IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CAROLYN J. WHITE, )

 )

Plaintiff, )

 )

v. ) CIVIL ACTION 14-0484-WS-C

 )

JOHN M. McHUGH, etc., )

 )

Defendant. )

ORDER

 This matter is before the Court on the defendant’s motion for summary 

judgment. (Doc. 18). The parties have filed briefs and evidentiary materials in 

support of their respective positions, (Docs. 18, 24-26), and the motion is ripe for 

resolution. After careful consideration, the Court concludes that the motion is due 

to be granted in part and denied in part.

BACKGROUND

According to the complaint, (Doc. 1), the plaintiff is an African-American 

female employee of the United States Army Corps of Engineers. Although the 

complaint relates other incidents, the plaintiff asserts claims as to only two of 

them: (1) the failure to promote her into a GS-12 position filled by Jason Beard; 

and (2) the failure to promote her into a GS-13 position filled by Janet Frye. The 

first failure to promote led the plaintiff to file an EEO complaint, naming Jim 

Farnell as the discriminating official; while that complaint was pending, Farnell 

headed the three-person panel that recommended that Frye be promoted rather 

than the plaintiff. Counts One, Two and Three assert claims of sex discrimination, 

race discrimination and age discrimination, respectively, with respect to the 

position filled by Beard. Counts Four, Five and Six assert claims of race 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 1 of 13
2

discrimination, age discrimination and retaliation, respectively, with respect to the 

position filled by Frye. 

DISCUSSION

Summary judgment should be granted only if “there is no genuine dispute 

as to any material fact and the movant is entitled to judgment as a matter of law.” 

Fed. R. Civ. P. 56(a). 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). The moving party may meet its 

burden in either of two ways: (1) by “negating an element of the non-moving 

party’s claim”; or (2) by “point[ing] to materials on file that demonstrate that the 

party bearing the burden of proof at trial will not be able to meet that burden.” Id. 

“Even after Celotex it is never enough simply to state that the non-moving party 

cannot meet its burden at trial.” Id.; accord Mullins v. Crowell, 228 F.3d 1305, 

1313 (11th Cir. 2000); Sammons v. Taylor, 967 F.2d 1533, 1538 (11th Cir. 1992).

“When the moving party has the burden of proof at trial, that party must 

show affirmatively the absence of a genuine issue of material fact: it must support 

its motion with credible evidence ... that would entitle it to a directed verdict if not 

controverted at trial. [citation omitted] In other words, the moving party must 

show that, on all the essential elements of its case on which it bears the burden of 

proof, no reasonable jury could find for the nonmoving party.” United States v. 

Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991) (en banc) 

(emphasis in original); accord Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 

(11th Cir. 1993).

“If the party moving for summary judgment fails to discharge the initial 

burden, then the motion must be denied and the court need not consider what, if 

any, showing the non-movant has made.” Fitzpatrick, 2 F.3d at 1116; accord 

Mullins, 228 F.3d at 1313; Clark, 929 F.2d at 608. 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 2 of 13
3

“If, however, the movant carries the initial summary judgment burden ..., 

the responsibility then devolves upon the non-movant to show the existence of a 

genuine issue of material fact.” Fitzpatrick, 2 F.3d at 1116. “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.” Clark, 929 F.2d at 608 (quoting Celotex Corp. v. Catrett, 

477 U.S. 317 (1986)) (footnote omitted); see also Fed. R. Civ. P. 56(e)(2) (“If a 

party fails to properly support an assertion of fact or fails to properly address 

another party’s assertion of fact as required by Rule 56(c), the court may ... 

consider the fact undisputed for purposes of the motion ....”).

In deciding a motion for summary judgment, “[t]he evidence, and all 

reasonable inferences, must be viewed in the light most favorable to the 

nonmovant ....” McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 

(11th Cir. 2003).

There is no burden on the Court to identify unreferenced evidence 

supporting a party’s position.1 Accordingly, the Court limits its review to the 

exhibits, and to the specific portions of the exhibits, to which the parties have 

expressly cited. Likewise, “[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,” Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 

(11th Cir. 1995), and the Court accordingly limits its review to those arguments the 

parties have expressly advanced.

 1 Fed. R. Civ. P. 56(c)(3) (“The court need consider only the cited materials, but it 

may consider other materials in the record.”); accord Adler v. Wal-Mart Stores, Inc., 144 

F.3d 664, 672 (10th Cir. 1998) (“The district court has discretion to go beyond the 

referenced portions of these [summary judgment] materials, but is not required to do 

so.”). “[A]ppellate judges are not like pigs, hunting for truffles buried in briefs,” and 

“[l]ikewise, district court judges are not required to ferret out delectable facts buried in a 

massive record ....” Chavez v. Secretary, Florida Department of Corrections, 647 F.3d 

1057, 1061 (11th Cir. 2011) (internal quotes omitted). 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 3 of 13
4

I. Position Filled by Beard.

To prove disparate treatment in violation of Title VII, “a plaintiff may offer 

either direct evidence or circumstantial evidence.” Holland v. Gee, 677 F.3d 

1047, 1055 (11th Cir. 2012). The plaintiff does not purport to have direct evidence 

of discrimination, and her claim is thus governed by the McDonnell Douglas–

Burdine model developed for cases based on circumstantial evidence. The burden 

is first on the plaintiff to establish a prima facie case. If she succeeds, the 

defendant must meet his burden of producing evidence of one or more legitimate, 

nondiscriminatory reasons for the adverse employment action. If the defendant 

does so, the burden shifts back to the plaintiff to show that the defendant’s

proffered reasons are a mere pretext for illegal discrimination. Holland, 677 F.3d 

at 1055-56.

“In the failure-to-promote context, the prima facie case consists of showing 

these elements: (1) that the plaintiff belongs to a protected class; (2) that she 

applied for and was qualified for a promotion; (3) that she was rejected despite her 

qualifications; and (4) that other equally or less-qualified employees outside her 

class were promoted.” Brown v. Alabama Department of Transportation, 597 

F.3d 1160, 1174 (11th Cir. 2010); accord Wilson v. B/E Aerospace, Inc., 376 F.3d 

1079, 1089 (11th Cir. 2004).2 The defendant’s only challenge to the prima facie 

case is his argument that there was no new or vacant position for which the 

plaintiff could have applied but only a re-assignment of duties to him. (Doc. 18 at 

16-17).

The Court agrees with the plaintiff that there is evidence from which a 

properly functioning jury could find that the position at issue was a new position, 

created when the regional resource management (“RM”) quality assurance (“QA”) 

team of which Beard was a member was dissolved and its members absorbed back 

into their respective districts. While there is evidence that Beard was already on 

 2 The parties agree to use this formulation of the prima facie case. (Doc. 18 at 14; 

Doc. 24 at 2). 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 4 of 13
5

the district employment roll while serving on the RM QA team, (Doc. 18-21 at 9), 

and while there is evidence that Beard continued to perform at the district level 

“many of the functions” he had performed as part of the regional RM QA team, 

(Doc. 18-29 at 19), there is also evidence that he took on additional information 

management (“IM”) functions regarding “accounting and finances and cost 

distributions and bill payments,” which functions were left for the district to fulfill 

after IM became a regionally managed enterprise about the same time as the 

regional RM QA team was disbanded. (Doc. 18-21 at 6-7). There is, moreover, 

testimony from the defendant’s own witnesses that the position filled by Beard 

“was created because of the added [IM] duties,” (id. at 6), and that “you could say 

that it was ... a newly created position.” (Doc. 24-2 at 6-7).3 The defendant thus 

cannot receive summary judgment based on the plaintiff’s inability to establish a 

prima facie case.4

 3 The defendant’s effort to nullify this testimony fails, since the testimony he cites 

does not (as he asserts) define “newly created position” to “mea[n] merely” that Beard 

performed the identical job duties for the district that he had previously performed for the 

region. (Doc. 26 at 6). And while the defendant in brief characterizes the change in 

Beard’s duties as “subtle,” (Doc. 18 at 18), he identifies no evidence that supports this 

description; for all the record suggests, the IM functions may have constituted half or 

more of Beard’s duties and been essential to justifying him as a GS-12 employee. 

 4 The defendant appears to believe that, since Beard was classified as a GS-12 

employee both before and after dissolution of the regional RM QA team, it is not possible 

that he moved into a different position when the team was disbanded. (Doc. 26 at 1-2). 

The mere fact, however, that Beard received no promotion does not establish that he 

received no new position. Nor, contrary to the defendant’s impression, (id.), does the 

burden lie with the plaintiff to cite authority supporting this proposition; this is the 

defendant’s motion for summary judgment, and the burden thus lies with him in the first 

instance to support his argument, not with the plaintiff to refute it.

Although unnecessary to the resolution of the instant motion, the Court notes that 

the defendant confirms that “[t]he Army reassigned Jason Beard,” and he repeatedly 

speaks of “the reassignment of Jason Beard.” (Doc. 18 at 16, 22, 27-28). According to 

the Army’s civilian personnel policy, (Doc. 18-28 at 2), on which the defendant relies, 

“[r]eassignment is the movement of an employee to another position.” (Doc. 18-33 at 4 

(emphasis added)).

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 5 of 13
6

The defendant’s articulated reason for placing Beard in the new GS-12 

position, without advertising for the position or allowing the plaintiff to compete 

for it, runs as follows. When the regional command council voted to disband the 

RM QA team, it specified that “the team will be dissolve[d] back into the Districts 

with no adverse impact to the individuals involved.” (Doc. 18-24 at 2 (emphasis 

added)). Beard’s position on the regional RM QC team was classified as GS-12,

(Doc. 18-15); thus, to absorb Beard back into the district with no adverse impact, 

he had to be placed in a GS-12 position. When Beard came back into the district, 

there was no vacancy in a GS-12 position. (Doc. 18-29 at 17). Thus, the only way 

to maintain Beard as a GS-12 was to fashion a position requiring the performance 

of his retained duties from his regional RM QC days, plus the additional, newly 

available IM duties. Had the defendant not directly placed Beard in this position, 

he would have been rendered an “excess” employee and subject to a reduction in 

force (“RIF”), which (on his request) would have qualified him for “priority 

placement,” meaning he would have automatically received the position without 

competing for it. That is, Beard would have received the position without 

competition either way. (Doc. 18 at 5-7, 16-18, 20-21).5 

“The inquiry into pretext requires the court to determine, in view of all the 

evidence, whether the plaintiff has cast sufficient doubt on the defendant’s 

proffered nondiscriminatory reasons to permit a reasonable factfinder to conclude 

that the employer’s proffered legitimate reasons were not what actually motivated 

its conduct” but “were a pretext for [discrimination].” Crawford v. Carroll, 529 

 5 Technically, a defendant must support its articulated non-discriminatory reason 

“through the introduction of admissible evidence.” Texas Department of Community 

Affairs v. Burdine, 450 U.S. 248, 255 (1981). The defendant “must present specific 

evidence regarding the decision-maker’s actual motivations with regard to each 

challenged employment decision.” Walker v. Mortham, 158 F.3d 1177, 1181 n.8 (11th

Cir. 1998). Thus, “[t]he defendant cannot testify in abstract terms as to what might have 

motivated the decision-maker ....” Id. Because the plaintiff does not argue that the 

defendant fails this test, the Court need not consider whether he has supported his 

articulated reason with adequate evidence of what actually motivated the decision-maker. 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 6 of 13
7

F.3d 961, 976 (11th Cir. 2008) (internal quotes omitted). The plaintiff’s burden is 

to “demonstrate weaknesses or implausibilities in the proffered legitimate reason 

so as to permit a rational jury to conclude that the explanation given was not the 

real reason, or that the reason stated was insufficient to warrant the adverse 

action.” Rioux v. City of Atlanta, 520 F.3d 1269, 1279 (11th Cir. 2008). However, 

“a reason is not pretext for discrimination unless it is shown both that the reason 

was false, and that discrimination was the real reason.” Springer v. Convergys 

Customer Management Group Inc., 509 F.3d 1344, 1349 (11th Cir. 2007) 

(emphasis in original) (internal quotes omitted). To make this showing, the 

plaintiff may resort to “all the evidence,” Crawford, 529 F.3d at 976, including 

“the evidence establishing the plaintiff’s prima facie case and inferences properly 

drawn therefrom.” Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 

143 (2000).

The plaintiff first asserts there was an imminent GS-12 vacancy in Internal 

Review (“IR”), into which position Beard could have been placed without adverse 

impact. (Doc. 24 at 6).6 The defendant says this vacancy was not anticipated until 

several months after Beard had assumed the RM and IM duties of the new 

position. (Doc. 26 at 3). The defendant, however, has not submitted the evidence 

on which he relies for this proposition.7 That omission leaves unrebutted the 

plaintiff’s testimony that, “[a]t the time of the dissolution of the QA Team, there 

was ... a GS-12 level position about to become vacant with the retirement of 

Melvin Golemon.” (Doc. 24-1 at 4). Especially given the defendant’s insistence 

that the development of a position for Beard unfolded only “gradually,” as “part of 

a process,” (Doc. 18 at 18-19), the impending availability of a GS-12 vacancy 

 6 Beard had worked in IR immediately before being named to the regional RM 

QA team. (Doc. 18-13). 

7 The defendant relies on his Exhibit I, but that exhibit reads merely, “EXHIBIT I 

– Intentionally omitted.” (Doc. 18-42).

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 7 of 13
8

undermines his argument that there was no other way to save Beard’s employment 

but to create a new, cobbled-together position for him to fill.

The plaintiff also notes there was an existing GS-11 vacancy in IR when 

the regional RM QA team was dissolved. (Doc. 24 at 6). The defendant does not 

disagree, but he argues that, since Beard was a GS-12, moving him to a GS-11 

position would have violated the directive not to “adverse[ly] impact” him. (Doc. 

26 at 3). What the defendant ignores, however, is that this is exactly how the other 

member of the regional RM QA team from the district was placed. Melissa 

Moreno Adkinson was a GS-14 while on the team, and when it disbanded she was 

returned to her former position in the district as a GS-13 while retaining her GS-14 

pay grade. (Doc. 24 at 8; Doc. 24-1 at 4). The defendant does not explain why 

Beard could not likewise have been placed in the GS-11 vacancy while retaining 

his GS-12 pay grade.

Based on the foregoing, the plaintiff has evidence refuting the defendant’s 

articulated reason that it had no other options for dealing with Beard. The plaintiff 

next turns to the option which, under her evidence, the defendant did select –

creating a new position and naming Beard to that position without advertisement 

or competition. Specifically, the plaintiff asserts that using this option was

impermissible under governing policy. The regulations governing such matters, 

she says, permit the defendant to avoid an employee’s RIF by non-competitive 

placement only by assignment to positions that are “available vacancies.”

8

 

Creation of a new position to benefit the surplus employee, she says, is not 

placement in an available vacancy and thus exceeds the defendant’s authority. 

(Doc. 24 at 6-7, 8). The defendant offers no response to this contention. (Doc. 26 

at 3-4).

The plaintiff concludes that she has both discredited the defendant’s 

articulated reason for his employment decision and shown an unexplained 

deviation from governing policy to the advantage of Beard and the disadvantage of 

 8 The defendant acknowledges this limiting regulatory language. (Doc. 18 at 20).

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 8 of 13
9

the plaintiff (whose interest in promotions was well known). (Doc. 24 at 7-8). 

Given the impropriety of the course chosen by the employer, and the obvious 

availability of proper alternatives, the plaintiff concludes that the most likely 

reason for the employer’s conduct is unlawful discrimination against her. The 

defendant offers no argument why the plaintiff’s evidence and the reasonable 

inferences therefrom could not justify a properly functioning jury in finding that 

his articulated reason for the employment decision was sex, race and/or age 

discrimination, and the Court will not undertake to develop or support such an 

argument on his behalf. On the limited evidence and argument presented, the 

defendant has not borne his burden of showing that there is no genuine dispute as 

to any material fact and that he is entitled to judgment as a matter of law.

II. Position Filled by Frye.

The defendant first argues that the plaintiff’s claim of age discrimination is 

barred for failure to exhaust administrative remedies. (Doc. 18 at 26-27). “A 

discriminatory act which is not made the basis for a timely charge is the legal 

equivalent of a discriminatory act which occurred before the statute was passed. 

... [I]t is merely an unfortunate event in history which has no present legal 

consequences.” United Air Lines, Inc. v. Evans, 431 U.S. 553, 558 (1977). 

The plaintiff – with the assistance of counsel – submitted a formal 

administrative complaint of discrimination. (Doc. 18-44). When asked the 

“reason you believe you were discriminated against (check below all that apply),” 

the plaintiff checked “race” and “reprisal”; she left blank the box for “age.” (Id. at 

1). In “explain[ing] when and how [she was] discriminated against,” the plaintiff 

complained that Frye was a less qualified “white employee,” with no mention of 

or allusion to age. (Id.). The EEO counselor’s report confirms that the plaintiff 

complained only of “race and reprisal.” (Id. at 3).

“[W]e have held that a plaintiff’s judicial complaint is limited by the scope 

of the EEOC investigation which can reasonably be expected to grow out of the 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 9 of 13
10

charge of discrimination.” Gregory v. Georgia Department of Human Resources, 

355 F.3d 1277, 1280 (11th Cir. 2004) (internal quotes omitted). The same standard 

applies to federal employees. Basel v. Secretary of Defense, 507 Fed. Appx. 873, 

875 (11th Cir. 2013). “Given that Holmes’s own communications with the EEOC 

stressed age, not race, discrimination in the District Manager promotions, we 

cannot say a race discrimination claim could reasonably be expected to arise from 

his complaints about the District Manager promotions.” Holmes v. Alabama 

Board of Pardons & Paroles, 591 Fed. Appx. 737, 746 (11th Cir. 2014). Likewise

here, the plaintiff’s administrative communications stressed race, not age. Indeed, 

the matter proceeded to a written administrative decision following discovery and 

the submission of briefs, with the plaintiff – still represented by counsel – never 

expanding her claim beyond race and retaliation. (Doc. 18-46 at 2). The plaintiff 

on the instant motion makes no effort to sustain her age discrimination claim, and 

the Court concurs with her implicit recognition that it is barred for failure to 

exhaust administrative remedies.

The defendant identifies no challenge to the plaintiff’s ability to establish a 

prima facie case of race discrimination and retaliation.9 His articulated reason for 

selecting Frye over the plaintiff for the GS-13 position of supervisory accountant 

is that the three-person panel that recommended Frye concluded she had more and 

higher degrees, had a more relevant certification, and had a better interview. 

(Doc. 18 at 22-23). It appears to be uncontroverted that Frye had an accounting 

degree while the plaintiff had a business degree; that Frye had an MBA while the 

plaintiff had no advanced degree; and that Frye was a CPA while the plaintiff was 

a CFDM (certified defense financial manager).

 9 While the defendant in his conclusion summarily denies that the plaintiff can 

satisfy her prima facie case, (Doc. 18 at 27), his failure to brief this assertion precludes its 

consideration. Cf. Transamerica Leasing, Inc. v. Institute of London Underwriters, 430 

F.3d 1326, 1331 n.4 (11th Cir. 2005) (“[A] passing reference to an issue in a brief [is] 

insufficient to properly raise that issue.”). 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 10 of 13
11

The plaintiff objects that she had substantially more relevant experience 

than Frye, (Doc. 24 at 9-10), and the evidence indicates she is correct. When the 

position was filled in 2012, the plaintiff had been employed with the Corps 

approximately 24 years, Frye about ten years.10 The plaintiff had held several 

more positions within the organization than had Frye, including 

leadership/supervisory positions. Perhaps most importantly, the plaintiff had 

previously served (in Huntsville), in a permanent (not acting) capacity, in the very 

position awarded Frye, and her performance in that role (and every other position 

she ever held) had been “exceptional.” (Doc. 24-1 at 2, 5; Doc. 24-4; Doc. 24-5). 

The defendant does not dispute the plaintiff’s evidence. (Doc. 26 at 4-5). 

Instead, he reminds the Court that “Title VII does not allow federal courts to 

second-guess nondiscriminatory business judgments.” Flowers v. Troup County 

School District, 803 F.3d 1327, 1338 (11th Cir. 2015). “And our inquiry at the 

third stage of the McDonnell Douglas analysis of a promotion discrimination 

claim is not concerned with [the plaintiff’s] belief that she was more qualified or 

whether we could conclude that she was better qualified than [the selectee].” 

Brooks v. County Commission, 446 F.3d 1160, 1164 (11th Cir. 2006). 

But the defendant misses the point of the plaintiff’s argument. The plaintiff 

does not simply disagree with the panel’s disregard of her superior experience in 

favor of Frye’s degrees and certifications. Rather, she points out (with supporting 

evidence) that, when the very same position was filled three years earlier, the 

panel (headed by Farnell) passed over Frye (who then had her accounting degree, 

her CPA and her MBA) in favor of a white female who had none of those things,

who had neither a college degree nor a CDFM certification, and who had no more 

academic hours of accounting than the plaintiff. (Doc. 24 at 16-17; Doc. 24-1 at 

7). The plaintiff argues, plausibly, that if Frye’s degrees and certifications really 

trump experience, Frye should have been selected to the position in 2009; since 

 10 Neither candidate had more than modest work experience outside the Corps. 

(Docs. 24-4, -5).

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 11 of 13
12

the 2009 episode reveals that experience trumps Frye’s degrees and certifications 

when the other candidate is white and has no history of complaining of 

discrimination, the real reason the panel selected Frye over the plaintiff was not 

Frye’s degrees and certifications but the plaintiff’s race and pending EEO 

complaint. (Doc. 24 at 17). To this reasonable argument the defendant offers only 

silence, and the Court once again will fashion no counter-argument on his behalf.

The plaintiff also argues, with supporting evidence, that the standard 

practice in filling supervisory positions is to place someone on the panel who is: 

(1) from outside the hiring office; and (2) an expert in the subject matter of the 

position being filled. Farnell, however, when he staffed the panel, did not follow 

this practice. Instead, he placed on the panel an in-house counsel and an assistant 

chief of operations who admittedly possessed no understanding of military 

financial operations (even though that was part of the position as well as a strength 

of the plaintiff and a weakness of Frye) and who admitted afterwards being unable 

to follow much of the discussion. (Doc. 24 at 19-20; Doc. 24-1 at 8-10). The 

predictable result, she says, was that the other panel members deferred to Farnell, 

whose retaliatory and racially discriminatory motivations (which prompted him to 

stack the panel) prevailed. 

“[A]n employer’s deviation from its own standard procedures may serve as 

evidence of pretext.” Hurlbert v. St. Mary’s Health Care System, Inc., 439 F.3d 

1286, 1299 (11th Cir. 2006). “To establish pretext, a plaintiff must show that the 

deviation from the policy occurred in a discriminatory manner.” Rojas v. Florida, 

285 F.3d 1339, 1344 n.4 (11th Cir. 2002). Because the plaintiff testified as to 

Farnell’s deviation from standard (actual) practice, not simply from formal

(theoretical) policy, she has cleared this hurdle. The defendant again offers no 

response to the plaintiff’s evidence and argument.

The plaintiff points to what she believes are several additional indicia that 

the defendant’s articulated reason for the promotion decision is a pretext for 

retaliation and race discrimination. Because the Court concludes that the evidence 

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 12 of 13
13

discussed above suffices to create a jury issue in this regard, it is unnecessary to 

consider these arguments separately. 

CONCLUSION

For the reasons set forth above, the defendant’s motion for summary 

judgment is granted with respect to Count V and is in all other respects denied.

DONE and ORDERED this 14th day of March, 2016.

s/ WILLIAM H. STEELE

CHIEF UNITED STATES DISTRICT JUDGE

Case 1:14-cv-00484-WS-C Document 27 Filed 03/14/16 Page 13 of 13