Dean v. City of Montgomery

Filing 26

MEMORANDUM OPINION AND ORDER that 19 Motion for Summary Judgment is GRANTED; (2) Defendant's 25 Motion to Strike is DENIED; (3) All claims and this case are DISMISSED WITH PREJUDICE; and (4) the pretrial set for 12/2/08 and the trial scheduled 1/12/09 in this case are CANCELLED. The Court will enter a separate final judgment taxing costs. Signed by Honorable Ira De Ment on 10/1/2008. (cb, )

IN THE UNITED STATES DISTRICT COURT FOR T H E MIDDLE DISTRICT OF ALABAMA N O R T H E R N DIVISION S H IR L E Y D. DEAN, P l a in tif f , v. C IT Y OF MONTGOMERY, D e f e n d a n t. ) ) ) ) ) ) ) )

C A S E NO. 2:07-cv-496-ID (W O )

M E M O R A N D U M OPINION AND ORDER S h irle y D. Dean brings this action against the City of Montgomery alleging sexual h ara ssm en t and retaliation while employed as a corrections officer at the Montgomery M u n ic ip a l Jail. Dean claims that she was sexually harassed by Calvin Knight, a fellow c o rre c tio n s officer at the jail, and that the City retaliated against her after she reported the s e x u a l harassment, all in violation of her rights under Title VII of the Civil Rights Act of 1 9 6 4 , 42 U.S.C. § 2000e, et seq. This cause is before the Court on the City's Motion for S u m m a ry Judgment (Doc # 19), filed September 2, 2008. The Court has carefully considered a ll submissions in support of and in opposition to the motions and the relevant case law. For th e reasons set forth below, the Court finds that the City's Motion for Summary Judgment is due to be GRANTED. I . JURISDICTION AND VENUE T h e Court exercises subject matter jurisdiction over Plaintiff's claims pursuant to 28 U .S .C . §§ 1331 (federal question) and 1343(4) (civil rights). The parties contest neither p e rs o n a l jurisdiction nor venue, and the Court finds an adequate factual basis for each.

I I . SUMMARY JUDGMENT STANDARD U n d e r Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is a p p ro p ria te "if the pleadings, depositions, answers to interrogatories, and admissions on file, to g e th e r with the affidavits, if any, show that there is no genuine issue as to any material fact an d that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). " A n issue of fact is `genuine' if the record as a whole could lead a reasonable trier of fact to f in d for the nonmoving party. An issue is `material' if it might affect the outcome of the c a se under the governing law." Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1 4 8 9 , 1496 (11th Cir. 1996) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1 9 8 6 )). "A genuine issue of material fact does not exist unless there is sufficient evidence f a v o rin g the nonmoving party for a reasonable jury to return a verdict in its favor." Chapman v . AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v. City of M ia m i, 52 F.3d 918, 921 (11th Cir. 1995) (internal quotation marks and citations omitted)). T h e party seeking summary judgment "always bears the initial responsibility of in f o rm in g the district court of the basis for its motion, and identifying those portions of `the p le a d in g s , depositions, answers to interrogatories, and admissions on file, together with the a f f id a v its , if any,' which it believes demonstrate the absence of a genuine issue of material f a ct." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The movant can meet this burden b y presenting evidence showing there is no dispute of material fact, or by showing the n o n m o v in g party has failed to present evidence in support of some element of its case on

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w h ic h it bears the ultimate burden of proof. Id. at 322-23. O n c e the moving party has met its burden, Rule 56(e) "requires the nonmoving party to go beyond the pleadings and by [its] own affidavits, or by the `depositions, answers to in t e rr o g a to r ie s , and admissions on file,' designate `specific facts showing that there is a g e n u in e issue for trial.'" Id. at 324. To avoid summary judgment, the nonmoving party " m u s t do more than simply show that there is some metaphysical doubt as to the material f a cts ." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the o th e r hand, a court ruling on a motion for summary judgment must believe the evidence of th e nonmovant and must draw all justifiable inferences from the evidence in the nonmoving p a rty's favor. See, e.g., Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); M c C o r m ic k v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003) (the evidence a n d all reasonable inferences from the evidence must be viewed in the light most favorable to the nonmovant). After the nonmoving party has responded to the motion for summary ju d g m e n t, the court must grant summary judgment if there is no genuine issue of material f a c t and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 5 6 (c). I I I . FACTS T h e Court has carefully considered all deposition excerpts and documents submitted in support of and in opposition to the motion. The submissions of the parties, viewed in the lig h t most favorable to the non-moving party, establish the following relevant facts:

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A.

S e x u a l Harassment D ea n was hired as a correction officer by the City of Montgomery at the Montgomery

M u n icip al Jail on October 26, 2001. Calvin Knight began working at the Montgomery M u n icip a l Jail as a correction officer a few months after Dean was hired. Knight began to se x u a lly harass Dean about six months to a year after he started working at the jail. K n ig h t's harassment involved referring to women as "bitches" and "ho's". Knight f re q u e n tly touched other female employees in Dean's presence. Knight would comment a b o u t what kind of underwear female officers were wearing. Knight would make sexually e x p lic it gestures towards female employees, such as putting his hand between his legs, and m a k e sexually explicit comments. Knight would also pick female employees up and place th e m in his lap, and he would purposefully bump into women to touch their breasts. On one o cc asio n , Knight looked down Dean's shirt. Dean reported this incident to her supervisor, J a n ic e Hopkins. According to Dean, Hopkins was well aware of Knights conduct because H o p k in s participated in conversations where Knight's conduct was discussed. Dean alleges th a t she reported Knight's language and sexual gestures to Hopkins. O n December 27, 2005, Knight approached Dean from behind and put his hands on h e r knees, then moved his hands to her buttocks and squeezed with his open palm. Other c o rre c tio n s officers witnessed the incident. Dean reported the incident to Hopkins on the day it occurred, and to the assistant warden, M.E. Brantley, the next day. After several weeks, D e a n did not feel as though the city was taking any action on her complaint, and she

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co m m u n ica ted this to W.R. Collins, the jail administrator. C o llin s did not take any action on the complaint until he received a letter from H o p k in s on January 25, 2006 that referred to Dean's allegations of "sex harassment." S o m e tim e later, Dean was interviewed by an officer from Internal Affairs regarding the h a ra ss m e n t. After the investigation was concluded, Knight received a two-day suspension. A t the time of these events, the City had a sexual harassment policy that became e f f e c tiv e January 30, 2002. The policy provides for the following procedure to be followed if an employee feels they are being harassed: A n y employee who believes that he or she is being harassed should report it im m e d iate ly in writing or verbally to his/her employer. If the complaint is m a d e verbally, the complainant should make and maintain a written account d e ta ilin g the date of the incident(s), what was said or done, and the names of a ll witnesses. The complainant shall make the report to his or her (1) (2 ) (3) (4) im m ed iate supervisor; d e p a rtm e n t/d iv is io n head (or designee); or th e Mayor's Office[; or] P erso n n el Director.

D e a n attended a sexual harassment training seminar on February 8, 2002 where she received a copy of the policy. B. R e ta lia tio n O n January 9, 2006, twelve days after reporting the fondling incident, Dean received a counseling form indicating she had violated the city's sick leave policy for sick leave taken

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o n December 18 and 20, 2005. Dean had used the sick leave because her son was receiving s u r g e ry for scoliosis.1 O n June 26, 2006, Dean filed a claim with the EEOC alleging sexual harassment and r e ta lia tio n . F r o m July 9 to August 3, 2006, Dean served a twenty-day suspension for an incident th a t had occurred more than four months prior. On March 7, 2006, Dean fell while she was a t work, but at the time did not feel she was injured. On March 13, 2006, Dean felt the fall a t work had irritated a cyst on her leg, so she told her supervisor about the fall and requested s ic k leave to go to the doctor to check the cyst. Dean was told the suspension was for v io la tin g the city's policy requiring employees to timely report any on-the-job injury on the d a y the injury occurred and for failing to provide a doctor's excuse regarding the nature of in ju ry to her leg when asked to do so. While the suspension began on July 9, thirteen days a f te r Dean filed her EEOC claim, the suspension was recommended on April 24, 2006, the h e a rin g occurred on May 3, 2006, and the suspension was ultimately approved on June 20, 2006.

Dean alleges in her affidavit and her brief that she received a twenty-day su sp e n sio n for this incident. However, the City disputes this fact and argues that Dean only re c e iv e d "counseling" for this incident, but no suspension. The evidence presented to this C o u rt by the plaintiff herself does not support a finding that she received a suspension for this in c id e n t. The counseling form does not mention any recommendation of suspension. M o re o v e r, under the City's progressive discipline policy, "counseling" is a corrective re sp o n s e the City takes in lieu of suspension. Accordingly, this Court finds that there was n o suspension as a result of the January 9, 2006 counseling. 6

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O n July 13, 2006, while Dean was suspended, she received a letter from Collins in f o rm in g her that she was being transferred from second shift to third shift. Third shift o p era tes from 10:30 p.m. to 7:00 a.m. The letter stated that the decision was based in part o n her sexual harassment litigation against the second shift supervisor, the assistant warden, a n d Knight, but noted that "[t]o prevent the perception of retaliation, be aware that this move is in the best interest for you and the jail." On July 20, 2006, Dean sent a letter to Collins in d ic a tin g that she couldn't work the third shift because her husband worked nights and she h a d a toddler. Dean was transferred to the third shift, and on July 24, 2007, she amended her E E O C charge to include a claim of retaliation. The City then transferred Dean back to the se c o n d shift. O n or about August 7, 2006, Dean was five months pregnant and requested sick leave p u rs u a n t to her doctor's advice due to complications with her pregnancy medication. Dean a lso requested new uniforms because her pregnancy had caused her to outgrow her old u n if o rm . Dean went to Azar's Uniforms to obtain her new uniform, but the sales clerk, Kelly S a m p le y, told Dean that while the city would pay for the uniforms, Dean would have to pay f o r the insert that is used when an officer becomes pregnant. The city accused Dean of using a b u siv e language to the Azar employees and for violating sick leave policy. A hearing was h e l d on November 20, 2006 regarding these charges. Sampley testified that Dean did not r a is e her voice but that Dean "probably" used profanity. Dean's department head, Major C.J. D ix o n , recommended that the board terminate Dean. The hearing board dismissed the

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v io la tio n of sick leave policy and recommended a twenty-nine day suspension for the rude b e h a v io r. Ultimately, this recommendation was reduced to a five-day suspension, but Dean n e v e r served this suspension. O n December 12, 2006, Major Dixon initiated another investigation into whether D e a n had cursed at a police officer. Dean was called into Sergeant Wingard's office, who rea d Dean her Garrity rights. When Wingard started to ask questions, Dean said that she w a n ted to speak with an attorney before answering any questions. Dean was told she could n o t speak with an attorney. Moreover, Dean was not informed why she was being

in v e s tig a te d . Dean refused to answer any questions until she could speak with an attorney. M a jo r Dixon took Dean's ID card and Access card and told her to go home and stop coming to work until further notice. The charge of using profanity towards a police officer was dismissed. However, the c h a rg e of refusing to answer Sergeant Wingard's questions was upheld. Dean was

te rm in a te d for her refusal to answer questions, which became effective January 23, 2007. I V . DISCUSSION D e a n has brought claims against the City for sexual harassment and retaliation under T itle VII. The City has moved for summary judgment on all claims. The Court addresses th e merits of each claim below. A. S e x u a l Harassment / Hostile Work Environment T o prove sexual harassment under Title VII, a plaintiff must show (1) that she belongs

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to a protected group; (2) that she has been subjected to unwelcome sexual harassment; (3) th a t the harassment was based on her sex; (4) that the harassment was sufficiently severe or p e rv a siv e to alter the terms and conditions of employment and create a discriminatorily a b u s iv e working environment; and (5) that a basis for holding the employer liable exists. H u ls e y v. Pride Restaurants, LLC, 367 F.3d 1238, 1244-45 (11th Cir. 2004). The City has m o v e d for summary judgment on the fifth element, that there is no basis for holding the City v i c a rio u s ly liable for Knight's actions. 1. N o tic e

A n employer can not be held vicariously liable for the harassment of a co-worker u n le ss the employer knew (actual notice) or should have known (constructive notice) of the h a ra s s m e n t, and the employer failed to take remedial action. Watson v. Blue Circle, Inc., 324 F .3 d 1252, 1259 (11th Cir. 2003). Actual notice is established by proof that management k n e w of the harassment. Id. When an employer has a clear and published policy that outlines th e procedures an employee must follow to report suspected harassment and the complaining e m p lo ye e follows those procedures, actual notice is established. Id. Constructive notice, on t h e other hand, is established when the harassment was so severe and pervasive that m a n a g em e n t reasonably should have known of it. The burden of proof is on the employee to prove actual or constructive notice. Id. at 1257. There is no dispute that the City had actual notice of at least one fondling incident on D e c e m b e r 27, 2005, when Dean reported the incident to her immediate supervisor, Hopkins.

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H o w e v e r, Dean also alleges that she reported other instances of sexual harassment to H o p k in s prior to that incident. The City's sexual harassment policy specifically provides that a n employee's immediate supervisor is an appropriate person to report sexual harassment to. H o w e v e r, with respect to putting the City on notice of Knight's conduct prior to December 2 7 , 2005, Dean has not met her burden to show that her communications with Hopkins were s u f f ic ie n t to put the City on notice that Knight's conduct constituted sexual harassment. See N u rs e "BE" v. Columbia Palms W. Hosp. Ltd. P'ship, 490 F.3d 1302, 1309-10 (11th Cir. 2 0 0 7 ) (reporting conduct to representative designated by sexual harassment plan insufficient to put employer on notice where employee did not properly communicate that the conduct w a s sexual harassment); Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1365 (11th Cir. 1999) (n o t unreasonable where employer failed to act on alleged complaint when employee did not a d e q u ate ly communicate that conduct of coworker was "a problem about which she was co n ce rne d or that required [employer's] immediate attention"). D e a n alleges that prior to December 27, 2005, she reported Knight's conduct to H o p k in s , including an incident where Knight looked down her shirt. However, Dean does n o t provide any specific dates or even a time frame in which these alleged conversations occurred. Indeed, the vague allegation "I reported Knight's offensive language and

b e h a v i o rs to my supervisor, Hopkins," particularly without any reference to when these a lle g e d reports took place, is insufficient to meet her burden of proof that she adequately put H o p k in s , and therefore the City, on notice that she was being sexually harassed prior to

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D e c e m b e r 27, 2005. Columbia Palms, 490 F.3d at 1309-10. 2. I m m e d ia te and Appropriate Corrective Action

O n c e the plaintiff has established vicarious liability through either actual or c o n stru c tiv e notice, they must also show that the employer failed to take "immediate and a p p ro p ria te corrective action." See Watson, 324 F.3d at 1261; Miller v. Kenworth of Dothan, In c ., 277 F.3d 1269, 1280 (11th Cir. 2002).2 T h is Court has found that the City was on notice of Knight's sexually harassing b e h a v io r on December 27, 2005. There is no evidence that the City took any action on D e a n 's complaint until January 25, 2006, when Collins received a letter from Hopkins that re f erre d to Dean's allegations of "sex harassment." At this point, Collins immediately began a n investigation, and Dean was interviewed by an officer from Internal Affairs. After the in v e stig a tio n was concluded, Knight received a two-day suspension. In Fleming v. Boeing Co., 120 F.3d 242, 246-47 (11th Cir. 1997) the Eleventh Circuit f o u n d that an employer took "immediate and appropriate corrective action" where the e m p lo ye r was notified of harassment in September 1992. The employer's response was to tell the employee that the offending employee would be spoken with and that she should

The Supreme Court decisions in Faragher v. City of Boca Raton, 524 U.S. 775 (1 9 9 8 ) and Burlington Indus. v. Ellerth, 524 U.S. 742 (1998) only addressed employer lia b ility for the conduct of a supervisor, not the conduct of a co-worker. See Pennsylvania S t a te Police v. Suders, 542 U.S. 129 (2004) ("Ellerth and Faragher expressed no view on th e employer liability standard for co-worker harassment. Nor do we."); Miller, 277 F.3d at 1 2 7 8 (discussing different standards for vicarious liability when harassment is by a su p erv isor versus a co-worker). 11

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n o tif y the employer if the harassing conduct continued. In January 1993 the employer was a g a in notified that the harassment was continuing at which point the employer began an in v e stig a tio n that resulted in offending employee's demotion and employee was moved to d if f e re n t supervisor. Id. Under the circumstances of this case, this Court finds that the City took "immediate a n d appropriate corrective action." In Fleming, the employer waited four months to begin its investigation, and then only because the employee complained that the harassment had not c e as e d . Here, the City started its investigation less than one month after the complaint and D e a n has made no allegation that Knight continued to harass her after she reported his co n d u ct on December 27, 2005.3 Accordingly, Dean has failed to establish a "hostile work e n v iro n m e n t" claim by a co-worker and her claim is due to be dismissed. B. R e ta lia tio n D e a n also claims that the City retaliated against her in response to her complaints a b o u t sexual harassment. To establish a claim of retaliation, a plaintiff must prove (1) that s h e engaged in statutorily protected activity, (2) she suffered a materially adverse action, and (3 ) there was some causal relation between the two events. See Goldsmith v. Bagby Elevator C o ., 513 F.3d 1261, 1277 (11th Cir. 2008). Once the plaintiff establishes the elements of a retaliation claim, the employer has an opportunity to articulate a legitimate, nonretaliatory

In her briefs, Dean claimed that there was evidence that Knight continued his h a ra ss in g behavior after December 27, 2005. However, the evidence cited by Dean in fact d o e s not support that proposition. 12

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re a s o n for the challenged employment action as an affirmative defense to liability. Id. The p la in tif f bears the ultimate burden of proving retaliation by a preponderance of the evidence a n d that the reason provided by the employer is a pretext for prohibited retaliatory conduct. Id . D e a n alleges the following incidents constitute "materially adverse action" for the p u rpo se of establishing her retaliation claim: (1) the counseling form she received on January 9 , 2006 for abusing the sick leave policy; (2) the twenty-day suspension she received on June 2 0 , 2006, for failing to timely report her on-the-job injury for which she took sick leave, and f o r failing to provide a doctor's excuse regarding the injury when asked to do so; (3) the tra n sf e r from second to third shift on August 3, 2006; (4) her termination for failing to a n sw e r Sergeant Wingard's questions during the investigation into whether Dean had used p rof an ity towards a police officer.4 W ith respect to the January 9, 2006 counseling form, this does not meet the definition o f a "materially adverse action" because it is not a "serious and material change in the terms, c o n d itio n s , or privileges of employment." See Davis v. Town of Lake Park, Fla., 245 F.3d

While mentioned in her statement of facts, Dean never addresses, as a basis of h e r retaliation claim, her five-day suspension recommended as a result of the November 20, 2 0 0 6 hearing for rude behavior. Accordingly, Dean has abandoned that as a potential claim. S e e Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 972 n.36 (11th Cir. 2008) (c la im s not defended on summary judgment are abandoned). The Court notes that the issue w o u ld not have changed the outcome because Dean never served the suspension--the City's re c o m m e n d a tio n of the five-day suspension was still pending when Dean was terminated for a different offense. 13

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1 2 3 2 , 1240 (11th Cir. 2001) (negative job performance memoranda placed in employee's file w as not a materially adverse employment action). D e a n also alleges her twenty-day suspension that began on July 9, 2006, was a m a te ria lly adverse action in retaliation for her June 26, 2006 EEOC claim alleging sexual h a ra ss m e n t and retaliation. However, while the twenty-day suspension was not imposed until J u ly 9, 2006, the suspension was recommended on April 24, 2006, the hearing occurred on M a y 3, 2006, and the suspension was approved on June 20, 2006--all before Dean filed her E E O C claim. Moreover, Dean has made no allegation that the suspension was imposed as re ta lia tio n in anticipation that Dean would file a sexual harassment complaint. Accordingly, t h e July 9, 2006 suspension can not be causally related to Dean's EEOC claim. See G o ld sm ith , 513 F.3d at 1277 (causality element requires plaintiff to prove adverse action and filing claim were not "wholly unrelated"). In addition, Dean claims that her transfer from second shift to third shift was re talia tio n for her sexual harassment claims. With respect to transfers, the Eleventh Circuit h a s held that they are only materially adverse when they are "objectively equivalent, at least to some degree, to demotions." Akins v. Fulton County, Ga., 420 F.3d 1293, 1303 (11th Cir. 2 0 0 5 ) . The Circuit has found transfers to be materially adverse when they result in lower c o m p e n s a tio n or benefits, see Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 5 0 1 , 513 (11th Cir. 2000), and where the new position involved reduced eligibility for salary incre ase s, less responsibility, and more menial tasks, see Gillis v. Georgia Dep't of

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C o r r e c tio n s , 400 F.3d 883, 888 (11th Cir. 2005). However, in other circumstances, the C irc u it has upheld transferring an employee away from the harasser as an appropriate re s p o n s e . See, e.g., Columbia Palms, 490 F.3d at 1312; Fleming, 120 F.3d at 248. Dean a rg u e s that the transfer was materially adverse in this case because the third-shift involves le s s desirable hours. Even if less desirable hours could be considered a materially adverse a c tio n , the record shows that after Dean complained about the transfer, the City moved her b a c k to the second-shift as she requested. Under these circumstances, the Court finds that D e a n 's short-term transfer to third shift does not constitute a materially adverse action T h e final basis for Dean's retaliation claim is her termination, which became effective J a n u a ry 23, 2007. There is no doubt that termination would be a materially adverse action f o r the purpose of establishing a prima facie case of retaliation. See, e.g., Baldwin v. Blue C ro s s /B lu e Shield of Alabama, 480 F.3d 1287, 1300 (11th Cir. 2007) ("[T]ermination is the u ltim a te change in the terms and conditions of employement."). However, in order to prove h er prima facie case of retaliation, she must also prove that the termination had a causal re la tio n with the protected expression, her EEOC claim. D e a n does not put forth any evidence that her termination was caused by her EEOC c la im other than the circumstantial evidence of temporal proximity. Dean was terminated o n January 23, 2007, which is six months after she filed her EEOC claim. The Eleventh C i rc u it has held that shorter periods of three to four months are insufficient temporal p ro x im ity to establish a causal relationship. See, e.g., Thomas v. Cooper Lighting, Inc., 506

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F .3 d 1361, 1364 (11th Cir. 2007) (noting that "[a] three to four month disparity between the sta tu to rily protected expression and the adverse employment action is not enough," and "in th e absence of other evidence tending to show causation, if there is a substantial delay b e tw e e n the protected expression and the adverse action, the complaint of retaliation fails as a matter of law"). Accordingly, this Court finds that Dean has failed to provide sufficient e v id e n c e for a reasonable jury to find that her termination was causally related to any p ro tec ted expression on her part. B e c au s e Dean has failed to prove a prima facie case of retaliation, the City is entitled to summary judgment on Dean's retaliation claim.5 V . CONCLUSION F o r the reasons set forth above, it is CONSIDERED and ORDERED that (1) D e f e n d a n t's Motion for Summary Judgment (Doc # 19) be and the same is h e re b y GRANTED. (2 ) (3 ) D e f e n d a n t's Motion to Strike (Doc. # 25) be and the same is hereby DENIED. A ll claims and this case are DISMISSED WITH PREJUDICE.

The Court notes that, in addition to the absence of a prima facie case, the City h as put forth legitimate, non-discriminatory reasons for all of the actions Dean alleges were re ta lia to ry. Nowhere in Dean's brief does she provide any evidence or argument, beyond c o n c lu s o ry allegations, that demonstrates that the non-discriminatory reasons put forth by the C ity are pretextual. See, e.g., Crawford v. City of Fairburn, Ga., 482 F.3d 1305, 1308 (11th C ir . 2007) ("If the employer articulates a legitimate, nondiscriminatory reason for its actions, `th e presumption of discrimination is rebutted, and the burden of production shifts to the p la in tif f to offer evidence that the alleged reason of the employer is a pretext for illegal d i s c r im i n a t i o n .' " ) . 16

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(4 ) The pretrial and the trial scheduled in this matter are CANCELLED. T h i s Court will enter a separate final judgment taxing costs. D O N E this 1st day of October, 2008. /s/ Ira DeMent SENIOR UNITED STATES DISTRICT JUDGE

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