Green v. Pike Road Volunteer Fire Protection Authority et al

Filing 32

MEMORANDUM OPINION AND ORDER: The Plaintiff, Michael Green (Green), filed a Complaint in this case on 4/17/2015, bringing claims of a violation of the Americans with Disabilities Act (Count I) and a state law claim of slander against Defendant James (Count II). It is ORDERED as follows: 1. The 25 Motion to Strike filed by the Defendants is GRANTED in part and DENIED in part as further set out in the order. 2. The 23 Motion to Strike Portions of Undisputed Facts is DENIED as further set out i n the order. 3. The 18 Motion for Summary Judgment is GRANTED as to the state law claim in Count II and judgment is entered in favor of Jane James and against the Plaintiff on that claim. 4. The Motion for Summary Judgment is DENIED as to Greens claim in Count I for disability discrimination against the Pike Road Volunteer Fire Protection Authority. Signed by Honorable Judge W. Harold Albritton, III on 6/1/2016. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION

MICHAEL GREEN,
Plaintiff,
v.
PIKE ROAD VOLUNTEER FIRE
PROTECTION AUTHORITY & JANE
JAMES, individually,
Defendants.

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) Civil Action No. 2:15cv253-WHA
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MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
This case is before the court on a Motion for Summary Judgment (Doc. #18) and a
Motion to Strike (Doc. #25) filed by the Defendants, Pike Road Volunteer Fire Protection
Authority (“PRVFPA”) and Jane James (“James”), and a Motion to Strike Portions of
Undisputed Facts (Doc. #23).
The Plaintiff, Michael Green (“Green”), filed a Complaint in this case on April 17, 2015,
bringing claims of a violation of the Americans with Disabilities Act (Count I) and a state law
claim of slander against Defendant James (Count II).
For the reasons to be discussed, the Defendants’ Motion to Strike is due to be GRANTED
in part and DENIED in part, the Plaintiff’s Motion to Strike is due to be DENIED, and the
Motion for Summary Judgment is due to be GRANTED in part and DENIED in part.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is proper "if there is no genuine issue as to any material fact and . . .
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the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986).
The party asking for summary judgment "always bears the initial responsibility of
informing the district court of the basis for its motion,@ relying on submissions Awhich it believes
demonstrate the absence of a genuine issue of material fact." Id. at 323. Once the moving party
has met its burden, the nonmoving party must Ago beyond the pleadings@ and show that there is a
genuine issue for trial. Id. at 324.
Both the party Aasserting that a fact cannot be,@ and a party asserting that a fact is
genuinely disputed, must support their assertions by Aciting to particular parts of materials in the
record,@ or by Ashowing that the materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce admissible evidence to support the
fact.@ Fed. R. Civ. P. 56 (c)(1)(A),(B). Acceptable materials under Rule 56(c)(1)(A) include
Adepositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for purposes of the motion only), admissions, interrogatory answers, or
other materials.@
To avoid summary judgment, the nonmoving party "must do more than show that there is
some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). On the other hand, the evidence of the nonmovant must be
believed and all justifiable inferences must be drawn in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 255 (1986).
After the nonmoving party has responded to the motion for summary judgment, the court
shall grant summary judgment if the movant shows 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).
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III. FACTS
The submissions of the parties establish the following facts, construed in a light most
favorable to the non-movant:
Green began working as a volunteer firefighter with the PRVFPA in Pike Road, Alabama
in 1996. In 2001, he was appointed the unpaid volunteer fire chief. In 2008, he was hired into
the newly-created position of Fire Chief of the PRVFPA.
In April 2012, Green took leave from work for neck surgery. He was prescribed pain
medicine, Oxycodone, as a result of his surgery. Shortly after the surgery, a meeting was called
at one of the fire stations to discuss a sexual harassment complaint. Green was told he did not
have to attend the meeting, but he attended it. He took his prescription medicine and drank
alcohol before the meeting.
In January of 2014, Green was arrested for driving under the influence (“DUI”).
In February of 2014, James, a Director of the PFVFPA, called a meeting of the three
PRVFPA directors. At this meeting, Green confirmed that he had been arrested for DUI but
stated that he had not been driving under the influence of alcohol. Green states in an affidavit
attached to his EEOC charge that Directors James and Jack Jackson (“Jackson”) “stated their
concern that I might not be able to perform all my duties.” (Doc. #24-3 at ¶11). When asked
by the Board, Green refused to resign his position as Fire Chief. He was placed on restrictive
duties.
In April of 2014, the PRVFPA Board of Directors met in executive session and also
discussed in an open meeting Green’s future as Fire Chief. James made statements in the open
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meeting about Green, although the exact content of the statements is in dispute. Green takes the
position that James said Green was “pumped up on oxycodone and alcohol.” There was an
audio recording of the April 2014 meeting and the recording provided to the court does not
reveal that statement, but does reveal that James said Green had had a second chance because he
had arrived at a meeting on duty while taking Oxycodone and drinking alcohol. Green also
points out that the entire meeting does not appear to have been recorded.
Green presents the deposition testimony of Ty Glassford (“Glassford”), a PRVFPA Board
of Directors member. Glassford describes his disagreement with Jackson and James on whether
Green should be terminated. Glassford testified that Jackson said that he knew Green had
previous situations where he had been drinking on the job and the DUI was the final straw. (Doc.
#24-16 at p.67:14-17). Glassford also states that Jackson was “quite upset that we would
consider letting him continue after he had proof that he had a drinking issue.” (Doc. #24-16 at
p.67:21-23).
The PRVFPA Board of Directors voted 2 to 1 to terminate Green. James and Jackson
voted for and Glassford voted against termination. Green contends that he was terminated based
on a perception of alcohol and prescription drug abuse on the part of James and Jackson.
IV. DISCUSSION
A. Motions to Strike
The Defendants, PRVFPA and James, have moved to strike unsworn statements, and
statements with defective notarizations, submitted by Green in opposition to the Motion for
Summary Judgment, as inadmissible hearsay. The Defendants argue that the statements of
Andrew Parker, Josh Peacock, Michael Hagans, and Blake Green should not be considered
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because they are unsworn, and that the affidavits of Phillip Whatley and Michael Kreauter
should not be considered because the notary does not state on the face of the affidavit that the
affiant appeared before the notary in signing the reaffirmation of the signed statement.
Green responds that the statements should be considered under Rule 807 of the Federal
Rules of Evidence and are offered as evidence that James slandered Green at the PRVFPA board
meeting, and that he was terminated because of a perception that he was disabled. Green also
submits corrected affidavits of Phillip Whatley and Michael Kreauter. Green having satisfied
the objection to the latter two affidavits, the court will deny the Motion to Strike as to them.
Hearsay can be considered in ruling on a Motion for Summary Judgment if it is reducible
to admissible form at trial. Jones v. UPS Ground Freight, 683 F.3d 1283, 1293-94 (11th Cir.
2012). Much of what is stated in the objected-to unsworn statements is inadmissible hearsay
within hearsay. The court will not consider evidence that is not reducible to admissible form at
trial, and the Motion to Strike is due to be GRANTED to that extent.
Green’s Motion to Strike is directed to various paragraphs in the Defendants’ brief.
Green does not state any grounds for inadmissibility of the targeted paragraphs, however, but
rather states the basis for his disagreement with them. The court will consider the evidence
under the applicable summary judgment standard, and the Motion to Strike is due to be
DENIED.
B. Merits of Federal Claim
Where, as here, the plaintiff seeks to prove intentional discrimination on the basis of
disability by using circumstantial evidence of intent, the court applies the framework first set out
by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792
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(1973). Under this framework, the plaintiff must establish a prima facie case of discrimination.
McDonnell Douglas, 411 U.S. at 802. After the plaintiff has established a prima facie case of
discrimination, the burden of production is placed upon the employer to articulate a legitimate
nondiscriminatory reason for its employment action. Texas Dep=t of Cmty. Affairs v. Burdine,
450 U.S. 248, 254 (1981). The plaintiff may seek to demonstrate that the proffered reason was
not the true reason for the employment decision "either directly by persuading the court that a
discriminatory reason more likely motivated the employer or indirectly by showing that the
employer's proffered explanation is unworthy of credence." Id. at 256; Combs v. Plantation
Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997). A plaintiff's prima facie case, combined with
sufficient evidence to find that the employer's asserted justification is false, may permit the trier
of fact to conclude that the employer unlawfully discriminated. Reeves v. Sanderson Plumbing
Prod., Inc., 530 U.S. 133, 147 (2000). That is, even if a plaintiff establishes a prima facie case
and offers sufficient evidence of pretext as to each of the proffered reasons, summary judgment
Awill sometimes be available to an employer in such a case.@ Chapman v. AI Transport, 229
F.3d 1012 (11th Cir. 2000).
To establish a prima facie case of discrimination under the ADA, a plaintiff must show
that (1) he has a disability, (2) he is a qualified individual, (3) he was subjected to unlawful
discrimination because of the disability. Holly v. Clairson Indus. LlC, 492 F.3d 1247, 1255
(11th Cir. 2007). “Disability” is defined under the ADA as “a physical or mental impairment
that substantially limits one or more major life activities,” having a “record of such an
impairment,” or “being regarded as having such an impairment.” 42 U.S.C. § 12102(1)(A)-(C).
With respect to being regarded as disabled, an individual can establish this factor “because of an
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actual or perceived physical or mental impairment whether or not the impairment limits or is
perceived to limit a major life activity.” 42 U.S.C. § 12102(3). A person can be considered to
have a “disability” within the statute even if he has no physical or mental impairment as long as
he is treated by an employer as having such an impairment. 28 C.F.R. §1630.2(l).
Green denies that he is disabled by substance abuse but has argued that his alleged
substance abuse is a disability because the PRVFPA perceived that he had such a disability.
The Defendants do not dispute that being regarded as having an alcohol or prescription drug
abuse problem can entitle one to protection under the ADA. Cf. Roberts v. Rayonier, Inc., 135 F.
App’x 351 (11th Cir. 2005) (examining evidence about whether employee was regarded as being
disabled by alcohol addiction). Instead they argue that Green cannot establish a prima facie
case because he cannot show that an employee outside of his protected class was treated more
favorably than he was. Green argues, however, that he was replaced by Matt Missidine as
PRVFPA Fire Chief, and that there are no allegations of a substance abuse problem against Matt
Missidine. (Doc. #24-12 p.5). The PRVFPA does not respond to this evidence in its reply brief,
apparently conceding that Green can establish a prima facie case.
The Defendants have set out in their brief as the legitimate, non-discriminatory reasons
for Green’s firing that “Green violated a written PRVFPA policy by appearing in public and
being arrested for DUI on January 4, 2014 with a PRVFPA decal prominently displayed on the
side of his vehicle,” he was terminated “for violating the Board’s policy and causing the
PRVFPA’s public reputation to suffer in the opinion of James and Jackson,” and because
“Green’s failure to inform the Board of his DUI arrest was a violation of the Board’s trust in its
Fire Chief.” (Doc. #19 at p.24). The Defendants, therefore, have identified three reasons in
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their initial brief: 1. Green violated PRVFPA policy by being arrested, 2. Green caused
PRVFPA’s public reputation to suffer, and 3. the failure to inform the Board of his DUI arrest
was a violation of the Board’s trust in the Fire Chief.
In her Declaration, James states that she voted to terminate Green’s employment because
“after being previously warned, he violated our trust and the Employee Handbook by engaging
in conduct which led to his DUI arrest which negatively reflected on the reputation of the
PRVFPA and PRVFPA’s relationship with other local governmental entities . . . by failing to
inform the Board of his arrest.” (Doc. #20-1). In his Declaration, Jackson states that he voted to
terminate Green’s employment because, after being previously warned, he violated their trust
and the employee handbook by engaging in conduct which lead to his DUI arrest and negatively
reflected on the reputation of the PRVFPA and PRVFPA’s relationship with other local
governmental entities including the Montgomery County and Tallapoosa County Sheriffs’
Departments. (Doc. #20-2). Jackson also states that he never perceived Green’s alcohol or
Oxycodone use as an impairment with respect to his position as Fire Chief and assumed he only
used Oxycodone for a short time after his surgery. (Doc. #20-2).
It is Green’s position that James and Jackson, the two members of the three-member
PRVFPA Board who voted to terminate him, perceived him to have an alcohol or prescription
drug abuse problem and fired him on that basis. To create a question of fact as to whether the
reasons articulated for his termination are pretextual, Green does not have to have direct
evidence, but instead can present evidence which calls into question each of the reasons
articulated by the Defendants. Combs, 106 F.3d at 1528.
Green has stated in an affidavit that in February of 2014, James and Jackson “stated their
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concern that [Green] might not be able to perform all of [his] duties.” (Doc. #24-3 at ¶11). The
third Board member, Glassford, testified in a deposition that Jackson said he wanted to fire
Green “[o]ver the allegation of the DUI,” and, when Glassford was asked whether there was
anything else that Jackson said about terminating Green, he added, “[a]nd that he knew he had
had previous issue or situations where he had been drinking on the job. And this was just the
final straw.” (Doc. #24-16 at p.67 10-17). According to Grassford, Jackson was upset that
they “would consider letting him continue after we had proof that he had a drinking issue.” (Doc.
#24-16 at p.67:21-23).
Green also relies on evidence regarding statements by James at the April 2014 meeting.
Green’s position is that in a portion of the meeting not captured on the audio recording, James
said that Green was hyped up on hydrocodone and alcohol. Much of the supporting evidence he
has for that proposition is subject to the Motion to Strike and has not been considered.
However, in a substituted affidavit which the court has determined can be considered, Phillip
Whatley states that he was present during the PRVFD meeting and heard James say that Green
had responded to a call while under the influence of pain medication and alcohol.1 Michael
Kreauter stated that James said at the April 29, 2014 meeting that this was not Chief Green’s first
incident and that he had made the statement that he was under the influence of oxycodone and
alcohol while at a fire department meeting. (Doc. #28-3). Green argues that this evidence
reveals that James and Jackson considered the previous time in which Green was using alcohol
and pain medicine in deciding to terminate Green, which calls into question their reliance on the

Green has cited other evidence subject to the Motion to Strike in support of this argument as
well.
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DUI arrest.
Finally, Green points out that another firefighter, Blake Green, was arrested for a DUI
and that arrest was treated differently because it was a “separate incident.” (Doc. #24-16 at
p.93:14-23). Little facts have been made known to the court, other than that it is Glassford’s
deposition testimony that he thought the two men with DUI’s were being treated differently and
was told by Jackson and James that the DUI’s would be handled separately. (Doc. #24-16 at
p.93:22-23). At a later point in the proceedings, the difference in treatment, if there was one,
may be explained as being based on something other than a perception that Green suffered from
a disability. The court, however, cannot reach that conclusion based on the limited record
before the court at this point in the case.
In their Reply brief, the Defendants have now taken the position that “the undisputed
evidence is that the Board terminated Green for his actions on two distinct occasions in 2012 and
2014 which the Board believed to be of a substance abuse related nature which reflected badly
on the reputation of the PRVFPA, in violation of the Board’s written policy.” (Doc. #26 at p.5).
That was not the position taken in the statement of the legitimate, non-discriminatory reasons
stated in their initial brief, and it departs from the statements of reasons by James and Jackson in
their Declarations. While they noted the previous 2012 incident, referring to the warning Green
received, they did not state that it was a violation of trust or the handbook, or that it was a basis
for their decision. The fact that the Reply brief recasts the reasons articulated for Green’s
dismissal in a way that attempts to include the 2012 incident makes it unclear to the court,
therefore, what the Defendants contend their legitimate, non-discriminatory reasons for
termination are.
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Viewing the evidence in a light most favorable to the nonmovant, Glassford’s testimony
about Jackson’s concerns over Green having a “drinking issue,” the unexplained different
treatment of another firefighter arrested for DUI, and Green’s testimony that concerns were
expressed by decision makers about his ability to perform his job, combined with the uncertainty
over the Defendants’ stated legitimate, non-discriminatory reasons for his termination, leads the
court to conclude that a question of fact has been raised as to whether the Board members who
voted for termination did so because they regarded Green as having an alcohol or prescription
painkiller substance abuse problem. It may well be that the court will determine, based on a
motion for judgment as a matter of law at trial, or that the jury will decide, that the reasons
offered for Green’s termination were not a pretext for firing him based on a perception that he
had a disability in the form of a substance abuse problem. But, at this point in the proceedings,
viewing the facts in a light most favorable to the non-movant, the court cannot make that
determination. Summary judgment is due to be DENIED as to the ADA claim in Count One.
C. Merits of State Law Claim
Green brings a slander claim against Defendant James. Slander is a false and defamatory
oral communication of and concerning the plaintiff, communicated to a third person, that
“subject[s] the plaintiff to disgrace, ridicule, odium, or contempt.” Anderton v. Gentry, 577 So.2d
1261, 1263 (Ala.1991). If the defamatory statement “imputes to the plaintiff an indictable
offense involving infamy or moral turpitude,” then it constitutes slander per se and damage is
implied by law. Id.; see also Ponder v. Lake Forest Prop. Owners Ass'n, No. 2130790, 2015 WL
3935490, at *10 (Ala. Civ. App. June 26, 2015) (“While to constitute slander actionable per se,
there must be an imputation of an indictable offense involving infamy or moral turpitude....”).

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If the statement is defamatory but does not impute an indictable offense, then it constitutes
slander per quod and is actionable only if the plaintiff pleads and proves special damages. See
Anderton, 577 So. 2d at 1263. Special damages are the material harms that are the intended
result or natural consequence of the slanderous statement. See Shook v. St. Bede Sch., 74 F. Supp.
2d 1172, 1180 (M.D. Ala. 1999).
Green brings a slander claim against James based on comments made during the
February 17 and April 29, 2015 PRVFPA Board meetings. James disputes that the statements
Green attributes to her were made, and also moves for summary judgment on the basis that
statements made during the course of quasi-judicial proceedings are privileged as a matter of law
and not subject to slander actions, citing Morrison v. Mobile County Board of Educ., 495 So. 2d
1086, 1091 (Ala. 1986). James also argues that Green cannot present evidence of special
damages to support a slander per quod claim. James states that Green has represented that he
has been elected to various firefighter positions, so he has no special damages.
While Green responds to other grounds for summary judgment asserted by James on this
claim, Green does not present evidence of special damages, or even address the argument that he
must present evidence of special damages.
As stated, under Alabama law, if a challenged statement does not impute an indictable
offense, then it constitutes slander per quod and is actionable only if the plaintiff pleads and
proves special damages. See Anderton, 577 So. 2d at 1263. The statement attributed to James of
use of alcohol and prescription drugs while at a meeting is not an indictable offense. The court
has been pointed to no evidence in the record of any special damages. In his Complaint, Green
has pled mental anguish damages, but such damages are not sufficient. See Shook, 74 F. Supp.
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2d at 1181 (stating “the plaintiffs have neither pled nor offered proof of special damages
resulting directly from the allegedly slanderous communication. Shook's claim of emotional
distress and anguish does not suffice.”). Summary judgment is, therefore, due to be GRANTED
as to the slander claim in Count Two on that basis.
V. CONCLUSION
The parties appear to be in agreement that the Americans With Disabilities Act treats
alcohol or prescription drug addiction as a protected disability, requiring a reasonable
accommodation as an alternative to termination, and the dispute in this case raised by the briefs
is whether the Defendants regarded Green as having this disability and terminated him for that
reason, which is also protected by the Americans With Disabilities Act.

The evidence before

the court at this stage of the proceedings presents a genuine issue of material fact as to whether
Green was terminated by vote of two of the three Defendant Board members because they
perceived him to have a disability. Therefore, it is hereby ORDERED as follows:
1. The Motion to Strike (Doc. #25) filed by the Defendants is GRANTED in part and
DENIED in part.
2. The Motion to Strike Portions of Undisputed Facts (Doc. #23) is DENIED.
3. The Motion for Summary Judgment (Doc. #18) is GRANTED as to the state law
claim in Count II and judgment is entered in favor of Jane James and against the
Plaintiff on that claim.
4. The Motion for Summary Judgment is DENIED as to Green’s claim in Count I for
disability discrimination against the Pike Road Volunteer Fire Protection Authority.
Done this 1st day of June, 2016.
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/s/ W. Harold Albritton
W. HAROLD ALBRITTON
SENIOR UNITED STATES DISTRICT JUDGE

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