Key v. Morgan County Sheriff's Office et al

Filing 40

MEMORANDUM OPINION. Signed by Senior Judge Inge P Johnson on 04/29/13. (CVA)

FILED
2013 Apr-29 PM 04:23
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
DOUGLAS MARTIN KEY,
PLAINTIFF,
v.

CASE NO.: CV-12-J-314-NE

SHERIFF ANA FRANKLIN,
DEFENDANT.
MEMORANDUM OPINION
Pending before the court is the defendant’s motion for summary judgment and
evidence in support of said motion (docs. 33-34), the plaintiff’s response and
evidence in opposition (docs. 35-36), and the defendant’s reply (doc. 39). Having
considered the pleadings and evidence, the court finds as follows:
I. Factual Background
Plaintiff sues his past employer, Ana Franklin, in her official capacity as the
Sheriff of Morgan County, Alabama, for violations of Title VII, 42 U.S.C. §§ 2000e
et seq., the Age Discrimination in Employment Act (“ADEA”) 29 U.S.C. § 621 et
seq., and the Alabama Age Discrimination in Employment Act (“AADEA”), for
gender discrimination and age discrimination.1
1

All other defendants and claims have been dismissed. On April 12, 2012, the court
dismissed “Morgan County Sheriff’s Office” as a party, plaintiff’s claims in Count II and Count
III for monetary damages, and Count IV of the complaint. (Doc. 23). On motion of the plaintiff,
defendant Morgan County was dismissed as a party. (Doc. 28). Also on motion of the plaintiff,
Count III of the complaint was dismissed. (Doc. 30).

The facts relevant to this case began slightly before January 18, 2011, when
defendant Franklin took office as Sheriff of Morgan County. Affidavit of Franklin,
submitted as defendant ex.1 (hereinafter referred to as the “2013 Franklin Affidavit”),
¶ 1. Prior to stepping down, the outgoing Sheriff of Morgan County made several last
minute promotions, including promoting the plaintiff to Lieutenant. Id., ¶ 2; Exhibit
4 to 2013 Franklin affidavit; plaintiff exhibit 4. Thus, on January 19, 2011, defendant
Franklin reversed these promotions, restoring each of the deputies promoted to the
rank and position held immediately prior to those promotions. Franklin depo. at 4546; plaintiff exhibit 5. However, plaintiff was not only demoted to sergeant, but was
also removed as Field Commander of the Drug Task Force. 2013 Franklin Affidavit,
¶ 2. Defendant Franklin’s decision to remove the plaintiff from the Task Force was
based on conversations she had before taking office with various individuals. Id., ¶
3. She readily admits she never spoke with the plaintiff prior to implementing this
decision, nor did she make any attempt to do so. Franklin depo. at 75.
When asked the basis for the demotions, Sheriff Franklin noted she wanted to
fill her top positions with individuals of her own choosing and not the individuals
chosen by her predecessor. Franklin depo. at 78. According to her testimony, when
she removed the individual promoted to captain, that individual reverted to lieutenant,
thus that position, momentarily occupied by the plaintiff, was no longer open,
requiring the plaintiff be removed back to sergeant. See plaintiff depo. at 72; 2013
2

Franklin Affidavit, ¶ 2; Franklin depo. at 77. She stated that the individual promoted
to captain was not really interested in those responsibilities, so once she demoted him,
it caused a “domino effect.” Id.
In contrast, plaintiff’s removal from Field Commander and narcotics work was
not based on a desire to place her own choice in that position, but rather based on
conversations she had with others concerning the plaintiff’s stress level due to his
home life. 2013 Franklin Affidavit, ¶ 3. See also plaintiff depo. at 66; Franklin
depo. at 40, 102. Between the time that she won the General Election in November
2010 and took office on January 18, 2011, Sheriff Franklin held discussions with
Mike Corley, Chief Deputy, as well other members of the Task Force,2 both
individually and as a group. 2013 Franklin Affidavit, ¶ 3; Franklin depo. at 38-40.
The defendant asserts that although she never observed the plaintiff performing his
duties as Field Commander of the Task Force, she removed him from that office
based on his performance of the same. Franklin depo. at 98-101. She also asserts that
she believed the Commander of the Drug Task Force should have various

2

Those members of the Task Force included Shannon Hale, Shannon Ferguson, Zach
Dockery, Blake Robinson, and Robert “Bones” Wilson. Franklin depo. at 40. According to
Franklin, those individuals told her that plaintiff exhibited violent outbursts, anger, mood swings,
inability to make safe tactical decisions, used members that were not certified law enforcement
officers, short-cutted safety measures, and bad supervisory habits. Franklin depo. at 101-102.
When questioned, Franklin stated that all these people, as well as two judges and several
attorneys, told her that plaintiff exhibited violent outbursts. Id., at 135-137. She also mentioned
she heard about plaintiff’s temper from his ex-wife, at a gathering for a child’s birthday party.
Id.., at 153.
3

certifications, including an OSHA certification on how to dismantle a
methamphetamine lab. 2013 Franklin Affidavit, ¶ 3. However, she never attempted
to speak with the plaintiff prior to deciding to demote him or remove him as
Commander. Franklin depo. at 75. Additionally, no evidence supports a finding that
plaintiff was ever disciplined in his role as Field Commander of the Task Force.
Although the plaintiff was made Field Commander June 4, 2009, Sheriff
Franklin pointed to a December 24, 2003, incident between the plaintiff and jail staff,
a 2004 incident where plaintiff divulged the name of a confidential informant, two
incidents involving insubordination – one for which plaintiff received a three day
suspension, a 2007 incident regarding the mishandling of prisoners, and a November
2008 complaint concerning the plaintiff’s behavior in court, to demonstrate why she
believed him unfit for that role.3 Franklin depo. at 106-108, 110, 115, 117-119, 125,
127-128. When questioned, Franklin stated she considered his entire personnel file
in making her decision, although she did not review it until after she decided to make
the demotion. Franklin depo. at 110, 126. According to defendant Franklin, all of
these incidents, up until 2008, demonstrate the behavior that the plaintiff had

3

The letter from the then Sheriff to plaintiff promoting him to sergeant, dated February 9,
2009, entitled “Letter of Promotion,” states that the same is “based on several years of observing
you and your work on a daily basis...Your dedication to your Law Enforcement career is evident.
The professional manner in which you conduct your daily responsibilities has not been
unnoticed. You have proven yourself a leader, and you are viewed by fellow officers with high
regard.” Plaintiff’s exhibit 2. Similarly, a job evaluation for October 1, 2008, through April 30,
2009, rates the plaintiff as “good” or “excellent” in every category. Plaintiff’s exhibit 3.
4

exhibited during his career which was at the heart of her decision to remove him as
Field Commander, although she had not personally ever observed any such behavior
from him.4 Franklin depo. at 130-131. Franklin continued that “[i]t was very
common knowledge by his general behavior, his general attitude, things that were
going on at home, issues with his divorce...” although she could not identify a single
issue that she thought exhibited a sign of stress. Franklin depo. at 131-132. Sheriff
Franklin has not removed any other members of the Sheriff’s Office because they
exhibited signs of stress. Franklin depo. at 146-147.
Because defendant Franklin undertook these actions against the plaintiff, he
became upset, precipitating a meeting on January 20, 2011, between the plaintiff and
Sheriff Franklin. 2013 Franklin Affidavit, ¶ 5. Defendant Franklin offered the
plaintiff other positions, which he refused,5 and also informed him she thought he
needed counseling to deal with his emotional and personal issues. Id. According to
Franklin, the plaintiff was disrespectful and insubordinate during this meeting. Id.,
¶ 6. See also affidavit of Mike Corley, submitted as defendant exhibit 2, ¶ 5; Franklin

4

Neither party submitted the documentary evidence on which this testimony is based as
exhibits in support of or in opposition to the pending motion for summary judgment.
5

Franklin offered him criminal investigations, warrant division, patrol or courts. Franklin
depo. at 53-54. According to her, she told him he could do anything except be commander of the
Drug Task Force. Id. She then amended her statement to be “any other non-stressful situation
other than the drug task-force. Any other position that did not have the type of environmental
stresses that goes with the commander of the drug task force.” Id. According to Franklin, the
Task Force was more stressful work than other deputy positions. Id., at 58-59. Plaintiff
responded that Franklin could not remove his rank or pay. Id., at 86-87.
5

depo. at 89-93. After the meeting was over, plaintiff called Franklin and apologized
for his behavior. Franklin depo. at 93. She too apologized for yelling and using
inappropriate language. Id., at 95. She told him that after everything cooled down,
they should meet again, and he should think about what else in the department he
would like to do. Franklin depo. at 93-94. Plaintiff provided written notice on
January 26, 2011, that he was appealing his demotion and removal as Field
Commander to the Morgan County Personal Board.6 2013 Franklin Affidavit, ¶ 7.
Before that hearing occurred, defendant Franklin rescinded all personnel provisions
in the Sheriff’s Office Manual of Rules and Regulations adopted by her predecessor,
retroactive to the minute she took office. See plaintiff ex. 8.
However, relying on the Morgan County Policy and Procedures Manual,
Sheriff Franklin also determined that the promotions made by her predecessor were
probationary for six months, and hence she could demote these three individuals
without cause or without it reflecting badly on them. Franklin depo. at 84-85. After
making the demotions, she did discuss with the plaintiff whether he was entitled to
a hearing on the demotion. Id., at 85-86. Franklin informed the plaintiff that she
could demote him because he was on probation, and that there was no open slot at

6

According to defendant Franklin, the plaintiff asked that Franklin put the reasons for his
demotion in writing and provide him with a hearing. Franklin depo. at 86. She declined to do
so, stating she was not required to put it in writing because she explained it to him in person. Id.
6

Lieutenant because of the demotion from Captain to Lieutenant of Tom Hines.
Franklin depo. at 87.
Thereafter, on January 31, 2011, a second meeting between plaintiff and
defendant Franklin took place, during which the plaintiff was again insubordinate.7
2013 Franklin Affidavit, ¶ 8; Corely Affidavit, ¶ 6. That same date, defendant
Franklin completed department forms reflecting that the plaintiff resigned. Plaintiff
exhibit 6. By affidavit in 2011, Sheriff Franklin stated that during the January 31
meeting, she informed the plaintiff that if he did not act appropriately, he could either
quit or she would fire him. 2011 Franklin affidavit, submitted as plaintiff exhibit 12.
According to those at the meeting, the plaintiff acted as though he resigned, including
turning in keys and retrieving personal items from his patrol car. Corely Affidavit,
¶ 6; 2011 Franklin affidavit, ¶ 5. However, the plaintiff asserts he that he did not
resign at that time. Rather, the plaintiff contacted Captain Law and requested and
received paid leave, approved by Sheriff Franklin. 2011 Franklin affidavit, ¶ 6.
Prior to plaintiff returning to work, defendant Franklin terminated the plaintiff
by letter dated February 11, 2011. Plaintiff ex. 7; 2013 Franklin Affidavit, ¶ 10. She
explained that “I decided to terminate him after I found out he hadn’t quit.” Franklin
depo. at 63, 67. That decision, made the same date as the Sheriff’s announcement

7

According to Deputy Chief Corley, plaintiff’s acts of insubordination would be grounds
for termination under the Sheriff’s Office Manual (Corley Affidavit, ¶ 7), although the same was
retroactively rescinded by Defendant Franklin.
7

that no personnel policies in the Sheriff’s Office Manual had any effect anymore,
was also appealed to the Personnel Board. 2013 Franklin Affidavit, ¶ 10. The
ultimate decision of the Board was that plaintiff’s demotion, removal and termination
were due to be upheld. Id., ¶ 12. It noted its advisory role, stated that it considered
the volatile meetings between the plaintiff and sheriff, and did not find that the
actions in question were the result of unlawful discrimination. Exhibit 3 to 2013
Franklin Affidavit. The Board continued that “to require the Sheriff to place
[plaintiff] back on active duty status would be to place her in a most untenable
position as chief of a department where the respect of her subordinates for her office
is of paramount importance....” Exhibit 3 to 2013 Franklin Affidavit, at 11. The
Board stated “[t]his conclusion is most regrettable as it appears that Mr. Key had been
an excellent deputy and devoted public servant during his tenure as Deputy Sheriff.”
Id., at 12. It also noted that “despite the Sheriff’s edict that portions [of the Sheriff’s
Manual] do not apply to deputies, the manual itself should clearly state to what extent
it does or does not apply....” Id., at 13. By letter dated April 6, 2011, the Chairman
of the Morgan County Commission informed plaintiff’s counsel that the Commission
had no authority to consider or reverse Sheriff Franklin’s decision. Plaintiff ex. 9.
Sheriff Franklin testified that Ron Livingston (age 71) was first hired to fill
plaintiff’s vacant position, then promoted in May 2011 to the Captain’s position that

8

had remained vacant.8

Franklin depo. at 80; 2011 Franklin affidavit, ¶ 14.

Thereafter, Robert “Bones” Wilson was promoted to the open Sergeant position in
October 2011, and then to lieutenant on June 16, 2012. Franklin depo. at 67, 80. As
Commander of the Task Force, the plaintiff was initially replaced by Shannon Hale,
but after he left, no one filled the role until “Bones” Wilson’s appointment to the
same. Franklin depo. at 68, 192. However, records reflect that Wilson was moved
to narcotics four days after Franklin took office, promoted to Sergeant October 8,
2011, and promoted again to lieutenant June 12, 2012. Franklin depo. at 193.
Defendant Franklin’s deposition concluded with the following exchange:
Q.

One of the things Mr. Key has sought in his action is
reinstatement. If ordered by a court to reinstate Mr. Key to a
position that he previously held, be it lieutenant, commander of
the drug task force or just sergeant, would you have any
objections to doing so?

A.

Yes.

Q.

And what would that objection be?

A.

I wouldn’t do it.

Q.

You would refuse the order of a federal court?

A.

No. I guess I would have to reinstate him and then terminate him
again.

Q.

And why would you terminate him again?

8

Franklin’s testimony on this issue is unclear. She stated that Ron Livingston was hired
to fill plaintiff’s vacant position as a deputy, but not as a sergeant. Franklin depo. at 80-82.
9

A.

Because I wouldn’t have him work for me.

Franklin depo. at 200.
II. Standard of Review
A moving party is entitled to summary judgment if there is no genuine issue of
material fact, leaving final judgment to be decided as a matter of law. See Federal
Rule of Civil Procedure 56; Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587, 106 S.Ct. 1348, 1355-56 (1986). An issue is “material” if it is a legal
element of the claim under the applicable substantive law which might affect the
outcome of the case. It is “genuine” if the record taken as a whole could lead a
rational trier of fact to find for the nonmoving party. Allen v. Tyson Foods, Inc., 121
F.3d 642, 646 (11th Cir.1997).
The facts, and any reasonable inferences therefrom, are to be viewed in the
light most favorable to the non-moving party, with any doubt resolved in the
nonmovant’s favor. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 158, 90 S.Ct.
1598, 1609 (1970). Once met by the moving party, however, the burden shifts to the
non-moving party to come forward with evidence to establish each element essential
to that party’s case sufficient to sustain a jury verdict. See Celotex Corp. v. Catrett,
477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Earley v. Champion Int’l Corp., 907
F.2d 1077, 1080 (11th Cir.1990).

10

A party opposing a properly submitted motion for summary judgment may not
rest upon mere allegations or denials of his pleadings, but must set forth specific facts
showing that there is a genuine issue for trial. Eberhardt v. Waters, 901 F.2d 1578,
1580 (11th Cir.1990). In addition, the non-moving party's evidence on rebuttal must
be significantly probative and not based on mere assertion or be merely colorable.
See Rule 56(e); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct.
2505, 2511 (1986). Speculation does not create a genuine issue of fact. Cordoba v.
Dillard’s, Inc., 419 F.3d 1169, 1181 (11th Cir.2005).
The court must consider the evidence in the light most favorable to the plaintiff
and may not make credibility determinations nor weigh the parties’ evidence.
Frederick v. Sprint/United Management Co. 246 F.3d 1305, 1311 (11th Cir.2001);
Stewart v. Booker T. Washington Insurance., 232 F.3d 844, 848 (11th Cir.2000).
III. Legal Analysis
A plaintiff may prevail on an employment discrimination claim by either
proving that intentional discrimination motivated the employer or producing
sufficient evidence to allow a rational trier of fact to disbelieve the legitimate reason
proffered by the employer, which permits, but does not compel, the trier of fact to
find illegal discrimination. Wilson v. B/E Aerospace, Inc,. 376 F.3d 1079, 1088 (11th
Cir. 2004), citing Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48,

11

120 S.Ct. 2097, 2108-09, 147 L.Ed.2d 105 (2000).
Gender Discrimination claim (Count I):
Plaintiff asserts that the above facts constitute gender discrimination. As there
is no direct evidence of discrimination, the court applies the analysis required for
circumstantial evidence. This court must apply the three prong test fashioned by the
Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817
(1973). See also Texas Department of Community Affairs v. Burdine, 450 U.S. 248;
252-253; 101 S.Ct. 1089, 1093-1094 (1981). First, the plaintiff must establish a
prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93
S.Ct. at 1824. Establishment of a prima facie case creates a presumption that the
employer unlawfully discriminated against the employee. Burdine, 450 U.S. at 254,
101 S.Ct. at 1094; Combs v. Plantation Patterns, 106 F.3d 1519, 1527-1528 (11th Cir.
1997). Assuming the employee meets this burden, the burden then shifts to the
defendant to articulate a legitimate, nondiscriminatory reason for the alleged
discriminatory employment action. Harris v. Shelby County Board of Education, 99
F.3d 1078, 1083 (11th Cir.1996).
Once a defendant presents a legitimate, nondiscriminatory reason for its action,
the presumption of discrimination drops from the case. Burdine, 450 U.S. at 255, 101
S.Ct. at 1094 and n. 10. The plaintiff must then demonstrate by a preponderance of
the evidence that the reason offered by the defendant was not the true reason for the
12

employment decision, but rather a mere pretext for discrimination. McDonnell
Douglas, 411 U.S. at 804, 93 S.Ct. at 1825. The focus of the case after the defendant
meets its burden of production is on the defendant’s subjective intent and the
motivation behind the defendant’s adverse employment action directed at plaintiff.
Harris, 99 F.3d at 1083. A plaintiff has not successfully demonstrated pretext “unless
it is shown both that the reason was false, and that discrimination was the real
reason.” Brooks v. County Comm'n, 446 F.3d 1160, 1163 (11th Cir.2006) (emphasis
in original) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct.
2742, 2752, 125 L.Ed.2d 407 (1993)). The plaintiff may do so by either directly
“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.” Burdine, 450 U.S. at 256, 101 S.Ct. at 1095 (citing McDonnell Douglas,
411 U.S. at 804-05, 93 S.Ct. at 1825-26). If the prima facie case is met, and a
reasonable jury could disbelieve the defendant-employer's proffered legitimate reason
for the adverse employment action, the district court cannot grant summary judgment
to the defendants. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148,
120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000) (“[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.”); see also Wilson, 376 F.3d at 1088; Combs, 106 F.3d at 1538 (stating
13

that once a court determines that “a reasonable jury could conclude that the
employer's proffered reasons were not the real reason for its decision, [it] may not
preempt the jury's role of determining whether to draw an inference of intentional
discrimination”).
To establish a prima facie case of gender discrimination, the plaintiff must
show: (1) he is a member of a protected class; (2) he was qualified for the position
that he held; (3) he suffered an adverse employment action; and (4) he was treated
less favorably than a similarly situated individual outside his protected class. Alvarez
v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th Cir.2010). The defendant
asserts that the plaintiff is unable to prove that he was replaced by a person outside
his protected class (i.e., a female). Defendant’s brief in support, at 18. The plaintiff,
in contrast, alleges that the court must consider whether the plaintiff was treated
differently from similarly situated individuals. Plaintiff’s opposition, at 14.
The plaintiff offers two women as comparators who, while both disciplined by
the defendant, have not been terminated. Having carefully read the evidentiary
submissions, the court is unable to stretch the requirement that a comparator be
similarly situated far enough to include Amy Dial, as proposed by plaintiff. To be an
adequate comparator, the preferentially treated individual from outside the plaintiff's
protected class has to be similarly situated to the plaintiff in all relevant respects.
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1326 n. 17 (11th Cir.2011); citing
14

Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997) (citations omitted). In order
to be considered “similarly situated,” the compared employees must have been
“involved in or accused of the same or similar conduct,” yet “disciplined in different
ways” for that conduct. Id. See also Burke-Fowler v. Orange County, 447 F.3d 1319,
1323 (11th Cir.2006). Unlike the plaintiff, Ms. Dial was not a sworn law enforcement
officer, but rather the pistol permit clerk. See e.g., Franklin depo. at 164.
In contrast, the other comparator plaintiff suggests, Ms. Hattie Hampton, was
like plaintiff, a deputy. See Franklin depo. at 181. She too was accused of
inappropriate conduct, and conduct which also endangered others, but was not
terminated after her rank was removed. See e.g., plaintiff exhibit 18; Franklin depo.
at 185. However, because she was disciplined by a different decision maker, the
court cannot use Ms. Hampton as a comparator either. The proffered comparators’
actions are only relevant if it is shown that the decision maker knew of the prior
similar acts and did not discipline the rule violators. See Jones v. Gerwens, 874 F.2d
1534, 1542 (11th Cir.1989). Likewise, comparator evidence fails where different
decision makers are involved. Jones v. Gerwens, 874 F.2d at 1541. Knowledge of a
prior act cannot be imputed on a decision maker, because “[d]iscrimination is about
actual knowledge, and real intent, not constructive knowledge and assumed intent.”
Silvera v. Orange Cnty. Sch. Bd., 244 F.3d 1253, 1262 (11th Cir.2001). The court in
Silvera noted that “differences in treatment by different supervisors or decision
15

makers can seldom be the basis for a viable claim of discrimination.” Silvera, 244
F.3d at 1261 n. 5. See also Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306,
1312 n. 7 (11th Cir.1998) (“Different supervisors may have different management
styles that—while not determinative—could account for the disparate disciplinary
treatment that employees experience.”).
Because the plaintiff is unable to establish that his was treated differently than
any comparator outside his protected class, the court must grant summary judgment
in favor of the defendant and against the plaintiff on this count of the complaint.
B. Age Discrimination (Count II)
The burden of proof for ADEA claims differs from the employment
discrimination statutes. “[T]he ADEA’s text does not provide that a plaintiff may
establish discrimination by showing that age was simply a motivating factor.” Gross
v. FBL Fin. Servs., Inc., 557 U.S. 167, 174, 129 S.Ct. 2343, 2349, 174 L.Ed.2d 119
(2009) (emphasis added). Instead, “[a] plaintiff must prove by a preponderance of the
evidence (which may be direct or circumstantial), that age was the ‘but-for’ cause of
the challenged employer decision.” Id. at 2351. In general, a plaintiff may assert a
prima facie case of unlawful age discrimination by alleging sufficient facts to show
that: (1) he is a member of the protected group of persons over age forty; (2) he
suffered an adverse employment action; (3) he was replaced by a person outside the
protected group, or at least by a substantially younger person (or was rejected for a
16

position in favor of the younger person); and (4) he was qualified for the job at issue.
See, e.g., Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir.1998);
Mauter v. Hardy Corp., 825 F.2d 1554, 1557 (11th Cir.1987); see also O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 313, 116 S.Ct. 1307, 134 L.Ed.2d
433 (1996) (an ADEA plaintiff must show that she was replaced by someone
“substantially younger,” not necessarily by someone under age forty).
The plaintiff survives this hurdle. From the evidence, the court finds that in the
light most favorable to the plaintiff, he was replaced by “Bones” Wilson and not by
Ron Livingston, as claimed by defendant.9 See e.g., findings of the Morgan County
Personnel Review Board, at 9-10.10 Additionally, while defendant Franklin testified
Mr. Livingston, age 71 was hired in the plaintiff’s position, she later amended her
answer to clarify that Mr. Livingston was her next hire, and that he did not replace the
plaintiff as sergeant, or Field Commander of the Drug Task Force. The parties agree
that the plaintiff was 47 at the time of his termination, having been born in 1963. See
9

In her reply brief, the defendant states only that “[f]or purposes of this Reply Brief, we
will omit any argument as to whether the plaintiff was replaced by Robert Livingston (age 71) or
Robert “Bones” Wilson (who is younger than 40 years).” Reply, at 8. Thus, the question of who
replaced the plaintiff remains a subject of factual dispute.
10

The court notes the same evidence could suggest a personal vendetta against the
plaintiff and not age discrimination. The Personnel Review Board noted that Deputy Wilson was
a close personal friend of defendant Franklin and of an individual with whom defendant Franklin
has a “personal relationship;” that plaintiff “was instrumental in having Deputy Wilson removed
from a multi-county drug task force;” and that “one of her first actions upon taking office was to
reassign Deputy Wilson to that task force.” Findings of the Morgan County Personnel Review
Board, at 9-10. However, as defendant Franklin has argued nothing of the sort, the court leaves
this for a jury to decide.
17

e.g., Complaint, ¶ 17. The plaintiff suggests Mr. Wilson was born in 1972, thus at the
time plaintiff was terminated, Wilson was not within the protections of the ADEA.
Therefore, the court finds the plaintiff has established a prima facie case for age
discrimination claim. This means only that the burden shifts to the defendant to put
forth a legitimate, non-discriminatory reason for its decision.
The defendant asserts that she has established legitimate reasons for the
removal, demotion and termination of the plaintiff, namely that “it was not in the best
interest of the Sheriff’s Department and Sergeant Key for him to continue as Field
Commander” because of statements Sheriff Franklin heard from various individuals.
See defendant’s brief, at 18. From a review of the evidence, the court finds these
individuals came from members of the task force, members of the legal community,
and the plaintiff’s ex-wife. The plaintiff was provided no opportunity to verify the
truth of any of these statements prior to the time defendant chose to act on them.
Similarly, while defendant Franklin asserted she relied on the plaintiff’s personnel file
in making her decision to remove plaintiff as Field Commander of the Task Force,
she also testified that she did not review that file until after she made her decision.
Because a jury could find that the reasons provided by the defendant were a
pretext for age discrimination, because the plaintiff was arguably replaced by a
younger individual, and because the defendant’s testimony made clear she was intent
on removing plaintiff from Sheriff’s Office employment, the court finds genuine
18

issues of material fact remain in this case for resolution by a jury, specifically with
regard to the issue of whether “but for” the plaintiff’s age the adverse employment
action would have still occurred.
CONCLUSION
Having considered the foregoing, and finding that genuine issues of material
fact remain sufficient to allow this case to proceed to trial on the plaintiff’s claim
under the ADEA, the court shall order that the defendant’s motion for summary
judgment is granted on the plaintiff’s claim for gender discrimination under Title VII,
but denied on the plaintiff’s claim for age discrimination under the ADEA
DONE and ORDERED this the 29th day of April, 2013.

INGE PRYTZ JOHNSON
SENIOR U.S. DISTRICT JUDGE

19