LYNWOOD SMITH, District Judge.
This action is before the court on defendant's motion for summary judgment.
Plaintiff, Linda Howard, filed this action in the Circuit Court of Jackson County, Alabama, on March 2, 2015.
Highlands Medical Center, Cumberland Health and Rehab, and Brad Hinton were named as defendants.
Defendants properly removed the action to this court on March 5, 2015, on the basis of federal question jurisdiction.
Plaintiff's amended complaint, even though correctly naming "Jackson County Health Care Authority" as the sole defendant, alleged violations of "TITLE VII of the Civil Rights Act, . . . the Genetic Infomration [sic] Nondiscrimination Act, . . . [and] Alabama Code § 25-1-21," the Alabama Age Discrimination in Employment Act.
Plaintiff's second amended complaint asserts claims of age discrimination under both the ADEA and the Older Workers Benefit Protection Act.
Moreover, on April 27, 2016, this court ordered plaintiff to show cause, on or before May 4, 2016, why her claim bottomed on the Older Workers Benefit Protection Act should not be dismissed, due to her failure to state a claim upon which relief could be granted.
In summary, this action now asserts only one claim — i.e., a claim of age discrimination under the federal ADEA — against one defendant, the Jackson County Health Care Authority.
The scheduling order entered in this action on June 18, 2015 specified that "[a]ll discovery must be commenced in time to be completed by January 20, 2016."
Doc. no. 30 (Motion for Protective Order), ¶ 16 (alteration supplied). After reviewing the motion and the response filed by plaintiff, the court concluded that the excuses offered by plaintiff's counsel — that he has less legal experience than defendant's counsel,
Federal Rule of Civil Procedure 56 provides that summary judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other words, summary judgment is proper "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). "In making this determination, the court must review all evidence and make all reasonable inferences in favor of the party opposing summary judgment." Chapman v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the non-moving party are not unqualified, however. "[A]n inference is not reasonable if it is only a guess or a possibility, for such an inference is not based on the evidence, but is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d 1321, 1324 (11th Cir. 1983). Moreover,
Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921) (emphasis supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law").
Defendant, Jackson County Health Care Authority, is a governmental agency organized to provide health care services through facilities located in Jackson County, Alabama.
Defendant contends that it terminated plaintiff's employment for acts of misconduct: specifically, theft of canned soft drinks and personal hygiene products.
Plaintiff admits that she removed and consumed canned soft drinks that had been purchased by the facility and reserved for use by the facility's residents.
On September 4, 2013, the facility's Personnel Director, Cheryl Haney, and Administrator, Brad Hinton, asked plaintiff for permission to search her personal bags at the conclusion of her shift.
Doc. no. 23-7, at ECF 2 (Gudrun Stevens's Statement) (alterations supplied); see also id. at ECF 3 (Karen Williams's Statement) (where Karen Williams testified that, "[o]n Monday 9-2-13 I seen [plaintiff] put three cokes in [the] refrigerator and she said she was going to take them to the smokies") (alterations supplied). Plaintiff testified that Stevens and Williams were "lying."
That was not the first occasion on which the facility's management team had experienced difficulties with plaintiff or cited her for misconduct. In fact, defendant had terminated plaintiff's employment approximately six months earlier, on March 20, 2013, for her third violation of the facility's "tobacco-free-campus policy" within a one-year period.
Plaintiff testified during her deposition that she only "dipp[ed] snuff" when a coworker named Linda Beavers also was working, because Ms. Beavers made her "so nervous, bullying me[,] that I have to take a dip."
Doc. no. 23-4 (Howard Deposition), at 16 (emphasis supplied).
A few other incidents also are mentioned in the record. For example, defendant's Human Resources specialist, Susanna Sivley, testified that plaintiff had spoken to her coworkers about having a gun, and possibly bringing the gun to work.
When plaintiff was terminated for the second time — i.e., the September 4, 2013 incident that forms the basis of this suit — she was 64 years of age.
Plaintiff filed a timely charge of discrimination with the Equal Employment Opportunity Commission on January 10, 2014.
Doc. no. 23-9 (EEOC Charge) (alterations, footnotes, and ellipsis supplied). Defendant contends that plaintiff was replaced by Donna Roberts, who was 53 years of age.
After plaintiff's termination on September 4, 2013, she applied for, but was denied, unemployment benefits by the Alabama Department of Industrial Relations. Plaintiff then requested pursuant to Alabama Code § 25-4-92 (1975), and received on October 28, 2013, a telephone hearing before an Administrative Hearing Officer.
Plaintiff subsequently applied for leave to appeal to the Board of Appeals for the Alabama Department of Labor, pursuant to Alabama Code § 25-4-92(c) (1975).
Plaintiff then appealed her denial of unemployment benefits to the Circuit Court of Jackson County, Alabama, pursuant to Alabama Code § 25-4-95 (1975).
When plaintiff's appeal came before Jackson County Circuit Judge Jenifer C. Holt, the Jackson County Health Care Authority — the defendant in that action, as well as the present suit — filed a motion for summary judgment. Judge Holt conducted a hearing on October 7, 2015, and granted the motion the following day.
Plaintiff's response to defendant's motion for summary judgment fails to directly admit or deny each of the allegedly undisputed facts recited by defendant. Instead, plaintiff's counsel states that "much of the `undisputed relevant material facts' supplied by the Defendant are neither relevant nor material, and are intended to cast the Plaintiff as a troublemaker; some kind of gun-toting, wild-eyed, rule-breaking, soda-stealing, tobacco-chewing cowgirl (born in 1949)."
The ADEA makes it "unlawful for an employer . . . to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1) (ellipsis supplied). The protections of the ADEA extend to those individuals who "are at least 40 years of age but less than 70 years of age." 29 U.S.C. § 621(a).
"A plaintiff can establish age discrimination through either direct or circumstantial evidence." Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013) (citing Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 1204 (11th Cir. 2010)). Plaintiff asserts that the following statements uttered by coworkers constitute "direct evidence" of age discrimination: coworker Judy Thompson's statement that "she [i.e., Thompson] was going to retire before [facility Administrator] Brad Hinton got rid of her on account of her age";
"Only the most blatant remarks, whose intent could be nothing other than to discriminate . . . constitute direct evidence of discrimination." Carter v. Miami, 870 F.2d 578, 582 (11th Cir. 1989) (ellipsis supplied). "In an age discrimination context, the quintessential example of direct evidence would be a management memorandum saying, `Fire [the plaintiff] — he is too old.'" Roberts v. Design & Manufacturing Services, 167 F. App'x 82, 85 (11th Cir. 2006) (quoting Merritt v. Dillard Paper Co., 120 F.3d 1181, 1190 (11th Cir. 1997) (in turn quoting Earley v. Champion International Corp., 907 F.2d 1077, 1081 (11th Cir. 1990))) (alteration supplied, some internal quotation marks omitted). Moreover,
Carter, 870 F.2d at 582 (ellipsis and alteration supplied).
The statements cited by plaintiff do not constitute direct evidence of discrimination. Judy Thompson's statement concerned herself, and was not related to plaintiff's employment. Evelyn Kelley's statement simply was a remark "referring to characteristics associated with increasing age." See id. Finally, the Eleventh Circuit has held that a supervisor's inquiries as to when an employee intends to retire do not constitute direct evidence of discrimination when such questions are not uttered in close temporal proximity to an adverse employment action, and when age was not the stated reason for the adverse employment action:
Roberts v. Design & Manufacturing Services, 167 F. App'x 82, 85 (11th Cir. 2006) (emphasis in original, alterations supplied). Plaintiff has neither presented evidence, nor argued that Administrator Hinton's alleged retirement inquiries were made contemporaneously with her termination. Moreover, the reason for plaintiff's September 4, 2013 termination — as recorded in her Employee Record, and as verbalized to plaintiff on the date that she was fired — was not age, but "unauthorized removal of company property."
Accordingly, plaintiff must satisfy the burden-shifting framework for claims based upon circumstantial evidence that was promulgated by the Supreme Court in a series of three decisions rendered over a period of two decades, beginning with McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), then elaborated in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and finally elucidated in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). Although those cases involved discrimination claims based upon Title VII of the Civil Rights Act of 1964, a variant of the analysis also applies to claims based upon the ADEA. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141-42 (2000) (noting widespread use of McDonnell Douglas framework to analyze age discrimination claims based upon circumstantial evidence, and assuming, but not holding, that it applies to ADEA claims) (citing O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (1996) (assuming that McDonnell Douglas analytical framework applies to ADEA claims based on circumstantial proofs)). See also, e.g., Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (same); Bogle v. Orange County Board of County Commissioners, 162 F.3d 653, 656 (11th Cir. 1998) ("Since Bogle has presented no direct evidence that Orange County discharged him because of his age and relied, instead, on circumstantial evidence, the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, . . ., governs his ADEA case.") (ellipsis supplied); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998) (applying McDonnell Douglas framework in an ADEA case).
The analytical framework developed by McDonnell Douglas and its progeny has three steps, the goal of which is that of "progressively . . . sharpening the inquiry into the elusive factual question of intentional discrimination." St. Mary's Honor Center, 509 U.S. at 506 (quoting Burdine, 450 U.S. at 255 n.8) (ellipsis in original). The plaintiff bears the initial burden of establishing a prima facie case. Reeves, 530 U.S. at 142; Chapman, 229 F.3d at 1024; Clark v. Coats & Clark, Inc., 990 F.2d 1217 (11th Cir. 1993). "If a plaintiff establishes a prima facie case . . . the employer must articulate a legitimate, nondiscriminatory rationale for the [contested employment action]. If the employer does so, the burden shifts back to the plaintiff to prove that the employer's asserted reason is pretextual." Young v. General Foods Corp., 840 F.2d 825, 828 (11th Cir. 1988) (ellipsis and alteration supplied); see also Chapman, 229 F.3d at 1024.
To demonstrate a prima facie case for an ADEA violation based upon termination of employment, the plaintiff must prove four facts: (1) that she was a member of the class of persons protected by the ADEA, that is, individuals between the ages of 40 and 70;
The only disputed element of plaintiff's prima facie case is whether plaintiff was replaced by a "substantially younger person."
This court has reviewed the Employee Records maintained by defendant for Donna Roberts and Kaitlyn Johnson. Roberts was promoted to full-time ESA (i.e., the position formerly occupied by plaintiff) on October 21, 2013 (i.e., 47 days after plaintiff's termination on September 4, 2013).
Therefore, the appropriate inquiry is whether Donna Roberts, who was 53 years of age on the date of plaintiff's termination, was "substantially younger" than plaintiff, who was 64 years of age: an age difference of eleven years.
The Eleventh Circuit previously has held that an age difference of just a few years may be sufficient to establish that a plaintiff was replaced by someone "substantially younger." See, e.g., Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1360 (11th Cir. 1999) (five years is sufficient); Carter v. DecisionOne Corp., 122 F.3d 997, 1003 (11th Cir. 1997) (per curiam) (three years is sufficient); Carter v. Miami, 870 F.2d 578, 583 (11th Cir. 1989) (four years is sufficient). Even so, the Eleventh Circuit offered a message of caution in a recent opinion:
Suarez v. School Board of Hillsborough County, Florida, No. 15-12891, 2016 WL 212503, at *9 n.1 (11th Cir. Jan. 19, 2016) (emphasis and alterations supplied).
Therefore, this court must address the question of whether, in addition to the eleven-year age difference between plaintiff and her replacement, there is substantial evidence of discriminatory animus.
Plaintiff identifies only the statements of Judy Thompson, Evelyn Kelley, and Brad Hinton as evidence of age discrimination. As previously stated, those statements do not constitute direct evidence of discrimination. Even so, construing the evidence in the light most favorable to plaintiff, this court concludes that those statements, in conjunction with the fact that plaintiff was replaced by an individual eleven years her junior, are sufficient to satisfy the "substantially younger" element. Therefore, plaintiff has demonstrated a prima facie case.
The defendant may rebut the presumption of discrimination that arises from plaintiff's demonstration of a prima facie case by offering legitimate, nondiscriminatory reasons for her termination. Defendant states:
Doc. no. 23 (Defendant's Brief in Support of Motion for Summary Judgment), at 18-19 (ellipsis and alteration supplied).
An employer's honest belief that an employee violated a company policy constitutes a legitimate, nondiscriminatory reason for termination. See, e.g., Kilgore v. Trussville Development, L.L.C., No. 15-11850, 2016 WL 1138412 (11th Cir. Mar. 24, 2016) ("An employer does not unlawfully discriminate against an employee `if the employer fired an employee because it honestly believed that the employee had violated a company policy, even if it was mistaken in such belief.'") (quoting Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987)); Kragor v. Takeda Pharmaceuticals America, Inc., 702 F.3d 1304, 1309 (11th Cir. 2012) (noting that evidence that an employee "violated" or "appeared to violate" the employer's policy constituted a legitimate, non-discriminatory reason for terminating the employee); Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) ("[T]he City has articulated a legitimate, non-discriminatory reason for disciplining Jones — at the November 15 disciplinary hearing Jones admitted that he had committed all of the rule violations.") (alteration supplied).
Because defendant has produced substantial evidence that plaintiff violated its policy prohibiting unauthorized removal of facility property, it has satisfied its burden of producing a legitimate, nondiscriminatory reason for plaintiff's termination.
Defendant contends that the findings of the Alabama Department of Industrial Relations on plaintiff's unemployment compensation claim preclude her from relitigating the reason for her discharge and, thus, conclusively establish that defendant terminated her for theft.
Collateral estoppel "precludes a party from relitigating in a subsequent action or proceeding an issue raised in a prior action or proceeding and decided against the party or those in privity." Urfirer v. Cornfeld, 408 F.3d 710, 716 (11th Cir. 2005). The Eleventh Circuit held in Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999), that a "state court's decision upholding an administrative body's findings has preclusive effect in a subsequent federal court proceeding if: (1) the courts of that state would be bound by the decision; and (2) the state proceedings that produced the decision comported with the requirements of due process." Id. at 1368; see also Travers v. Jones, 323 F.3d 1294, 1296 (11th Cir. 2003) ("When a state agency, acting in a judicial capacity, resolves disputed issues of fact properly before it that the parties have had an adequate opportunity to litigate, federal courts must give the agency's factfinding the same preclusive effect to which it would be entitled in the State's court.").
In some employment law contexts, Congress has abrograted, by statute, the doctrine of collateral estoppel for State administrative agency decisions. See, e.g., Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104, 107 (1991) (holding that judicially unreviewed findings of a State administrative agency made with respect to an age discrimination claim have no preclusive effect on federal proceedings).
Alabama law provides that decisions of State agencies have preclusive effect when each of the following conditions is satisfied:
Ex parte Shelby Medical Center, Inc., 564 So.2d 63, 68 (Ala. 1990) (quoting Pantex Towing Corp. v. Glidewell, 763 F.2d 1241, 1245 (11th Cir. 1985)); see also Wal-Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445 (Ala. 1999), overruled on other grounds by Ex parte Rogers, 68 So.3d 773 (Ala. 2010) (quoting Ex parte Smith, 683 So.2d 431, 433 (Ala. 1996)).
Plaintiff's unemployment compensation claim was brought pursuant to an Alabama statutory system that permits some unemployed individuals to receive unemployment compensation benefits. See Ala. Code § 25-4-1 et seq. (1975). That statutory scheme provides, however, that "a claimant is partially disqualified from receiving unemployment-compensation benefits if he or she was discharged for misconduct committed in connection with work." Ala. Code § 25-4-78(3)(c) (emphasis supplied). Here, the Alabama Department of Industrial Relations found that plaintiff was "discharged from [her] last bona fide work with this employer for misconduct committed in connection with work," and consequently, was subject to the disqualifying provision under § 25-4-78(3)(c).
The court therefore will address the five elements of collateral estoppel set forth under Alabama law, to determine whether plaintiff is precluded from relitigating the reason for her termination.
The first element, which requires an identity of the parties or their privies, is satisfied.
Plaintiff contends that the issue before this court is not identical to the issue that was litigated before the State administrative agency:
Doc. no. 25 (Plaintiff's Response in Opposition to Summary Judgment), at 7-8 (emphasis in original).
This court disagrees. Plaintiff's counsel confuses the issue of age discrimination with the question of whether defendant's stated, non-discriminatory basis for the contested employment action is pretextual. The Department of Industrial Relations was tasked with deciding whether plaintiff was disqualified from receiving unemployment compensation under the statute providing that "[a]n individual shall be disqualified for total or partial unemployment: . . . If he was discharged from his most recent bona fide work for misconduct connected with his work . . ." Ala. Code § 25-4-78(3)(c) (1975) (alteration, ellipses, and emphasis supplied). That State agency found that: "[t]he claimant [i.e., plaintiff] was discharged for misappropriation of employer property for her personal use."
Moreover, and more significantly, as the Eleventh Circuit observed in Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201 (11th Cir. 2010),
Mora, 597 F.3d at 1204 (alterations and emphasis supplied). In other words, a finding that plaintiff was terminated for any reason other than her age conclusively eliminates the possibility that defendant can be found liable under the ADEA. In light of all of the foregoing, the court concludes that the "identity of issues" element is satisfied.
The third element of collateral estoppel under Alabama law requires that the parties be afforded an adequate opportunity to litigate, in the State agency administrative proceeding, the issue to be estopped. The Alabama Supreme Court has held that Alabama's Unemployment Compensation Act affords parties an adequate opportunity to litigate the issue of discharge in an unemployment compensation claim hearing. See Smitherman, 743 So. 2d at 446. The Court provided the following reasoning in support of that holding:
Id. (first two alterations in original, other alterations supplied).
The record in this case shows that an administrative hearing was held, by telephone, during which the "[c]laimant [i.e., plaintiff] and employer representative with witness" were present.
Although there is no evidence of record that plaintiff asserted before the Department of Industrial Relations or Administrative Hearing Officer that her termination was related to her age, that does not mean that she did not have the opportunity to assert that argument. In order to receive unemployment benefits, plaintiff was required to demonstrate that she was not discharged for misconduct committed in connection with work. See Smitherman, 743 So. 2d at 447. If she believed that defendant discharged her on the basis of her age, then she had the burden to prove that assertion. See id. In conclusion, this court finds that plaintiff was given an adequate opportunity to litigate the issue of the reason for her termination.
The fourth element also is satisfied, because the reason for plaintiff's termination was actually litigated in the State administrative proceeding, and was actually determined by the Administrative Hearing Officer.
Finally, the fifth element is satisfied, because the Board of Industrial Relations needed to determine the reason for plaintiff's termination in order to decide whether plaintiff was eligible to receive unemployment compensation.
Accordingly, all elements necessary under Alabama law for collateral estoppel to apply have been satisfied, and plaintiff is precluded from relitigating the reason for her termination. This court must accept, as an established fact, the finding of the Alabama Department of Industrial Relations that plaintiff was terminated for misconduct. Thus, defendant has established that it did not terminate plaintiff's employment based on her age, and is entitled to summary judgment on plaintiff's ADEA claim.
Even if plaintiff was not estopped from relitigating that question, her assertion that defendant's legitimate, nondiscriminatory reason for terminating her is merely a pretext for age discrimination would fail on its merits. Her responsive brief states:
Doc. no. 25 (Plaintiff's Response to Motion for Summary Judgment), at 8.
As the court understands that statement, plaintiff initially had planned to demonstrate that the legitimate, nondiscriminatory reason proffered by defendant for plaintiff's termination was merely a pretext for age discrimination by presenting evidence of comparators. Plaintiff did not develop such evidence, however. Even though the time allotted for discovery spanned a period of six months, plaintiff inexcusably delayed until one week prior to the discovery deadline before serving her first requests for discovery upon defendant. This court, finding that there was no good cause for such an egregious delay, granted defendant's motion for a protective order — thereby relieving defendant of any obligation to answer plaintiff's eleventh-hour discovery requests.
Plaintiff also attempts to demonstrate pretext by stating that, even though she admittedly drank beverages reserved for use by the facility's residents, "the rest of them dranked [sic] them too."
Finally, defendant makes the point that, "less than six months before Plaintiff claims she was terminated with discriminatory intent, she was reinstated following her third violation of the Defendant's tobacco-free-campus policy. The decisionmakers who terminated Plaintiff for theft [i.e., Administrator Brad Hinton and Personnel Director Cheryl Haney] also made the reinstatement decision."
In summary, plaintiff has failed to prove that the legitimate, nondiscriminatory reason proffered by defendant is merely a pretext for age discrimination. Therefore, the court concludes that plaintiff's ADEA claim is due to be dismissed, and defendant's motion for summary judgment granted.
In accordance with the foregoing, it is ORDERED that defendant's motion for summary judgment is GRANTED. Plaintiff's ADEA claim is DISMISSED WITH PREJUDICE. Costs are taxed to plaintiff. The Clerk is directed to close this file.
Ala. Code § 25-4-92(c) (emphasis supplied).
Doc. no. 23-14 (State-Court Order Granting Summary Judgment), at ECF 3-4.
Doc. no. 10, at 15 (alteration supplied, emphasis in original).
Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443 (11th Cir. 1985) (emphasis supplied). Thus, the plaintiff is not required to prove that she was replaced by someone less than 40 years of age, but only by someone "substantially younger." O'Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996).
