments that may be considered,

and because the Motion to Strike calls into question which facts and arguments are properly

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 3 of 42
-4-

before the Court, resolution of that Motion is the appropriate analytical starting point.

A. Request to Strike Portions of Plaintiff’s Opposition Brief.

Defendant first requests that multiple sections of plaintiff’s opposition brief be stricken

pursuant to Rule 56(e), Fed.R.Civ.P., and Rules 602 and 802, Fed.R.Evid. The crux of this

component of the Motion to Strike is CSA’s disagreement with plaintiff’s arguments, in response

to which it offers various merits-based counterarguments of its own. In particular, CSA balks at

plaintiff’s contention that CSA engaged in a “pattern and practice” of discrimination, and cites

legal authorities in support of its position. Additionally, CSA does not dispute plaintiff’s

contention that defendant historically hired only white superintendents, but contends that the

statement should be stricken anyway because English has established few occasions where

blacks applied for those positions and has not shown “the number of superintendent positions

filled over the years (a relatively small number), the number of blacks who applied for

superintendent jobs, or the comparative qualifications of those who did apply.” (Motion to

Strike, at 4.) Further, CSA challenges as speculative plaintiff’s argument that black employees

have not been selected as CSA superintendents because CSA has not solicited their applications. 

And CSA decries plaintiff’s characterizations of its hiring practices concerning AfricanAmericans and plaintiff’s theories for the paucity of African-Americans in certain jobs.

There are two insuperable defects with CSA’s position. First, this portion of CSA’s

Motion to Strike reads like a supplemental merits brief articulating defendant’s reasons why the

Court should not adopt plaintiff’s summary judgment arguments. But the Court has already

received more than 45 pages of merits-based briefing from defendant, and does not require

further briefing to elucidate and distill the Rule 56 issues. To the extent that CSA’s Motion

merely reiterates defendant’s legal arguments presented elsewhere, it is redundant and unhelpful. 

To the extent that it offers brand new arguments for why CSA believes its Rule 56 Motion

should be granted, the Motion to Strike impermissibly expands the summary judgment briefing

beyond the parameters outlined by this Court and will not be entertained.

Second, even if every one of CSA’s arguments presented in the Motion to Strike is

correct and every one of English’s challenged arguments is incorrect, defendant makes no

showing why the draconian step of striking plaintiff’s arguments is appropriate. A summary

judgment brief is not evidence; rather, it is simply the argument of counsel. In the overwhelming

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 4 of 42
5 As a general proposition, material from a summary judgment submission may be

stricken in four circumstances. First, this remedy may be appropriate where material is

“redundant, immaterial, impertinent or scandalous,” pursuant to Rule 12(f), Fed.R.Civ.P. 

Striking matter on Rule 12(f) grounds is a drastic, disfavored remedy. See, e.g., Sierra Club v.

Tri-State Generation and Transmission Ass'n, Inc., 173 F.R.D. 275, 285 (D. Colo. 1997)

(“Allegations will not be stricken as immaterial under this rule unless they have no possible

bearing on the controversy.”); Judicial Watch, Inc. v. U.S. Dept. of Commerce, 224 F.R.D. 261,

263 (D.D.C. 2004) (matter is “scandalous for the purposes of Rule 12(f) when it ... unnecessarily

reflects on the moral character of an individual or states anything in repulsive language that

detracts from the dignity of the court”); Poston v. American President Lines, Ltd., 452 F. Supp.

568, 570 (S.D. Fla. 1978) (“Motions to strike on the grounds of insufficiency, immateriality,

irrelevancy and redundancy are not favored”). Second, an affidavit may be stricken as a sham

when it directly contradicts, without explanation, a witness’s previous sworn testimony. See

McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n.7 (11th Cir. 2003). Third, an

affidavit may be stricken when it runs afoul of the requirement that summary judgment affidavits

be “made on personal knowledge,” that they “set forth facts as would be admissible in evidence,”

and that they “show affirmatively that the affiant is competent to testify to the matters set forth

therein.” Rule 56(e), Fed.R.Civ.P. Fourth, the Court may strike an affidavit or brief as a

sanction for noncompliance with court orders, violations of applicable rules, or other

misconduct. See, e.g., Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332, 1335

(11th Cir. 2002) (“Courts have the inherent authority to control the proceedings before them,

which includes the authority to impose "reasonable and appropriate" sanctions.”). None of these

circumstances apply here.

6 If the Court were to grant motions to strike in such circumstances, precious few

summary judgment briefs (including those submitted by CSA in this case) would emerge

-5-

majority of cases, the proper judicial response to a factually unsupported or legally defective

argument is simply not to credit it. The Court perceives no reason under the circumstances

presented here why the extraordinary measure of striking portions of English’s brief might be

appropriate. That defense counsel may disagree with plaintiff’s counsel’s statements is not a

proper justification for a Motion to Strike even if plaintiff’s counsel is wrong at every turn.5

Plaintiff’s counsel is entitled to make arguments in his brief, and to present his take on the record

evidence. If a defendant disputes the legitimacy of those arguments or their factual or logical

predicate, then its remedy is to file a reply brief (which defendant has done) explaining how

plaintiff is in error, not to file a motion seeking to blot the offending arguments from the record. 

The Court will not strike a portion of the plaintiff’s brief simply because an argument expressed

therein may suffer from a logical or factual defect.6

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 5 of 42
unscathed and unredacted. Surely no litigant should be silenced simply because his arguments

are incorrect, misguided or unpersuasive. In so contending, defendant stretches the motion to

strike vehicle well beyond its intended purposes.

7 Many of the contested passages relate to collateral matters that are not material to

CSA’s Motion for Summary Judgment. By instigating a host of evidentiary skirmishes about

ancillary issues, movant squanders the resources of both the litigants and the Court for no

obvious benefit. Of course, plaintiff shares responsibility for this inefficiency because he chose

to include so many peripheral details in English’s declaration. The net result is that the Court

has before it nearly 35 pages of briefing about a clutch of evidentiary issues, most of which will

have no impact on the summary judgment analysis regardless of how they are resolved here.

-6-

Accordingly, to the extent that the Motion to Strike attacks the summary judgment

arguments of plaintiff’s counsel, it is denied as overreaching and lacking in legal foundation.

B. Request to Strike Portions of Plaintiff’s Declaration.

Next, defendant’s Motion to Strike seeks to strike no fewer than ten (10) passages from

the Declaration of Rufus English (doc. 54, at Exh. D).7

First, CSA takes issue with English’s statement that “[h]istorically, company clerks have

been exclusively white” in the stevedoring industry in the Port of Mobile. (English Decl., at 4.) 

The Declaration documents a factual basis for this statement, to-wit: English’s observations in

his 20+ years of experience in the industry. The Court understands that CSA disagrees with

English and offers certain elaborating facts; however, CSA’s facts do not preclude English from

testifying about his experiences and observations. This objection is overruled.

Second, CSA objects to English’s statement that “I was to learn later that” a white

freelance clerk named George Bru had dropped his application for a regular clerk position in

1997 so that CSA’s predecessor “would do the right thing and hire [English as] their first black

clerk.” (English Decl., at 5.) This statement is obviously hearsay and is not subject to any of the

exceptions to the prohibition on admissibility of hearsay; besides, the circumstances of English’s

hiring many years before the events in question in this litigation have no bearing on the factual

and legal issues presented on summary judgment. This objection is sustained and the cited

sentence concerning Bru is stricken from the English Declaration.

Third, CSA contests English’s characterization of the “custom of the industry” as being

that if a company clerk is laid off for lack of business “you would be called back in the order of

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 6 of 42
8 Of course, this point is likely inconsequential. If English cannot synch up his

observations about the industry generally to CSA’s practices, and if CSA’s evidence is that its

practices on this front deviated from those which English ascribes to the industry, then English’s

testimony about what he saw other stevedoring companies do will have negligible probative

value. Besides, CSA has made no move to strike English’s analogous deposition testimony that

“[t]here is a past practice that if you only worked for CSA or any other company then you are the

first one to get called back.” (English Dep., at 112.) Hence, this evidence would be considered

on summary judgment, irrespective of defendant’s objection to this aspect of the declaration.

9 English made similar statements during his deposition, wherein he testified that

he was laid off as a company clerk “close in time” to when CSA commenced operations. 

(English Dep., at 66.) Accordingly, even if the Court were to strike this segment of English’s

declaration, the same testimony would come in through his deposition excerpt, as to which

defendant has lodged no objection.

10 Besides, in the next breath after protesting English’s assertion that he had been

laid off, CSA points to evidence that it had inadvertently excluded English from a July 2000

hiring list and had not added him until shortly before it began operations in mid-September 2000. 

-7-

your company seniority.” (English Decl., at 7.) According to CSA, this statement is hearsay and

it conflicts with CSA’s evidence. Again, English had spent more than two decades working in

the stevedoring industry in the Port of Mobile, including experience as president of the local

union for a time. Logic and common sense strongly suggest that such experience would give

him first-hand insights into the industry customs at the Port of Mobile concerning layoff and

recall of company clerks; therefore, while the Court cannot definitively resolve the question at

this stage, it appears likely that the challenged testimony can be reduced to admissible form at

trial once a bit more predicate is laid. Moreover, the existence of a discrepancy between

English’s testimony and that of CSA agents is obviously not a valid basis for striking the former. 

This objection is overruled.

8

Fourth, CSA protests English’s assertion that he “later learned that CSA claimed that it

had laid [him] off during the months of July to September, 2000.” (English Decl., at 7.)9 A CSA

summary judgment filing (that has since been modified) states that English “was laid off

sometime before mid-July 2000” and that “sometime before mid-September 20000 ... he returned

to his job as a CIS ‘company’ clerk.” (Doc. 45, Proposed Undisputed Facts and Conclusions of

Law, at 4.) As defendant presents and admits to facts not materially different from the evidence

which it seeks to have stricken, this objection is overruled as much ado about nothing.10

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 7 of 42
(Motion to Strike, at 7-8.) The terminology may be slightly different, but the fundamental point

remains the same, namely, that English was not initially identified for hire as a company clerk at

the time of the CSA transition in summer 2000.

11 Again, however, this statement would have no conceivable impact on the

summary judgment analysis even if it were considered. English has presented evidence of

inadequacies in his training by Harper. That evidence suffices to make his point as to why he

may have had problems in performing work on the Clipper Lines account in 2001. What English

may have heard about Harper’s allegedly selfish motivations has no visible nexus to the issues at

hand, such that both English’s reason for making the allegation and CSA’s basis for attacking it

are a mystery to the undersigned.

12 It is also a trivial point, given that testimony about what is customary in the

industry is unhelpful without evidence that CSA was bound by, abided by or adhered to such

customs. It is evidence concerning CSA’s practices, and not testimony about what others in the

industry may have done, that is significant for summary judgment purposes.

-8-

Fifth, CSA points to English’s contention that he learned that Pam Harper had trained

him inadequately on the Clipper Lines account so that CSA would keep her on the job. (English

Decl., at 7-8.) Plaintiff acknowledges (as he must) that this evidence is rank hearsay and offers

no indication that he can reduce it to admissible form at trial. Accordingly, this objection is

sustained and the sentence of English’s declaration in which he says he “later learned” that

Harper was training him incorrectly to secure a job-related benefit for herself is stricken.

11

Sixth, CSA takes issue with English’s assertions that another employee, John Hayes, was

called back as Assistant Chief Clerk in January 2002, that the Assistant Chief Clerk job had

never previously been filled because there was no need to fill it, that English was not considered

for the position, and that industry custom directed that he should have been offered the job. 

(English Decl., at 8.) CSA’s semantic quibble with English’s use of the term “called back”

rather than “rehired” (CSA’s preferred term) just three days after being laid off is not a colorable

basis for striking the testimony. CSA’s objection to English’s reference to industry custom is

likewise unfounded given his extensive first-hand experience and observations in that industry.12

And certainly English can testify that, to the best of his knowledge, the Assistant Chief Clerk

position had lain vacant for some time, that he was aware of no need to fill it, and that he was

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 8 of 42
13 The limitations of English’s first-hand knowledge on these points are obvious. 

Thus, if CSA wishes to present evidence of valid reasons (which were not shared with English)

for filling the Assistant Chief Clerk job at that time, or evidence that English was in fact

considered for the job (but was not so informed), that evidence could properly be weighed on

summary judgment because it would not conflict with English’s statement, which is confined to

information within his grasp.

14 The exact date on which English received such notice is of potentially critical

importance for the application of the 180-day limitations period to his ADEA and Title VII

claims arising out of the 2004 promotion decision. As such, this aspect of the Motion to Strike

actually does address a matter of some consequence to the summary judgment analysis.

-9-

never approached about the job.13 This multi-part objection reads far too much into English’s

statement and is overruled.

Seventh, CSA challenges English’s statement that the Union did not approve of Hayes’

hiring as Assistant Chief Clerk because the Union acts only through its membership or its

Executive Committee. (English Decl., at 9.) Although CSA maintains that English is not

competent to testify about this matter, surely a veteran Union member and past Union president

can testify as to his understanding of what steps the Union must follow to approve a hiring, and

his understanding of whether those steps were followed in a particular case. Besides, there is

abundant record evidence as to the Union’s actions before Hayes received the Assistant Chief

Clerk position. Such evidence is generally consistent with English’s understanding, so CSA’s

dissatisfaction with this aspect of the English Declaration will not meaningfully impact the

summary judgment record. (See Bowden Dep., at 94-97.) This objection is overruled.

Eighth, CSA invokes the “sham affidavit” rule to attack English’s statement that he first

learned on April 12, 2004 that the company clerk positions for which he had applied had been

filled by Forrest duBruyne and Gerry Givens.14 See McCormick v. City of Fort Lauderdale, 333

F.3d 1234, 1240 n.7 (11th Cir. 2003) (“Under the law of this Circuit, we may disregard an

affidavit submitted solely for the purpose of opposing a motion for summary judgment when that

affidavit is directly contradicted by deposition testimony.”). According to CSA, this portion of

English’s declaration “contradicts [his] unambiguous deposition testimony ..., his sworn answers

to interrogatories ..., and his own written grievance, all of which state that English was told by

Union Vice President Hayes on April 9, 2004 that duBruyne and Givens had been hired.” 

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 9 of 42
15 Another portion of English’s deposition which CSA cites in support of its “sham

affidavit” argument consists of a compound question and an ambiguous one-word response, towit:

“Q: Okay. So it is a correct statement, it was brought to your attention on Friday,

April 9th, that CSA Equipment had made the selection of the two company clerks,

and it goes on to complain both – you believe your race and age played a part,

right?

“A: Uh-huh (indicates affirmative).”

(English Dep., at 213-14.) It appears that English response refers to his belief that race and age

played a part, not to the April 9 date. In that same excerpt, English confirms that his written

grievance was changed to reflect a date of April 9, rather than April 19, on which he learned of

the hiring decision “[t]o correct that, yes.” (Id. at 214.) But he was never directly asked in that

excerpt whether April 9 was in fact the date on which he received that information. Thus, there

is no contradiction between this testimony and the Declaration.

-10-

(Motion to Strike, at 9.) In fact, however, none of those items so state. In the cited deposition

excerpt, English directly addressed this issue as follows:

“Q: Was it subsequent to April 9th that you learned that Mr. Given had been hired

over you?

“A: Subsequent to the 9th?

“Q: Yes.

“A: It was somewhere around the 9th that I learned that.”

(English Dep., at 285 (emphasis added).) Given this equivocal exchange, the Court cannot agree

with CSA that this testimony unambiguously states that he received this information on exactly

April 9.15 And the answers to interrogatories merely state that English learned of the hiring

decision “[s]everal days after [he] placed [his] application for either of the two positions.” 

(English Interrog. Resp., at #7.) Such an amorphous reference could apply to April 12 just as

easily as it could to April 9. Finally, the grievance itself is an unsworn document listing the date

April 19, which is crossed out and replaced with April 12, which is crossed out and replaced

with April 9. It is obviously not a clear, unambiguous sworn statement, as might trigger the

sham affidavit rule. In short, CSA overstates the facts by a substantial margin in characterizing

the April 12 date in English’s declaration as “contradict[ing], without explanation, previously

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 10 of 42
16 In so concluding, the Court notes that other documents in the record that long

predate English’s deposition testimony in this case lend support to the April 12 date. On

November 1, 2004, for instance, English signed an EEOC Charge of Discrimination declaring

under penalty of perjury that “On April 12, 2004, I learned that I was not hired for either of the

two positions.” (English Dep., at Exh. 19.) English’s deposition in this matter was not taken

until December 6, 2005. In another affidavit dated August 23, 2004, English averred that “[o]n

about April 9, 2004, I learned that the Employer had filled two Company Clerk positions.” 

(English Decl., at Exh. 2.) The “about” modifier provides just enough ambiguity to prevent

English’s declaration from being contradictory on this point. To make matters even more

confusing, plaintiff’s counsel inaccurately characterizes the August 2004 affidavit as stating that

“he first learned during the week of April 12, 2004 that he had not been given the position.” 

(Plaintiff’s Response (doc. 62), at 21.) Certainly there are enough layers of ambiguity and

confusion as to the actual date of notice that English’s present averment as to the April 12 notice

date cannot be stricken out of hand.

17 That said, this ruling in no way affects the summary judgment analysis. Plaintiff

did not purport to rely on the challenged statements of belief and assumptions as substantive

evidence of discrimination, but rather included them simply as background. Therefore, this

exclusion neither advantages CSA nor disadvantages English in any material respect.

-11-

given clear testimony.” (Motion to Strike, at 9.)16 It does no such thing. Defendant’s “sham

affidavit” objection is unfounded and is therefore overruled.

Ninth, CSA objects to a statement in the English Declaration that English did not believe

Givens was on the call out list, that he concluded Givens could have been selected over him only

if race discrimination was at work, and that he assumed CSA wanted to keep the clerk staff all

white. (English Decl., at 9.) Statements of speculation or personal belief are generally not

proper and are not considered on summary judgment. See, e.g., Pace v. Capobianco, 283 F.3d

1275, 1278-79 (11th Cir. 2002) (“an affidavit stating only that the affiant ‘believes’ a certain fact

exists is insufficient to defeat summary judgment by creating a genuine issue of fact about the

existence of that certain fact”); see also Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742

(11th Cir. 1996) ("For factual issues to be considered genuine, they must have a real basis in the

record."); Stagman v. Ryan, 176 F.3d 986, 995 (7th Cir. 1999) (explaining that statements that are

conclusory or based on conjecture do not satisfy Rule 56(e)). These statements plainly fall

within the zone of evidence proscribed by these authorities; therefore, the objection is sustained

and the three sentences on page 9 of the English Declaration beginning with phrase “I didn’t

believe” and ending with “company all white” are stricken.

17

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 11 of 42
18 Of course, English’s testimony on this point is bounded by the limitations of his

own personal knowledge. That English did not see the managers does not necessarily mean that

they were never there or that they never observed his work. If the CSA managers testify that

they personally observed English’s job performance, nothing in English’s declaration would

categorically refute such evidence or preclude its consideration on summary judgment.

19 The Court is mindful of its obligation under Rule 56 to construe the record,

including all evidence and factual inferences, in the light most favorable to the nonmoving party. 

See Lofton v. Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 

2004); Johnson v. Governor of State of Fla., 405 F.3d 1214, 1217 (11th Cir. 2005). Thus,

plaintiff’s evidence is taken as true and all justifiable inferences are drawn in his favor.

20 “Stevedoring” includes loading and unloading of ocean-going vessels and barges;

loading and unloading of cargo to and from railroad cars and trucks; checking and accounting for

cargo; and placing, checking and accounting for cargo in warehouse space. (Wilkins Decl., ¶ 3.)

-12-

Tenth, and finally, CSA insists that English must be speculating when he testifies that

certain CSA managers could not have observed his performance because they were housed in a

building located a mile from the docks where English worked and they never came down to the

docks to observe his work. (English Decl., at 10.) It is certainly not conjecture for English to

testify to his understanding of where the managers’ offices were located, how far that building

was from the docks, and whether he ever saw the managers at the docks while he was working. 

This objection is overruled.

18

III. Background Facts.19

A. Plaintiff’s Employment History in the Stevedoring Industry until 1997.

In 1980, plaintiff Rufus English began working as a “freelance clerk” for various

stevedoring companies at the Alabama State Docks at the Port of Mobile, Alabama. (English

Decl., at 2.)20 In that capacity, he did not work full-time at the docks; rather, his name was on a

“call out” list and he was contacted from time to time to perform clerking work for the

stevedoring companies. (Id.; English Dep., at 31, 34.) Freelance clerks are essentially day

laborers who are called out in order of seniority on a day-to-day, as-needed basis; by contrast,

company clerks are regular full-time employees who perform similar duties as freelance clerks,

but who have steady work with a particular company. (English Decl., at 4.) In performing this

work, English became a member of International Longshoreman’s Association, Local Union

1459 (the “Union”), which represents “clerks and checkers” and which had collective bargaining

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 12 of 42
21 English described bookman duties as including responsibility for overseeing pier

operations; determining how many clerks were needed; assigning tasks to clerks and supervising

their work in both vessel and terminal duties; communicating with cargo suppliers, shipping line

personnel and shipping line agents; laying out warehouse space; and tracking and maintaining

cargo inventory via computer. (English Decl., at 3.) That said, English characterized bookman

work as “not complicated” and stated that it “requires little more than a high school education

and the ability to read and impute [sic] data into a computer.” (Id. at 4.)

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agreements in place with various stevedoring companies during the time period at issue. 

(English Dep., at 30; Wilkins Decl., ¶¶ 2, 4.) At particular times, English held positions of

leadership within the Union, including the offices of secretary, treasurer, and president. (English

Dep., at 34-35.)

Freelance clerks typically perform duties that involve checking or tallying cargo that is

loaded or unloaded from vessels, delivered by or received from carriers, or placed in

warehouses. (Wilkins Decl., ¶ 12.) Sometimes freelance clerks will be assigned to

“bookman/clerk-in-charge” duties, which involve additional responsibilities in excess of checker

work, including completion of paperwork and direction of other clerks in the loading or

unloading of a vessel. (Id.) English’s freelance clerk assignments gradually increased and he

was assigned to work as “bookman/clerk-in-charge” from time to time. (English Decl., at 2-3.)21

From the late 1980s through 1997, English worked a variety of clerking jobs at the docks. 

The record reflects that he served as assistant bookman or bookman for several vessels during

this period, and that he worked as checker or bookman/clerk-in-charge on numerous piers at the

Port of Mobile. (English Decl., at 3.) As succinctly stated by English, “[t]here is no non

administrative clerking job on the pier that [he has] not performed.” (Id.) English frequently

performed bookman/clerk-in-charge duties during the 1990s. (Costell Decl., ¶ 7.) In completing

these duties, English never lost, damaged or misallocated cargo, and was never disciplined or

warned for poor job performance. (English Decl., at 4.)

B. English’s Work History from 1997 to 2002.

In February 1997, English was hired into a full-time job of company clerk (effectively a

promotion from the on-call freelance position he had held previously) by Cooper/T. Smith

Stevedoring Co., Inc. (“CTS”), which was a predecessor of defendant CSA Equipment

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 13 of 42
22 The record reflects that CSA was formed as a limited liability corporation in

1999, that CTS and Stevedoring Services of America (“SSA”) each own 50% of CSA, and that

CTS and SSA had previously performed unionized stevedoring work at the Port of Mobile in

their own names. (Wilkins Decl., ¶ 1.) CSA was the product of a merger or joint venture

between CTS and SSA. (English Dep., at 88.)

23 This testimony was corroborated by several sources. A 38-year veteran clerk in

the Port of Mobile averred that “English is the only African American that [he] observed

working as Regular Clerk for any of the of the stevedoring companies doing business in the Port

of Mobile.” (Costell Decl., ¶ 7.) Likewise, CSA Stevedoring Division Operations Manager

Bobby Smith testified that in the course of his involvement with certain predecessors of CSA

(namely, SSA and Ryan Walsh), he did not recall those companies ever hiring a black company

clerk in Mobile. (Smith Dep., at 53.) Smith also indicated that it “probably is the case” that

CSA had never had a black company clerk other than English, and that CTS and SSA had never

had black company clerks. (Id. at 202.) Incidentally, plaintiff’s copy of the Smith deposition

transcript is markedly different than defendant’s, and includes numerous typographical errors

and formatting problems. To avoid such distracting and potentially confusing errors, plaintiff’s

counsel is cautioned to use only official transcripts as exhibits in filings before this Court. More

generally, myriad exhibits submitted by plaintiff have been scanned inaccurately, with the result

that numerous seemingly random discrepancies arise between the original document and the

exhibit submitted. (Compare, e.g., Plaintiff’s Exh. F to English Dep. Exh. 6 or Plaintiff’s Exh.

D, at Exh. 1 to English Dep. Exh. 15; see also Plaintiffs’ Exhs. B, G, H, I, K, M, O, P, etc.) As

one of countless examples, the letterhead on Plaintiff’s Exhibit I includes such names as

“CMAB1-E5 J. Fleming” and “Canois X, Mcsdwan E QL3EN’.” Many of plaintiff’s exhibits

are replete with obvious errors apparently caused by his scanning methodology. Summary

judgment exhibits must be exact copies of the documents in question, not copies that have been

scrambled into incomprehensibility by a flawed reproduction or scanning technology. Plaintiff’s

counsel must implement whatever changes are necessary with his office technology to ensure

that these types of problems do not mar future filings.

24 English was nominally laid off from his company clerk job by CTS for a time in

early 2000; however, his day-to-day work was unchanged because CTS continued to call him in

to work on a daily basis as a freelance clerk. (English Dep., at 64-66; English Decl., at 6-7.)

-14-

Company, LLC (“CSA”). (English Dep., at 63; English Decl., at 4; Wilkins Decl., ¶ 1.)22

English, who at that time was the Union president, was the first black company clerk hired by

CTS, and prior to that time there were no black company clerks working for any of the Mobile

stevedoring companies, to the best of English’s knowledge. (English Decl., at 4-5.)23 As a

company clerk for CTS, English booked ships approximately once every two weeks, just as

CTS’s other company clerks did. (Id. at 5.) This working arrangement continued in largely

uninterrupted fashion until mid-2000. (Id. at 5-6; English Dep., at 63.)24

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 14 of 42
25 Prior to the merger, both CTS and SSA (the other merging entity) formed

transition companies and made certain non-union transition work available to their clerks. 

(Wilkins Decl., ¶ 5.) Defendant’s brief faults English for not “seiz[ing] the opportunity” to

perform lower paying, non-union transition work under this arrangement. (Defendant’s Brief, at

4 n.3.) In so doing, however, CSA disregards evidence that English did not perform transition

work because he “was pretty much regular” with CTS at that time, such that he had no “need to

go over there and work for less wages.” (English Dep., at 121.) Defendant’s apparent criticism

of English for not taking on lower-paying non-union transition work when he was already fully

engaged performing higher-paying union regular work is difficult to follow.

26 CSA Stevedoring Division Operations Manager Bobby Smith testified that

English’s name was initially left off the list simply because Smith did not know that English was

working for CTS as a company clerk at that time. (Smith Dep., at 36, 47.) English has come

forward with no evidence suggesting that this omission was anything other than an innocuous

oversight.

27 Defendant’s Memorandum describes these events as having occurred in midSeptember 2003. (See doc. 50, at 2.) The Court assumes that this date is a typographical error,

given the dearth of evidence to fix a date other than September 2000 for this event.

28 Hayes had worked for a subsidiary of SSA called Total Logistics Company

(“TLC”) during the transition period from 1998 through October 1, 2001. TLC was the arm of

SSA that performed stevedoring work. (Smith Dep., at 72.) When the transition period ended,

Hayes was hired by CSA as a company clerk and assumed bookman/clerk-in-charge duties for

the Clipper Line account. Prior to 1998, Hayes had worked at the Port of Mobile for an

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In the summer of 2000, the transformation of CTS into CSA took place, with CSA

commencing operations in September 2000.25 English’s name was omitted from a July 2000 list

of CTS company clerks to be hired by CSA; however, the omission was remedied in August

2000, and English’s name was added to the list. (Smith Dep., at 47; English Dep., at 67;

Plaintiff’s Exhs. F, G, I.)26 In September 2000, English began working for CSA as a company

clerk in the warehouse division. (English Decl., at 7.)27 However, English was no longer

assigned bookman responsibilities, but instead worked deliveries of wood pulp and steel by

truck. (Id.) On July 1, 2001, a published seniority list for CSA placed English tenth out of

eleven employees, with only Forrest duBruyne ranking below him. (Plaintiff’s Exh. K.)

In approximately October 2001, CSA assigned English to the Clipper Line account as

assistant bookman to an employee named John Hayes, who was not listed on CSA’s July 2001

seniority roster at all. (Id.)

28 Because his predecessor, Pam Harper (who had worked the Clipper

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 15 of 42
unrelated stevedoring company called Strachn Shipping. (English Decl., at 7.)

29 The Union’s membership and Executive Committee never formally approved of

the placement of Hayes into that position; indeed, the Union’s president, Michael Bowden,

acknowledged that Union members had not expressly consented to the hiring of Hayes. 

(Bowden Dep., at 93.) Instead, Bowden’s testimony was that he personally consented to the

hiring of Hayes for the Assistant Chief Clerk job, after consultation with the Union Vice

President, who was (coincidentally enough) Hayes himself. (Id. at 94-96.)

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Line in the transition), failed to train English on that account’s computer system, English

encountered some problems with data entry on that system. (Id. at 7-8.) Aside from that issue,

however, English found the Clipper Line to be no more difficult than any other line. (Id. at 8.) 

C. The January 2002 Employment Decisions.

CSA lost the Clipper Line account on December 31, 2001, at which time both English

and Hayes returned to the warehouse. (English Decl., at 8.) Just four days later, on January 4,

2002, CSA announced that it would “reduce [the] number of clerks according to company

seniority” because of the loss of the Clipper Line account, and that English, Forrest duBruyne,

and Hayes had been selected for layoff because they were “the three lowest personnel on this

list.” (English Dep., at Exh. 9; English Decl., at 8.) Both duBruyne (age 50 at that time) and

Hayes (age 41) are white, and younger than English. The announcement stated that “this

decision is based solely on economic conditions.” (English Dep., at Exh. 9.) As a result,

English continued working for CSA, albeit as a freelance clerk, a role he continued to perform

for CSA through the filing of this lawsuit in 2005. (English Decl., at 8; English Dep., at 126,

152.)

On January 7, 2002, a mere three days after laying off English, duBruyne and Hayes,

CSA rehired Hayes for the position of Assistant Chief Clerk. (English Dep., at Exh. 10.) The

Assistant Chief Clerk is responsible for assigning clerks to available work. (English Decl., at 8.) 

That position had been vacant during the first months of CSA’s operations before Hayes was

selected to fill it, and English was aware of no reason why CSA needed to fill the position at that

time. (Id.) Moreover, CSA never apprised English of the availability of the Assistant Chief

Clerk job and never invited him to apply, and it was weeks after the fact before English became

aware that Hayes had been hired for that slot. (Id.)

29

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 16 of 42
30 Smith conceded that he possessed only limited knowledge of English’s work

experience. Indeed, Smith testified that he did not know until this litigation that English had

ever performed bookman’s work, and also professed ignorance of his computer skills and

training. (Smith Dep., at 38, 175.)

31 There is an apparent tension in Smith’s testimony on this point. On the one hand,

he testified that a decision to “relocate one individual” would have been done by seniority. On

the other, he testified that Hayes could have been moved into the Assistant Chief Clerk job at

any time, without regard to seniority. (Smith Dep., at 162.) Plaintiff cites only the first of these

statements, and defendant cites only the second, with no one attempting to reconcile or explain

the two. The Court will resolve this inconsistency in plaintiff’s favor for summary judgment

purposes.

32 English cites Union president Bowden’s testimony for the proposition that the

meeting at which CSA selected Hayes as Assistant Chief Clerk “lasted seconds.” (Plaintiff’s

Brief, at 10.) But the cited passage refers to the March 2004 hiring decision, not the January

2002 hiring. (Bowden Dep., at 126.) Furthermore, it is a distortion of Bowden’s testimony to

characterize it as stating that the entire meeting lasted seconds; on the contrary, Bowden simply

said that his participation lasted seconds, as he walked in to the meeting, said who he thought the

best candidates were, and walked out. (Id.) Clearly, Bowden cannot testify as to how long the

other meeting participants, or CSA management generally, deliberated over the hiring decision

in his absence. The only evidence on that point is Smith’s testimony that the meeting for the

March 2004 hiring decision lasted 45 minutes, a far cry from mere seconds. (Smith Dep., at

213.)

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CSA Stevedoring Division Operations Manager Bobby Smith testified that Hayes was

tapped for the Assistant Chief Clerk position because he “was the best candidate, the best person

to fill the slot, because he had booking experience, he’s headed up piers in the past, he has great

working knowledge of cargoes, he has good communications skills with customers and other

employees, ... [and he is the] single best individual on overseeing other individuals under his

direction.” (Smith Dep., at 159.) Meanwhile, Smith testified, CSA did not feel that English

“could do as good a job” as Hayes in these areas. (Id.)30 Smith admitted that if CSA had done

the January 2002 layoffs and rehiring as one step instead of two (i.e., if one existing company

clerk was “relocated,” or if only two company clerks had been furloughed), that decision would

have been made by virtue of company seniority. (Id. at 160.)31 Because English had higher

company seniority than both DuBruyne and Hayes, Smith acknowledged, he would have kept his

job in that scenario. (Id.)

32

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 17 of 42
33 Givens confirmed English’s assessment of his seniority by testifying, “I’m so low

on the seniority list. I’m the bottom man in the union.” (Givens Dep., at 18.) Givens also

testified that from October 2003 through March 2004, he had been working for CSA as a

freelance clerk, but had received less than one call per month, totaling just four calls (two of

which he had missed because of pager problems) to come in and work. (Id. at 26-27.)

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D. The March 2004 Hiring Decisions.

On March 10, 2004, CSA informed the Union that it intended to hire two new company

clerks because of current and potential increases in CSA’s business at the Port of Mobile.

(English Dep., at Exh. 13.) CSA requested that the positions be posted for 10 working days to

allow Union members to apply in writing, and formally sought a list of interested candidates

from the Union. (Id.)

Five Union members applied for the two vacancies during the designated time period, towit: Anthony Costell (white, 56 years old), duBruyne (white, 52 years old), English (black, 58

years old), Paul Smith (white, 31 years old), and Gerry Givens (white, 46 years old). (English

Exh. Q; Holifield Decl., ¶ 5.) The Union forwarded all five names to CSA, and on March 31,

2004 CSA announced its selection of duBruyne and Givens for the subject positions, effective

April 5, 2004. (English Exh. R.) For his part, however, English did not learn that the positions

had been filled by two other applicants until April 12, 2004. (English Decl., at 9.) English was

upset with Givens’ selection, given his understanding that Givens “had very little waterfront

seniority and no company seniority,” and that “[e]xcept for a limited period in 2000-01 he had

worked sparingly on the docks.” (Id.)

33 In discovery responses, CSA stated that Givens was

hired, despite having less seniority than English, because “he had superior ability and

qualifications to perform traditional ‘bookman’ or ‘clerk-in-charge’ duties.” (CSA Interrog.

Resp., #14.) CSA also stated in discovery that it “did evaluate the skills and qualifications of the

three senior clerks on the promotion list, including Givens and English,” and concluded based on

that evaluation that Givens’ qualifications were superior. (CSA Resp. to Req. for Admissions, at

#13.) The decisionmaker, Operations Manager Smith, explained that he “thought Gerry Givens

was more self-motivated than Rufus English, dealt with customers problem solving and knew the

industry better. And not to say anything negative about Rufus, but that Gerry Givens was better

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 18 of 42
34 The record is clear that Smith had only “limited knowledge of [English]’s

capabilities” at the time of these hiring decisions. (Smith Dep., at 196.) Although Smith

testified that he did not know whether English could perform booking duties for Star Shipping or

Zim Line, he also acknowledged that none of the applicants had ever booked those lines. (Id. at

195, 197.) According to Smith, during the decisionmaking process Hayes “made the simple

statement he thought either one of them could do the job,” but CSA managers Tony Rogers,

Terry Roberts and Kenneth Hirsch all felt that Givens was the most qualified. (Id. at 214.) Of

those managers, Hirsch was most emphatic that Givens was the superior candidate, citing

favorable observations of Givens’ work but not offering a negative assessment of English. (Id. at

215-16.) Smith based his decision primarily on the recommendations and observations of

Rogers, Roberts and Hirsch. (Id. at 218.) English points out, however, that Smith, Roberts and

Hirsch worked in a building almost a mile from the docks, and that he never saw them come to

the docks to observe his performance. (English Decl., at 10.) 

35 In his brief, plaintiff cites to discovery responses completed by the Union which

allegedly offer a different slant on the decision to hire Givens. (Plaintiff’s Brief, at 17.) In

particular, plaintiff contends that the Union stated in discovery responses that Smith informed

Union president Mike Bowden that he (Smith) admired Givens for having accepted lower-paying

transition work under the TLC agreement, and that Smith had decided back in 2000 to hire

Givens if ever given the chance. (Id.) Unfortunately, this discovery response is not included in

the summary judgment record; therefore, it is not properly before the Court and cannot be

considered in resolving CSA’s Motion for Summary Judgment.

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qualified.” (Smith Dep., at 219.)34 When pressed about how Givens was more self-motivated or

had more industry knowledge or worked better with customers than English, Smith was unable

to provide specifics; however, Smith emphasized that he placed heavy weight on the

recommendations of CSA managers who had direct dealings with both men. (Id. at 221-23.)35

In addition to contesting Givens’ relative qualifications, English asserts that CSA’s

failure to hire him in March 2004 violated the “well known custom in the industry that it [sic]

you worked for one company, as company clerk, and there was a lay off due to loss of business,

you would be called back in the order of your company seniority. The company would call back

employees rather than hire new employees off the board.” (English Decl., at 7.) Plaintiff also

points to a July 13, 2000 letter in which CSA agreed “to work under port ‘past practices and

customs’ recognized by employers and both locals.” (Plaintiff’s Exh. F, at 2 (emphasis added).) 

However, plaintiff offers no evidence that this rehire custom might qualify as a “past practice or

custom” recognized as such by stevedoring companies and relevant union locals.

English filed a grievance with the Union to contest the hiring of Givens for the company

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 19 of 42
36 Defendant counters English’s testimony in this regard by submitting declarations

from five witnesses denying that Smith made any such statements during the meeting. (See CSA

Brief, at 16-17.) For summary judgment purposes, of course, the forceful denials and emphatic

protestations set forth in defendant’s proffered evidence are unhelpful because the record is

viewed in the light most favorable to the plaintiff.

37 The record is devoid of any indication that English ever filed EEOC Charges

pertaining to his 2002 layoff or his 2002 non-selection for the Assistant Chief Clerk post that

CSA awarded to Hayes. Rather, the October 2004 EEOC Charge appears to be English’s first

and only Charge relating to the issues raised in this litigation. (See Smith Supp. Decl., ¶ 1.)

38 Given that the 2004 hiring decision is the moving force behind this Complaint,

English’s subsequent hiring by CSA for that post may have profound implications for the scope

and level of damages that English might recover and may affect a jury’s perception as to whether

he has been wronged. Notwithstanding this potentially seismic development, all indications are

that the parties wish to move forward with this lawsuit; therefore, the Court will consider the

-20-

clerk position. (English Decl., at 10.) On the same day, English attended a grievance hearing at

which, he testified, Bobby Smith “said that CSA was looking at younger employees and he

didn’t hire Paul Smith because he was too young or something like that, he said. I’m not sure of

the facts.” (English Dep., at 207.) Upon further questioning, English confirmed that Smith had

“[m]ade the statement that CSA was looking for younger employees” during the May 2004

grievance hearing. (Id. at 208.)36 The grievance was ultimately denied.

On October 7, 2004, English filed a Charge of Discrimination with the Equal

Employment Opportunity Commission (“EEOC”) in which he declared under penalty of perjury

that he had applied for a regular clerk position, only to learn on April 12, 2004 that he had not

been selected. Based on these facts, English alleged that CSA had discriminated against him on

the basis of his race (black) and his age (58), in violation of Title VII and the ADEA. (English

Dep., at Exh. 19.)37 On March 2, 2005, the EEOC provided English with a Dismissal and Notice

of Suit Rights, and this Complaint ensued on May 27, 2005.

During the pendency of this litigation, CSA has elevated English to the position of

company clerk. The uncontroverted evidence is that defendant hired plaintiff as a company clerk

effective May 29, 2006. (Smith Supp. Decl., ¶ 3.) Thus, it appears that English has recently

been selected for, and is currently performing, the very job that he claims to have been

wrongfully denied for discriminatory reasons in 2004.38

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 20 of 42
Rule 56 motion, and leave the ramifications of the CSA’s May 2006 hiring decision for another

day.

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IV. Summary Judgment Standard.

Summary judgment should be granted only if “there is no issue as to any material fact

and the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). The

party seeking summary judgment bears “the initial burden to show the district court, by reference

to materials on file, that there are no genuine issues of material fact that should be decided at

trial.” Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). Once the moving party

has satisfied its responsibility, the burden shifts to the nonmovant to show the existence of a

genuine issue of material fact. Id. “If the nonmoving party fails to make 'a sufficient showing

on an essential element of her case with respect to which she has the burden of proof,' the

moving party is entitled to summary judgment.” Id. (quoting Celotex Corp. v. Catrett, 477 U.S.

317 (1986)) (footnote omitted). “In reviewing whether the nonmoving party has met its burden,

the court must stop short of weighing the evidence and making credibility determinations of the

truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable

inferences are to be drawn in his favor.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999

(11th Cir. 1992) (internal citations and quotations omitted). However, the mere existence of any

factual dispute will not automatically necessitate denial of a motion for summary judgment;

rather, only factual disputes that are material preclude entry of summary judgment. Lofton v.

Secretary of Dept. of Children and Family Services, 358 F.3d 804, 809 (11th Cir. 2004).

The Eleventh Circuit has expressly rejected the notion that summary judgment should

seldom be used in employment discrimination cases because they involve issues of motivation

and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11th Cir. 2004). Rather, “the

summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to

be placed on either side of the scale.” Id. at 1086 (citation omitted).

V. Legal Analysis.

In a nutshell, defendant’s position on summary judgment is that plaintiff’s Title VII and

ADEA claims are barred for failure to exhaust administrative remedies in a timely fashion, that

his § 1981 race discrimination claims fail for lack of evidence of pretext, and that his state law

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 21 of 42
39 Defendant concedes that English’s § 1981 claims of race discrimination arising

from the 2002 employment decisions “are timely because § 1981 has a four-year statue of

limitations under 28 U.S.C. § 1658.” (Defendant’s Brief, at 29 n.15.) The Court is not at all

convinced of the accuracy of this statement; indeed, a compelling argument might be made that

plaintiff’s § 1981 claims arising from the decision not to hire him as Assistant Chief Clerk in

January 2002 are subject to a two-year limitations period. See Jones v. R.R. Donnelley & Sons

Co., 541 U.S. 369, 124 S.Ct. 1836, 1845, 158 L.Ed.2d 645 (2004) (holding that § 1981 cause of

action is governed by the 4-year “catch-all” limitations period established by § 1658 only “if the

plaintiff's claim against the defendant was made possible by a post-1990 enactment” to § 1981);

Cooper v. Southern Co., 390 F.3d 695, 727 n.19 (11th Cir. 2004) (explaining Jones as holding

that claims made possible by amendment to § 1981 in Civil Rights Act of 1991 are governed by

4-year limitations period, while claims possible prior to that amendment remain subject to 2-year

limitations period); Patterson v. McLean Credit Union, 491 U.S. 164, 182, 185, 109 S.Ct. 2363

(1989) (showing that under pre-1991 version of § 1981, claims of race-based failure to hire were

actionable, and claims of race-based failure to promote were actionable if “the nature of the

change in position was such that it involved the opportunity to enter into a new contract with the

employer”). However, the Court will not articulate movant’s arguments for it, nor will it look

behind movant’s express concessions. The Court therefore assumes, without deciding, that

plaintiff’s § 1981 claims arising from the 2002 events were subject to a four-year limitations

period and are not time-barred.

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claim of outrage is legally insufficient as a matter of law.

A. Limitations Issues.

A plaintiff may not sue under Title VII or the ADEA unless he first exhausts

administrative remedies by filing a timely charge of discrimination with the EEOC. See

Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (Title VII); Jones v. Dillard’s,

Inc., 331 F.3d 1259, 1263 (11th Cir. 2003) (ADEA). In a non-deferral state such as Alabama, the

deadline for filing is 180 days after the alleged discriminatory act. See Ledbetter v. Goodyear

Tire and Rubber Co., 421 F.3d 1169, 1178 (11th Cir. 2005) (explaining that Alabama is a nondeferral state, such that only unlawful practices occurring within 180 days of the operative

EEOC charge can yield Title VII liability); Jones, 331 F.3d at 1263 (finding that in states

without state equivalent to EEOC, such as Alabama, ADEA requires charge to be filed within

180 days). Defendant maintains that English has failed to satisfy this threshold 180-day filing

requirement with respect to either his 2002 claims or his 2004 claims.

1. Title VII and ADEA Claims Regarding 2002 Personnel Decisions.39

As discussed supra, the parties are in agreement that English is pursuing race and age

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 22 of 42
40 Plaintiff did not even respond to CSA’s limitations/exhaustion argument as it

pertains to the 2002 events. Given such an obviously fatal procedural defect in those claims, it is

unclear why plaintiff brought such claims in the first place, and why he failed to withdraw them

upon discerning their insurmountable shortcomings in the limitations/exhaustion realm.

41 The summary judgment briefs submitted by both parties utilize footnotes whose

microscopic font size is substantially smaller than that of the text in the body of their briefs. In

so doing, the parties run afoul of Local Rule 5.1(a)(2), which provides that font sizes must not be

smaller than 12 point type. No special exceptions are provided for footnotes. Additionally,

plaintiff’s brief employs top and bottom margins that appear substantially smaller than the one

inch mandated by Local Rule 5.1(a)(1). Both tactics appear designed to shoehorn excessively

lengthy briefs into the existing page limitations for this District Court. Such techniques may

result in future filings being stricken. When counsel finds it impossible to comply with Local

Rule 7.1(b)’s published page limitations, the appropriate remedy is to seek leave and show cause

to exceed those limits, not to tinker with the formatting of the existing submission.

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discrimination claims under Title VII, the ADEA, and § 1981 arising from his layoff in January

2002 and CSA’s subsequent decision not to hire English for the Assistant Chief Clerk position,

also in January 2002. It is uncontroverted, however, that plaintiff never filed an EEOC Charge

of Discrimination pertaining to the alleged incidents of race and age discrimination in 2002. 

Accordingly, plaintiff’s Title VII and ADEA claims relating to the 2002 personnel decisions are

properly dismissed for failure to exhaust administrative remedies in a timely manner. See, e.g.,

Wilkerson, 270 F.3d at 1317 (“Before a potential plaintiff may sue for discrimination under Title

VII, she must first exhaust her administrative remedies.”).40 

2. Title VII and ADEA Claims Regarding 2004 Hiring Decision.

With regard to the 2004 company clerk positions, the timeliness issue is a bit different. It

is undisputed that plaintiff did in fact file an EEOC Charge on October 7, 2004 relating to CSA’s

failure to hire him as a company clerk. Defendant’s position is that the Charge was filed more

than 180 days after English was notified of his non-selection, rendering it untimely and barring

plaintiff’s Title VII and ADEA claims relating to that event. (Defendant’s Brief, at 29.)41

Certainly, there is evidence in the record that might support an inference that English learned

that he had been passed over for the company clerk job on April 9, 2004, or 181 days before he

filed his EEOC Charge. However, there is also credible evidence that English first received this

information on April 12, 2004, or 178 days before he filed the Charge. (See English Decl., at 9;

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 23 of 42
42 Both parties’ briefs rely exclusively on a McDonnell Douglas inferential analysis,

without performing a “direct evidence” analysis. Plaintiff’s decision not to argue direct evidence

is perhaps debatable. Given the record evidence that the CSA decision maker stated at a

grievance hearing following the 2004 hiring decision that “CSA was looking at younger

employees,” plaintiff might have formulated a colorable argument that this statement was direct

evidence of age discrimination. See, e.g., Wilson, 376 F.3d at 1086 (observing that direct

evidence of discrimination is “evidence that, if believed, proves the existence of a fact without

inference or presumption,” but is confined to “only the most blatant remarks”); Ferrill v. Parker

Group, Inc., 168 F.3d 468, 472 (11th Cir. 1999) (explaining that direct evidence of discrimination

shifts burden of persuasion to employer); Taylor v. Runyon, 175 F.3d 861, 867 n.2 (11th Cir.

1999) (pointing out that if trier of fact accepts direct evidence that defendant acted with

discriminatory motive, then ultimate issue of discrimination is proved). But plaintiff has

eschewed any direct evidence argument here. The Court will not unilaterally formulate, present,

and evaluate any such arguments that plaintiff could have made, but has elected not to make. 

See Pinto v. Universidad De Puerto Rico, 895 F.2d 18, 19 (1st Cir. 1990) (“the court is under no

duty to exercise imagination and conjure what a plaintiff might have alleged, but did not, and do

counsel's work for him or her”); Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th

Cir. 1995) (“[t]here is no burden upon the district court to distill every potential argument that

could be made based upon the materials before it on summary judgment”); Bowden ex rel.

Bowden v. Wal-Mart Stores, Inc., 124 F. Supp.2d 1228, 1236 (M.D. Ala. 2000) (“[i]t is not for

the court to manufacture arguments on Plaintiff’s behalf” in response to a summary judgment

motion). For these reasons, the Court will rely exclusively on the inferential mode of analysis,

just as the parties have done in their briefs.

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EEOC Charge, at 1.) The Court cannot definitively resolve this factual discrepancy at the Rule

56 stage. The record in the light most favorable to plaintiff supports a reasonable inference that

English first became aware that he had not been hired as a company clerk on April 12, 2004,

such that he filed his EEOC Charge within 180 days after acquiring that knowledge. 

Accordingly, the Motion for Summary Judgment is denied to the extent that it seeks to jettison

plaintiff’s Title VII and ADEA claims pertaining to the March 2004 hiring decision on

limitations or exhaustion grounds.

B. The McDonnell Douglas Burden-Shifting Framework.

Absent direct evidence of discrimination,42 English must make a showing of

circumstantial evidence which satisfies the test set forth in McDonnell Douglas Corp. v. Green,

411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Under this familiar, tripartite burdenshifting analysis, plaintiff is required to make out a prima facie case of race and age

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 24 of 42
43 English’s burden of establishing a prima facie case is not heavy. See Crapp v.

City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (“the prima facie requirement is not

an onerous one”); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998)

(plaintiff's “burden in proving a prima facie case is light”). 

44 Plaintiff’s brief bemoans the imprecision of the pretext requirement, arguing that

extant case law (despite its vast bulk, numerosity and volume) lends insufficient guidance to

litigants and district courts in delineating exactly what is sufficient to discharge a plaintiff’s

“pretext” burden. (Plaintiff’s Brief, at 29-30.) Whatever merit this withering theoretical critique

of the time-honored McDonnell Douglas test might have, it is not this Court’s place to

reformulate a legal standard that has been the cornerstone of Title VII jurisprudence in this

country for more than 30 years. Instead, this Court is constrained to apply the decisions handed

down by the Supreme Court and Eleventh Circuit, which unequivocally prescribe the McDonnell

Douglas pretext framework in these circumstances.

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discrimination.43 If he does so, that showing “creates a rebuttable presumption that the employer

acted illegally.” Underwood v. Perry County Com’n, 431 F.3d 788, 794 (11th Cir. 2005). At that

point, “the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for

[the adverse employment action]. ... If the employer does so, the burden shifts back to the

plaintiff to introduce significantly probative evidence showing that the asserted reason is merely

a pretext for discrimination.” Zaben v. Air Products & Chemicals, Inc., 129 F.3d 1453, 1457

(11th Cir. 1997) (citations omitted). A plaintiff may establish 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. County Com'n of Jefferson County, Ala., 446 F.3d 1160, 1163 (11th Cir. 2006)

(quotation omitted); see also Wilson, 376 F.3d at 1088 (similar). The ultimate burden of

persuasion remains with the plaintiff. See E.E.O.C. v. Joe’s Stone Crabs, Inc., 296 F.3d 1265,

1273 (11th Cir. 2002). Thus, “[i]f the plaintiff does not proffer sufficient evidence to create a

genuine issue of material fact regarding whether each of the defendant employer's articulated

reasons is pretextual, the employer is entitled to summary judgment.” Chapman v. AI Transport,

229 F.3d 1012, 1024-25 (11th Cir. 2000) (en banc).44

Here, English complains of race and age discrimination by CSA in hiring and layoff

decisions. To establish a prima facie case of discriminatory denial of promotion or failure to

hire under federal anti-discrimination statutes, a plaintiff must show that (i) he belongs to a racial

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 25 of 42
45 Certain of plaintiff’s discrimination claims sound in § 1981; however, the

substantive analysis for those claims is no different than it is for the Title VII and ADEA claims. 

Section 1981 prohibits intentional race discrimination in the making and enforcing of contracts,

and has been routinely extended to the employment context. See Jackson v. BellSouth

Telecommunications, 372 F.3d 1250, 1270 (11th Cir. 2004). Although § 1981 claims do not

share the exhaustion requirement of their Title VII counterparts, their elements are identical in a

disparate treatment case. The Eleventh Circuit has noted, “[b]oth of these statutes have the same

requirements of proof and use the same analytical framework.” Standard v. A.B.E.L. Services,

Inc., 161 F.3d 1318, 1330 (11th Cir. 1998); see also Cooper, 390 F.3d at 724 n.16 (“The

McDonnell Douglas framework for establishing a prima facie case is used in intentional

discrimination cases brought under either Title VII or Section 1981.”); Howard v. BP Oil Co., 32

F.3d 520, 524 n.2 (11th Cir. 1994) (explaining that the Title VII burden-shifting framework for

analyzing claims of discriminatory treatment also applies to § 1981 claims); Sanders v. City of

Montgomery, 319 F. Supp.2d 1296, 1311 (M.D. Ala. 2004) (“The legal analysis of claims of race

discrimination pursuant to either Section 1981 and Title VII is the same.”). This Court therefore

relies on the traditional Title VII framework to analyze plaintiff’s § 1981 claims, just as it does

in examining plaintiff’s Title VII and ADEA theories of recovery.

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minority (or is in the protected age class); (ii) he was qualified for and applied for a position the

employer was trying to fill; (iii) he was denied the position; and (iv) others who were not

members of the protected class (or who were substantially younger than plaintiff) were hired, or

the employer continued to seek applicants with the plaintiff's qualifications. See Vessels v.

Atlanta Independent School System, 408 F.3d 763, 768 (11th Cir. 2005); Underwood, 431 F.3d at

794; Wilson, 376 F.3d at 1089. “A plaintiff does not shift the burden to the defendant under

McDonnell Douglas merely by stating that he was fired or treated unfavorably. McDonnell

Douglas requires the plaintiff to establish a prima facie case which includes identifying an

individual who replaced him or was treated better than he was who was not a member of his

protected class.” Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1082 (11th Cir. 2005); see also

Underwood, 431 F.3d at 794 (finding that Title VII plaintiff in failure-to-hire context must show

that successful applicant was not within his protected class). “Only after the plaintiff has made

his prima facie case does the burden shift to the defendant.” Morris, 402 F.3d at 1082.45

C. The 2002 Layoff Decision.

English’s first discrimination claim is a § 1981 cause of action alleging that CSA laid

him off in January 2002 because of his race. CSA contends that plaintiff cannot establish a

prima facie case of discrimination on this claim and that, even if he could, CSA has articulated a

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 26 of 42
46 See, e.g., McGinley v. Houston, 361 F.3d 1328, 1331 (11th Cir. 2004) (observing

that “[a] circuit court’s decision binds the district courts sitting within its jurisdiction”); Arriaga

v. Florida Pacific Farms, L.L.C., 305 F.3d 1228, 1240 n.15 (11th Cir. 2002) (“decisions of the

Supreme Court and this court are binding on the district courts of this circuit”).

47 Defendant’s reply brief proffers no rebuttal to plaintiff’s reliance on Jameson to

demonstrate his ability to establish a prima facie case of race discrimination as to this claim.

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legitimate nondiscriminatory reason which plaintiff cannot show to be pretextual.

In the layoff context, the Eleventh Circuit has imposed an additional element, above and

beyond the standard requirements (all of which are clearly satisfied here) of showing protected

class, qualifications, and occurrence of an adverse employment action. To show a prima facie

case of race discrimination in a reduction in force setting, a plaintiff must also “produce some

evidence that an employer has not treated [race] neutrally, but has instead discriminated based

upon it. Specifically, the evidence must lead the factfinder reasonably to conclude either that the

defendant (1) consciously refused to consider retaining or relocating a plaintiff because of his

[race], or (2) regarded [race] as a negative factor in such consideration.” Rowell v. BellSouth

Corp., 433 F.3d 794, 798 (11th Cir. 2005) (citation omitted); see also Jameson v. Arrow Co., 75

F.3d 1528, 1532 (11th Cir. 1996) (similar). It is this last factor to which defendant’s summary

judgment argument is directed in the first instance.

To shoulder his burden on this point, English proffers two arguments. First, he

acknowledges that Rowell “is a correct statement of current Eleventh Circuit jurisprudence,” but

urges this Court to “jettison” its formulation of the prima facie case as inconsistent with other

authorities. (Plaintiff’s Brief, at 22.) This the Court cannot and will not do.46 Second, plaintiff

likens this case to Jameson, in which the Eleventh Circuit held that an inference of

discrimination was permissible and the prima facie elements were satisfied where the employer

failed to hire the plaintiff into available vacancies during a reduction in force, but instead hired

persons outside the protected class to fill those slots. 75 F.3d at 1532-33.47 The analogy is apt,

as English’s evidence is that CSA engaged in the same kind of process (i.e., laying off a

protected class worker and simultaneously hiring a comparable non-protected class worker into

another position) that was found to satisfy the prima facie test in Jameson. As such, plaintiff has

satisfied his prima facie obligations with respect to the 2002 layoff, and the burden of production

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 27 of 42
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therefore shifts to CSA to come forward with a legitimate nondiscriminatory reason for its

decision to lay off English.

Defendant responds that English was laid off because of the loss of Clipper Lines, a

significant account on which English was working full-time in the fourth quarter of 2001, as a

customer to a non-union stevedore effective January 1, 2002. (Hirsch Decl., ¶ 14.) When the

Clipper Lines business was lost, the overall level of CSA’s work declined, prompting CSA to

release three company clerks. (Id., ¶¶ 15-16.) Having chosen to conduct a small reduction in

force, CSA turned to its Working Agreement with the Union for the proper procedures shaping

execution of that decision. (Id., ¶ 15.) Under that Agreement, “[c]ompany seniority shall

determine the order of layoff of regular clerks under the principal [sic] of ‘last in, first out.’”

(English Dep., at Exh. 2, ¶ 7(e)(2).) To satisfy its contractual obligations to the Union, then,

defendant was bound to carry out the layoff by terminating the three company clerks with the

least company seniority. (Hirsch Decl., ¶ 15.) In order of seniority (from most to least senior),

CSA employees English, Forrest duBruyne and John Hayes were the three least senior company

clerks at that time, so they were designated for layoff. (Id.) This showing plainly satisfies

defendant’s burden of production.

Defendant having met its burden, “the employee must come forward with evidence

sufficient to permit a reasonable fact finder to conclude that the legitimate reasons given by the

employer were not its true reasons, but were a pretext for discrimination.” Vessels, 408 F.3d at

771. “This evidence must reveal such weaknesses, implausibilities, inconsistencies,

incoherencies or contradictions in the employer's proffered legitimate reasons for its actions that

a reasonable factfinder could find them unworthy of credence.” Id. (citations omitted). 

Plaintiff’s pretext argument is not delineated with as much clarity as one might hope; however,

he apparently challenges the need to conduct a layoff at all in January 2002 (Plaintiff’s Brief, at

9), and further argues that the parties’ history (e.g., initially leaving English’s name off the July

2000 hire list, not assigning English bookman duties that he had performed previously, not

giving English adequate training on the Clipper Lines computer system, not hiring a black

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 28 of 42
48 Smith testified that CSA had concluded that, even though Howze had more

company seniority for the position in 2000, CSA had elected to hire another applicant whom it

deemed the “best qualified person for the job.” (Smith Dep., at 90-91.) English has proffered no

evidence tending to undermine CSA’s explanation or to show that defendant was motivated by

race discrimination in not hiring Howze in 2000.

49 The gravamen of plaintiff’s pretext argument appears to be that the layoff was a

ruse because it was performed in conjunction with the immediate rehire of one of the laid-off

white employees (Hayes) as Assistant Chief Clerk. By simply shuffling Hayes from one job to

another, plaintiff argues, CSA exposed this RIF as really a layoff of two people, not three. Had

the two-person layoff been performed without the subterfuge of layoff-and-rehire, plaintiff

maintains, English would have kept his job because he was higher on the seniority list than both

Hayes and duBruyne. (Plaintiff’s Brief, at 9, 28-29.) Had Hayes been immediately rehired into

the same job (company clerk), this contention might hold allure. But Hayes was rehired into a

different job, Assistant Chief Clerk, whose duties were different than those of a company clerk

because they involved “primary responsibility for the hiring and placement of clerks in

warehouse operations.” (See Hirsch Decl., ¶ 16; Hayes Decl., ¶ 5; Roberts Decl., ¶ 5.) CSA

decided to fill the Assistant Chief Clerk position in January 2002, after three months of

operations and despite its business downturn, because it determined that doing so “made

operational sense in the long run.” (Hirsch Decl., ¶ 16.) Contrary to English’s contention, the

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employee named Carlis Howze in 2000)48 establishes that the January 2002 layoff was part of a

lengthy sequence of discriminatory actions directed at English. (Id. at 28-29.)

CSA’s decision to lay off three company clerks in January 2002 was a business decision

following close on the heels of the loss of an account. As a general proposition, a plaintiff

cannot establish pretext simply by disputing the wisdom of that business decision. See Rowell,

433 F.3d at 798-99 (explaining that “[i]t is by now axiomatic that we cannot second-guess the

business decisions of an employer”); Chapman, 229 F.3d at 1030 (in showing pretext,

“employee cannot succeed by simply quarreling with the wisdom of that reason”). The

uncontroverted evidence is that CSA lost an account, that it immediately decided to trim its ranks

of company clerks by three, and that it executed that decision in strict compliance with the

applicable collective bargaining agreement. Any contention by plaintiff that no layoff was

necessary, that fewer than three company clerks should have been released, or that the layoff

should have been conducted in a manner other than that prescribed by the collective bargaining

agreement is just the sort of armchair-quarterbacking which the Eleventh Circuit has steadfastly

refused to indulge in the context of the pretext analysis.49 Likewise, plaintiff’s argument that at

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 29 of 42
ranks of CSA’s company clerks fell by three, not two, in January 2002. As such, there is no

evidence to support plaintiff’s insistence that CSA “only laid off two” company clerks in January

2002. (Plaintiff’s Brief, at 28.) Far from being a bait-and-switch, the only evidence before the

Court is that the January 2002 layoff was a bona fide effort to reduce the number of company

clerks on CSA’s payroll following a decline in business, while the hiring of an Assistant Chief

Clerk was a separate decision designed to promote CSA’s long-range objectives.

50 After admitting that English has satisfied his prima facie burden, CSA drops a

footnote to argue that plaintiff has not done so because he did not satisfy CSA’s qualifications

for the job. (See Defendant’s Brief, at 23 n.12.) For starters, this argument clashes with

defendant’s stated position in the body of the brief. Furthermore, the Court is aware of no

evidence – and defendant cites to none – that CSA deemed English unqualified for the Assistant

Chief Clerk job. At most, the evidence is that CSA found English not to be the most qualified

candidate, not that he was unqualified in some absolute sense. Such backtracking on a minor

point, where the record does not support doing so, serves only to muddy the waters.

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other times in other places CSA has treated black employees less favorably is unpersuasive

because it rests on perceived slights that were promptly corrected (e.g., the exclusion of English

from the July 2000 hire list), business decisions pertaining to assignment and allocation of labor

(e.g., the relative non-use of English as a bookman), or employment decisions pertaining to other

workers whose circumstances are attenuated from those at issue here.

“[T]o avoid summary judgment [the plaintiff] must introduce significantly probative

evidence showing that the asserted reason is merely a pretext for discrimination.” Clark v. Coats

& Clark, Inc., 990 F.2d 1217, 1228 (11th Cir.1993) (citation omitted). Considering plaintiff’s

pretext evidence and arguments in their entirety, the undersigned is of the opinion that English

has failed to meet this burden as to the January 2002 reduction in force. Accordingly,

defendant’s Motion for Summary Judgment is granted as to the § 1981 claim arising from the

2002 layoff.

D. The 2002 Assistant Chief Clerk Hiring Decision.

Plaintiff’s next claim is a § 1981 race discrimination cause of action arising from CSA’s

decision to hire Hayes, and not English, for the Assistant Chief Clerk position. Defendant

correctly concedes that plaintiff has produced sufficient evidence to establish a prima facie case

(Defendant’s Brief, at 22);50 therefore, the Court will move straight to the second and third steps

of the McDonnell Douglas analysis.

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 30 of 42
51 This explanation was echoed by other CSA officials. Chief Clerk Terry Roberts

recommended Hayes for the job because he was “the most versatile and skilled bookman / clerkin-charge of all those on the seniority list.” (Roberts Decl., ¶ 5.) Roberts deemed Hayes “the

best bookman/clerk-in-charge for CSA” by virtue of his “superior skills and initiative” and his

“exceptional” organizational and leadership skills. (Id., ¶ 2.) Tony Rogers, who was CSA’s

General Stevedoring Superintendent at that time, similarly recommended Hayes because Rogers

“believed his skills as a bookman/clerk-in-charge, work ethic and initiative surpassed all other

available clerks.” (Rogers Decl., ¶ 3.) CSA’s Warehouse Operations Manager, Kenny Hirsch,

was personally familiar with Hayes’ work on the Clipper Lines account in the fall of 2001 as

well as his work for TLC previously, and found that Hayes “had demonstrated exceptional skill

as a bookman/clerk-in-charge,” had “demonstrated his ability to communicate with shippers,

shipping agents and suppliers” and “had demonstrated superior ability to direct the work of other

clerks.” (Hirsch Decl., ¶ 17.)

52 In that regard, Hirsch averred that he had observed English’s work on the Clipper

Lines account in fall 2001. (Hirsch Decl., ¶ 13.) In the course of those observations, Hirsch

found that English “was unable to perform satisfactorily the work” assigned to him, that he

performed “very little” bookman/clerk-in-charge work, and that English did not appear to have

“near the skill, capabilities and initiative as a bookman/clerk-in-charge that John Hayes

possessed.” (Id., ¶¶ 13, 14, 18.)

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Defendant explains its decision not to hire English as Assistant Chief Clerk in the

following terms: The Working Agreement between CSA and the Union authorized CSA to select

an Assistant Chief Clerk “with the consent of the Union without regard to seniority.” (English

Dep., at Exh. 2, ¶ 7(a).) Being at liberty to select anyone they wished, so long as the Union

consented, and not being bound by seniority, CSA managers decided to hire Hayes, based on

their assessment that “he had booking experience, he’s headed up piers in the past, he has great

working knowledge of cargoes, he has good communications skills with customers and other

employees,” and he is the “single best individual on overseeing other individuals under his

direction.” (Smith Dep., at 159.)51 After consultation among those managers, CSA elected not

to hire English for this job because its assessment was that he did not rank as highly on those

indices as did Hayes. (Id.)

52 This evidence certainly establishes a legitimate nondiscriminatory

reason for the personnel decision at issue.

Again, plaintiff’s pretext argument is largely camouflaged within his brief; however, the

Court understands his position to be that CSA’s qualifications-based explanation for hiring

Hayes is pretextual because (a) English had far more company seniority than Hayes; and (b)

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 31 of 42
53 Plaintiff also asserts that the Union never properly consented to Hayes’ hire. 

There is record evidence to support that statement. However, such an irregularity reflects poorly

on the Union (which unquestionably received notice from CSA of Hayes’ proposed selection),

and does not evince wrongdoing by CSA, which did everything it was required to do under the

Working Agreement by submitting Hayes’ name to the Union for consent purposes.

54 The Court understands that English has stated that Hirsch, Roberts and Smith

could not have observed his job performance because their offices were located a mile from the

docks and they never came down to the docks, to his knowledge. (English Decl., at 10.) 

English’s suggestion that he worked for CSA without any of its managers knowing what he was

doing or how well he was doing it is implausible to the extreme. More fundamentally, it is not

supported by the facts. Hirsch’s assessment of English’s job performance is based specifically

on his personal observations. (Hirsch Decl., ¶ 18.) This statement may readily be reconciled

with English’s averment that he was unaware of CSA managers ever observing him on the

docks. After all, it is eminently logical that Hirsch could have observed English’s work without

the latter’s knowledge. There is no evidence that Hirsch was obliged to notify English before

observing his work, or that English was aware of every single person who came down to the

docks while he was on duty. Besides, Hirsch’s assessment of English’s performance was not

confined to his dockwork in fall 2001, but also included his performance in warehouse

operations for CSA beginning in late July 2000. (Hirsch Decl., ¶ 18.) Surely Hirsch, as CSA’s

Warehouse Operations Manager in 2000, had occasion to observe the performance of workers in

CSA’s warehouse operations in the summer of 2000. Likewise, the Court credits the averment

of Terry Roberts, CSA’s Chief Clerk, that Roberts had occasion to personally observe English’s

performance as a clerk for CSA (when he was effectively under Roberts’ supervision) in 2000

and 2001. (Roberts Decl., ¶¶ 3-4.) Thus, under any rational reading of the record, CSA

managers had observed English’s job performance to some degree as of January 2002.

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CSA decision makers had only limited familiarity with English’s job performance.53 The former

point is irrelevant, because the uncontroverted evidence is that CSA did not (and was not

required to) base its hiring decision on company seniority. It being undisputed that seniority was

not a selection criterion, the relative standing of English and Hayes on that factor is of no

consequence. See Cofield v. Gold Kist, Inc., 267 F.3d 1264, 1269 (11th Cir. 2001) (declining to

second-guess employer’s decision to rely on qualifications rather than length of service in

making personnel decision, inasmuch as courts do not sit as super-personnel departments to reexamine business decisions).

As for the latter point, the record viewed in the light most favorable to the plaintiff is that

CSA management observed both Hayes and English in the performance of their duties for CSA

in the fall of 2001. (See, e.g., Hirsch Decl., ¶¶ 14, 17, 18.)54 Plaintiff may feel that he was more

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 32 of 42
55 The Ash decision discredited the “jump off the page and slap you in the face”

standard for showing pretext based on differences in qualifications, which the Eleventh Circuit

had long embraced. See, e.g., Wilson, 376 F.3d at 1090 (to show pretext, plaintiff must “adduce

evidence that the disparity in qualifications was so apparent as virtually to jump off the page and

slap you in the face”) (citation omitted). The Ash Court denounced this standard in acidic terms,

opining that “[t]he visual image of words jumping off the page to slap you (presumably a court)

in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext from

superior qualifications.” Ash, 126 S.Ct. at 1197. Not surprisingly, on remand, the Eleventh

Circuit implicitly disavowed the “jump off the page” test in favor of the formulation recounted

by the Supreme Court, and by more recent Eleventh Circuit decisions, both published and

unpublished. See Ash v. Tyson Foods, Inc., 2006 WL 2219749, *3 (11th Cir. Aug. 2, 2006).

-33-

qualified than Hayes. He may think that the hiring decision should have been founded on

seniority, rather than subjective factors. He may believe that it was unfair for the company not

to hire him when it had engaged in only limited appraisal of his abilities. He may believe that

the company’s glowing assessment of Hayes’ qualifications is just plain wrong. But such

subjective beliefs do not satisfy a plaintiff’s burden of establishing pretext. A plaintiff “cannot

prove pretext by asserting baldly that she was better qualified than the person who received the

position at issue.” Wilson, 376 F.3d at 1090; see also Brooks, 446 F.3d at 1163 (similar). 

Instead, for a plaintiff to satisfy pretext based on relative qualifications, the “disparities in

qualifications must be of such weight and significance that no reasonable person, in the exercise

of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in

question.” Ash v. Tyson Foods, Inc., --- U.S. ----, 126 S.Ct. 1195, 1197, 163 L.Ed.2d 1053

(2006);55 see also Cooper v. Southern Co., 390 F.3d 695, 732 (11th Cir. 2004) (same). English

clearly has not satisfied that threshold. Nor does it suffice to demonstrate pretext for English to

argue that CSA’s decision was unwise or unfair because CSA should have conducted further

evaluation of his job performance first. See Pennington v. City of Huntsville, 261 F.3d 1262,

1267 (11th Cir. 2001) (“a plaintiff employee may not establish that an employer's proffered

reason is pretextual merely by questioning the wisdom of the employer's reason,” as long as “the

reason is one that might motivate a reasonable employer”); Damon v. Fleming Supermarkets of

Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999) (“We are not in the business of adjudging

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 33 of 42
56 English also appears to be resting his pretext argument on myriad facts relating to

the history of CSA and the employment history of English, such as: (a) the dearth of black

company clerks at CSA; (b) the allegedly wrongful hiring decision as to Howze in 2000; (c) the

omission of English’s name from the July 2000 hire list; (d) CSA’s failure to assign English to

bookman work on a frequent basis; and (e) the lack of training English received on the Clipper

Lines account. The Court has afforded appropriate weight and consideration to each of these

factors, as well as those discussed supra, in assessing plaintiff’s showing of pretext.

57 To be clear, CSA filled two company clerk vacancies in March 2004. The first

was for a “checker” job, and was filled by Forrest duBruyne (a white employee who is younger

than plaintiff), the most senior eligible applicant. Plaintiff does not claim that he should have

been hired for this job, or that his non-selection was the product of unlawful discrimination. The

second company clerk vacancy was for a “bookman” job, and was filled by Gerry Givens. It is

that second hiring decision which is in dispute here.

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whether employment decisions are prudent or fair.”).56

“The heart of the pretext inquiry is not whether the employee agrees with the reasons that

the employer gives for the discharge, but whether the employer really was motivated by those

reasons.” Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1333 (11th Cir. 1998). After

careful review of plaintiff’s evidence and arguments, the Court finds that no reasonable

factfinder could conclude that CSA’s stated reasons for selecting Hayes as Assistant Chief Clerk

were not the true reasons and that race discrimination was the real reason. The uncontroverted

evidence is that CSA managers unanimously evaluated Hayes as an outstanding performer in the

various competencies valued in an Assistant Chief Clerk, and that based on limited observations

those same managers did not rank English as highly. On this record, a reasonable fact finder

could not find that CSA’s qualifications assessments were not made honestly and in good faith or

that CSA’s stated reasons are otherwise unworthy of credence. Because English is unable to

satisfy the third prong of the McDonnell Douglas test, his § 1981 claim arising from the January

2002 decision not to hire him as Assistant Chief Clerk is due to be, and the same hereby is,

dismissed.

E. The 2004 Company Clerk Hiring Decision.

Plaintiff’s final federal claim alleges race and age discrimination pursuant to Title VII, §

1981, and ADEA with respect to defendant’s decision not to hire him for a company clerk

position in March 2004.57 Once again, defendant properly acknowledges that plaintiff has

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58 Any suggestion that English was not qualified for the company clerk jobs would

be doomed, given that he had amassed substantial experience as a company clerk (including both

checker and bookman duties) during his two decades of experience. More importantly, CSA’s

Assistant Chief Clerk, John Hayes, stated at the March 2004 hiring meeting that either English or

Gerry Givens could perform the company clerk duties. (Smith Dep., at 213.) Hayes “made the

simple statement he thought either one of them could do the job,” and Smith had no reason to

disagree. (Id. at 214.) The record in the light most favorable to plaintiff clearly shows that he

was qualified for the March 2004 position that was awarded to Givens.

59 Because Smith himself had limited knowledge of the performance of Givens and

English, he based his hiring decision primarily on the observations and recommendations of

other meeting attendees. (Smith Dep., at 218.)

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established a prima facie case of discrimination as to this cause of action. (Defendant’s Brief, at

27.)58 There being no dispute as to whether a prima facie showing has been made, this analysis

focuses on defendant’s stated reason for the decision, and plaintiff’s ability to demonstrate that

such reason was a pretext for unlawful discrimination.

According to defendant, the selection process for the 2004 company clerk hiring was

governed by the collective bargaining agreement between CSA and the Union. The operative

Working Agreement delineates the following three-step process for selection of new company

clerks: (a) CSA informs the Union of its need and requests applications from persons on the

seniority list; (b) applicants may be eliminated for just cause; and (c) CSA “may select any one

of the three (3) remaining senior-most applicants.” (English Dep., at Exh. 3, ¶ 7(e)(4).) The

three senior-most applicants for the company clerk job who were not disqualified for just cause

were, in order of decreasing company seniority, English (black, 59 years old), Paul Smith (white,

31 years old), and Gerry Givens (white, 46 years old). Although Givens had the least seniority

of these candidates, CSA management determined that he was the most qualified person for the

job. At a 45-minute meeting, Hirsch, Rogers and Roberts all recommended to Smith that Givens

be selected over English. (Smith Dep., at 214-16.)59 None of these managers criticized

English’s job performance or qualifications; however, the prevailing sentiment was that Givens

was more self-motivated than English, was more proficient at dealing with customers and

problem-solving, and had better knowledge of the industry. (Id. at 216-19.) In particular,

Givens was lauded for his performance on the Clipper Line account during the transition period

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60 A particularly glowing endorsement of Givens came from Hirsch, who had

observed Givens’ work on the Clipper Lines account, and found him to have performed his

duties exceptionally well and to have demonstrated a great deal of initiative and motivation. 

(Hirsch Decl., ¶ 10.) In Hirsch’s eyes, Givens “demonstrated excellent communication skills in

dealing with customer representatives, suppliers and shipping agents, and he exhibited a great

deal of initiative in organizing, taking control of and performing all aspects of a difficult piece of

work. He worked well with others and did an excellent job directing other clerks.” (Id., ¶ 11.) 

Hirsch indicated that he had “personally witnessed Givens take control of a difficult carrier and

successfully fulfill the customer’s requirements.” (Id., ¶ 12.) This skill set was deemed

particularly desirable for the new company clerk position, which would require the employee “to

perform bookman/clerk-in-charge duties for various shippers at various piers at various times”

and would therefore place a premium on “the ability to adapt quickly to various shippers’

requirements.” (Id., ¶ 21.)

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of fall 2000 through fall 2001, and was deemed to have done an excellent job in handling a very

difficult account. (Id. at 225.)60 By contrast, the CSA decisionmakers viewed English as a

“capable clerk,” but one who had neither distinguished himself nor demonstrated the skill,

initiative and ability that Givens had shown as bookman/clerk-in-charge on the Clipper Lines

account. (Hirsch Decl., ¶ 13; Roberts Decl., ¶ 3.) In Hirsch’s words, Givens was considered to

be “heads and shoulders above” the other two applicants, English and Paul Smith (who was

white and younger than both Givens and English). (Hirsch Decl., ¶ 22.) CSA plainly has

produced evidence of a legitimate nondiscriminatory reason for the contested hiring decision.

Yet again, it is a struggle to glean plaintiff’s pretext argument from his 30-page

memorandum of law. Among the apparent bases for English’s pretext claim which the Court has

plucked from scattered locations in his brief are the following: (a) Smith’s lack of knowledge of

English’s bookman experience and skills; (b) English’s higher seniority level than Givens, the

self-professed “bottom man in the union”; (c) CSA’s alleged lack of knowledge of Givens’

bookman work on the Clipper Line account, and Hirsch’s reliance on hearsay in evaluating

Givens’ work; (d) the violation of English’s alleged recall rights by hiring Givens; (e) Smith’s

alleged comment at the grievance hearing regarding younger employees; and (f) CSA’s history

with respect to black employees generally, and English specifically. (Plaintiff’s Brief, at 10, 13,

18, 23, 26-29.) Considered individually and collectively, these contentions do not furnish the

requisite “significantly probative evidence showing that the asserted reason is merely a pretext

for discrimination.” Clark, 990 F.2d at 1228.

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61 That Hirsch also references information he had received about Givens from third

parties is in no way is suggestive of pretext, nor is it disqualified as hearsay. If Hirsch heard

from others that Givens was an exceptional performer, and if he relied on that information in

recommending Givens for hire, then the information in question is not hearsay because it is not

being offered for its truth (i.e., that Givens was in fact an exceptional performer), but instead to

show Hirsch’s state of mind (i.e., his good-faith belief that Givens was an exceptional

performer). It is Hirsch’s subjective understanding, and not whether Givens was actually a

superb worker, that is relevant to the pretext analysis. It is not a violation of Title VII, § 1981, or

the ADEA for an employer to err in its assessment of a worker’s skills and abilities.

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Plaintiff’s assertion that CSA managers lacked personal knowledge of English’s and

Givens’ respective skills and abilities is unsupported by the evidence, and is in fact directly

contradicted by the well-developed record on summary judgment. Smith’s relative lack of

personal knowledge on this topic is unremarkable, given his testimony that he relied on the

recommendations and observations of other managers in making the hiring decision. (Smith

Decl., ¶ 2; Hirsch Decl., ¶ 22.) And Hirsch’s Declaration expressly avows personal knowledge

of the work of both Givens and English. (Hirsch Decl., ¶¶ 10, 12, 13.)61 English may wish that

CSA had researched the applicants further before making this hiring decision. Perhaps it would

have been prudent or advisable for CSA to do so; however, this Court is not here to decide

whether defendant’s decision to hire Givens was wise or prudent, or whether he had been

sufficiently vetted before that hiring decision was made. See Chapman, 229 F.3d at 1030 (one

“reasonably may disagree about whether an employer acted correctly or fairly, but such potential

disagreement does not, without more, create a basis to disbelieve the employer’s explanation”).

Likewise, plaintiff’s argument that he was more qualified than Givens because he

possessed more seniority than Givens in no way signifies pretext. CSA’s unchallenged evidence

is that the hiring decision in question was not based on straight seniority, and that seniority was

“not as significant as demonstrated job performance with regard to bookman/clerk-in-charge

jobs.” (Hirsch Decl., ¶ 23; Smith Decl., ¶ 2.) English may well disagree with CSA’s relative

weighting of seniority and performance in the hiring calculus, but such disagreement, without

more, cannot demonstrate pretext. See Cofield, 267 F.3d at 1269 (refusing to second-guess

employer’s decision to emphasize qualifications over length of service).

On the topic of recall rights, English contends that there was an industry practice under

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62 Union president Mike Bowden’s testimony on this subject is particularly

illuminating in establishing that CSA did not observe such recall rights. Bowden testified as

follows:

“Q: Has CSA ever called back anyone?

“A: No.

***

“Q: Nobody has ever been called back?

“A: Never.

“Q: As far as you know?

“A: As far as I know.

“Q: Do you know of any policy concerning callbacks?

“A: We don’t have it in our contract, any policy as far as being laid off and being

called back, no.

“Q: So if somebody said there was a callback policy, they would be mistaken?

“A: Yes. There is in other unions but not in ours.”

(Bowden Dep., at 25-26.) As far as the Union was concerned, then, CSA had no obligation to

recall English to the next available vacancy after his January 2002 layoff, and its failure to do so

is in no way proof of pretext or discrimination.

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which employees laid off due to loss of business would be called back in order of seniority,

rather than being supplanted by new employees. (English Decl., at 7.) Because Givens was

chosen instead of him, English reasons, his recall rights were violated, which in and of itself

raises an inference of discrimination. There is no evidence, however, that CSA ever ascribed to,

adopted or honored that purported “industry practice.” CSA managers, and Union officials,

emphatically denied that the company had ever followed such a recall procedure. (Hirsch Decl.,

¶ 15; Smith Dep., at 198-99; Bowden Dep., at 25-26, 78-79.).62 At his deposition, English

himself could not name a single instance in which a CSA company clerk had ever been recalled,

and there were several examples to the contrary (including both English and a white clerk,

Forrest duBruyne). (English Dep., at 335-37.) Absent evidence that CSA ever adopted or

followed this purported “industry practice,” its failure to do so in English’s case is not probative

of pretext.

Next, English asserts that a statement made by Smith during the grievance hearing could

prompt a reasonable factfinder to conclude that CSA’s stated reasons for not hiring English for

the company clerk position were a pretext for age discrimination. According to English, Smith

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said “that CSA was looking at younger employees and he didn’t hire Paul Smith because he was

too young or something like that, he said. I’m not sure of the facts.” (English Dep., at 207.) 

Age-related comments made by a decisionmaker close in time to a challenged personnel decision

and relating to that decision may constitute a sufficient showing of discrimination. See, e.g.,

Palasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir. 2003) (under stray remarks

doctrine, comment provides sufficient evidence of discrimination if it is “(1) age related, (2)

proximate in time to the termination, (3) made by an individual with authority over the

termination, and (4) related to the employment decision”). The problem is this: English’s

account of Smith’s statement is too nebulous, too ambiguous, too indefinite, and too amorphous

to cast doubt on CSA’s stated reason for hiring Givens. To say that CSA was “looking at

younger employees” in some generic sense is not the same as saying that English is too old or

that the 46-year old Givens was hired because he was younger than the 58-year old English. 

Besides, English says that Smith immediately followed up this comment by stating that the 31-

year old Paul Smith was “too young,” which suggests that, if anything, the company was slanted

against under-40 employees. To further confound matters, English followed up this testimony

with a backpeddling disclaimer, “I’m not sure of the facts.” Even accepting English’s testimony

as 100% true, the fuzzy, ill-defined evidence of Smith’s statement at the grievance hearing is far

too slender a reed to support a pretext finding.

Finally, plaintiff maintains that CSA’s history of unfavorable treatment to English and its

hiring history with respect to black company clerks generally is evidence from which a

reasonable factfinder could disbelieve the company’s stated reason for not hiring English as a

company clerk in March 2004. But nothing in CSA’s treatment of English over time is

indicative of race or age discrimination. He was hired as a company clerk in September 2000,

when CSA commenced operations in Mobile. He and two white company clerks were laid off in

January 2002 based on lost business, and the layoff was conducted in strict accordance with the

Union Working Agreement. He continued working as a freelance clerk and was considered for

company clerk vacancies in June 2002 and March 2004. He was hired as a company clerk in

May 2006. Nothing in this history is indicative of a pattern and practice of invidious

discrimination directed at English. As to CSA’s history more globally, English makes much of

the fact that no other black company clerks have been hired; however, he identifies only one

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63 Plaintiff also argues that a jury question is presented on the reasons for English’s

nonselection because the evidence supports a reasonable inference “that CSA perceptions were

due to subliminal race based and/or age based notions of performance capacities.” (Plaintiff’s

Brief, at 29.) The record is devoid of evidence that might reasonably support such an inference. 

To the extent that CSA downgraded English in assessing his qualifications, the record plainly

reflects that such actions were based on CSA managers’ actual observations, not some

stereotyped, “subliminal” notion of what older black workers were or were not capable of doing.

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other African-American (Carlis Howze) who has ever applied for a company clerk position at

CSA. Although that individual was rejected, there is no evidence before this Court from which a

reasonable factfinder could conclude that CSA’s treatment of Howze was in any way

discriminatory on the basis of his race. These arguments do not show pretext.63

For all of these reasons, plaintiff’s § 1981, Title VII, and ADEA claims arising from the

March 2004 hiring decision are due to be, and the same hereby are, dismissed for lack of

evidence that such decision was predicated on unlawful age or race discrimination.

F. The State Law Outrage Cause of Action.

Although he omits mention of it in his summary judgment filings, plaintiff also brings a

state-law claim of outrage against CSA.

While Alabama courts do recognize this tort, they have deemed it a “very limited cause

of action that is available only in the most egregious circumstances.” Thomas v. BSE Indus.

Contractors, Inc., 624 So.2d 1041, 1044 (Ala. 1993) (noting that the Alabama Supreme Court

“has held in a large majority of the outrage cases reviewed that no jury question was presented”);

see also House v. Corporate Services, Inc., 882 F.Supp. 161, 165 (M.D. Ala. 1995) (“the

Alabama Supreme Court is not predisposed to recognize that tort of outrage claims present jury

questions”). So circumscribed, in fact, is the reach of the tort of outrage that the Alabama

Supreme Court has allowed such claims only in three limited circumstances: “cases having to do

with wrongful conduct in the context of family burials; cases where insurance agents employed

heavy-handed, barbaric means to coerce a settlement; and cases involving egregious sexual

harassment.” Carter v. Harris, 64 F. Supp.2d 1182, 1194 (M.D. Ala. 1999) (citing Thomas, 624

So.2d at 1044). 

A plaintiff attempting to prove the tort of outrage bears a heavy burden. See Ex parte

Crawford & Co., 693 So.2d 458 (Ala. 1997). To withstand summary judgment, the plaintiff

Case 1:05-cv-00312-WS-B Document 63 Filed 08/22/06 Page 40 of 42
64 The statute of limitations for the tort of outrage under Alabama law is two years. 

See, e.g., Ala. Code § 6-2-38(l); McLean v. Wheaton Van Lines, Inc., 842 So.2d 673, 676 n.3

(Ala.Civ.App. 2002); Archie v. Enterprise Hosp. and Nursing Home, 508 So.2d 693, 695 (Ala.

1987) (“we hold that the tort of outrage or intentional infliction of emotional distress is governed

by the two-year statute of limitations found in § 6-2-38(l)”). As such, any outrage claim relating

to the 2002 personnel decisions would be untimely, and plaintiff’s outrage claim is confined on

its face to the 2004 hiring decision.

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must make a showing that the defendants engaged in conduct “so outrageous in character and so

extreme in degree as to go beyond all possible bounds of decency, and to be regarded as

atrocious and utterly intolerable in a civilized society.” American Road Service Co. v. Inmon,

394 So.2d 361, 365 (Ala. 1980). Alabama courts have strictly enforced the Inmon test. 

Thus, a plaintiff claiming outrage must show: “(1) that the defendant's conduct was

intentional or reckless; (2) that it was extreme and outrageous; and (3) that it caused emotional

distress so severe that no reasonable person could be expected to endure it.” Crawford, 693

So.2d at 460. Plaintiff has failed to come forward with evidence and argument to support any of

these elements. He has not shown that CSA passed over him in March 2004 with the intent to

cause him emotional distress.64 He has not presented any argument or authority that Alabama

law might deem the failure to hire a freelance clerk into a regular clerk position for

nondiscriminatory reasons to constitute the sort of egregious circumstances necessary to support

a claim of outrage. And he has offered not one scrap of evidence that English sustained

emotional distress as a result of not being hired in March 2004. This Court will not make the

plaintiff’s arguments for him. On this showing, no reasonable finder of fact could enter a

determination in English’s favor on his outrage claim. See generally Wyant v. Burlington

Northern Santa Fe R.R., 210 F. Supp.2d 1263, 1295 (N.D. Ala. 2002) (granting employer’s

motion for summary judgment on outrage claim in sex discrimination context where there was

no evidence that defendants intended to cause plaintiff severe emotional distress, the alleged

discriminatory conduct was not sufficiently outrageous to support a claim, and she had not

shown requisite level of emotional distress). Accordingly, the outrage cause of action is

dismissed.

VI. Conclusion.

For all of the foregoing reasons, the Court finds that there are no genuine issues of

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material fact and that defendant is entitled to entry of judgment in its favor as a matter of law. 

As such, the Motion for Summary Judgment (doc. 45) is granted, and plaintiff’s claims are

dismissed with prejudice. A separate judgment will enter. The Motion to Strike (doc. 60) is

granted in part and denied in part as set forth supra.

DONE and ORDERED this 21st day of August, 2006.

s/ WILLIAM H. STEELE 

UNITED STATES DISTRICT JUDGE

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