RANDY ALBRIGHT v. LOWE’S HOME CENTERS, LLC

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

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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

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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

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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

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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)).

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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)).

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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.

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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

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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

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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,

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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).

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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,

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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

Case 2:18-cv-01005-JHE Document 31 Filed 03/29/21 Page 14 of 31

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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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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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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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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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.

For the reasons stated above, Lowe’s motion for summary judgment is GRANTED. A

separate order will be entered.