Ross v. Renaissance Montgomery Hotel & Spa (MAG+)

Filing 26

MEMORANDUM OPINION AND ORDER directing as follows: (1) the 24 report and recommendation of the Mag Judge is ADOPTED IN PART and MODIFIED IN PART; it is adopted to the extent that it develops the factual record and denies the Renaissance's alte rnative motion to dismiss; it is modifired to grant rather than deny the Renaissance's summary judgment motion; (2) the Renaissance's 7 MOTION for Summary Judgment is GRANTED; (3) the Renaissance's alternative MOTION to dismiss is DENIED. Signed by Honorable Judge Mark E. Fuller on 3/27/12. (djy, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
MARVIN A. ROSS,

)
)
Plaintiff,
)
)
v.
)
)
RENAISSANCE MONTGOMERY
)
HOTEL & SPA AT THE CONVENTION )
CENTER,
)
)
Defendant.
)

Case No. 2:11-cv-301-MEF
(WO—Publish)

MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This cause comes before the Court on the Motion for Summary Judgment (Doc. #
7) filed by the Renaissance Montgomery Hotel and Spa (Renaissance Hotel), the
defendant in this case. The Renaissance Hotel’s motion also contains a motion to dismiss
as an alternative request for relief. The Magistrate Judge, after considering these motions,
submitted a Report and Recommendation (Doc. # 24), advising this Court to deny both.
For the reasons discussed below, the Report and Recommendation will be ADOPTED IN
PART and MODIFIED IN PART. It will be ADOPTED as to the factual findings
developed by the Magistrate Judge and to the extent that it DENIES the Renaissance’s
motion to dismiss. The report will be modified so as to GRANT rather than deny
summary judgment in favor of the hotel.
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II. BACKGROUND
The Renaissance Hotel, in May of 2010, fired Marvin Ross for failing to perform
an assigned task after a previous warning. (Docs. # 8-1, -11.) Ross then filed for and
received unemployment compensation benefits. (Doc. # 8-2.) The Renaissance Hotel
appealed Ross’s benefits award to the Alabama Department of Industrial Relations
(ADIR), and the agency’s Hearings and Appeals division reversed. (Doc. # 8-1 at 2.) The
ADIR rested its decision on its finding that Ross had “failed to complete an assigned
task,” which led to his firing for “misconduct committed in connection with his work . . .
after previous warnings.” (Id. at 1–2 (citing Ala. Code § 25-4-78(3)(b).)
After the ADIR’s Board of Appeals denied Ross’s appeal, he appealed again, this
time to the Circuit Court of Montgomery County. There he received a trial de novo,
which centered on whether Ross “failed to carry out a reasonable job task” after a prior
warning. (Docs. # 8-10 at 5–6.) Both Ross and the Renaissance Hotel appeared in the
case and both parties were represented by counsel. After a full trial on Ross’s firing, the
state circuit court upheld the ADIR’s determination. The court found that the Renaissance
Hotel fired Ross “for actual [] misconduct committed in connection with his work . . .
after previous warnings.” (Docs. # 8-1, -9, -10.)
Undeterred, Ross filed a pro se complaint against his former employer for age
discrimination. Ross brought his claim under the Age Discrimination in Employment Act
(ADEA), 28 U.S.C. § 621, alleging that his firing amounted to “unjust punishment” and

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that “there is (are) another (other) underlying reason(s)” for the Renaissance Hotel firing
him besides his repeated violations of work rules. The Renaissance Hotel now asks the
Court to enter summary judgment on its behalf, claiming that the state circuit court’s
earlier decision—that Ross was fired for misconduct—precludes his later-filed age
discrimination claim. The Magistrate Judge disagreed, however, and recommended that
this Court deny the hotel’s summary judgment motion.
III. SUMMARY JUDGMENT STANDARD
A motion for summary judgment looks to “pierce the pleadings and to assess the
proof in order to see whether there is a genuine need for trial.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A court should grant summary
judgment when the pleadings and supporting materials show that no genuine issue exists
as to any material fact and that the moving party deserves judgment as a matter of law.
Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
party moving for summary judgment “always bears the initial responsibility of informing
the district court of the basis for its motion, and identifying” the relevant documents that
“it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). To shoulder this burden, the moving party can present
evidence to this effect. Id. at 322–23. Or it can show that the nonmoving party has failed
to present evidence in support of some element of its case on which it ultimately bears the
burden of proof. Id.
If the moving party meets its burden, the non-movant must then designate, by
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affidavits, depositions, admissions, and answers to interrogatories, specific facts showing
the existence of a genuine issue for trial. Jeffery v. Sarasota White Sox, Inc., 64 F.3d 590,
593–94 (11th Cir. 1995). And a genuine issue of material fact exists when the nonmoving
party produces evidence that would allow a reasonable fact-finder to return a verdict in
his or her favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir.
2001). Thus, summary judgment requires the nonmoving party to “do more than simply
show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S.
at 586. Indeed, a plaintiff must present evidence demonstrating that he can establish the
basic elements of his claim, Celotex, 477 U.S. at 322, because “conclusory allegations
without specific supporting facts have no probative value” at the summary judgment
stage. Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985).
A court ruling on a motion for summary judgment must believe the non-movant’s
evidence. Anderson, 477 U.S. at 255. It also must draw all justifiable inferences from the
evidence in the nonmoving party’s favor. Id. After the nonmoving party has responded to
the motion, the court must grant summary judgment if there exists no genuine issue of
material fact and the moving party deserves judgment as a matter of law. See Fed. R. Civ.
P. 56(c). Now this Court must decide a single issue: does a state administrative

proceeding determining that an employer fired an employee for actual misconduct bar the
employee’s later ADEA claim?

IV. DISCUSSION
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Under the Full Faith and Credit Act, 28 U.S.C. § 1738, federal courts must give a
state court judgment preclusive effect if the state’s courts would do the same. As a
necessary corollary, federal courts must look to state law to see whether a state court
decision will preclude issues or claims brought in federal court. More specifically, and
relevant here, “[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.” Maniccia v. Brown, 171 F.3d 1364,
1368 (11th Cir. 1999) (citing Kremer v. Chem. Constr. Corp., 456 U.S. 461, 482 (1982)).
Under Alabama law, a party has to establish four elements before the resolution of
an issue in an earlier proceeding will preclude relitigation in a later one. First, the party
claiming the benefit of the earlier judgment would had to have suffered prejudice if a
different result obtained in the earlier proceeding. Christian Television Corp. v. RCH
Broadcasting, Inc., 554 So. 2d 989, 992 (Ala. 1989). Second, the party sought to be
precluded has to have been a party or in privity with a party to the earlier case. Id. Third,
the latter suit must involve an issue identical to the one actually litigated and decided in
the first action. Id. And fourth, the result of the earlier case has to have turned on
resolving the identical issue. Id.
The Renaissance Hotel can meet the first two elements easily. A different result in
the unemployment compensation proceeding would have required the hotel to pay out

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benefits to Ross, and Ross was, of course, a party to that case. With the first two elements
satisfied, the preclusive effect of the state proceedings turns on comparing the dispositive
issues in the unemployment compensation case with the issue presented by Ross’s ADEA
claim. If the issues are the same, the state court judgment upholding the administrative
proceeding has preclusive effect; if the issues differ, it does not.
The Supreme Court of Alabama has taken a pragmatic, common sense approach to
this inquiry. Under established precedent, an “issue” is a “single, certain and material
point arising out of the allegations and contentions of the parties.” Christian Television,
554 So. 2d at 992 (quoting Moore’s Federal Practice 760–61 (2d ed. 1978)). Yet
Alabama law does not require the two proceedings to present the exact same set of facts
or have the parties raise the exact same set of contentions. Id. (“A new contention is not .
. . necessarily a new issue.”). By the same token, a litigant cannot split an issue into
pieces in the second action, or decline to raise relevant arguments in the first, so as to
avoid the preclusive effect of an unfavorable judgment in the first proceeding. Id. So to
avoid giving litigants a second bite at the same apple, Alabama law holds that “[a]ny
contention that is necessarily inconsistent with a prior adjudication of a material and
litigated issue . . . is subsumed in that issue and precluded by the prior judgment’s
collateral estoppel effect.” Id. (quoting Moore’s Federal Practice 760–61 (2d ed. 1978)).
For example, in Wal-Mart Stores v. Smitherman, 743 So. 2d 442 (Ala. 1999), the
Supreme Court of Alabama held that issue preclusion barred an employee from litigating

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in state court the findings made by an unemployment compensation appeals referee after
failing to appeal the referee’s decision to circuit court. In reaching this conclusion, the
Smitherman Court reasoned that the referee’s finding that Smitherman’s employer
discharged her for misconduct precluded her from litigating her retaliatory discharge
claim as a separate civil action, because a different result in the retaliation suit would
necessarily conflict with the outcome of the earlier decision.
To determine what issue the state court decided in Ross’s case, this Court must
review the record and applicable state law. The relevant unemployment compensation
statute, Ala. Code § 25-4-78(3)(b), required the state administrative agency to determine
if the Renaissance Hotel fired Ross “for actual or threatened misconduct committed in
connection with his work . . . repeated after a previous warning.” At the outset of the
agency proceeding, the ADIR’s hearing officer declared, “What I will determine in the
course of the hearing is whether Mr. Ross was discharged, whether he was discharged for
an act of misconduct, whether the misconduct was related to his job, or whether he had
prior warnings for a same or similar incident.” (Doc. # 8-3 at 4–5.) The hearing officer
then found that Ross did in fact engage in misconduct, stating that he “failed to complete
an assigned task as he failed to change light bulbs reported as out, after prior warnings.”
(Doc. # 8-1.) The state circuit court upheld this finding. (Doc. # 8-9.) Significantly, Ross
did not mention the alleged age discrimination by his employer as a reason for his firing
in either the ADIR hearing or state court proceeding. (Doc. # 24 at 6.)

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A court in this district has twice dealt with a similar issue, albeit not in the context
of an ADEA claim. In Rigby v. Marshall, 134 F. Supp. 2d 1259 (M.D. Ala. 2000), Judge
Thompson made clear that a plaintiff cannot raise new factual contentions and legal
theories to avoid issue preclusion when he had a full and fair opportunity to present those
issues in state court. In that case, Rigby, a § 1983 plaintiff, claimed that his employer
illegally discharged him for exercising his First Amendment rights. Rigby, however,
failed to raise the facts underlying his retaliation claims as a defense against the propriety
of his discharge. Accordingly, Judge Thompson held that collateral estoppel barred “any
argument or proof that Rigby was terminated for any reason other than violation of his
employer’s policies and procedures, as found by the unemployment-compensationbenefit-appeals referee.” Id. at 1264.
In Rawlinson v. Whitney National Bank, 416 F. Supp. 2d 1263 (M.D. Ala. 2005),
Judge Thompson decided a similar issue. There he held that although collateral estoppel
precluded the plaintiff from relitigating whether she committed misconduct, she could
still press her Title VII claim in federal court. Judge Thompson observed that the issue
was “whether Rawlinson [] established Title VII liability by showing that race
discrimination was ‘a’ motivating factor in her employment termination, even though
there were other motivating factors.” Id. at 1272. Comparing the issues in the state and
federal proceedings, he stated, “[a] finding that race was a motivating, though not
necessarily the determinative, factor in Rawlinson’s termination would not be

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inconsistent with the finding in the state proceedings.” Id. at 1273. So despite finding
Rawlinson “collaterally estopped from relitigating whether she committed misconduct
after previous warnings,” he held that this was “not fatal to her discriminatorytermination claim.” Id. at 1274.
At first glance the opinions in Rigby and Rawlinson seem inconsistent. But Judge
Thompson cleared up this apparent contradiction by noting in Rawlinson how Title VII
allows for mixed motive claims whereas § 1983 did not. “This distinction is important
because, to prevail under § 1983 where the plaintiff relies on circumstantial evidence, the
plaintiff must show that the impermissible factor was ‘the’ motivating factor for the
adverse-employment action, while, to prevail under Title VII, the plaintiff need only
show that the impermissible factor was ‘a’ motivating factor for the adverse-employment
action.” Rawlinson, 416 F. Supp. 2d at 1274. Accordingly, “a finding in a state
proceeding that a permissible factor was ‘the’ reason behind an adverse-employment
action would not be inconsistent with a finding that an impermissible factor was ‘a’
motivating factor as well.” Id.
Ross’s case is more analogous to Rigby than Rawlinson. Under the ADEA, the
plaintiff has to show that age was the “but for” cause of the adverse employment action.
Gross v. FBL Fin. Servs., Inc., 129 S. Ct. 2343, 2350 (2009). This standard requires that
“age [be] the ‘reason’ that the employer decided to act.” Id. Put more simply, a plaintiff
cannot bring a mixed-motive claim under the ADEA: “the employer either acted ‘because

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of’ the plaintiff’s age or it did not.” Mora v. Jackson Mem’l Found., Inc., 597 F.3d 1201,
1204 (11th Cir. 2010) (citing Gross, 129 S. Ct. at 2352). So under settled precedent,
Gross forecloses Ross from pressing his claim under a mixed-motive theory.
The more difficult question, however, is whether the state court’s finding that the
Renaissance Hotel fired him for misconduct bars him from claiming age discrimination
under a pretext theory. This Court holds that it does. Ross had plenty of reason (and
opportunity) to argue in state court that he was not really disciplined for misconduct but
instead for some other reason. In fact, if he could have shown that the Renaissance Hotel
fired him for age discrimination, he presumably would have won on his claim for
unemployment benefits. Yet he failed to argue in either the ADIR or state court
proceeding that his employer’s proffered reason for firing him amounted to pretext used
to conceal age discrimination. His failure to do so then does not allow him to do so now.
See Rigby, 134 F. Supp. 2d at 1264 (stating plaintiff should have raised other alleged
reasons for his termination in state administrative proceedings); Christian Television, 554
So. 2d at 992 (“If a new legal theory or factual assertion put forward in the second action
is ‘related to the subject-matter and relevant to the issues’ that were litigated and
adjudicated previously, ‘so that it could have been raised, the judgment is conclusive on
it despite the fact that it was not in fact expressly pleaded or otherwise urged.” (quoting
Moore’s Federal Practice 760–61)); Leong v. Hilton Hotels Corp., 698 F. Supp. 1496,
1500 (D. Haw. 1988) (“Her claim in federal court is that the employer’s activities

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outlined in her complaint were motivated by a discriminatory animus which ultimately
caused her to resign. As discussed earlier, plaintiff was free to raise this theory in the
state proceeding and had every incentive to do so. Her failure to raise this theory does not
foreclose use of collateral estoppel to preclude relitigation of the constructive discharge
claim.”). Because the state circuit court already adjudicated the reason for Ross’s
firing—his misconduct at work—Alabama’s issue preclusion law bars Ross’s ADEA
claim.
This conclusion finds further support in two Eighth Circuit opinions. In Tolefree v.
City of Kansas City, 980 F.2d 1171 (8th Cir. 1992), Tolefree challenged his firing before
the City’s Personnel Appeals Board, but he never raised the issue of race discrimination.
The Board held that Tolefree’s employer properly terminated him, and a state circuit
court summarily affirmed. Tolefree then brought a Title VII claim in which he alleged
race discrimination under both a mixed motive and a pretext theory. Applying Missouri
preclusion law, the Eighth Circuit found the pretext claim barred because the state court
holding—that his employer properly terminated him—was mutually exclusive to a
finding of discrimination under a pretext theory. Id. at 1174. But the court allowed
Tolefree to proceed on his mixed motive theory for the same reason that Judge
Thompson allowed the plaintiff to do so in Rawlinson: Tolefree only needed to “show
that race was a motivating factor in his termination and that, absent discrimination, he
would not have been fired.” Id.

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The Eighth Circuit later applied Tolefree’s logic to an ADEA claim. In Bechtold v.
City of Rosemont, 104 F.3d 1062 (8th Cir. 1997), Bechtold challenged his firing before
the City Council, and, after a hearing, the Council found he was fired for legitimate
reasons. Bechtold appealed this finding, and the state court of appeals upheld the
decision. He then filed suit in federal district court claiming age discrimination. Applying
Minnesota’s issue preclusion law, the Eighth Circuit found Bechtold’s ADEA claim
barred by the decision in the earlier state court proceeding. Id. at 1067. Notably, the court
of appeals reached this decision pre-Gross and thus operated under the assumption that a
plaintiff could bring an ADEA claim using a mixed-motive theory. Despite this, the court
held the state court’s finding that there was “no impropriety” as to Bechtold’s termination
“forecloses a claim that age was a motivating factor in the decision.” Id.
At bottom, Ross, like the plaintiffs in Rigby and Rawlinson and Tolefree, already
had the overriding reason for his firing adjudicated by a state court. But unlike the Title
VII plaintiffs in Rawlinson and Tolefree, he does not have a mixed-motive claim
available to him. Nor did he make mention of the alleged age discrimination against him
in the state proceedings, despite his ample opportunity and incentive to do so. This
failure, combined with the state court’s decision upholding the ADIR’s finding that the
Renaissance Hotel fired him for actual misconduct, precludes him from relitigating the
reason for his firing in federal court. This Court must therefore accept that his employer
fired him for misconduct, and this finding makes it impossible for Ross to prove that but

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for his age the Renaissance Hotel would not have fired him.1 Accordingly, summary
judgment is due to be granted in favor of the defendant.
V. CONCLUSION
For the reasons discussed above, the result in Ross’s state unemployment
compensation case precludes him from proving a necessary element of his ADEA claim.
Therefore, it is hereby ORDERED as follows:
1.

The Report and Recommendation of the Magistrate Judge (Doc. # 24) is
ADOPTED IN PART and MODIFIED IN PART. It is adopted to the extent
that it develops the factual record and denies the Renaissance’s alternative
motion to dismiss. It is modified to grant rather than deny the
Renaissance’s summary judgment motion.

2.

The Renaissance’s Motion for Summary Judgment (Doc. # 7) is
GRANTED.

3.

The Renaissance’s Alternative Motion to Dismiss (Doc. # 7) is DENIED.

Done this the 27th day of March, 2012.
/s/ Mark E. Fuller
UNITED STATES DISTRICT JUDGE

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The Magistrate Judge disagreed with this line of reasoning, finding that “it is not ‘necessary’ for
Ross to prove he was not terminated ‘for’ misconduct,” because he “may be entitled to relief if he is able
to establish that—while he was terminated for misconduct—he would not have been terminated for that
misconduct but for his age.” (Doc. # 24 at 8.) But as the Magistrate Judge also noted, Ross failed to raise
this argument in the administrative proceeding or in front of the circuit court. (Id. at 5.) More importantly,
the ADIR found that Ross was fired “for actual misconduct,” Ala. Code § 25-4-78(3)(b) (emphasis
added), which excludes the possibility the Renaissance fired him because of his age but cited his
misconduct as the reason so as to conceal an impermissible motive.

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