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Date: 09-02-2021
Case Style:
RANDY ALBRIGHT v. LOWE’S HOME CENTERS, LLC
Case Number: 2:18-cv-01005-JHE
Judge: JOHN H. ENGLAND, III
Court: UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Birmingham, AL - employment Discrimination lawyer represented Plaintiff with contending Lowe’s failed to promote him because of his age in violation of the Age Discrimination in Employment Act (“ADEA”) claim.
Under Rule 56(a) of the Federal Rules of Civil Procedure, summary judgment is proper “if
the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
1
In accordance with the provisions of 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73, the parties have voluntarily consented to have a United States Magistrate Judge
conduct any and all proceedings, including trial and the entry of final judgment. (Doc. 9).
FILED
2021 Mar-29 AM 10:48
U.S. DISTRICT COURT
N.D. OF ALABAMA
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 1 of 31
2
to judgment as a matter of law.” Rule 56 “mandates the entry ofsummary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The moving
party bears the initial burden of proving the absence of a genuine issue of material fact. Id. at 323.
The burden then shifts to the nonmoving party, who is required to “go beyond the pleadings” to
establish there is a “genuine issue for trial.” Id. at 324. (citation and internal quotation marks
omitted). A dispute about a material fact is genuine “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986).
The Court must construe the evidence and all reasonable inferences arising from it in the
light most favorable to the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157,
(1970); see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the nonmoving party’s favor). Any factual disputes will be resolved in the nonmovant’s favor when
sufficient competent evidence supports the nonmovant’s version of the disputed facts. See Pace
v. Capobianco, 283 F.3d 1275, 1276-78 (11th Cir. 2002) (a court is not required to resolve disputes
in the non-moving party’s favor when that party’s version of the events is supported by insufficient
evidence). However, “mere conclusions and unsupported factual allegations are legally
insufficient to defeat a summary judgment motion.” Ellis v. England, 432 F.3d 1321, 1326 (11th
Cir. 2005) (per curiam) (citing Bald Mtn. Park, Ltd. v. Oliver, 836 F.2d 1560, 1563 (11th Cir.
1989)). Moreover, “[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 2 of 31
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not suffice; there must be enough of a showing that the jury could reasonably find for that party.”
Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing Anderson, 477 U.S. at 252).
Summary Judgment Facts
Albright has worked for Lowe’s since 1998. (Deposition of Randy Albright, doc. 28-1
(“Albright Depo.”) at 9 (27:9-11)). He has worked as a Lead Receiver/Stocker at Lowe’s Inverness
location in Birmingham, Alabama since 2005. (Id. at 17 (59:11-61:3)). At the time of the events
giving rise to this lawsuit, Albright was 60 years old. (Declaration of Randy Albright, doc. 29-1
(“Albright Decl.”) at ¶ 4).
Albright is a good employee, well-liked by his coworkers and described by his former
assistant store manager (“ASM”) Timothy “Tim” Shelley (“Shelley”), as “highly reliable, hard
worker, great work ethic.” (Deposition of Wayne Jones, doc. 28-3 (“Jones Depo.”) at 22 (74:10-
20); Deposition of Brad Sloan, doc. 28-4 (“Sloan Depo.”) at (86:10-21); Deposition of Timothy
Shelley, doc. 28-7 (“Shelley Depo.”) at 14 (44:15-45:22)).
A. Night Stocking Manager Position
Due to increased store volume, Lowe’s created a new Night Stocking Manager position at
the Inverness store in late 2017. (Jones Depo. at 15-16 (49:23-51:12)). The Night Stocking
Manager’s responsibilities included supervising the night stocking team to ensure that incoming
merchandise was placed in the correct location (on a shelf, in top stock, or in storage). (Shelley
Depo. at 36 (131:14-132:11)). Like all job openings at the Inverness store, this position was posted
internally for several days, then posted externally. (Jones Depo. at 14-15 (45:19-47:19)). Several
dozen candidates applied for the job, including Albright and Nethanlius “Nate” Mitchell
(“Mitchell”), a 43-year-old fellow Receiver/Stocker at the Inverness store. (Jones Depo. at 18
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 3 of 31
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(58:21-59:5), 22 (74:10-77:18); Deposition of Nethanlius Mitchell, doc. 28-9 (“Mitchell Depo.”)
at 5 (7:11-12)).
Human Resources Manager Wayne Jones (“Jones”), who was in his mid-50s, reviewed the
applications and determined which candidates would be interviewed for the position. (Jones Depo.
at 15 (48:10-14); Sloan Depo. at (92:22-93:13)). Ultimately, Jones selected Albright and Mitchell
for interviews. (Jones Depo. at 22 (74:10-76:9)). Lowe’s guidelines previously recommended
interviewing at least three people for a position. (Id. at 34 (122:3-123:7)). However, in November
2017—prior to the interviews in this case—Lowe’s eliminated this recommendation, although it
had not updated its form to reflect the change by the date of the interviews. (Deposition of Kathy
Seifried, doc. 28-6 (“Seifried Depo.”) at 18-19 (61:15-62:4); Shelley Depo. at 13 (39:14-20)).
Jones testified that he “might have . . . made phone calls” to other candidates, but could not recall
selecting any of them and did not recall why that was the case. (Jones Depo. at 19 (63:21-65:2),
34 (122:3-123:7)). In any event, no other candidates were interviewed. (Id. at 19 (63:21-65:2)).
Albright had more years of relevant employment with Lowe’s than Mitchell at the time of
the interview process, as well as more years of relevant retail experience, experience related to
receiving and stocking, and experience preventing shrink. (Id. at 33 (118:1-120:12)). Albright
had also been performing many of the job duties of the Night Stocker Manager position as Lead
Receiver/Stocker. (Sloan Depo. at 19-21 (65:2-67:17, 69:8-15, 70:7-71:23), 25 (86:10-87:9); doc.
28-5 at 11-12). By contrast, Mitchell had only worked at the Inverness store as a Receiver/Stocker
in October 2017 (although he had previously worked at the Hoover, Alabama Lowe’s from 2013
or 2014 to 2016). (Mitchell Depo. at 9 (24:20-25-1), 16 (53:1-8)). Mitchell’s application also
contained multiple inaccuracies regarding his experience and qualifications for the Night Stocking
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 4 of 31
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Manager position (Jones Depo. at 29-30 (102:15-106:22); Mitchell Depo. at 26 (90:4-93:14); doc.
28-5 at 17-21; doc. 28-9 at 56-61).
B. Interviews
Jones chose ASM Brad Sloan (“Sloan”) and ASM Shelley to conduct interviews with the
two candidates.2
(Jones Depo. at 20-21 (69:6-72:10)). Jones provided a packet to both ASMs
containing interview worksheets and the candidates’ applications. (Id.). Sloan and Shelley each
testified they played no role in selecting candidates for interviews. (Sloan Depo. at 28 (100:21-
101:1); Shelley Depo. at 23 (78:12-79:21)). However, Shelley testified he understood Jones had
coordinated with Sloan to select who would be interviewed. (Shelley Depo. at 13 (38:15-19)).
Lowe’s provides an interview packet containing predetermined questions and a matrix for
interviewers to evaluate candidates’ answers. (Doc. 28-5 at 25-46; Albright Depo. at 11 (35:3-8),
23 (83:4-84:8); Mitchell Depo. at 29-30 (103:20-106:7)). Prior to the interview, the interviewer is
instructed to read a series of statements to the applicant, including the following: “Before we begin
with the formal interview questions, tell me a little bit about your previous work experience and
what interests you about this job.” (Doc. 28-5 at 26). The instructions indicate the interviewer is
to “ask the lead question for each competency and ask probing questions when you need more
information.” (Id.). The scoring matrix ranges from 1, which is “Ineffective,” to 7, denoting
2 Sloan’s account of the decision to have him conduct the interview differs somewhat. In
Sloan’s recounting, Store Manager Ken Dixon was out on medical leave at the time, and Interim
Store Manager Rodney Geeslin asked Sloan to conduct the interviews in what Sloan assumed was
the mistaken belief that the Night Stocking Manager position would fall under Sloan’s purview.
(Sloan Depo. at 28-29 (98:11-100:20, 103:17-104:8), 31 (110:22-111:14)). Sloan testified he
believed Geeslin was confused by an ongoing corporate restructure. (Sloan Depo. at 28 (99:3-
100:3), 31 (110:22-112:16)).
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 5 of 31
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“Master or Role Model.” (Id. at 27). Underneath the matrix is some guidance— “behavioral
anchors”—indicating what sorts of responses fall into each category. (Id.; doc. 28-3 at 69). For
example, a candidate’s answer might reflect a rating more towards the “Ineffective” or “Limited
Competence” (i.e., 1 or 2) end of the range in the category of Getting Organized by providing an
example that “was trivial in nature and did not include challenging demands,” while a candidate
might achieve an “Advanced Competence” or “Master or Role Model” rating (i.e., 6 or 7) for
providing “an example of a significant and challenging situation that included several substantial
demands.” (Doc. 28-5 at 27). The instructions provided to interviewers indicate a “rating of 3
(Approaching Solid Competence) would indicate behaviors mostly in the middle box, but maybe
one or two behaviors in the low end box. A rating of 6 (Advanced Competence) would indicate
behaviors mostly in the high end box but maybe one or two behaviors in the middle box.” (Doc.
28-3 at 69). At the end, the packet states: “The applicant with the highest Average Interview Score
should be selected. If an applicant with a lower score is selected, the reason for this decision must
be documented below, only on the selected applicant’s interview guide.” (Doc. 28-5 at 35, 46).
The instructions also list numerous topics to avoid during interviews, including “age/date of birth.”
(Doc. 28-3 at 69).
1. Brad Sloan Interviews
Sloan conducted the first interview of both candidates on January 19, 2018. (Doc. 28-5 at
25-46). Sloan had attended an offsite development meeting for ASMs in 2011 including some
training on the interview process, but most of his training came from hands-on experience with
other managers. (Sloan Depo. at 17-18 (57:17-60:12)). Sloan’s grading was based on a subjective
judgment of which candidate’s answer he felt had better fit the question. (Id. at 17 (55:1-4)).
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 6 of 31
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Prior to his interview with Albright, Sloan stated “you and I don’t usually get interviews.”
(Albright Depo. at 25 (92:9-93:9)). Based on Sloan’s tone of voice and his similar age, Albright
interpreted this statement as a derogatory remark and responded, “Are you referring to my age?”
(Id. at 26 (96:17-97:7); Declaration of Randy Albright, doc. 29-1 (“Albright Decl.”) at ¶ 9). Sloan
did not deny the allegation, but instead “just kind of laughed it off.” (Albright Depo. at 26 (97:8-
10)). Jones testified Sloan had admitted to the comment but characterized this as a joke, while
Sloan denied making the comment at all. (Jones Depo. at 41 (151:10-152:19); Sloan Depo. at
41:15-20)). 3
During the interview, Sloan told Albright that Albright was qualified for the position and
stated he knew Albright could do the job. (Albright Depo. at 27 (99:12-23), 33 (122:4-11)). Sloan
was familiar with Albright’s performance. (Sloan Depo. at 18-19 (61:13-18, 64:4-8), 29 (102:9-
11)). Conversely, Sloan had not observed Mitchell working prior to the interview. (Id. at 29
3 Although Albright testified at his deposition this was the only time management
commented on his age during his employment, (Albright Depo. at 26-27 (97:16-8)), Albright
points to another age-related incident in his declaration in opposition to summary judgment: a
storewide meeting (prior to his application for the Night Stocking Manager position) at which
Sloan “pointed [Albright] out as the oldest employee at the store.” (Albright Decl. at ¶ 5). Sloan
testified he had recognized Albright as meeting the milestone of being the “most senior tenured”
employee at the location, but denied saying Albright was the oldest employee. (Sloan Depo. at
14-15 (44:16-49:7)). For summary judgment purposes, to the extent it is relevant, the undersigned
resolves this conflict in Albright’s favor.
In a short footnote, Lowe’s contends Albright’s statement in his declaration “is a sham and
should be disregarded, (doc. 30 at 2, n.1), but beyond a citation to Tippens v. Celotex, Corp., 805
F.2d 949, 9554 (11th Cir. 1986), it does not support this with any argument. Although the sham
affidavit doctrine—which prohibits a party from contradicting clear deposition testimony through
a later affidavit, see Strickland v. Norfolk S. Ry. Co., 692 F.3d 1151, 1161 (11th Cir. 2012)—might
apply, a single sentence in a footnote is not an adequate means of raising an evidentiary objection.
In any case, considering this incident does not affect the undersigned’s ultimate conclusion.
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 7 of 31
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(102:3-11)). Sloan did not explicitly ask Mitchell about his prior work experience, despite this
question appearing on the interview instructions. (Sloan Depo. at 40 (148:8-149:10)).
Sloan’s notes reflect the following answers from the candidates:
ALBRIGHT MITCHELL
1. Tell me about a time
when you had several
priorities competing for
your time and attention.
Most priority - label or number them –
make adjustments on what is needed
depending on task.
Buffalo Rock –
Supervisor – lots of responsibility @
one time
Trains, learns scheduling, classes or
responsibilities
Got his assist to train and help repair
how to be help with new employees
Delegate tasks
Check back to ensure tasks were
completed
Multitasking – took a deep breath!!!
2. Think about a complex
project you led. Talk
about your process for
assigning tasks,
monitoring progress, and
giving feedback.
Tackle the situation
Talk with co workers on their opinion
in getting task done
Monitor the process – how are we
going to accomplish the task
Att & Buffalo Rock –
Buffalo Rock sponsors Regions Golf –
Setting up booths, who had experience
found out what their strengths were to
help set up and maintain the event – got
them in 3 man teams, got one person in
charge of the team – walkie talkies to
help communicate
Shift members to help struggling
members
Task completed
3. Tell me about a time
when you took a complex
situation or issue and
provided a simple and
actionable solution.
Several situations, most time provide
the best possible solution – most were
not complex but just different –
See best way to solve or answer the
situation
Store #620 – Unload trucks
Just 2 people there to unload the truck
Had to recruit help throughout the store
Worked as a team – got truck unloaded
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 8 of 31
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then he went back to sale floor to help
get returns & zoning done - teamwork
4. Describe a time when
you motivated an
individual or team to
achieve a very challenging
goal.
Encourage –
Lot of freight
Lots – Encourage the team by talking
through the issues
Buffalo needed volunteers for some
overnight help get them set up @ Fort
Walton (treated dinner out of his own
pocket)
5. Think about a time
when you were
responsible for explaining
a new process or way of
doing something to your
team or peers.
Based on information, explain to them
how to best do it – if unclear then
would ask and follow up w/new
members
Att – Cust. Sales – Bundle Packages
How to Lead the customer
Assigned 5 people – Set up a mock
training class
How to go into Bundle package sale
Teach/Relax
Group got high market sales
6. Describe a time when a
customer was not satisfied
with a situation that you
handled.
Re ask – “what can I do?”
Slow it down, find out what their true
issue is
Lanes – Cynthil 620
Went to plumbing. Black iron tubs
Two types – order the tub – dissatisfied
with the tub
Was not what she was showed by Nate
Had to work with customer to rectify
She calmed down
Ordered the right tub
What she thought was not what came in
7. Tell me about a time
you worked hard to
overcome differences with
someone and develop a
positive working
relationship with that
person.
Sometimes people don’t work the
same.
Worked together – focus on what the
situation is
Keep outside problems outside
Buffalo RockSupervisor position was given to Nate
after person didn’t get the position
Didn’t want to help –
Dismissed the situation w/the teammate
Asked and found out no problem
Actions seem different
8. Describe a time when
you set a goal that had an
important impact on the
store’s or company’s
bottom line.
Seasonal –
Personal when can’t finish with
getting freight off cabinet aisleGet everything up so customer has
product available
Tool Program @ Buffalo Rock
Got together - Looked @ how they
could set up a new program for new
employees – all the old tools could be
exchanged for credit
Harbor Freight – get a discount and
helped with new employees would have
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 9 of 31
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the tools needed.
(Doc. 28-5 at 25-46; Declaration of Brad Sloan, doc. 28-11 (“Sloan Decl.”) at ¶ 4). Adding up the
scores on the matrix, Sloan gave Albright an interview score of 32 (an average interview score of
4.0) and Mitchell a score of 46 (an average interview score of 5.8). (Doc. 28-5 at 35, 46).
Sloan testified that after conducting the interviews, he realized that he was interviewing for
“an area that wasn’t in my area of operations in the store . . . .” (Sloan Depo. at 29-30 (103:17-
106:9). Sloan felt that ASM Shelley, under whom the Night Stocking Manager would work after
the restructure, should make the hiring decision. (Id. at 29-31 (103:17-106:9, 110:22-111:14)).
After completing the interview, Sloan met with Shelley and told Shelley whom he had interviewed
and that he did not feel like he should make the hiring decision; Shelley does not recall Sloan
telling him anything else, including anything about either candidate or interview. (Shelley Depo.
at 24 (82:11-83:12)).
2. Tim Shelley Interview
Like Sloan, Shelley had received training on interviewing through “hands-on” training with
his coworkers, including other ASMs. (Shelley Depo. at 8 (21:2-10)). However, Shelley could
not identify any specific formal training regarding interviewing candidates. (Id. at 8-9 (20:20-
21:1, 22:11-22)). Shelley received an interview worksheet and read it, but did not recall receiving
any more specific guidelines on interviewing, scoring the interview, or selecting the person to hire.
(Id. at 9 (22:23-24:17)).
Prior to conducting interviews with the candidates, Shelley entered Jones’s office and
retrieved Sloan’s completed interview packet. (Shelley Depo. at 31 (110:21-111:6)). This was
not Shelley’s usual practice; instead, he did so because of what he testified were, in his experience,
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 10 of 31
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the unusual circumstances of having two interviewers conduct separate interviews. (Id. at 30
(107:11-108:14)). Shelley assumed he should be writing his notes on the same packet as the
previous interviewer. (Id. (108:15-109:1)). Shelley obtained Sloan’s completed packet for
Mitchell, but did not recall picking up the packet for Albright. (Id. (109:21-23). This was
inconsistent with Lowe’s guidelines and contrary to Lowe’s training. (Jones Depo. at 35-36
(129:19-131:5); Seifried Depo. at 42:3-43:11, 44:10-23). In his deposition, Jones agreed that this
either showed a violation of training and policy or a lack of proper training. (Jones Depo. at 37
(134:1-135:6)). Shelley was not ultimately disciplined or reprimanded for this. (Jones Depo. at
36-37 (131:14-133:2, 134:1-14)).
Shelley used Sloan’s interview worksheet when he interviewed Mitchell on January 22,
2018, writing his notes and scores next to Sloan’s. (Doc. 28-5 at 25-35; Shelley Depo. at 30 (107:8-
108:20)). Shelley did not review Sloan’s notes about Mitchell. (Shelley Depo. at 31 (111:22-
112:8)). He did not do the same for Albright, whom he interviewed second; after Shelley
conducted Mitchell’s interview, Jones informed him that he “cannot be making notes on another
manager’s interview packet, and [Shelley] did not repeat that same mistake a second time.” (Id.
(110:4-20)). So Shelley used a clean interview packet for Albright’s interview, which occurred on
January 23, 2018. (Id. (110:15-111:6); doc. 28-8 at 16-26).4
Although Shelley testified he believed it is important to know about a candidate’s work
experience, he did not recall asking Mitchell about the work experience listed on his resume and
4 Shelley erroneously listed the interview dates as “1/22/19” and “1/23/19.” (See doc. 28-
8 at 2, 16).
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 11 of 31
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stated he did not ask Mitchell about the listed leadership experience. (Sloan Depo. at 26 (92:7-
93:15); Mitchell Depo. at 28 (100:13-101:13)). Instead, Shelley testified that while he generally
does not discuss what is on a candidate’s resume, he invites interviewees to provide examples in
response to interview questions that might highlight prior work experiences. (Shelley Depo. at 25
(87:5-15)). Shelley testified he trusted the assessment of HR to review candidates’ resumes and
assess whether the resume presents concerns. (Id. (87:22-89:4)).
Shelley’s notes from the two interviews read as follows:
ALBRIGHT MITCHELL
1. Tell me about a time
when you had several
priorities competing for
your time and attention.
Church event the team member have
different tasks. He might assist
someone in financial room. He would
seek a subject matter expert to fill in
one job then return and pick up his
first load. If having multiple tasks,
prioritize based on urgency. Prioritize
customers based on their need. Got to
make sure things are right. Make up a
check list, prioritize based on demand.
Trickle down. Likes to always finish
so if running late then put the extra
time to get the job done (time
management).
Working at Buffalo Rock was just
promoted to supervisor. Had a training
program to create and training
curriculum and team to schedule. Had to
evaluate each person at the end of
training. Had to sit down and write out a
plan. Made someone a lead man and set
up code of conduct. His next task was to
schedule people’s breaks and lunches
and properly plan it. Used Microsoft
Word to track tasks. Multitasking means
prioritizing. Once you assess it and plan
out deadlines for those tasks. Then if
needed delegate responsibility and
entrust them to get it done and then
check back to answer questions and give
feedback. Pay attention to time demands
and see if they need support.
2. Think about a complex
project you led. Talk
about your process for
assigning tasks,
monitoring progress, and
giving feedback.
Ask employees what their expertise is.
Base tasks on the subordinates level of
experience and comfort level. Try to
accommodate based on these criteria.
Even if they aren’t comfortable, figure
out a way to get the job done.
Come to them and talk about
expectations, quality of work,
expected deadline. No excuses, and
encourage a sense of urgency. Explain
a sense of pride in the work. Walk the
different depts and see what they are
Working at Buffalo Rock they held the
Classic. He was assigned project
manager of setting up the booth and
displays. Plan where to park vehicles.
Find out the team’s strengths and
weaknesses by talking to them based on
tasks needed to be done thinking of
tasks and customer service. Make teams
of 4 for building, parking trailers, etc.
Use walkie talkie to communicate. He
would check in with the team
periodically. If needed to coach
employee, identify the good, but suggest
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doing, see if they have a problem.
Monitor their work speed.
If employee is underperforming, be
aware that the employee might be
discouraged by the workload. People
slack off. Talk to them by
sympathizing and encourage them to
be steady and consistent and assure
them they can get it done. Be aware
they may have problems at home and
encourage them to put their personal
problems aside and focus on the task.
ways to improve success rate. Give
suggestions based on experience, but be
open to suggestions for the other person.
Also show them how he does it. Be
aware you may have to adapt your
communication approach, like by
showing, and also lead by example. If
they get frustrated, explain safety and
try to calm them down. A pep talk might
help them see they were rushing.
3. Tell me about a time
when you took a complex
situation or issue and
provided a simple and
actionable solution.
He has experience in having a group
come into the store. Ask them open
ended questions and ask what he can
do to help. Be willing to go above and
beyond and sell the whole project.
Repeat for every customer despite
what department it is.
There is always a better way to do
things: don’t get stuck up on the
traditional idea. Be open to new ideas.
Best also be willing to try your own
way despite popular opinion.
Sometimes it will take longer but he
will be consistent.
If trying something new relate the idea
to the team based on his experience of
the process. Suggest they be open
minded.
Had a tool program at Buffalo Rock.
The company wasn’t getting RTM for
tools so employees were taking the tools
home, causing shrink. Adopted a tool
program from another company. He
came up w/a tool exchange program
w/Harbor Freight Tools to get money
back. Created a tracking log. Employees
had to have a tool inventory accounting
before they got their last paycheck. This
program is still in effect to this day. It
was a simple problem that was causing
such a big issue in many aspects of the
business. Once a month the company
would hold meetings so that any
employee could pitch an idea to upper
management. If it would save the
company money they would accept it
and move on it. The program helped
people get started easier as well as
shrink issue. Got expert from Harbor
Freight to help try tweak the program to
work well for their section.
4. Describe a time when
you motivated an
individual or team to
achieve a very challenging
goal.
Had an experience in this store where
there was a lot of freight. You have to
lead by example and they encourage
your team leader to work harder.
Support them so they feel they are on
a team.
Tell them we got a job to do.
Encourage them by telling they
accepted the job and must have taken
it b/c they liked something about it.
Working at Lowes unloading the trucks
during holiday season. Christmas in
July: 3 unloaders called in so it was just
2 of them. It was slow going. Tried to
motivate the less tenured employee. But
he was still dragging. He went to store
manager to recruit help and store
manager told him to recruit help. Went
around store and offered to help them in
their depts. If the sales floor helped
unload truck. Recruited lumber,
Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 13 of 31
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The sooner we get the work done the
sooner we can go home.
These are the instructions he caters to
regarding WIIFM. We are there to do
a job and have a sense of pride in our
work. Getting it done on time prevents
the snowball effect of having more
work tomorrow.
flooring, electrical and paint person to
help. Then fulfilled their promise in
each department. Explained that w/o
help they will all have to stay later
anyway. He and Sam helped zone and
swept. At the end was smiling and
motivated b/c Nate got him help. They
got it all done in a reasonable amount of
time. Getting help gave Sam more
energy.
5. Think about a time
when you were
responsible for explaining
a new process or way of
doing something to your
team or peers.
Always explain to the best of your
ability. Try to have a printout/memo
to review. Try to field questions or
offer to follow up on questions now or
questions they have in the future.
To confirm understanding, ask if they
have questions and again offer to be
available if they think of questions
later.
At Buffalo Rock they had to clock in/out
w/passwords but switched to new
process w/badge. They had to enter
through a new door and new rules on
workplace etiquette. Held meeting to
explain more policies, and trusted in his
good rapport w/the team. But new
etiquette policy would be an issue for
many of the team. In the meeting he
explained the new etiquette policy and
procedure. Explained workplace
etiquette in a relatable way and
acknowledged their camaraderie but
explained that profanity had to end and
emphasized it was a workplace.
Consider the guests, and explained
examples of getting along on other
contexts. Explained it was nothing
against anyone but disciplinary action
could occur and then that he has to sign
the new policy too. He is held to the
same standard as everyone else.
6. Describe a time when a
customer was not satisfied
with a situation that you
handled.
Had a lady who was upset. Ask if
there is anything he can do to solve
the problem. Try to help to the best of
his ability even if it means seeking
help from a mgr. Recently a customer
was unhappy about a PL toilet not
getting pulled so he was running late.
Randy offered to help. Sought
machine to get product out of topstock
and offered to assist with any other
projects the person has.
Working at Lowes they would do
download or zone when there was no
truck to unload. A customer wanted help
w/a tub. She described it and it was
SOS. Explained ETA was 7-8 business
days. When tub came in she said it was
wrong. He showed store manager what
he ordered. Store manager offered to
reorder. When she came in she was irate
and called Nate a liar. He apologized.
She wanted to cancel sale but he offered
to reorder and go line by line to see
where he went wrong. Confirmed his
mistake. Got approval from store
manager for 15% discount for
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15
inconvenience after consulting him. She
went through w/sale. She ended up
apologizing to Nate then thanked him
for his patience. She did the survey and
even complimented Nate for his
patience.
7. Tell me about a time
you worked hard to
overcome differences with
someone and develop a
positive working
relationship with that
person.
Sometimes you don’t always get the
results you want from a person. But
try to befriend that person. Put
differences aside b/c you have
common goals. Try doing things the
other person’s way. Seek to be a team
working together. Working in paint
department the employee may not
want to help Randy will take the lead
role and lead by example to show
them that they can do it to[o]. Several
times that has helped turn an
employee around.
The impact on him is the motivation
to talk it out and find out what the
differences are and talk out about how
they might be able to get along better
When he became a supervisor at Buffalo
Rock he worked w/Dewayne who did
not get the promotion. You can tell
when someone is upset. And Dewayne
stopped speaking to him. Dewayne
would give him attitude whenever he
gave instructions. Nate went to his boss
about the problem and boss wanted him
to try to handle it himself first and
suggested finding a common ground.
Nate made Dwayne a lead tech and gave
him more responsibility. Dewayne
accepted the new role but was training
the team on his own way of doing things
rather than company approved way.
Nate pulled Dewayne into office to talk
about the problem. He explained the
positive aspect of Dewayne but also
noted what he was doing wrong.
Explained his impression was Dewayne
had resentment against Nate. Told him
he wasn’t threatening but if his behavior
didn’t change there could be
documentation. After that conversation
their relationship was better.
8. Describe a time when
you set a goal that had an
important impact on the
store’s or company’s
bottom line.
Working in Seasonal Living. He took
the lead. Joe would walk by (the mgr.)
and see Randy’s progress is good.
Start w/big boxes first for biggest
impact. Be safety conscious. Pack out
shelf to drive sales. His objective is to
get the freight 100% worked with his
best effort. Have pride in his work.
The goal behind this is to reduce IRG.
Getting it done right means less work
later. Generates sales for the store and
take care of the customer.
At Buffalo Rock he was a supervisor.
They refurbished different equipment.
One time their dept got an order for 50
vending machines and 20 coolers, in
addition to regular work. Tried to figure
out how to handle the extra workload.
Offered OT to employees for the next 3
weeks, plus picking up extra shifts.
Most accepted. Then did same w/paint
shop. Also needed 2 from Rec’g dept.
Got a total of 9 guys to pick up OT.
Worked an extra order from 3pm – 6pm
every night. W/in 3 weeks they got the
extra work done plus their regular
workload. This success encouraged
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16
repeat business to the company from the
same customer. Also made Saturday a
casual dress day and also radio for
music. But still be safe.
(Declaration of Tim Shelley, doc. 28-10 (“Shelley Decl.”) at ¶ 4; doc. 28-8 at 2-26).5
Shelley gave
Mitchell a score of 47 (average score of 5.88) and Albright a score of 31 (average score of 3.88).
(Doc. 28-8 at 12, 26). However, Albright’s score was a miscalculation based on Shelley’s
erroneous addition of the scores; it should have been 35 (average score of 4.4). (Shelley Depo. at
33 (120:4-11); Shelley Decl. at ¶ 5).
Albright testified he had no problem with Shelley, and that Shelley never made any
discriminatory remarks to him. (Albright Depo. at 21 (74:9-20), 29-30 (108:13-17, 110:17-20)).
C. Hiring Decision
Albright testified he thought Sloan made the hiring decision because of the reference to
Albright’s age. (Albright Depo. at 21 (74:23-75:6), 30 (112:13-113:4)). However, Shelley was
the hiring manager and ultimately made the decision to select Mitchell over Albright.
6
(Shelley
Depo. at 24 (82:2-85:5), 34 (124:17-125:6); Sloan Depo. at 24 (85:10-15), 26 (90:21-23), 29
(103:17-104:8), 31 (110:22-111:14)). Sloan believed that his interview “didn’t count,” but was
5 After he was informed not to use Sloan’s packet, Shelley transcribed his notes from
Sloan’s packet onto a clean interview packet. (Shelley Depo. at 32-33 (117:22-118:9)). This
packet is an exhibit to Shelley’s deposition.
6 Mitchell testified whomever was ultimately hired would report to Shelley, so he believed
Sloan had conducted the second interview to make an objective choice. (Mitchell Depo. at 34
(123:13-124:11)). To the extent Albright relies on this to support the inference Sloan was the
decisionmaker, (see doc. 29 at 12), Mitchell is factually wrong about the order of the interviews
as both parties accept it. In light of that, the inference Albright suggests would follow from
Mitchell’s testimony is not a reasonable one.
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17
not told this by anyone at Lowe’s. (Sloan Depo. at 31-32 (113:14-114:1)). Jones testified that the
managers who interview the candidates make the hiring decisions, and in his opinion Sloan’s
interview also counted. (Jones Depo. at 8 (20:5-10), 35 (128:17-129:6)).
Shelley determined Mitchell’s interview answers were better: they “exhibited greater
initiative and understanding of the Night Stocking Manager position’s responsibilities during his
interview than Albright’s did” and “convey[ed] more clearly how Mitchell would handle the job
and perform in a given situation.” (Shelley Decl. at ¶¶ 6-7; Shelley Depo. at 25-26 (86:2-4, 87:22-
88:11, 91:23-92:1)). Shelley agreed good interview skills did not necessarily make a person a
better candidate for the actual job. (Shelley Depo. at 26 (92:2-6)). Shelley told Mitchell he got
the job because he did well on the interview. (Mitchell Depo. 14 (44:20-45:18)). Jones testified
neither Sloan nor Shelley told him why the promotion decision was made other than that Mitchell
was selected because he had had a better interview that was “more consistent with the skills and
what we were looking for.” (Jones Depo. at 39 (144:9-145:8)).
Although Shelley was the hiring manager, Sloan informed Albright he had not gotten the
job.7
Albright believed he had not gotten the job because of his age and told Sloan as much.
(Albright Depo. at 32 (122:12-15)). Sloan did not make any comments in response to this and
“just played it off.” (Id. at 32-33 (120:14-123:15)). Albright testified he did not feel that anyone
other than Sloan discriminated against him. (Id. at 33 (125:2-6)).
Subsequently, Mitchell did not perform well at the Night Stocking Manager job, often
7 Shelley did not recall whether he notified Albright that he had not gotten the position, but
testified it was probable Sloan had actually conveyed the news. (Shelley Depo. at 34-35 (125:12-
127:13)).
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18
relying on Albright for information on his duties. (Shelley Depo. at 17-18 (56:17-58:16); Albright
Depo. at 33-34 (125:23-128:3); Albright Decl. at ¶¶ 11-13). Mitchell was ultimately terminated
after accruing a number of reprimands, including reprimands related to critical duties of the Night
Stocking Manager position. (Seifried Depo. at 17 (54:6-55:23)).
Analysis
Under the ADEA, it is unlawful for employers to discriminate against employees who are
over forty years old “because of” their age. See 29 U.S.C. §§ 623(a)(1), 631(a). The Supreme
Court has explained that this standard requires an ADEA plaintiff to show “but-for” causation.
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009). “[A] but-for test directs us to change
one thing at a time and see if the outcome changes. If it does, we have found a but-for cause.
Bostock v. Clayton Cty., Georgia, --- U.S. ----, 140 S. Ct. 1731, 1739 (2020).
When a plaintiff bases his ADEA claim on circumstantial evidence, the court generally
applies the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 800 (1973). Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (“following Gross, we
have continued to evaluate ADEA claims based on circumstantial evidence under the McDonnell
Douglas framework”). Under the McDonnell Douglas framework, “the plaintiff bears the initial
burden of establishing a prima facie case of discrimination by showing (1) that [he] belongs to a
protected class, (2) that [he] was subjected to an adverse employment action, (3) that [he] was
qualified to perform the job in question, and (4) that [his] employer treated ‘similarly situated’
employees outside [his] class more favorably.” Lewis v. City of Union City, Georgia, 918 F.3d
1213, 1220–21 (11th Cir. 2019) (citation omitted). If the plaintiff makes this showing by a
preponderance of the evidence, the burden shifts to the defendant employer to show a legitimate,
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19
nondiscriminatory reason for its actions. Id. at 1221 (citing Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981)); Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).
If the defendant makes this showing, the burden shifts back to the plaintiff to “demonstrate that
the defendant’s proffered reason was merely a pretext for unlawful discrimination, an obligation
that “merges with the [plaintiff’s] ultimate burden of persuading the [factfinder] that she has been
the victim of intentional discrimination.” Lewis, 918 F.3d at 1221 (citing Burdine, 450 U.S. at
256).
Here, Lowe’s does not challenge Albright’s prima facie case.8
(See doc. 26 at 17-18).
Instead, Lowe’s bases its motion on the absence of evidence of pretext. (See id.). In response,
Albright casts doubt on Lowe’s legitimate, nondiscriminatory reason for its failure to promote him,
(doc. 29 at 17-24), then argues he can show pretext, (id. at 24-29). Albright also contends he has
shown a “convincing mosaic of circumstantial evidence” to support an inference of intentional
discrimination, even without relying on the McDonnell Douglas framework. (Id. at 29-31).
A. Legitimate Nondiscriminatory Reason
A defendant bears an “exceedingly light” burden to show a legitimate, nondiscriminatory
reason for its decision. Perryman v. Johnson Prods., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983).
“The employer need only offer admissible evidence sufficient to raise a genuine issue of fact as to
8
In the specific case of a failure-to-promote case alleging age discrimination, the plaintiff
can establish a prima facie case by showing: “(1) that he was a member of the protected group of
persons between the ages of forty and seventy; (2) that he was subject to adverse employment
action; (3) that a substantially younger person filled the position that he sought or from which he
was discharged; and (4) that he was qualified to do the job for which he was rejected.” Rodriguez
v. Secretary, U.S. Dept. of Homeland Sec., 608 Fed. Appx. 717, 719-20 (11th Cir. 2015). The
summary judgment evidence supports each of these elements.
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20
whether it had a legitimate reason for not [promoting] the plaintiff.” Turnes v. AmSouth Bank, NA,
36 F.3d 1057, 1061 (11th Cir. 1994). A defendant’s explanation must be “clear and reasonably
specific.” Conner v. Fort Gordon Bus Co., 761 F. 2d 1495 (11th Cir. 1985) (citing Burdine, 450
U.S. at 258).
Lowe’s nondiscriminatory reason is simple: Mitchell was promoted because he scored
higher on the interview than Albright, not because he was younger. (Doc. 26 at 17). Shelley
administered interview questions to both candidates and scored Mitchell higher than Albright on
the interview matrices. He based this score on his belief that Mitchell’s answers “exhibited greater
initiative and understanding of the Night Stocking Manager position’s responsibilities during his
interview than Albright’s did” and “convey[ed] more clearly how Mitchell would handle the job
and perform in a given situation.” The interview instructions provided by Lowe’s direct that the
candidate with the higher score is generally to be selected, which is what Shelley ultimately did.
Albright responds that Lowe’s has failed to meet its burden because Sloan was also a
decisionmaker for whom Lowe’s has failed to articulate a legitimate nondiscriminatory reason,
and because its basis for promoting Mitchell over him was entirely subjective. (Doc. 29 at 17).
Albrights’ first argument hinges on his contention there is a factual dispute as to whether
Sloan was a decisionmaker who “played a role at least equal to, if not greater than, Shelley’s role
in determining the promotion selection,” (doc. 29 at 18-19), and that Lowe’s failed to mention
Sloan’s involvement at all in the argument section of its brief, (id. at 19-20). This misses the mark.
First, while Albright points to Shelley’s testimony that his understanding was that Jones and Sloan
were involved in the decision as to which candidates to select for interviews, this is not relevant to
who made the overall decision to hire Mitchell; at most, it shows that Sloan had some role in the
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21
hiring process, which is not in dispute.9
Second, regardless of whether Sloan’s scores “counted”
in or influenced the decision-making process, the undisputed evidence is that Sloan left the final
decision up to Shelley. It is reasonable to consider Sloan’s alleged ageist bias and influence over
Shelley at the pretext stage because he was, potentially, “an integral part of the [hiring] process,”
see Schoenfeld v. Babbitt, 168 F.3d 1257, 1268 (11th Cir. 1999), but this does not impact whether
Lowe’s proffered nondiscriminatory reason is legitimate such that it can meet its light burden at
this stage.
As for the subjectivity of the interview process, it is accurate that the scoring method is
based on a subjective evaluation of the interviewee’s answers.10
Albright initially relies on Harris
v. Birmingham Bd. of Educ., 712 F.2d 1377 (11th Cir. 1983) for the proposition that “[t]he failure
to establish fixed or reasonably objective standards or procedures for hiring is a discriminatory
practice. (Doc. 29 at 23) (citing Harris, 712 F.2d at 1083). However, the en banc Eleventh Circuit
expressly held in a case postdating Harris that “[s]ubjective reasons can be just as valid as
objective reasons,” and that in case of “any inconsistency between our past decisions and our
decision today . . . the rule we announce today controls.” Chapman v. AI Transp., 229 F.3d 1012,
1034-35 (11th Cir. 2000). Chapman requires an employer asserting a subjective reason for an
employment decision to “articulate[] a clear and reasonably specific factual basis upon which it
9 Furthermore, it is unclear how it would bolster Albright’s case that Sloan held an agerelated animus against him to show that Sloan participated in selecting him for an interview.
10 Albright argues the scoring criteria could have been manipulated by bias to provide a leg
up to a preferred candidate, (doc. 20 at 23), but this is an argument about the falsity of his score
and not whether subjectivity dooms Lowe’s purportedly nondiscriminatory reason for promoting
Mitchell. Consequently, it is discussed below in the pretext context.
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22
based its subjective opinion.” Id. The Eleventh Circuit distinguished a situation in which an
employer asserted it failed to hire a candidate because “I did not like his appearance”—a legally
insufficient justification—from a situation in which it stated “‘I did not like his appearance because
his hair was uncombed and he had dandruff all over his shoulders,’ or ‘because he had his nose
pierced,’ or ‘because his fingernails were dirty,’ or ‘because he came to the interview wearing
short pants and a T-shirt’”—each of which would qualify as a legitimate, nondiscriminatory reason
because it provides the specific reasoning underlying the subjective opinion. Id. What matters is
that the factors the employer cites are “capable of objective evaluation.” Id. at 1035 (quoting
EEOC v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1280 n.17 (11th Cir. 2000)).
To demonstrate the factors Shelley cited are not adequate, Albright points to Casey v.
Clayton Cty., Ga., 2006 WL 870379 (N.D. Ga. Mar. 30, 2006), a case in which a court found an
employer’s proffered reason insufficient. (Doc. 29 at 19-20). In that case, the employer was asked
repeatedly to provide a more specific basis for a hiring decision, but could say only that the hired
candidate “appeared more knowledgeable” and that “her presentation was better.” Casey, 2006
WL 870379 at *10. Here, though, Shelley provided more than simply stating that Mitchell
interviewed better. Shelley provided the basis for his subjective opinion: an interviewee’s answers
provided insight into how the interviewee would perform in the job, and Mitchell’s answers were
more consistent with the job he was being asked to do and exhibited greater initiative and
understanding of the position. This is more like the reason the Eleventh Circuit found sufficient
in Chapman, in which one interviewer stated the plaintiff “was not very concise with his answers”
and “did not take an aggressive approach in asking me questions about the position,” and the other
interviewer indicated he “had more confidence in [the hired candidate] in the way he presented his
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23
work history.” 229 F.3d at 1035. As the Chapman court observed, “[t]raits such as ‘common
sense, good judgment, originality, ambition, loyalty, and tact’ often must be assessed primarily in
a subjective fashion . . . yet they are essential to an individual’s success in a supervisory or
professional position.” 229 F.3d at 1034 (quoting Watson v. Fort Worth Bank & Trust, 487 U.S.
977, 991 (1988)). There is no requirement that Lowe’s make a detailed connection between
specific job skills and Albright’s purportedly inadequate answers, any more than the interviewer
in Chapman was required to elaborate on his confidence in the way the hired candidate presented
his work history.11
Furthermore, the reasons Shelley cited are capable of objective evaluation
because evidence regarding the position’s qualifications and Shelley’s notes of the interview are
part of the summary judgment record. Lowe’s has met its burden to show a legitimate,
nondiscriminatory reason for not promoting Albright, and the burden shifts back to him to show
pretext.
B. Pretext
“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
11 Albright points out one interviewer in Chapman, Wogsland, did make a more explicit
connection between the plaintiff’s non-concise answers and the job requirements: the concision
required to communicate with technicians. (Doc. 29 at 22). However, the Eleventh Circuit
explicitly found that the other interviewer, Turnquist, who made no such connection, also provided
a reasonably clear and specific explanation for his subjective assessment the plaintiff had given a
worse interview. Chapman, 229 F.3d at 1035. Shelley’s explanation here is considerably more
detailed than Turnquist’s was in Chapman.
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reasons were not what actually motivated its conduct.’” Crawford v. Carroll, 529 F.3d 961, 976
(11th Cir. 2008). A pretextual reason is not only one that is false but one that conceals an actual,
discriminatory reason. Brooks v. County Comm’n of Jefferson County, Ala., 446 F.3d 1160, 1163
(11th Cir. 2006). A plaintiff may show pretext by demonstrating “such 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.” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997).
Albright offers three arguments to support pretext: Sloan’s biased comments, Lowe’s
deviations from its usual hiring practices, and the disparity in qualifications between the two
candidates. None of these suffice.12
1. Biased Comments
Albright’s pretext argument starts by pointing to Sloan’s allegedly biased comments about
his age. (Doc. 29 at 24-26). This does not directly establish pretext because Shelley, and not
Sloan, was the decisionmaker (although Shelley’s role as a potential “cat’s paw” for Sloan in the
hiring process is discussed further below). And it does not suffice for Sloan in any case because
the comments, even viewed in the light most favorable to Albright, do not reflect animus.
There are two instances in the record of Sloan’s age-related comments: Sloan pointing
12 Although Albright contends it is difficult for him to prove the falsity of Lowe’s reasons
for selecting Mitchell over him, (see, e.g., doc. 29 at 21 n.14), the undersigned emphasizes that the
main problem with his pretext arguments, as discussed below, is that Albright cannot show the
second part of the pretext inquiry: that the real reason was age-based discrimination. See Brooks,
446 F.3d at 1163 (a reason is not pretext for discrimination “unless it is shown both that the reason
was false, and that discrimination was the real reason.”) (emphasis in original).
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Albright out as the oldest or longest-tenured employee, and Sloan commenting “you and I don’t
usually get interviews” prior to interviewing Albright. Taking the evidence favorably to Albright,
both of these comments are about Albright’s age. That said, it is unclear how either shows
discriminatory animus. Albright contends these demonstrate Sloan “believed younger employees
were more deserving of interviews and promotions,” (doc. 29 at 25), but that does not square with
Albright’s simultaneous contention Sloan helped select Albright for an interview. As Lowe’s
observes, (doc. 30 at 10-11), a reasonable jury could not believe Sloan, who is close in age to
Albright, set aside his age-related bias in helping Albright get the type of interview the two older
men “don’t usually get,” then scored Albright lower at the interview stage due to age-related bias.
And recognizing Albright as the oldest employee at a storewide function is neutral at worst,
complimentary at best. See Johnson v. Gestamp Alabama, LLC, 946 F. Supp. 2d 1180, 1204 (N.D.
Ala. 2013) (compliments such as “you look great for your age” showed awareness of plaintiff’s
age, but did not support discriminatory motive for termination). Sloan’s failure to explicitly deny
Albright’s allegation that Albright was not promoted because of his age and “just play[ing] it off”
is potentially more on point, although Sloan’s apparent silence is not itself a biased comment.
However, it is unreasonable to stretch Albright’s vague testimony regarding Sloan’s response to a
tacit admission of discrimination, particularly when Shelley—a concededly unbiased actor—
scored Albright and Mitchell similarly to how Sloan scored them. None of Sloan’s comments are
sufficient to show pretext, nor is his response to Albright’s accusation of age-related bias.
2. Deviations from Policy
Albright’s second argument is that Lowe’s deviated from its usual policies in the interview
process. (Doc. 29 at 26-28). “Standing alone, deviation from a company policy does not
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26
demonstrate discriminatory animus.” Mitchell v. USBI Co., 186 F.3d 1352, 1355-56 (11th Cir.
1999). Rather, “[t]o establish pretext, a plaintiff must show that the deviation from policy occurred
in a discriminatory manner.” Rojas v. Fla., 285 F.3d 1339, 1344 n.4 (11th Cir. 2002).
The most serious deviation, in Albright’s telling, is Shelley’s use of Sloan’s interview
packet. The undisputed evidence is that Shelley had Mitchell’s packet, but not Albright’s.
Albright argues because “Shelley does not remember whether he obtained both candidates’
packets, and because Sloan interviewed both candidates on the same day and turned both packets
back in to Jones, a reasonable jury could infer that Shelley had both packets.” (Doc. 29 at 26).
But Shelley did not testify that he did not remember whether he picked up Albrights packet; he
testified he did not recall doing so, and that in any case he had not used Albright’s packet in
Albright’s interview. (Shelley Depo. at 30-31 (109:21-110:20)). Shelley also testified he did not
pay attention to Sloan’s notes. (Id. at 33 (118:14-20)). Albright casts this last piece of testimony
as not credible, (doc. 29 at 26), but the court does not make such determinations at summary
judgment. Albright points to no evidence to contradict Shelley’s testimony such that the
undersigned could draw an inference in Albright’s favor on the basis of anything other than
speculation. Nor is it implausible that Shelley did not rely on Sloan’s notes in his interview.
Shelley’s notes are quite different from Sloan’s, and, although the interview questions were
identical, Mitchell provided some different responses at each interview. For example, asked to tell
the interviewer about “a time when you took a complex situation or issue and provided a simple
and actionable solution,” Mitchell described an experience unloading trucks at a Lowe’s store to
Sloan, (see doc. 28-5 at 29), but provided an example of a Buffalo Rock tool project to Shelley,
(see doc. 28-8 at 6).
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In any case, as Lowe’s points out, Albright’s argument attempts to graft Sloan’s allegedly
discriminatory motive onto Shelley, who made the actual hiring decision. This is a cat’s paw
argument, although Albright does not use that specific term. A “cat’s paw” theory of recovery
applies where a plaintiff shows that the decisionmaker followed a biased recommendation without
independently investigating that recommendation. Stimpson v. City of Tuscaloosa, 186 F.3d 1328,
1332 (11th Cir. 1999). In such a case, the recommender is using the decisionmaker as a mere
conduit, or “cat’s paw” to give effect to the recommender’s discriminatory animus. Id. at 1132.
Under this theory, if the decision-making party followed the biased recommendation without
independent investigation—essentially acting as a rubber stamp—then the recommender’s
discriminatory animus is imputed to the decisionmaker. Id. at 1331–32. If, however, a
decisionmaker conducts his own evaluation and makes an independent decision, the decision is
free of the taint of a biased subordinate employee. Pennington v. City of Huntsville, 261 F.3d 1262,
1270–71 (11th Cir. 2001). See also Crawford, 529 F.3d at 979. Here, notwithstanding Sloan’s
role in the hiring process (e.g., selecting candidates for interviews and conducting the first round
of interviews), the undisputed evidence is that Shelley did not discuss scores with Sloan or talk to
him before the interview, conducted his own interviews, provided his own scores and notes for
both candidates (regardless of whether he saw Sloan’s scores or notes for Mitchell), and based his
ultimate decision on the results of the two candidates’ interviews with him. Whatever Sloan’s
motive, Shelley made a separate inquiry and exercised separate judgment, so Albright’s cat’s paw
theory fails.
Albright also argues the interviewers’ failure to ask Mitchell and Albright about their work
experience was a deviation from policy that diminished the importance of his relevant work
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experience and left the interviewers solely reliant on their subjective evaluations of the candidates’
answers to the eight interview questions. (Doc. 29 at 27). First, Albright does not demonstrate
how this was discriminatory, i.e., that it had anything to do with his age. Second, to the extent this
was a deviation from Lowe’s policies, it is a deviation that had nothing to do with how the
interviews are scored. Even if Shelley and Sloan had asked the candidates about their work
experience, the interview guidelines do not require the interviewer to assign any score to the
preliminary “stage-setting” questions or to take those into account in scoring the eight interview
questions; by its own terms, the question requesting the candidates explain their work experience
is not part of the formal interview. Albright does not indicate how he would have scored higher,
or how the subjectivity of the interview questions would have been mitigated, had Sloan and
Shelley followed the guidelines more specifically. Finally, the eight interview questions ask
candidates for specific examples of past projects and work experiences, so Albright and Mitchell
were both free to bring up their work histories in response—as Shelley testified, (see Shelley Depo.
at 25 (87:5-15)).
13
Finally, Albright points to “the selection of only two, as opposed to the required three,
candidates for interviews and Lowe’s failure to check the accuracy of Mitchell’s
13 To the extent Albright argues Sloan and Shelley sabotaged the interview process by
failing to ask him follow-up questions that might have helped him while asking Mitchell followup questions, it is unclear that follow-up questions are uniformly helpful to a candidate. An
interviewer might follow up when a candidate provides a dubious answer, or the candidate may
stumble when asked to provide more granular detail. Additionally, Albright points to no evidence
indicating Shelley had a discriminatory motive at all, including in failing to ask follow-ups; in fact,
Albright testified he had no problems with Shelley, (Albright Depo. at 21 (74:19-22)), and that he
felt no one other than Sloan discriminated against him, (id. at 33 (126:2-6)).
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resume/application.” (Doc. 29 at 28). Selecting two candidates was consistent with Lowe’s policy
at the time of the interviews. And even if Lowe’s HR failed to adequately vet Mitchell when
reviewing his application or resume, it is unclear how this demonstrates the interview process,
which relied on different criteria, was pretextual. Most importantly, neither of these have anything
to do with the candidates’ ages.
3. Candidate Qualifications
Albright’s final example of pretext is the disparity in the candidates’ qualifications.
“[Q]ualifications evidence may suffice, at least in some circumstances, to show pretext.” Ash v.
Tyson Foods, Inc., 546 U.S. 454, 457 (2006). “In the context of a promotion, a plaintiff cannot
prove pretext by simply arguing or even showing that he was better qualified than the person who
received the position he coveted.” Springer v. Convergys Customer Mgmt. Group Inc., 509 F.3d
1344, 1349 (11th Cir. 2007) (cleaned up). “A plaintiff must show not merely that the defendant’s
employment decisions were mistaken but that they were in fact motivated by [age].” Id. And a
plaintiff must show “the disparities between the successful applicant’s and his own qualifications
were ‘of such weight and significance that no reasonable person, in the exercise of impartial
judgment, could have chosen the candidate selected over the plaintiff.’” Id. (citation omitted).
Here, Albright points to his greater experience in all relevant categories. However, these
were not the only qualifications for the position. Lowe’s policy specifically centers around
candidate interviews. Albright disputes the wisdom of this policy, but that does not and cannot
demonstrate pretext. See Chapman, 229 F.3d at 1030 (“Provided that the proffered reason is one
that might motivate a reasonable employer, an employee must meet that reason head on and rebut
it, and the employee cannot succeed by simply quarreling with the wisdom of that reason.”);
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Alexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000) (holding, in Title VII race
discrimination case, “it is not the court’s role to second-guess the wisdom of an employer’s
decisions as long as the decisions are not racially motivated.”). What Albright does not dispute,
and what the record supports, is that Mitchell was also qualified for the Night Stocking Manager
position. The undersigned cannot say that the disparity between Albright and Mitchell is such that
no reasonable employer would have chosen Mitchell over Albright when the interview process is
taken into account.14
Because Albright has failed to show Lowe’s reasons for promoting Mitchell over him were
pretextual, he cannot pass through the McDonnell Douglas framework.
C. Convincing Mosaic
Finally, Albright argues he may survive summary judgment because the record contains “a
convincing mosaic of circumstantial evidence that would allow a jury to infer intentional
discrimination by the decisionmaker.” (Doc. 29 at 29-30) (quoting Smith v. Lockheed-Martin
Corp., 644 F.3d 1321, 1328 (11th Cir. 2011). A plaintiff may show a “convincing mosaic” through
evidence that falls into any of a number of broad categories, such as “(1) suspicious timing,
ambiguous statements . . . and other bits and pieces from which an inference of discriminatory
intent might be drawn, (2) systematically better treatment of similarly situated employees, and (3)
that the employer’s justification is pretextual.” Lewis v. City of Union City, Georgia, 934 F.3d
1169, 1185 (11th Cir. 2019) (citation and internal quotation marks omitted). “The critical decision
14 Albright notes, here and elsewhere, that Mitchell failed to adequately perform the Night
Stocking Manager role. (Doc. 29 at 28, 29 n.19). This is not material to the actual decision to
promote Mitchell.
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that must be made is whether the plaintiff has ‘create[d] a triable issue concerning the employer’s
discriminatory intent.’” Flowers v. Troup Cty., Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir.
2015) (quoting Smith, 644 F.3d at 1328).
Albright’s convincing mosaic argument is essentially a rehash of all the arguments above,
stripped out of the McDonnell Douglas framework. The thrust of this is that Sloan’s bias infected
the promotion process, and influenced Shelley’s decision. For the same reasons Albright has failed
to show Sloan’s comments regarding age support pretext, he has also failed to demonstrate that
the comments are part of a convincing mosaic of evidence supporting discriminatory intent.
Furthermore, because Shelley was the decisionmaker, and Albright has failed to show Shelley was
Sloan’s cat’s paw, Albright could not impute Sloan’s motive to Shelley in any case. Accordingly,
Lowe’s is entitled to summary judgment.
Outcome: For the reasons stated above, Lowe’s motion for summary judgment is GRANTED. A
separate order will be entered.
Plaintiff's Experts:
Defendant's Experts:
Comments: