Ronnie Smith v. Thomasville Georgia ( 2018 )


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  •          Case: 16-16848   Date Filed: 10/02/2018   Page: 1 of 44
    [DO NOT PUBLISH]
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE ELEVENTH CIRCUIT
    ________________________
    No. 16-16848
    ________________________
    D.C. Docket No. 7:14-cv-00112-HL
    RONNIE SMITH,
    ELMA J. JOHNSON,
    DEREK COLSON,
    ALLEN D. POWELL,
    CURTIS BRADSHAW,
    Plaintiffs-Appellants,
    versus
    THOMASVILLE GEORGIA,
    a government entity,
    THOMASVILLE GEORGIA FIRE DEPARTMENT,
    a government entity,
    BRYAN CROFT,
    Individually,
    TIM CONNEL,
    Individually,
    DOES,
    1 through 10, Inclusive,
    Defendants-Appellees.
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    ________________________
    Appeal from the United States District Court
    for the Middle District of Georgia
    ________________________
    (October 2, 2018)
    Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.
    PER CURIAM:
    This appeal involves a lawsuit filed by five firefighters in the City of
    Thomasville: Derek Colson, Curtis Bradshaw, Allen Powell, Elma Johnson, and
    Ronnie Smith. At the time that their lawsuit was filed they were the only black
    firefighters in the City. Each of them raises several claims under Title VII,
    
    42 U.S.C. § 1981
    , and state law. Most of the claims assert discrimination against
    the plaintiffs by then-Fire Chief Bryan Croft, then-Assistant Fire Chief Tim
    Connell, and the City. The district court granted summary judgment to all of the
    defendants. All of the plaintiffs now appeal.
    I. BACKGROUND
    A. FACTS
    The facts underlying most of the claims are unique to each plaintiff,
    although some of them overlap. For the sake of clarity, we will go over some
    background information about the fire department’s structure and then separately
    detail the facts material to each plaintiff. Except that the intertwined facts
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    underlying the claims of plaintiffs Colson and Bradshaw make it easier to discuss
    them together. It also makes more sense to save the recounting of the facts
    involving the five plaintiffs’ disparate pay claims for the discussion section.
    1. Structure of the Fire Department
    A firefighter’s duties in the Thomasville Fire Department depend on his rank
    and what we’ll call his “position.” The rank is the firefighter’s place in the
    department hierarchy. That hierarchy appears to go in some order like this, from
    lowest to highest: Firefighter, Driver-Engineer, Lieutenant, Captain, Battalion
    Chief/Assistant Chief, and Fire Chief.
    Promotions to the ranks of Driver-Engineer, Lieutenant, and Captain are
    based on testing. All of the tests are based on the International Fire Service
    Training Association testing manuals (IFSTA for short). IFSTA is “the nationally
    recognized fire organization that prints the training material[s] . . . for the fire
    service.” The fire department uses a random question generator that bases the
    questions in tests on the information covered in the IFSTA materials. The program
    comes up with a new set of questions each time it is prompted to generate a test.
    As a result, no one in the department can manipulate the tests to favor one test
    taker over another.
    After the candidates take the test, the Human Resources department gives
    the Fire Chief a list of the “top” applicants ranked from the highest score down.
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    Although the Chief has the “final say” on promotions, where there was a test for
    the position, he always selected the person with the highest score on the test.
    A firefighter’s position is not the same as his rank, but instead is his specific
    job in the department. There are two categories of position that are relevant here:
    suppression and prevention. Suppression is what most people would think of as
    regular firefighter duties: putting out fires. Most firefighters in suppression work
    24-hour on, 48-hour off shifts. (They get paid for both sleeping and waking hours
    while they are on shift.) Prevention positions, by contrast, focus on efforts to
    prevent fires and to educate citizens. Unlike suppression, prevention positions
    usually involve regular 8 a.m. to 5 p.m. work days. Certain positions require
    specialized certifications and training, and firefighters usually must get permission
    from the Fire Chief to take certification and training courses.
    2. Derek Colson and Curtis Bradshaw
    a. Background and history of Colson’s and Bradshaw’s positions and promotions
    within the fire department
    Thomasville hired Derek Colson as a firefighter on November 27, 2000. In
    his time with the fire department, Colson has received three promotions. His first
    was in December 2003, to the position of Driver-Engineer. His second came
    around two years later, when Colson was promoted to the position of Life Safety
    Educator and the rank of Lieutenant. The Life Safety Educator is a position that
    focuses on educating people on how to stop and prevent fires. It also involves
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    assisting the Fire Inspector in performing inspections around town. Unlike the 24-
    hour on, 48-hour off shifts for suppression positions, the Life Safety Educator is an
    8 a.m. to 5 p.m. job.
    The following year, in 2006, Colson received his final promotion to the
    position of Fire Inspector, which is the head of prevention. It, too, is an 8 a.m. to 5
    p.m. job. The most important part of the job, of course, is conducting fire
    inspections at the City’s hazardous facilities and its 1,300 businesses. Colson’s
    white predecessor as Fire Inspector, Clay Phillips, received a promotion in rank
    from Lieutenant to Captain when he moved from the Life Safety Educator position
    to the Fire Inspector position. Colson did not. Colson presented no evidence to
    show how long Phillips was a Lieutenant before he was promoted to Captain. And
    there is no evidence in the record that Colson ever took the Captain’s promotional
    test or completed the other steps necessary to be considered for a promotion to
    Captain.
    Thomasville hired plaintiff Curtis Bradshaw as a firefighter on April 5,
    2004. Two years later he sought and received the position of Life Safety Educator,
    on Chief Croft’s recommendation. 1 Croft, who is white, recommended Bradshaw
    for the promotion even though there were other applicants with more experience.
    As Life Safety Educator, Bradshaw helped plaintiff Colson perform Fire
    1
    Croft served as Fire Chief from 2005 to 2012.
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    Inspections throughout the City. Bradshaw’s promotion came with a raise from
    $7.96 an hour to $12.50 an hour. But unlike Colson, Bradshaw was not promoted
    to Lieutenant. Bradshaw believed that because other Life Safety Educators were
    Lieutenants, he should have also been promoted to Lieutenant, as Colson was. But
    when he was made Life Safety Educator, Bradshaw had not completed the required
    coursework to be considered for a promotion to Lieutenant. He later testified that
    he was not being considered for that promotion because he had not completed the
    required coursework.
    b. Colson and Bradshaw ask to get certified as Arson Investigators
    In 2008 plaintiffs Colson and Bradshaw wanted to become certified as arson
    investigators. To do that, they needed to take two courses. And they needed Chief
    Croft’s permission to take each of them. As part of the first course, a firefighter
    had to complete classroom work and ten arson investigations under the supervision
    of a certified arson investigator. Colson and Bradshaw finished the classroom
    work for the first course. But Colson had not completed any of the ten required
    arson investigations, and Bradshaw had completed only three. So Croft did not
    give either of them permission to take the second course. According to Croft,
    Colson and Bradshaw had been given the opportunity to complete the arson
    investigations but did not do them.
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    Croft had allowed two white firefighters to take the second part of the
    course: Jeff Huntley and Craig Dukes. But both had completed their classroom
    work and the ten arson investigations before he allowed them to take the second
    course.
    Croft has concerns with Colson’s and Bradshaw’s performance
    i. The June 15 meeting
    Sometime in the middle of 2011, Chief Croft started having concerns with
    Colson’s and Bradshaw’s performance in fire inspections. He was worried that the
    commercial fire inspections were not getting done in a timely manner and that the
    records of inspections were not being properly maintained in the department’s
    computer system. 2 Croft raised his concerns with the head of the City’s HR
    department, Kha McDonald, and the two established some benchmarks to give
    Colson and Bradshaw an opportunity to improve their work. On June 15, 2011,
    Chief Croft and Assistant Chief Tim Connell met with Colson and Bradshaw to
    discuss Croft’s concerns and give them the benchmarks they should use to improve
    their performance. Croft also told them that instead of getting their usual annual
    2
    Croft had sampled 15 of the 1,300 businesses in town. Some of those business had not
    been inspected in the last four or five years. Even though one of the defendants, Assistant Chief
    Tim Connell, testified that it would be impossible to inspect all 1,300 of Thomasville’s
    businesses in a year (or even two years), based on the number of years that Colson and Bradshaw
    had worked in fire prevention, Chief Croft testified that they should have inspected every
    business “at least once.”
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    “merit increase” of 3% of their salary, they would each get only a 1.5% raise. But
    if they successfully met the benchmarks, they would get the full 3%.
    ii. Colson and Bradshaw file their first EEOC charges on August 25, 2011
    On August 25, 2011, Colson and Bradshaw filed their first EEOC charges.
    In the charges, the two claimed that they had been discriminated against based on
    their race and that the City paid them less than their white coworkers. Both
    complained that the June 15 meeting amounted to a negative performance
    evaluation. After the charges were filed, Croft called a meeting of all the Battalion
    Chiefs, including another plaintiff, Allen Powell, and promised them that the
    charges would “never make it to court.”
    iii. The September 30 meeting
    According to Colson and Bradshaw, after they filed their EEOC charges a
    series of events took place that they contend were retaliatory. The first involved
    their reassignment from the positions of Fire Inspector and Life Safety Educator,
    which were prevention positions, back to suppression. That string of events began
    on September 30, 2011, when Colson and Bradshaw had another meeting with
    Chief Croft to discuss their performance since the June 15 meeting.
    At that meeting, Croft followed up on some of the benchmarks that were
    set for the pair back at the June 15 meeting, focusing on the most important areas.
    That included, among other things, the hazardous facilities and commercial
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    building inspections. Croft asked them “if all of the [h]azardous facilities within
    [Thomasville] have been inspected” and if the contact information and chemicals
    for those facilities had been entered into the fire department’s computer system.
    Both replied that they had done all of that. But when Croft checked the computer
    system, he “found their answers to be untrue.” There was “very little contact
    information[,] if any,” and no hazardous chemicals were listed.
    Croft then allowed Bradshaw to leave the meeting and asked Colson to stay
    “a little longer” to do a “quick random audit” of businesses in the City to see when
    they were last inspected. Out of thirteen businesses in the audit, two had been
    inspected within the last year — which was acceptable — but the other eleven had
    not been inspected since 2005. And out of those eleven, three businesses did not
    have any records of inspections at all. Colson and Bradshaw have since explained
    that the reason there was no record of inspections on the department’s computer
    system was that they kept only paper records. They speculated that someone could
    have broken into their office and taken some of their paper records, but they did
    not have any knowledge that had happened.
    c. Colson and Bradshaw are reassigned to suppression
    A few days after the meeting, Chief Croft wrote again to the head of HR,
    Kha McDonald, saying that Colson and Bradshaw’s failure to timely perform and
    document inspections showed a “lack of accountability and professionalism.”
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    Because of that, he told her, there was no reason to approve the remaining part of
    the merit raise for Colson or Bradshaw. He also recommended that a planned
    reorganization of the fire department be put into place immediately because, in his
    eyes, Colson’s and Bradshaw’s poor performance was also a safety issue.
    On November 14, 2011, Colson and Bradshaw were removed from their
    roles as Fire Inspector and Life Safety Educator and put back into suppression.
    That same month, Colson was replaced by Captain Tommy Benton, who is white.
    Benton suffered from early onset Alzheimer’s disease and needed another
    firefighter to drive him around to do inspections. Although Croft knew that
    Benton had some “medical issues” that he understood were “mental,” he testified
    that he did not know that Benton had Alzheimer’s when he chose him to replace
    Colson. Connell, the firefighter who drove Benton, testified that Benton’s
    condition, whatever it was, had not affected his ability to conduct fire inspections.
    As a result of being removed from their positions and put back into
    suppression, Colson’s and Bradshaw’s scheduled hours and hourly pay rates
    changed. Their hours changed from regular 8 a.m. to 5 p.m. days to shifts of 24-
    hours on, and 48-hours off. Colson’s hourly rate went from $17.09 to $12.21 an
    hour, and Bradshaw’s went from $14.57 to $10.41 an hour. Despite that, because
    firefighters are paid for both sleeping and waking hours while on shift, Colson and
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    Bradshaw did not earn any less on an annual basis than they had in their prevention
    positions, but they did work more hours to earn the same pay.
    d. Colson is investigated for stealing funds meant for charity
    Later in the fall of 2011, Colson became the target of an investigation into
    the alleged theft of funds from the department’s charitable recycling program. One
    of his duties as a Fire Inspector was to manage that program for the department.
    Colson and Bradshaw would recycle aluminum cans that were donated by the
    public and give the proceeds to the Georgia Burn Victims Foundation on behalf of
    the fire department. At some point someone from the Foundation told the fire
    department that it had not received any donations since 2005, even though cans
    had been collected from the fire department all of that time.
    The fire department reported the crime to Thomasville police who, in order
    to avoid a possible conflict of interest, referred it to the Georgia Bureau of
    Investigation. The investigation found that records showed that Colson had
    collected cans on at least two occasions when the money was never turned over to
    the Foundation. According to investigators, on one of those occasions Colson
    instructed the recycling center to make the check out to him personally instead of
    the fire department. The Foundation never received that money. And in
    November 2011, GBI agents eventually arrested Colson for theft, though the
    charges were later dropped.
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    Colson says that the investigation was nothing more than a way to
    undermine his EEOC charge. He testified at his deposition that he gave all of the
    recycling proceeds to Chief Croft, though GBI never considered Croft a suspect.
    After his arrest, the City suspended Colson from work, and he was placed on paid
    leave beginning on November 23, 2011, for about a year while the investigation
    was being conducted. 3
    e. Colson and Bradshaw file their second EEOC charge, and the EEOC gives
    them Notice of Right to Sue
    Colson filed a second EEOC charge on March 20, 2012, and Bradshaw did
    so on April 6, 2012. In their second charges, they contended that they had been
    denied merit raises and were demoted in retaliation for filing their first EEOC
    charges. On April 17, 2014, the EEOC issued Colson and Bradshaw a Notice of
    Right to Sue for their first two charges.4
    3
    In their brief to this Court, Colson and Bradshaw also point to other evidence that they
    contend supports their allegation that Chief Croft acted with a racially discriminatory motive.
    That evidence included: (1) an email that Croft forwarded to Colson predicting that, due to the
    stresses of the Presidency, the recently elected Barack Obama would look like the actor Red
    Foxx in the sitcom “Sanford and Son” by the time he left office; (2) that Croft gave his spare
    City credit card to a less senior white employee to use during a business trip instead of giving it
    to Colson or Bradshaw; and (3) that Croft once remarked to a white co-worker that “when he
    became Chief . . . he would get rid of the blacks and old timers.”
    4
    In August 2014, over two years after he filed his second EEOC charge, Bradshaw was
    transferred to another fire station, Engine 1, which according to him responds to the majority of
    the fire department’s calls. Bradshaw eventually filed a third EEOC charge on January 8, 2015,
    alleging that that transfer was in retaliation for his earlier charges. Bradshaw was eventually
    fired. And he filed his fourth EEOC charge on July 9, 2015, alleging that he was “subjected to
    more severe discriminatory treatment” and that he was fired in retaliation for his earlier EEOC
    charges and because of his race. But in this appeal Bradshaw does not raise any claims with
    respect to his transfer to Engine 1 or his termination.
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    3. Allen Powell
    Allen Powell is one of the longest tenured firefighters in the department.
    He’s been a firefighter in Thomasville since 1990 and has risen through the ranks
    over that time to become a Battalion Chief. As a Battalion Chief, the only member
    of the department who outranks Powell is the Chief. Powell’s complaints of
    discrimination in this appeal focus on the denial of training and promotional
    opportunities, and on disparity in pay (which we will address later in this opinion).
    a. Powell asks Croft for the Opportunity to Train as an Arson Investigator
    Like Colson and Bradshaw, Powell asserts that Chief Croft denied him the
    opportunity to train as an arson investigator. According to Powell, in 2007, 2009,
    and 2010, he asked to take the second part of the arson investigation course, but
    Croft never allowed him to. He asserts that Croft “wanted to send his friends
    first,” like Craig Dukes and Jeff Hundley, who are both white and were allowed to
    take the second part of the course.
    Chief Croft recalls Powell asking him twice about arson investigation
    training. When Powell first approached Croft about training as an arson
    investigator, Croft said that the training would take too long, and that he needed
    Powell at the firehouse. When Powell asked a second time, Chief Croft agreed that
    he could do the training but told Powell that he could not be the official arson
    investigator for the fire department. Croft explained that it would be a conflict of
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    interest for Powell to investigate a fire that he had helped to put out. Powell
    understood that it would be perceived as a conflict, but he wanted to take the
    training anyway.
    b. Powell is not considered for the jobs of Assistant Chief and interim Chief
    Powell also contends that he was denied two promotional opportunities
    because of his race: one for Assistant Chief and one for interim Fire Chief.5 In
    2009, Chief Croft created the position of Assistant Chief to oversee the fire
    department when he was not there. Like Battalion Chiefs, the Assistant Chief
    reported directly to the Fire Chief. But unlike Battalion Chiefs, the Assistant Chief
    was an administrative position that was on an 8 a.m. to 5 p.m. schedule instead of
    the 24-hour on, 48-hour off shifts of the Battalion Chiefs. Croft had Tim Connell,
    who is white, in mind for the position. At the time, Connell was a Captain and the
    training officer for the fire department. Because the Assistant Chief position was
    not posted, other firefighters could not apply for it. Powell believed that he should
    5
    In his brief to this Court, Powell also appears to argue that he should have been
    promoted to Fire Chief (and not just interim Fire Chief) because the City had a practice of
    promoting from within the department. But Powell testified in his deposition that his complaint
    involved the interim Chief (and not the permanent) position. Powell did not argue to the district
    court that he should have been promoted to the permanent Fire Chief position. So that argument,
    if Powell is making it, was not properly preserved. Juris v. Inamed Corp., 
    685 F.3d 1294
    , 1325
    (11th Cir. 2012) (“[I]f a party hopes to preserve a claim, argument, theory, or defense on appeal,
    she must first clearly present it to the district court, that is, in such a way as to afford the district
    court an opportunity to recognize and rule on it.”); 
    id.
     (“A federal appellate court will not, as a
    general rule, consider an issue that is raised for the first time on appeal.”) (quotation marks
    omitted). And, in any event, Powell did not present evidence that Chris Bowman, whom the City
    ultimately hired as Chief, was not more qualified than he was.
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    have been considered for the job over Connell because he had ten years more
    experience than Connell did. But after Connell’s appointment, Powell never
    complained to Chief Croft or to the City’s HR department about not being
    considered for Assistant Chief.
    In 2012, after Croft resigned as Chief, the City needed to appoint an interim
    Chief. It chose Battalion Chief Bobby Hart, who is white, for the position. Hart
    was chosen because he had the most seniority within the fire department (even
    more than Powell). There is no evidence in the record that the interim Chief
    position was posted or advertised. Hart was placed in it without any formalities.
    And he served as interim Chief until the City hired Chris Bowman as the
    permanent replacement for Croft. Powell did not object to Hart being named
    interim Chief, but he says that he should have been given the opportunity to apply
    for the position. Powell had applied for the permanent Chief position every time it
    came open in the past. The last time the Chief position was open, Powell
    interviewed for it with Steve Sykes, the same City Manager who selected Hart to
    be interim Chief.
    c. Powell’s EEOC Charge
    Powell filed an EEOC discrimination charge on November 2, 2012. In it he
    alleged that he “was not given the opportunity to apply for the position of [interim]
    Chief,” because “[t]he position was not posted, but a similarly situated White male
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    was hired.” Although Powell alleged in the charge that he complained about the
    posting and selection process for interim Chief and Assistant Chief, he later
    testified that those complaints were generally made to “guys in the department”
    and not through any official channel. On April 17, 2014, the EEOC issued Powell
    a Notice of Right to Sue.
    4. Elma Johnson
    Elma Johnson has worked as a firefighter for the City of Thomasville since
    August 4, 1985, even longer than Powell, who was hired in 1990. He was
    promoted to the rank of Lieutenant in 1997 after he had the highest score on the
    promotional test. In 2005, two Captain spots came open in the department.
    Although Johnson applied for the promotion, he did not get it. Two white
    firefighters, Tim Connell and Mark Sealy, got the promotion because of their
    higher test scores. Johnson asserts that Croft and Connell conspired to create and
    rig the test to prevent him from getting the promotion, but he has provided no
    evidence of that.
    Johnson tried for a promotion again in 2011 when another Captain position
    came open. He took the test, and of the applicants he ranked third on the test and
    second in seniority. But another firefighter, Marty Butler, who is white, got the
    promotion. Although Johnson presented no evidence of Butler’s test score, he
    contends that he was discriminated against because Chief Croft made the
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    promotion decision. But Croft testified that he always selected the applicant with
    the highest score on a promotion test, and there is no evidence to dispute that.
    Johnson also claims that he was not considered for the position of Fire
    Inspector after Colson and Bradshaw were reassigned and that he was not allowed
    to train to be an arson investigator. But he admits that he never expressed any
    interest in either position to anyone in a position of authority.
    After Colson was reassigned to suppression, Chief Croft selected Tommy
    Benton, who is white, for the Fire Inspector position. Croft filled that position
    without posting any notice that it was available. At the time, Benton was suffering
    from dementia as a result of early onset Alzheimer’s disease. But, as we have
    already mentioned, Croft testified that he did not know Benton’s specific condition
    at the time. He knew only that Benton was suffering from “medical issues” that
    were “mental.”
    After Johnson learned that Croft had selected Benton for the Fire Inspector
    position without posting it, he complained to Kha McDonald in HR. McDonald
    addressed Johnson’s concerns in a memo, explaining that Benton had been selected
    as Fire Inspector “to fill an immediate need for the work that needs to be done
    while, at the same time, accommodating the uncertainties of [Benton’s] existing
    medical condition.”
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    Johnson filed an EEOC charge of discrimination on June 13, 2012, alleging
    that he was “treated less favorably regarding training and promotion due to [his]
    race.” On April 17, 2014, the EEOC issued Johnson a Notice of Right to Sue.
    5. Ronnie Smith
    Ronnie Smith is a driver-engineer in the fire department. He has worked for
    the City since 1990 and for the fire department since 1993. Smith’s main
    contention is that the department does not give black firefighters as much help
    preparing for promotional tests as it gives white firefighters. Smith took, and
    failed, the Lieutenant test several times. Even after Connell gave Smith a copy of
    the IFSTA test books to study (the books from which the test questions are drawn),
    Smith still did not pass.6 According to Smith it was because what he studied in the
    books was not on the tests. He claims he passed the test only after getting copies
    of some of the materials that Connell had given to white firefighters (though
    Smith’s score was still not high enough to merit a promotion to Lieutenant).
    Smith testified that he never complained to his superiors about not being promoted
    after passing the test.
    According to Connell, the fire department library had “at least one” copy of
    each of the relevant IFSTA books. Any firefighter could borrow at any time those
    6
    Smith’s deposition testimony contains a transcription error. He testified that he was
    given the “Ithaca Firefighter IV book,” but throughout the record those materials are referred to
    as the IFSTA handbooks. And that is what we will assume Smith meant.
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    books to study for the promotional tests. And again, because the tests are
    randomly generated by a computer, the results cannot be manipulated. See supra at
    3.
    Smith filed an EEOC complaint on January 3, 2012, alleging that he was
    discriminated against because white firefighters were given answers to test
    questions for promotional tests and he was not. On October 16, 2012, the EEOC
    gave Smith a Notice of Right to Sue.7
    B. PROCEDURAL HISTORY
    The five plaintiffs filed a consolidated complaint on July 16, 2014, claiming
    that the City, Chief Croft, and Assistant Chief Connell had discriminated and
    retaliated against them in violation of Title VII of the Civil Rights Act of 1964, 42
    U.S.C. § 2000e, et seq., 
    42 U.S.C. § 1981
    , and Georgia Code § 45-19-29. All five
    plaintiffs raise claims that the fire department discriminated against them on the
    basis of race in promotions and pay. They also brought hostile work environment
    claims. In addition, Colson, Bradshaw, Powell, and Johnson brought disparate
    treatment claims involving Croft’s refusal to allow them to train as arson
    investigators. Finally, Colson and Bradshaw claimed that the defendants retaliated
    against them for filing their first EEOC charges.
    7
    The defendants never raised any issue about the timeliness of Smith’s claims in the
    district court.
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    The defendants moved for summary judgment, which the district court
    granted on all claims. The plaintiffs have appealed the district court’s judgment
    against them on all of the claims — except the hostile work environment claims,
    which they have abandoned.
    II. STANDARD OF REVIEW
    We review de novo the district court’s grant of summary judgment.
    Crawford v. Carroll, 
    529 F.3d 961
    , 964 (11th Cir. 2008). “Summary judgment is
    appropriate only if the movant shows that there is no genuine dispute as to any
    material fact and the movant is entitled to judgment as a matter of law.” Hamilton
    v. Southland Christian Sch., Inc., 
    680 F.3d 1316
    , 1318 (11th Cir. 2012) (quotation
    marks omitted). In viewing the evidence, we draw all reasonable inferences in the
    light most favorable to the nonmovant. Crawford, 
    529 F.3d at 964
    .
    III. DISCUSSION
    The legal bases for the racial discrimination claims are three statutes: Title
    VII, 
    42 U.S.C. § 1981
    , and Georgia Code § 45-19-29. The Title VII analytical
    framework applies to all of them. See Standard v. A.B.E.L. Servs., Inc., 
    161 F.3d 1318
    , 1330 (11th Cir. 1998) (explaining that claims under Title VII and § 1981
    “have the same requirements of proof and use the same analytical framework”);
    Finney v. Dep’t of Corr., 
    434 S.E.2d 45
    , 45–46 (Ga. 1993) (“[I]n construing
    20
    Case: 16-16848    Date Filed: 10/02/2018    Page: 21 of 44
    [§ 45-19-29], our courts may seek guidance from federal decisions construing
    similar federal statutes.”).
    Title VII makes it unlawful for an employer “to discriminate against any
    individual with respect to his compensation, terms, conditions, or privileges of
    employment, because of such individual’s race, color, religion, sex, or national
    origin.” 42 U.S.C. § 2000e-2(a)(1). The plaintiff bears the burden of establishing
    a prima facie case of race discrimination. See Holifield v. Reno, 
    115 F.3d 1555
    ,
    1561 (11th Cir. 1997). That can be done with either direct or circumstantial
    evidence. 
    Id.
     at 1561–62.
    In this case, as in most cases, the plaintiffs rely on circumstantial evidence.
    Claims based on circumstantial evidence typically use the familiar burden-shifting
    framework developed in McDonnell Douglas Corp. v. Green, 
    411 U.S. 792
    , 
    93 S. Ct. 1817
     (1973). Under that framework, a plaintiff must set forth “facts
    adequate to permit an inference of discrimination.” Holifield, 
    115 F.3d at 1562
    .
    That can be done by establishing a prima facie case which creates a rebuttable
    presumption that the employer unlawfully discriminated against the employee.
    Wilson v. B/E Aerospace, Inc., 
    376 F.3d 1079
    , 1087 (11th Cir. 2004).
    Once a plaintiff has established a prima facie case, the burden shifts to the
    employer to produce “legitimate, nondiscriminatory reasons for the challenged
    employment action.” Combs v. Plantation Patterns, 
    106 F.3d 1519
    , 1528 (11th
    21
    Case: 16-16848      Date Filed: 10/02/2018   Page: 22 of 44
    Cir. 1997). Producing evidence (whether ultimately persuasive or not) of
    legitimate nondiscriminatory reasons for its actions is enough for the employer to
    satisfy its burden. See 
    id.
    If a defendant carries its burden of production, the initial presumption of
    discrimination established by the plaintiff’s prima facie case evaporates. Wilson,
    
    376 F.3d at 1087
    . “[A]nd the burden of production shifts to the plaintiff to offer
    evidence that the alleged reason of the employer is a pretext for illegal
    discrimination.” 
    Id.
     “If the proffered reason is one that might motivate a
    reasonable employer, a plaintiff cannot recast the reason but must meet it head on
    and rebut it.” 
    Id. at 1088
    .
    With that in mind, we will take up each of the plaintiffs’ claims, starting
    with the ones involving failure to promote and disparate treatment in training. We
    will then go to Colson’s and Bradshaw’s retaliation claims. And we will end with
    the plaintiffs’ wage discrimination claims.
    A. FAILURE TO PROMOTE
    All five of the plaintiffs raise failure to promote claims. They contend that
    the defendants are not entitled to summary judgment because there is a genuine
    issue of material fact about whether the fire department gave promotional
    opportunities to white firefighters that were denied to black firefighters. The
    district court found that none of the plaintiffs had established a prima facie case.
    22
    Case: 16-16848     Date Filed: 10/02/2018     Page: 23 of 44
    To make out a prima facie case of racial discrimination based on a failure to
    promote, a plaintiff must establish “(1) that he is a member of a protected class; (2)
    that he was qualified for and applied for the promotion; (3) that he was rejected;
    and (4) that other equally or less qualified employees who were not members of
    the protected class were promoted.” Combs, 
    106 F.3d at
    1539 n.11.
    Colson’s, Bradshaw’s, and Smith’s claims all involve promotions that were
    exclusively based on the IFSTA tests. Some of Johnson’s claims involve the tests
    and some do not. And Powell’s promotion claims do not involve the tests at all.
    1. Promotions Based on Tests
    Colson’s, Bradshaw’s, Johnson’s, and Smith’s test-based claims fail because
    none of them has pointed to evidence creating a genuine issue of material fact that
    he was qualified for the promotions at issue. As a result, none of these plaintiffs
    has made out a prima facie case of discrimination. See id.; see also Vessels v.
    Atlanta Indep. Sch. Sys., 
    408 F.3d 763
    , 769 (11th Cir. 2005) (“[T]o demonstrate
    that he was qualified for the position, a Title VII plaintiff need only show that he or
    she satisfied an employer’s objective qualifications.”).
    Colson complains that he was not promoted from Lieutenant to Captain
    when he moved from the Life Safety Educator position to the Fire Inspector
    position, while white firefighters, like Colson’s predecessor Clay Phillips, were
    promoted to Captain when they made that move. Bradshaw makes a similar
    23
    Case: 16-16848       Date Filed: 10/02/2018       Page: 24 of 44
    complaint about not being promoted to Lieutenant when he became Life Safety
    Educator. But Colson and Bradshaw point to no evidence that they took (let alone
    passed and scored the highest on) the relevant promotional tests for Captain
    (Colson) or for Lieutenant (Bradshaw). Without that, they have failed to show that
    they met the fire department’s objective qualifications for a promotion in rank. In
    addition, Colson also hasn’t shown that he was as qualified as Phillips was for the
    promotion to Captain –– that is, he has not shown that Phillips also failed to take
    the promotional test. And Bradshaw hasn’t pointed to any employee outside of his
    protected class who was promoted to Lieutenant without taking the required
    promotional test.
    Johnson claims that he was denied a promotion to Captain because of his
    race. He applied for a promotion to Captain in 2011. Even though Johnson did
    well on the test — ranking third — Marty Butler, who is white, got the promotion.
    Chief Croft testified that he always promoted the employee with the highest score
    on the promotion test, and Johnson presented no evidence to rebut that testimony.
    He presented no evidence that Butler had not scored first or second on the test, and
    without that evidence there is no genuine issue of material fact that Butler was not
    more qualified than Johnson.8 See Combs, 
    106 F.3d at
    1539 n.11 (explaining that
    8
    Johnson also made the unsupported assertion that Croft and Connell conspired to create
    and rig the test to prevent him from getting a promotion. Because he did not assert that claim on
    appeal, it is abandoned. See AT&T Broadband v. Tech Commc’ns., Inc., 
    381 F.3d 1309
    , 1320
    n.14 (11th Cir. 2004). But even if he had preserved it, the defendants presented evidence that the
    24
    Case: 16-16848       Date Filed: 10/02/2018      Page: 25 of 44
    the plaintiff must establish that “other equally or less qualified employees who
    were not members of the protected class were promoted”).
    The same is true for Smith. Although he eventually passed the Lieutenant’s
    test, he, like Johnson, failed to produce any evidence that his test score was the
    same or higher than the score of the person who was promoted. And because
    Smith failed to show that, he has not created a genuine issue of material fact that he
    was the most qualified person for the promotion.9
    Even if the plaintiffs had presented adequate prima facie cases, they would
    still lose because their failure to bring forward evidence of test scores as high or
    higher than the employees who were promoted also serves as the defendants’
    proffered race-neutral reason for not promoting them. A plaintiff’s lower
    promotional test score is a legitimate and nondiscriminatory reason for not
    promoting the plaintiff. And none of the plaintiffs has pointed to any evidence
    showing that proffered reason is pretextual. As a result, the district court properly
    granted summary judgment against Colson, Bradshaw, Johnson, and Smith on their
    claims for discriminatory failure to promote.
    Promotions Not Based on Tests
    tests are randomly generated by a computer, so the questions and results cannot be manipulated.
    Johnson does not cite any evidence to the contrary.
    9
    In the district court, Smith also appeared to raise a claim involving the testing
    procedures and preparation. But he has not pursued it on appeal, so it is abandoned. See AT&T
    Broadband, 
    381 F.3d at
    1320 n.14.
    25
    Case: 16-16848     Date Filed: 10/02/2018   Page: 26 of 44
    a. Powell
    Powell contends that he was denied two promotional opportunities because
    of his race. One was for the position of interim Chief in 2012 and another was for
    Assistant Chief in 2009. Powell was qualified for both of those positions, but they
    went to Bobby Hart and Tim Connell respectively, both of whom are white. The
    district court ruled that Powell could not make out a prima facie case on the failure
    to promote him to either position because he never expressed an interest in them.
    Powell argues that he did not have to apply for or express an interest in those
    positions because neither job was posted. Unlike promotions to Lieutenant and
    Captain, there is no evidence that the department ever formally announced
    openings for interim Chief or Assistant Chief. Both were filled informally. In
    Carmichael v. Birmingham Saw Works, we explained that when an employer uses
    informal procedures for determining who would be offered a promotion, a
    “plaintiff [is] not required to ask specifically for [a] job when he did not know
    about it and where there was no formal mechanism for expressing his interest.”
    
    738 F.2d 1126
    , 1132–33 (11th Cir. 1984). We held that in those circumstances a
    plaintiff makes out a prima facie case “as long as he establishes that the [employer]
    had some reason or duty to consider him for the post.” 
    Id. at 1133
    . If the
    employee establishes that, the employer “cannot avoid a Title VII violation by
    showing that it incorrectly assumed that the plaintiff was uninterested in the job.”
    26
    Case: 16-16848     Date Filed: 10/02/2018    Page: 27 of 44
    
    Id.
     at 1133–34. Such a rejection is not a legitimate nondiscriminatory reason when
    the plaintiff has “no notice of or opportunity to apply for [a] job” when informal
    procedures are used. 
    Id. at 1134
     (quotation marks omitted); see also Vessels, 
    408 F.3d at 768
     (“[W]here an employer does not formally announce a position, but
    rather uses informal and subjective procedures to identify a candidate, a plaintiff
    need not show under the second prong that he applied for the position—only that
    the employer had some reason to consider him for the post.”).
    i.   The interim Chief Position
    To be sure, even though there was no formal notice for the availability of the
    interim Chief position, Powell would have had constructive notice that it was
    available once Chief Croft, his boss, resigned. So the Carmichael informality
    exception doesn’t apply, and to make out a prima facie case Powell still has to
    show that he asked to be considered for the position. Cf. Carmichael, 738 F.2d at
    1132–33 (explaining that the “plaintiff [is] not required to ask specifically for [a]
    job when he did not know about it”) (emphasis added).
    And even if Powell could establish a prima facie case, his interim Chief
    promotion claim would still fail because he cannot show pretext. The City
    proffered that the reason it promoted Hart to the position is that he was the most
    senior member of the fire department. Powell does not offer any argument or
    evidence to rebut that reason. As a result, the defendants are entitled to summary
    27
    Case: 16-16848     Date Filed: 10/02/2018   Page: 28 of 44
    judgment on Powell’s claim of discriminatory failure to promote him to interim
    Chief.
    ii.   The Assistant Chief Position
    Unlike the interim Chief position, Powell did not know or have any reason
    to know that the newly-created Assistant Chief job was going to become available.
    Chief Croft did not post or otherwise announce the availability of that position.
    So Powell cannot be faulted for not applying. As a result, if Croft had reason to
    believe that Powell would be interested in the position, the Carmichael exception
    applies because of the “duty to consider . . . all employees who might reasonably
    be interested in the position.” Id. at 1134.
    The district court decided that Chief Croft did not have any reason to believe
    that Powell might be interested in the “promotion” because it would not actually
    have been a promotion for him. The court reached that conclusion because both
    the Battalion Chief and Assistant Chief reported directly to the Chief. It found that
    there was “no evidence [the defendants] knew of [Powell’s] desire to make what
    otherwise would have been a lateral move.”
    We have never exhaustively discussed what distinguishes a purely lateral
    transfer from a promotion, but we have explained that a job with “better working
    conditions” is considered a promotion even though it may not represent an
    immediate increase in pay. Id. at 1134–35. To Powell, the Assistant Chief
    28
    Case: 16-16848     Date Filed: 10/02/2018   Page: 29 of 44
    position would have represented a change from suppression duties to an
    administrative role and from shifts of 24-hours on, followed by 48-hours off to a
    regular 8 a.m. to 5 p.m. work schedule, which would mean that Powell would have
    been on duty 800 fewer hours a year. Given that, Chief Croft had reason to believe
    that Powell could have considered the Assistant Chief’s position a promotion and
    might reasonably have been interested in applying for it (as Powell insists he
    would have been).
    And we cannot say that the Assistant Chief position is not above that of
    Battalion Chief in the department hierarchy. Both do report directly to the Chief.
    But the supervisor to whom a person reports is not the only fact that determines
    position in the employment hierarchy.
    In this case, Chief Croft created the Assistant Chief position in part so that
    there would be someone in a permanent position to act on his behalf and oversee
    the fire department when he was absent. Because Connell got the Assistant Chief
    position, Powell would have to report to him when Chief Croft was not there.
    Meaning that, on those occasions, Connell would be Powell’s direct supervisor,
    instead of the other way around if Powell had been selected.
    We’ve recognized that a lateral transfer can be a demotion if it involves a
    “reduction in . . . prestige or responsibility.” Hinson v. Clinch Cty., Ga. Bd. Of
    Educ., 
    231 F.3d 821
    , 829 (11th Cir. 2000); see also Forsyth v. City of Dallas, 91
    29
    Case: 16-16848        Date Filed: 10/02/2018        Page: 30 of 
    44 F.3d 769
    , 774 (5th Cir. 1996) (concluding that a lateral transfer to a position that
    was less prestigious, with less favorable working hours, and less interesting work
    was a demotion). The flipside is that a lateral transfer can be a promotion if it
    involves an increase in prestige or responsibility. See Stewart v. Ashcroft, 
    352 F.3d 422
    , 427 (D.C. Cir. 2003) (concluding that “a position with substantially
    greater supervisory authority” is a promotion even if it otherwise would be a lateral
    transfer in the employer’s hierarchy).
    The only reason the defendants give for not considering Powell for the
    Assistant Chief position is that he did not express any interest in it. But according
    to our Carmichael decision, that is not a “legitimate” reason when a position is
    filled through informal procedures, and the plaintiff had no notice or opportunity to
    apply for the position. 738 F.2d at 1133–34. The defendants do not offer any
    other reason to explain why Powell was not considered and selected over Connell,
    who had 10 years less experience and was at lower rank in the department at the
    time. So we are left with Powell’s prima facie case, and the unrebutted
    presumption of discrimination that comes with it. As a result, the district court
    erred in granting summary judgment to the defendants on Powell’s failure to
    promote claim with respect to the Assistant Chief position.10
    10
    The parties dispute whether the defendants waived their statute of limitations defense
    to all of the claims. The defendants point to a footnote in their motion for summary judgment
    which they argue raised the statute of limitations issue at least as to some of Powell’s claims.
    But that footnote is only a footnote, and it never mentions Powell or asserts that any of the events
    30
    Case: 16-16848        Date Filed: 10/02/2018        Page: 31 of 44
    b. Johnson
    Johnson contends that he was denied an opportunity to be promoted to Fire
    Inspector after Colson was transferred back to suppression in November 2011.
    The Fire Inspector position was never posted and was given to Tommy Benton,
    who is white.
    The defendants make the same argument as to Johnson that they did about
    Powell, asserting that Johnson failed to make out a prima facie case because he
    never expressed an interest in the Fire Inspector position. But because the position
    was unposted, Johnson need only show that the defendants had reason to believe
    he would be interested in that position and that he had no notice that it was
    available or no opportunity to apply. See id. at 1132–33. Johnson’s twenty-six
    year tenure in the department, along with his recent application for the open
    Captain position earlier that same year, is reason enough for the defendants to have
    known that he would be interested. See id. (concluding that the employer had a
    reason to consider the plaintiff for a promotion when he had expressed a desire for
    involving him are outside the statute of limitations. So the defense is waived as to that claim.
    Juris, 685 F.3d at 1325; In re Pan Am. World Airways, Inc., Maternity Leave Practices & Flight
    Attendant Weight Program Litig., 
    905 F.2d 1457
    , 1462 (11th Cir. 1990) (“[I]f a party hopes to
    preserve a claim, argument, theory, or defense for appeal, she must first clearly present it to the
    district court, that is, in such a way as to afford the district court an opportunity to recognize and
    rule on it.”); United States v. Ramirez-Flores, 
    743 F.3d 816
    , 821 (11th Cir. 2014) (to preserve an
    issue for appeal a party “must raise that point in such clear and simple language that the trial
    court may not misunderstand it.”) (quotation marks omitted).
    31
    Case: 16-16848        Date Filed: 10/02/2018        Page: 32 of 44
    similar promotions in the past). And it is undisputed that they did not consider
    Johnson for the position.
    Even though the position was not posted, the defendants argue that the
    Carmichael exception is inapplicable because Johnson would have been aware that
    the Fire Inspector position was open after Colson was transferred back to
    suppression. But the only evidence in the record on that point shows that the Fire
    Inspector position was filled quickly, and Johnson’s uncontradicted testimony is
    that he did not know it was available until the announcement that Benton had been
    selected for it. When Johnson complained about the position being filled without
    being posted, he received a memo from HR stating that Benton had been selected
    as Fire Inspector “to fill an immediate need for the work that needs to be done
    while, at the same time, accommodating the uncertainties of his existing medical
    condition.”11 Because the Fire Inspector position was filled quickly and without
    notice of its availability, Johnson would not have had any way of knowing that it
    was available.
    The only remaining question about Johnson’s prima facie case is whether he
    was at least as qualified for the position as Benton, who is white. See Combs, 
    106 F.3d at
    1539 n.11. Johnson asserts that he was at least as qualified (or even more
    11
    The defendants did not proffer the immediate need to fill the Fire Inspector position or
    the need to accommodate Benton’s medical condition as a legitimate nondiscriminatory reason
    for filling it with him instead of Johnson.
    32
    Case: 16-16848    Date Filed: 10/02/2018    Page: 33 of 44
    qualified) for the position of Fire Inspector as Benton. He points out that Benton
    was suffering from dementia in the form of early onset Alzheimer’s disease when
    he was named Fire Inspector. The defendants insist that there is no evidence that
    Benton had been diagnosed with Alzheimer’s when he was promoted or that his
    condition prevented him from adequately performing the job (besides needing to
    be driven around by Connell). But Chief Croft admitted in his deposition that,
    even if he did not know that Benton had early onset Alzheimer’s when Benton
    was promoted to Fire Inspector, he knew at the time that Benton had some
    “medical issues” that were “mental.” And, in any event, it is undisputed that
    Benton was not more qualified than Johnson was for the Fire Inspector position.
    So Johnson has made out a prima facie case of failure to promote him to the
    Fire Inspector position. The sole nondiscriminatory reason that the defendants
    proffered is that Johnson never expressed an interest in that position, which, as we
    have explained, the Carmichael exception excuses under these circumstances. 738
    F.2d at 1132–34. Like Powell’s claim regarding the Assistant Chief position,
    Johnson’s prima facie case is unrebutted. As a result, summary judgment should
    not have been granted to the defendants on Johnson’s discriminatory failure to
    promote claims as to the Fire Inspector position.
    B. DISPARATE TREATMENT IN TRAINING
    33
    Case: 16-16848     Date Filed: 10/02/2018    Page: 34 of 44
    Four of the plaintiffs, Colson, Bradshaw, Johnson, and Powell, raise
    disparate treatment claims, asserting that the defendants discriminated against them
    on racial grounds by denying them the opportunity to complete their training as
    arson investigators while allowing white firefighters to do so. In order to establish
    a prima facie case of disparate treatment, a plaintiff must establish that (1) he
    belongs to a protected class; (2) he suffered an adverse effect on his employment;
    (3) his employer treated similarly situated people outside of the protected class
    more favorably; and (4) he was qualified for the benefit sought. Burke-Fowler v.
    Orange County, Fla., 
    447 F.3d 1319
    , 1323 (11th Cir. 2006).
    None of the plaintiffs can make out a prima facie case of disparate treatment.
    Colson and Bradshaw had not completed ten fire investigations, which was
    required before they could take the course that would complete their training. So
    they were not qualified to take that course, which was the second part of training.
    Johnson never expressed a desire to take the course. And even if Powell had taken
    the course, he would not have been able to be an arson investigator because, as a
    Battalion Chief, it would have created a conflict of interest –– he would have been
    investigating fires that he had helped put out. So being denied that training
    opportunity did not amount to, or result in, any adverse effect on his employment.
    See Shannon v. Bellsouth Telecomms., Inc., 
    292 F.3d 712
    , 716 (11th Cir. 2002)
    (explaining that an adverse employment action is “conduct that alters an
    34
    Case: 16-16848        Date Filed: 10/02/2018       Page: 35 of 44
    employee’s compensation, terms, conditions, or privileges of employment”)
    (emphasis added) (quotation marks omitted). The defendants were, as the district
    court concluded, entitled to summary judgment on the plaintiffs’ disparate
    treatment claims. 12
    C. RETALIATION
    Colson and Bradshaw contend that the defendants are not entitled to
    summary judgment on the retaliation claims. To make out a prima facie case of
    retaliation, Colson and Bradshaw must establish that they engaged in protected
    activity, suffered a materially adverse action, and that there was some causal link
    between the two events. Dixon v. Hallmark Cos., 
    627 F.3d 849
    , 856 (11th Cir.
    2010).
    Both Colson and Bradshaw argue that they were reassigned from Fire
    Inspector and Life Safety Educator to suppression duties in retaliation for filing
    their initial EEOC charges. 13 There is no dispute that the two of them engaged in
    12
    The plaintiffs contend that the fire department was operated in a way that deprived
    every black firefighter equal opportunity for advancement. They argue that they have presented
    a “convincing mosaic of circumstantial evidence that would allow a jury to infer intentional
    discrimination” by the fire department against every black firefighter. Smith v. Lockheed-Martin
    Corp., 
    644 F.3d 1321
    , 1328 (11th Cir. 2011). We disagree. Whether the evidence is considered
    individually or collectively, it does not raise a reasonable inference of discriminatory intent with
    respect to the plaintiffs’ disparate treatment claims. Nor does it raise a reasonable inference of
    discriminatory intent with respect to the plaintiffs’ failure to promote claims — with the
    exceptions of Johnson’s claim about the Fire Inspector position and Powell’s claim about the
    Assistant Chief Position. See 
    id.
    13
    Colson also contends that the 2011 GBI investigation into the missing recycling
    proceeds was also done in retaliation for his EEOC charge. He argues that Chief Croft accused
    him of stealing the money meant for the Burn Foundation and called the police. But that string
    35
    Case: 16-16848       Date Filed: 10/02/2018       Page: 36 of 44
    protected activity when they filed their initial EEOC charges, and reassigning
    them to suppression was a materially adverse action. 14
    The district court still concluded that Colson and Bradshaw did not make out
    a prima facie case because there was no causal connection between their initial
    EEOC charges and their reassignments. Causation can be shown by a close
    temporal proximity between the statutorily protected activity and the adverse
    action. Brungart v. BellSouth Telecomms., Inc., 
    231 F.3d 791
    , 799 (11th Cir.
    2000). But without more, the activity and adverse action must be “very close” in
    time to create a genuine issue of causation. Clark Cty. Sch. Dist. v. Breeden, 
    532 U.S. 268
    , 273, 
    121 S. Ct. 1508
    , 1511 (2001).
    The district court determined, and the defendants argue, that the 82 days
    between Colson’s and Bradshaw’s August 25, 2011 EEOC charges and their
    reassignment to suppression on November 14, 2011 of that same year is too much
    of events began when the Burn Foundation asked about the lack of donations from the fire
    department in recent years. One of Colson’s duties was to manage that charitable program for
    the department, and the Burn Foundation inquired, stating that it had not received the donations.
    It was the Burn Foundation’s actions that led to the investigation of Colson, not his EEOC
    charge.
    14
    The district court only assumed without deciding that Colson and Bradshaw’s
    reassignment to suppression was a materially adverse action. Even though the positions were
    paid about the same amount annually, the transfers came with a change from regular 8 a.m. to 5
    p.m. days to less desirable 24-hour on, 48-hour off shifts and a decrease in their hourly wage.
    They had to work 800 hours more a year to make the same amount of money. A change to a less
    desirable shift with an increase in working hours is materially adverse. See Burlington N. &
    Santa Fe Ry. Co. v. White, 
    126 U.S. 53
    , 68, 
    126 S. Ct. 2405
    , 2415 (2006) (explaining that a
    materially adverse action is anything that might dissuade “a reasonable worker from making or
    supporting a charge of discrimination”).
    36
    Case: 16-16848      Date Filed: 10/02/2018       Page: 37 of 44
    time for an inference of retaliation. Maybe. See Thomas v. Cooper Lighting, Inc.,
    
    506 F.3d 1361
    , 1364 (11th Cir. 2007) (“A three to four month disparity between
    the statutorily protected expression and the adverse employment action is not
    [close] enough.”). But the picture is clouded some by evidence indicating that the
    actual decision to reassign Colson and Bradshaw did not happen in November but
    instead shortly after their meeting with Chief Croft on September 30. That would
    reduce the time distance between the protected conduct and the adverse action
    from 82 days to 37 days.
    A strong argument can be made that where the decision to take adverse
    action occurs on a different date than the taking of the action, what counts is the
    proximity of the protected activity to the decision to take adverse action, not the
    proximity of the protected activity and the action. See Breeden, 
    532 U.S. at 272
    ,
    
    121 S. Ct. at 1511
    ; Drago v. Jenne, 
    453 F.3d 1301
    , 1308 (11th Cir. 2006) (“We
    hold that, in a retaliation case, when an employer contemplates an adverse
    employment action before an employee engages in protected activity, temporal
    proximity between the protected activity and the subsequent adverse employment
    action does not suffice to show causation.”). If so, the lack of temporal proximity
    between protected conduct and adverse action will not defeat a plaintiff’s prima
    facie case if the defendant decided to take the adverse action soon after the
    protected conduct but did not actually take it until later.
    37
    Case: 16-16848     Date Filed: 10/02/2018    Page: 38 of 44
    We need not base our decision on that idea or decide the temporal proximity
    and causation issues here but can instead assume that the plaintiffs Colson and
    Bradshaw have made out a prima facie case of retaliation. Our assumption does
    not matter because the defendants have proffered a nondiscriminatory reason for
    the transfers that has not been shown to be pretextual.
    The defendants assert that the reason Chief Croft reassigned Colson and
    Bradshaw was because of their poor performance. Even before they filed their first
    EEOC charges on August 25, Croft was concerned about Colson and Bradshaw’s
    performance. He had learned at the June 15 meeting that they were not properly
    doing hazardous materials and commercial building inspections. He also learned
    that they were not properly entering records of the inspections they did do into the
    department’s computer system. Those concerns were the subject of the September
    30 meeting. And that meeting led to Colson and Bradshaw’s reassignment to
    suppression on November 14. Unsatisfactory job performance is a legitimate
    nondiscriminatory reason that will rebut a prima facie case. See Damon v.
    Fleming Supermarkets of Fla., Inc., 
    196 F.3d 1354
    , 1361 (11th Cir. 1999).
    Legitimate, nondiscriminatory reasons for the transfers having been
    proffered, it was up to Colson and Bradshaw to provide sufficient evidence for a
    reasonable factfinder to infer that those reasons were pretextual. See Crawford,
    
    529 F.3d at 976
    . To do that, Colson and Bradshaw had to demonstrate “such
    38
    Case: 16-16848     Date Filed: 10/02/2018   Page: 39 of 44
    weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in
    the employer’s proffered legitimate reasons for its action that a reasonable
    factfinder could find them unworthy of credence.” Alvarez v. Royal Atl.
    Developers, Inc., 
    610 F.3d 1253
    , 1265 (11th Cir. 2010) (quotation marks omitted).
    Colson and Bradshaw do not dispute that they were behind on inspections
    and that they had failed to properly enter the inspections they did make into the
    computer system. Instead, they argue that they were never reprimanded for
    deficient performance before they filed their EEOC charges. But to the extent a
    reprimand was required, what happened at their June 15 meeting with Chief
    Colson amounted to a verbal reprimand, or at least a warning. As Colson and
    Bradshaw state in their August 25 EEOC charges, at the June 15 meeting they were
    told that they “need[ed] to improve [their] performance.”
    Colson argues that the defendants’ assertions about his poor performance are
    a pretext for racial discrimination and that replacing him as Fire Inspector with
    Tommy Benton, who is white and had early onset Alzheimer’s disease, shows that.
    As we have mentioned before, when Benton was chosen as Fire Inspector, the
    defendants did not know that he had Alzheimer’s. But whatever the defendants
    knew or should have known about Benton’s mental condition at the time he was
    selected to replace Colson does not rebut their proffered reasons for removing
    Colson from that position. The undisputed evidence shows that Chief Croft
    39
    Case: 16-16848    Date Filed: 10/02/2018    Page: 40 of 44
    warned Colson about what he viewed as poor performance before Colson made an
    EEOC charge. Given the undisputed evidence of Colson’s performance problems,
    the fact of Benton’s health problems at the time he was chosen to fill the Fire
    Inspector position is not enough to create a genuine issue of material fact that the
    defendants’ legitimate, nondiscriminatory reason for reassigning Colson is
    pretextual. It is, after all, the removal of Colson from the position, not the failure to
    select him instead of someone else to the position after he was removed, that is at
    issue.
    No evidence Colson and Bradshaw point to casts doubt on the reasons that
    the defendants gave for removing them from the positions in which they were not
    properly performing. They are “quarreling with the wisdom” of the defendants’
    decision, but that is not enough to create a genuine issue of material fact about
    pretext. Chapman v. AI Transp., 
    229 F.3d 1012
    , 1030 (11th Cir. 2000) (en banc).
    The defendants are entitled to summary judgment on Colson and Bradshaw’s
    retaliation claims. See Crawford, 
    529 F.3d at 976
    ; see also Thomas, 
    506 F.3d at 1364
     (“We may affirm the district court’s judgment on any ground that appears in
    the record, whether or not that ground was relied upon or even considered by the
    court below.”).
    D. DISPARATE PAY
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    Case: 16-16848        Date Filed: 10/02/2018        Page: 41 of 44
    All five plaintiffs contend that the district court erred in granting summary
    judgment against them on their claims of wage discrimination. To establish a
    prima facie case on that type of claim, a plaintiff must show that he was paid less
    than a similarly situated member of a different race and that he was qualified to
    receive the higher wage. See Cooper v. Southern Co., 
    390 F.3d 695
    , 734–35 (11th
    Cir. 2004), overruled on other grounds by Ash v. Tyson Foods, Inc., 
    546 U.S. 454
    ,
    
    126 S. Ct. 1195
     (2006). A plaintiff and the comparator he identifies must be
    similarly situated in all relevant respects. Holifield, 
    115 F.3d at 1562
    .15 If the
    plaintiff cannot show that there is a similarly situated employee, then the
    defendants are entitled to summary judgment “where no other evidence of
    discrimination is present.” 
    Id.
     (emphasis omitted). That’s the case here.
    Powell does not offer any comparators at all. He simply says that he was
    discriminated against because, out of the 23 employees in the City at Powell’s pay
    grade, only he and one other were black. But he does not provide any evidence
    that he was discriminated against in his pay based on his race. The district court
    15
    In Lewis v. Union City, No. 15-11362, this Court has granted en banc rehearing to
    decide how similar comparators must be. The parties in that case have been asked to brief:
    “What standard does the phrase ‘similarly situated’ impose on the plaintiff: (1) ‘same or
    similar,’ (2) ‘nearly identical,’ or (3) some other standard?” However the Court answers that
    question, it will not change the fate of the disparate pay claims in this case because under any
    reasonable standard, the plaintiffs have not identified any appropriate comparators.
    41
    Case: 16-16848      Date Filed: 10/02/2018    Page: 42 of 44
    properly entered summary judgment against Powell on his disparate pay claim. See
    
    id.
    The other four plaintiffs, Colson, Bradshaw, Johnson, and Smith, all offer
    several other white firefighters as comparators. To do that they rely mainly on a
    spreadsheet that lists the name, job title, paygrade, salary, race, sex, and hire date
    for all of the firefighters in the department over a five year period, from 2010 to
    2014. All of the comparators were hired at the same time or at some point after
    each of the plaintiffs were. The gist of their argument is that those white
    firefighters had not served in the department as long as they had but were paid
    more for the same work.
    But length of service in the department alone is not the only proper measure
    for determining pay. See Cooper, 
    390 F.3d at 745
     (explaining that the plaintiff’s
    disparate pay claims failed because she did not show that her proposed
    comparators had similar levels of experience, education, or responsibility, but
    instead relied on the conclusory assertion that they were “lower” employees).
    And the plaintiffs have not provided any other information besides that on the
    spreadsheet. For example, there is nothing showing that the comparators had
    similar levels of experience in their careers or similar levels of education or similar
    job responsibilities. See 
    id.
    42
    Case: 16-16848      Date Filed: 10/02/2018    Page: 43 of 44
    If anything, the spreadsheet appears to show that their chosen comparators
    routinely were higher ranked or had more experience or had other certifications
    that justify disparity in pay. For example, two of the plaintiffs, Smith and Johnson,
    point to Mark Sealy as a comparator. Sealy was a Captain and was promoted to
    Battalion Chief during the five-year period at issue, while Smith was a driver-
    engineer and Johnson was a lieutenant during that time. So the proffered
    comparator did not hold the same rank as those two plaintiffs did, and there is no
    showing that he did not achieve that higher rank based on a competitive test or
    other non-discriminatory criterion.
    Others offered as comparators had previous experience that justified a higher
    starting salary. For example, Jonathan Paschall, whom Colson relies on as a
    comparator, was hired at a higher starting salary than Colson because of Paschall’s
    “previous experience as [a] driver” with an EMS agency. The pay records also
    show that the department gave financial incentives for completing certain
    certifications. For example, a hazmat certification resulted in an extra 62 cents an
    hour, and an EMT certification resulted in a five percent increase in pay. The
    plaintiffs do not show that they had similar certifications, or that the relevant
    comparators’ pay would have been higher even without the certifications. And
    because annual merit raises were based on a percentage of the firefighter’s pay,
    43
    Case: 16-16848     Date Filed: 10/02/2018    Page: 44 of 44
    pay disparities caused by legitimate, non-discriminatory factors would be increased
    over time.
    Because they have not identified any similarly situated comparators and
    have failed to present other evidence sufficient to create an inference of
    discrimination, their claims of racially discriminatory pay disparity fail. See 
    id.
    V. CONCLUSION
    We REVERSE the district court’s judgment on Powell’s claim of racially
    discriminatory failure to promote him to the rank of Assistant Chief and on
    Johnson’s claim of racially discriminatory failure to promote him to the Fire
    Inspector position. We AFFIRM the district court’s judgment on all of the
    plaintiffs’ other claims. And we REMAND the case to the district court for further
    proceedings consistent with this opinion.
    44
    

Document Info

Docket Number: 16-16848

Filed Date: 10/2/2018

Precedential Status: Non-Precedential

Modified Date: 4/18/2021

Authorities (23)

Ash v. Tyson Foods, Inc. , 126 S. Ct. 1195 ( 2006 )

Gordon Vessels v. Atlanta Independent School , 408 F.3d 763 ( 2005 )

Robert Drago v. Ken Jenne , 453 F.3d 1301 ( 2006 )

Cornelius Cooper v. Southern Company , 390 F.3d 695 ( 2004 )

Burlington Northern & Santa Fe Railway Co. v. White , 126 S. Ct. 2405 ( 2006 )

Clark County School District v. Breeden , 121 S. Ct. 1508 ( 2001 )

AT&T Broadband v. Tech Communications, Inc. , 381 F.3d 1309 ( 2004 )

Stewart, Howard P. v. Ashcroft, John , 352 F.3d 422 ( 2003 )

Vivian Burke-Fowler v. Orange County Florida , 447 F.3d 1319 ( 2006 )

Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361 ( 2007 )

Hamilton v. Southland Christian School, Inc. , 680 F.3d 1316 ( 2012 )

William Shannon v. BellSouth Telecommunications , 292 F.3d 712 ( 2002 )

Finney v. Department of Corrections , 263 Ga. 301 ( 1993 )

McDonnell Douglas Corp. v. Green , 93 S. Ct. 1817 ( 1973 )

Dixon v. the Hallmark Companies, Inc. , 627 F.3d 849 ( 2010 )

Loretta Wilson v. B/E Aerospace, Inc. , 376 F.3d 1079 ( 2004 )

Smith v. Lockheed Martin Corp. , 644 F.3d 1321 ( 2011 )

73-fair-emplpraccas-bna-232-71-empl-prac-dec-p-44793-10-fla-l , 106 F.3d 1519 ( 1997 )

in-re-pan-american-world-airways-inc-maternity-leave-practices-flight , 905 F.2d 1457 ( 1990 )

John D. Chapman v. Ai Transport , 229 F.3d 1012 ( 2000 )

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