Morgan v. The County Commission of Lawrence County

Filing 60

MEMORANDUM OPINION AND ORDER DISMISSING CASE that defendant's Motion to Strike is GRANTED in part and DENIED in part; Defendant's Motion for Summary Judgment is GRANTED and all claims alleged by plaintiff are DISMISSED with prejudice; costs taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 6/20/2016. (Attachments: # 1 Appendix Lawrence County Commission Meeting 9/30/2013)(AHI )

FILED
2016 Jun-20 PM 01:39
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ALABAMA

NORTHEASTERN DIVISION

BRENDA MORGAN,
Plaintiff,

)

)
)
)

)

vs.

THE COUNTY COMMISSION
OF LAWRENCE COUNTY,
Defendant.

Civil Action No. 5:14-CV-01823-CLS

)
)
)
)
)

MEMORANDUM OPINION AND ORDERS

Brenda Morgan's complaint alleged six claims against her former employer,
the County Commission of Lawrence County, Alabama: i.e., gender discrimination
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title
VII"); I disability discrimination under Title I ofthe Americans with Disabilities Act
of 1990, 42 U.S.C. § 12111 et seq. ("ADA,,);2 retaliation under both Title VII §
Doc. no. 1 (Complaint), ~~ 78-89; see also doc. no. 36-1, at ECF 39 (EEOC Charge of Sex
and Disability Discrimination). "ECF is the acronym for Electronic Case Filing, a filing system that
allows parties to file and serve documents electronically." Atterbury v. Foulk, No. C-07-6256 MHP,
2009 WL 4723547, *6 n.6 (N.D. Cal. Dec. 8,2009). Bluebook Rule 7.1.4 allows citation to "page
numbers generated by the ECF header." Wilson v. Fullwood, 772 F. Supp. 2d 246,257 n.5 (D.D.C.
2011) (citing Rule 7.1.4 of The Bluebook: A Uniform System o/Citation, at 21 (Columbia Law
Review Ass'n et al. Eds., 19th ed. 2010)). Even so, the Bluebook recommends "against citation to
ECF pagination in lieu of original pagination." Wilson, 772 F. Supp. 2d at 257 n.5. Thus, unless
stated otherwise, this court will cite to the original pagination in the parties' pleadings. When the
court cites to pagination generated by the ECF header, it will, as here, precede the page number with
the letters "ECF."
1

Doc. no. 1 (Complaint), ~~ 90-96; see also doc. no. 36-1, at ECF 39 (EEOC Charge of Sex
and Disability Discrimination).
2

2000e-3(a) and ADA § 12203;3 and age discrimination under the federal Age
Discrimination in Employment Act of 1967,29 U.S.C. § 623(a)(1) ("ADEA"),4 as
well as the Alabama Age Discrimination in Employment Act, Ala. Code § 25-1-20
(1975) ("AADEA,,).5
This court, upon its own motion, ordered plaintiff to show cause why her
ADEA and AADEA claims should not be dismissed due to her failure to allege that
her age was the "but-for" cause ofthe adverse employment actions taken against her. 6
That order was based upon a series of cases in this court in which Judge William M.
Acker, Jr., and the undersigned had held that '''an employee cannot claim that age is
a motive for the employer's adverse conduct and simultaneously claim that there was

any other proscribed motive involved.'" Hendon v. Kamtek, Inc., 117 F. Supp. 3d
1325, 1330 (N.D. Ala. 2015) (Acker, J.) (quoting Culver v. Birmingham Board of

Education, 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala. 2009) (Acker, J.)) (emphasis
in original).7 Such holdings were based upon the Supreme Court's opinion in Gross
3 Doc. no. 1 (Complaint), ~~ 97-105; see also doc. no. 51-1, at ECF 2 (EEOC Charge of
Retaliation).

4 Doc. no. 1 (Complaint), ~~ 59-71; see also doc. no. 51-2, at ECF 2 (EEOC Charge of Age
Discrimination).
5

Doc. no. 1 (Complaint), ~~ 72-77.

6

Doc. no. 49 (Order to Show Cause), at 3-4.

7 See also Donaldv. UAB Hmp. Mgmt., Inc., No. 2: 14-cv-727-WMA, 2015 WL 3952307
(N.D. Ala. June 29, 2015); Holley v. Gibco Constr., LLC, No. 2:14-cv-2277-WMA, 2015 WL
2365580 (N.D. Ala. May 18,2015) (same); Savage v. Secure First Credit Union, No. 2: 14-cv-2468­
WMA, 2015 WL 2169135 (N.D. Ala. May 8,2015); Montgomery v. Bd. ofTrustees ofthe Univ. of

2

v. FBL Financial Services, 557 U.S. 167 (2009), stating that, in order to prevail on
a claim of age discrimination under the ADEA, "a plaintiff must prove that age was
the 'but-for' cause of the employer's adverse decision." Id. at 176 (emphasis
supplied). Plaintiff responded that she could not "establish that her age was the 'but­
for' cause ofthe adverse employment actions [taken against her]," and conceded that
those claims should be dismissed. 8
After the date on which this court entered the foregoing show-cause order,
however, the Eleventh Circuit reversed Judge Acker for holding, in Savage v. Secure
First Credit Union, 107 F. Supp. 3d 1212 (N.D. Ala. 2015) -

a case in which the

plaintiffhad alleged claims based upon Title VII, 42 U.S.C. § 1981, the ADA, and the
ADEA -

that the plaintiff

"must prove that age was the 'but-for' cause of the employer's adverse
decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S. Ct.
Ala., No. 2:12-cv-2148-WMA, 2015 WL 1893471, at *5 (N.D. Ala. Apr. 27, 2015); Dixon v.
Birmingham, No. 2: 13-cv-404-WMA, 2015 WL 353162, at *1 (N.D. Ala. Jan. 27,2015); Ephraim
v. Pantry, Inc., 899 F. Supp. 2d 1205, 1207-08 (N.D. Ala. 2012); Gwin v. BFI Waste Services, LLC,
718 F. Supp. 2d 1326, 1327 (N.D. Ala. 2010).
Moreover, Alabama and federal courts have held that the AADEA uses the same principles
and analytical framework as the federal Age Discrimination in Employment Act (ADEA). See, e.g.,
Robinson v. Ala. Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007) (citing Bonham v. Regions
Mortg., Inc., 129 F. Supp. 2d 1315,1321 (M.D. Ala. 2001)); Ehrhardtv. Haddad Restaurant Group,
Inc., 443 F. App'x 452, 454 (lIth Cir. 2011); Perry v. Batesville Casket Co., No.7: 11-cv-994-LSC,
2013 WL 1498959, at *3 (N.D. Ala. Apr. 10,2013); see also Ala. Code § 25-1-29 (expressly
providing that "the remedies, defenses, and statutes oflimitations, under [the AADEA] shall be the
same as those authorized by the federal Age Discrimination in Employment Act ....") (alteration
and ellipsis supplied).
8

Doc. no. 50 (Response to Order to Show Cause), at 2 (alteration supplied).

3

2343, 174 L. Ed. 2d 119 (2009). Adopting the "but-for" cause
requirement, instead ofthe "mixed motive" possibility, squares with "the
ordinary meaning of the ADEA's requirement that an employer took
adverse action 'because of' age[, which] is that age was the 'reason' that
the employer decided to act." Gross, 557 U.S. at 176, 129 S. Ct. 2343.
"Because an ADEA plaintiff must establish 'but for' causality, no 'same
decision' affirmative defense can exist: the employer either acted
'because of' the plaintiff's age or it did not." Mora v. Jackson Mem 'I
Found., Inc., 597 F.3d 1201,1204 (lith Cir. 2010). "The only logical
inference to be drawn from Gross is that an employee cannot claim that
age is a motive for the employer's adverse conduct and simultaneously
claim that there was any other proscribed motive involved." Culver v.
Birmingham Bd. ofEduc., 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala.
2009). Therefore, "a plaintiff must make it perfectly clear in her
pleading that there are no proscribed motivations other than [the one
alleged]." Montgomery v. Bd. ofTrustees ofthe Univ. ofAlabama, 2015
WL 1893471, at *5 (N.D. Ala. Apr. 27, 2015).
Savage, 107 F. Supp. 3d at 1215 (alterations in original). The Eleventh Circuit's

opinion reversing the district court said simply that "[i]t is a well-settled rule of
federal procedure that plaintiffs may assert alternative and contradictory theories of
liability." Savage v. Secure First Credit Union, No. 15-12704, slip. op. at 2 (11 th Cir.
May 25, 2016) (alteration in original, citation omitted).
The Eleventh Circuit's opinion was not published. Accordingly, it is not
binding precedent. 9 Even so, this court construed it as a clear warning of potential
reversible error, and allowed plaintiff to reinstate her claims of age discrimination

9 11 th Cir. R. 36-2 ("Unpublished opinions are not considered binding precedent, but they
may be cited as persuasive authority.").

4

under the ADEA and AADEA. 10
The remainder ofthis opinion addresses the merits of defendant's "Motion to
Strike or, in the Alternative, for In Camera Review,',ll as well as the same party's
motion for summary judgment. 12

I. MOTION TO STRIKE
Defendant's motion requests that this court strike: portions of the deposition
testimony of Lawrence County Commissioner Mose Jones; the affidavit of former
County Administrator Peggy King; and the affidavit ofTricia Galbreath, who served
for a period following the resignation ofMs. King as Interim County Administrator. 13
A.

Deposition Testimony of Commissioner Mose Jones
Commissioner Jones testified that he "was getting some information that

Commissioner Burch and several of them was having problems with [plaintiff,
Brenda Morgan]." 14 Moreover, when plaintiff's counsel asked about the basis for the
Commission's decision to eliminate the position ofDeputy Director ofthe Lawrence

See doc. no. 56 (Order NotifYing Plaintiff of Right to Reinstate Age Discrimination
Claims), and doc. no. 57 (notification by plaintiff of her intent to reinstate her age discrimination
claims).
11 Doc. no. 43.
10

12

Doc. no. 26.

Doc. no. 43 (Defendant's Motion to Strike or, in the Alternative, for In Camera Review),
atECF 1-3.
13

14

Doc. no. 37-1 (Jones Deposition), at 18-19 (emphasis and alteration supplied).

5

County Emergency Management Agency, Jones stated:
A.

Well, you know, in my opinion - and that's the reason why I
voted "no" - because, in my opinion, they didn't want Brenda to
have the position. Because what I told them, that if you want to
eliminate the - plus they cut the pay, they cut the pay in the
position. And so, Brenda wasn't really going to apply for the
lower pay, but then she went back and did apply. And from my
way of thinking on it and the reason why I voted "no" is because
they didn't want her to have the position.

Q.

Who, specifically, didn't want her to have the position?

A.

I believe that Commissioner[ s] Burch, and Prentis Davis and Joey
Hargrove didn't want her to have the position. Now, whether that
is true or not, I don't know, but I know that I know that [s ic] they
was trying to get rid of her and she knew that, too.

Q.

And those three were all Commissioners on the Commission, the
County Commission, at that period of time?

A.

That's right.

Q.

What led you to that belief? Was it statements that they made?

A.

What I heard, conversation. Lawrence County is a small county, and
you have a whole lot of conversation going on, and just listening to
people talk and listening to her talk.

Q.

Do you remember specific conversations
ago
but specific conversations?

A.

Well, some ofthem just said that they didn't want her to have thejob;
they just wanted somebody else to have it.

and I know it was a while

Doc. no. 37-1 (Jones Deposition), at 20-22 (emphasis and alteration supplied).

6

The Commission objects to that testimony as being not relevant, not based on
personal knowledge, and inadmissible hearsay. See Fed. R. Evid. 401, 602, 701.
The foregoing excerpts from the deposition of Commissioner Jones might be
admissible as an "opposing party's statement,"

if Commissioner Jones had testified

that Commissioners Burch, Davis, and Hargrove had said to him (or stated in his
presence and hearing) that "they didn't want her to have the job; they just wanted
somebody else to have it." See Fed. R. Evid. 801(d)(2).15 Here, however, it is clear
from the context ofthe contested testimony that Commissioner Jones's "opinion" (or
"belief') about the motivations of the three Commissioners was not founded upon
what anyone of them had said, either to him or in his presence and hearing, but was

Federal Rule of Evidence 801(d)(2) states that an opposing party's statement is "not
hearsay" if it is offered against the opposing party, and it:
15

(A)

was made by the party in an individual or representative capacity; [or]

(B)

is one the party manifested that it adopted or believed to be true; [or]

(C)

was made by a person whom the party authorized to make a statement on the
subject; [or]

(D)

was made by the party's agent or employee on a matter within the scope of
that relationship and while it existed; or

(E)

was made by the party's coconspirator during and in furtherance of the
conspiracy.

The statement must be considered but does not by itself establish the declarant's
authority under (C); the existence or scope of the relationship under CD); or the
existence of the conspiracy or participation in it under (E).

7

instead based upon "a whole lot of conversation[s]" by unidentified third parties in
the "small county."l6 That is classic hearsay within hearsay, and it cannot be reduced
to admissible evidence at trial. See Fed. R. Evid. 805 ("Hearsay within hearsay is not
excluded by the rule against hearsay if each part of the combined statements
conforms with an exception to the rule.") (emphasis supplied).
Commissioner Jones also testified that, "sometimes, it's a whole lot ofpolitics
being played."l7 The federal anti-discrimination statutes upon which plaintiffs
claims are based are not concerned with the issue of whether a majority of the five
County Commissioners "didn't want [plaintiff] to have the job" for unspecified
"political reasons." Instead, those statutes are implicated only when a plaintiff
demonstrates that the adverse employment actions complained ofwere motivated by
one of the characteristics protected by federallaw. 18
Thus, the Commission's motion to strike the foregoing excerpts from the
deposition of Commissioner Mose Jones is due to be granted.

B.

Affidavit of Peggy King
Peggy King's affidavit states that the salaries of the Director and Deputy
16

Doc. no. 37-1 (Jones Deposition), at 22 (alteration supplied).

17Id. at 33-34.

18 For example, federal law prohibits discrimination on the basis of an individual's race,

color, religion, sex, or national origin (Title VII), disability (ADA), age (ADEA), or in retaliation
for an employee's opposition to or participation in activities to correct an employer's discriminatory
practices (all of the foregoing statutes).

8

Director of the Lawrence County Emergency Management Agency ("EMA")
discussed in an article published in the September 28, 2013 edition of The Decatur
Daily under the title "Salaries raised without OK vote" (see the discussion in Part

HLF" infra) were, in fact, approved by the Lawrence County Commission in 2008 or
2009,19 Her affidavit also states that the Commission voted in October 2013 to reduce
the salary of the incoming EMA Director by approximately $28,000, but that, after
Johnny Cantrell was hired to fill the position vacated by Hillard Frost, the
Commission voted to increase Cantrell's base salary.20 Moreover, Ms. King testified
that plaintiff performed "well" during her tenure as Deputy EMA Director. 21 The
foregoing statements are cumulative of other evidence of record, and the motion to
strike them will be denied as moot. 22
Ms. King also testified that the interview process preceding the selection of a
new EMA Director was not equitable, in the sense that the Commissioners "ma[de]

it easier for [Johnny Cantrell]" than for plaintiff. 23

Defendant objects to that

19 See doc. no. 38-1 (King Affidavit), at ECF 2; see also doc. no. 32-4, at ECF 69-70 (copy
ofarticle from www.decaturdaily.com)(alterationssupp1ied);doc.no. 52-1, at ECF 2-3 (photostatic
copy of article as printed in The Decatur Daily).

20
21

Doc. no. 38-1, at ECF 3 (King Affidavit).
Jd.

In other words, information provided by Ms. King's affidavit also was provided by other
deponents or aftiants, whose testimony has not been the object of a motion to strike.
22

23

Doc. no. 38-1, at ECF 3-4 (King Affidavit) (alterations supplied).

9

testimony on the basis that Ms. King attended only one round of interviews, and has
no personal knowledge regarding questions which were asked at the other rounds of
interviews. 24 Because the court will not consider that statement when deciding the
motion for summary judgment, defendant's motion to strike that testimony will be
denied as moot.
C.

Affidavit of Tricia Galbreath

The final aspect of the Commission's motion to strike contends that:
The most disturbing evidence submitted in support of Plaintiffs
Response [to the motion for summary judgment] is the Affidavit of
[former Interim County Administrator] Tricia Galbreath, which, on its
face, purports to disclose advice allegedly given by the undersigned [i. e.,
retained trial counsel Jamie Kidd] and County Attorney Dave Martin.
(Doc. 39-3.) To say that any attorney decided a particular course of
action is nonsense; [25] all that an attorney can do is recommend such a
course to the Commission, which then must vote as a body as to whether
it will follow the recommendation. Ms. Galbreath's affidavit can thus
only be based on privileged advice to which she only could have been
privy in her role as County Administrator. This affidavit is extremely
prejudicial to the Commission because it cannot even contradict the
allegations made therein without revealing more privileged information.
The Commission therefore respectfully requests that this Affidavit be
stricken. In the alternative, the Commission respectfully requests that
this Court allow it to submit evidence in camera, without waiving any
24 See doc. no. 43 (Defendant's Motion to Strike or, in the Alternative, for In Camera
Review), at 2.

25 As will be discussed in the following text, Ms. Galbreath's affidavit states that "County
attorneys Jamie Kidd and Dave Martin, along with Commissioner Bobby Burch, made the decision
to eliminate the EMA Deputy Director [position] on or around September 30, 2013, when the County
budget was finalized for the upcoming year." Doc. no. 39-3 (Galbreath Affidavit), ~ 13 (alteration
supplied).

10

privilege, further detailing the ways in which this affidavit
unconscionable breach of attorney-client privilege.

IS

an

Doc. no. 43 (Motion to Strike or, in the Alternative, for In Camera Review), ,-r 6
(alterations, emphasis, and footnote supplied).
The only part ofMs. Galbreath's affidavit to which the attorney-client privilege
could possibly apply is the statement that "County attorneys Jamie Kidd and Dave
Martin, along with Commissioner Bobby Burch, made the decision to eliminate the
EMA Deputy Director [position] on or around September 30,2013, when the County
budget was finalized for the upcoming year.,,26 Without deciding whether the
Commission satisfied its burden of proving that the foregoing statement is covered
by the attorney-client privilege, the court will not consider the statement when
deciding the motion for summary judgment. Accordingly, the motion to strike the
affidavit of Ms. Galbreath will be denied as moot. 27

II. SUMMARY JUDGMENT STANDARDS
Federal Rule of Civil Procedure 56 provides that summary judgment should be
rendered if the pleadings, the discovery and disclosure materials on file, and any
affidavits show that "there is no genuine dispute as to any material fact and the
26Id. (alteration supplied).
The Commission alternatively moves for in camera review ofthe Commission's evidence
addressing plaintiffs contention that the County attorneys participated in the decisions to take
adverse employment actions against plaintiff. The court declines to do so, because the fact or degree
of the County attorneys' involvement in those decisions is not material.
27

11

movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In other
words, summary judgment is proper "after adequate time for discovery and upon
motion, against a party who fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and on which that party will
bear the burden of proofat trial." Celotex Corp. v. Catrett, 477 U.S. 317,322 (1986).
"In making this determination, the court must review all evidence and make all
reasonable inferences in favor ofthe party opposing summary judgment." Chapman
v. AI Transport, 229 F.3d 1012, 1023 (lIth Cir. 2000) (en banc) (quoting Haves v.

City ofMiami, 52 F.3d 918, 921 (lIth Cir. 1995)). Inferences in favor of the non­
moving party are not unqualified, however. "[A]n inference is not reasonable ifit is
only a guess or a possibility, for such an inference is not based on the evidence, but
is pure conjecture and speculation." Daniels v. Twin Oaks Nursing Home, 692 F.2d
1321,1324 (lIth Cir. 1983) (alteration supplied). Moreover,
[t]he mere existence of some factual dispute will not defeat summary
judgment unless that factual dispute is material to an issue affecting the
outcome of the case. The relevant rules of substantive law dictate the
materiality of a disputed fact. A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party
for a reasonable jury to return a verdict in its favor.

Chapman, 229 F.3d at 1023 (quoting Haves, 52 F.3d at 921)(alteration and emphasis
supplied). See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986)

12

(asking "whether the evidence presents a sufficient disagreement to reqUlre
submission to a jury or whether it is so one-sided that one party must prevail as a
matter of law").

III. SUMMARY OF FACTS
Plaintiff began her employment with the Lawrence County Commission in
1989, as a clerk in the Tax Collector's office. 28 She occupied several other positions
before transferring in September of 2003 to the Lawrence County Emergency
Management Agency ("EMA"), where she initially occupied the "TVA Planner"
position. She was promoted to the position of "Deputy EMA Director" in 2004. 29
She described her duties in that position as "[p]lanning, mitigating, preparing, [and
providing] protection for citizens of Lawrence County.,,30
Throughout most of plaintiff s tenure with the Lawrence County EMA, the
agency was staffed by three persons, holding the positions of Director, Deputy
Director, and TVA Planner.
A.

Thursday, June 27,2013

The minutes of the June 27,2013 "Special Called Meeting" of the Lawrence

28

See doc. no. 28-1 (Morgan Deposition), at 12.

Id. at 11-17. Other positions occupied by plaintiff prior to transferring to the EMA
included Assistant License Inspector (1997-99) and Solid Waste Officer (1999-2003). Doc. no. 34­
2, at ECF 3 (Brenda Morgan Resume).
29

30

Doc. no. 28-1 (Morgan Deposition), at 17 (alterations supplied),

13

County Commission recorded two facts of significance to the issues in this suit. First,
EMA Director Hillard Frost announced that he would retire on July 31, 2013. 31
Second, the Commissioners' unanimous decision to "borrow $400,000 ... to run the
county for the rest of [the] fiscal year,,32 reflected an unanticipated decline in the
County's anticipated revenue.

B.

Thursday, July 18,2013
The Commissioners' decision to borrow $400,000 for payment ofthe County's

normal operating expenses during the two-and-a-half months remaining in the 2012­
13 fiscal year was consummated during a "Special Called Emergency Meeting" ofthe
Commission held on July 18,2013. 33 The County's fiscal difficulties were reflected
31

See doc. no. 28-5, at ECF 3 (Minutes of June 27, 2013 Special Called Meeting of the

Lawrence County Commission).
32

Id. at ECF 4 (ellipsis, emphasis, and alteration supplied). The Commissioners also

discussed during this same meeting various "cost saving measures," such as the possibility of
terminating all temporary employees. Ultimately, however, no action was taken on that issue at the
June 27th meeting, and discussion was tabled "until more information [was] received about the
temporary workers." Id. at ECF 4 (alteration supplied).
33

The minutes of that meeting recorded the following action:

The Lawrence County Commission met today in a Special Called Emergency
Meeting for the purpose of considering the adoption of a resolution and order
authorizing the issuance and sale of the $400,000 Certificate of Indebtedness of
Lawrence County Alabama (the "Certificate"), which is to be issued in order to
provide funds for current operating expenditures of the County, including the costs
of issuing the Certificate, and for the purpose of considering other matters related to
the Certificate. . ..
Mr. Kane Burnette, from Bank Independent, explained that the resolution is
for a $400,000 line of credit to be used solely for the operating expenses of the
County. It is set to mature on February 1,2014 with an interest rate of5.29%. [The]

14

in the following letter, signed by all three EMA employees (Director Hillard Frost,
Deputy Director Brenda Morgan (plaintift), and TVA Planner Tammy Vinson), and
delivered to the County's Interim Administrator, Tricia Galbreath, on July 18,2013:
We would like to address the current changes that are occurring
in the Lawrence County Emergency Management Agency. Hillard
Frost has made the decision to retire after twenty four years. There
have been several disasters and changes over the past few years. After
careful consideration and due to the current county financial situation
we would like to ask the county commission not to hire anyone at this
time. We would like to ask that you promote Brenda Morganfrom EMA
Deputy Director to Director and Tammy Vinson from TVA Planner to
EMA Deputy Director and TVA Planner. Currently the TV A Planner is
100% paid by TV A and the Deputy Director employee is paid 30% with
TV A funds and approximately 35% reimbursement paid by the Alabama
EMA. We will perform the duties required with just the two of us
during thisfinancial crisis. We would appreciate your consideration in
this matter. We only have the county's best interest at heart.
Hillard Frost has agreed to assist in the event of any major
disasters or events that might occur in our county. If there becomes a
need for Hillard Frost to work part-time his income could be paid thru
the TV A funds we receive.
Doc. no. 28-16, at ECF 2 (July 18, 2013 EMA Proposal) (all emphasis supplied); see

also doc. no. 37-1, at ECF 37 (same).
State law requires each county to have an EMA Director,34 and Lawrence

County can pay back at any time but must all be paid by February 1, 2014. . ..
Jd. at ECF 7 (Minutes of July 18, 2013 Special Called Emergency Meeting) (ellipses and alteration
supplied).
34

See Ala. Code § 31-9-1O(a) (1975) (2011 Replacement Vol.).

15

County's agreement with the TV A requires that there be a TVA Planner position,35
but there is no requirement for the employment of a Deputy EMA Director. 36

C.

Monday, July 22, 2013
Plaintiff submitted an application for the position ofEMA Director on July 22,

2013,37 four days after presenting the foregoing EMA Proposal to the Interim County
Administrator, and nine days prior to the July 31 st effective date of Hillard Frost's
retirement.

D.

Wednesday, July 31, 2013
On the date of the July 31st effective date of Hillard Frost's retirement, the

Commission appointed plaintiff"Acting EMA Director" and commenced a search for
a permanent replacement. The relevant portions of the "Recruiting Guidelines"
contained in the County's Personnel Handbook provided that:
4.3.4. Advertisement. Employment opportunities, other than
35 See doc. no. 28-16, at ECF 3 (Nov. 26, 2013 Resolution Eliminating Position of Deputy
EMA Director) (recording that "the TV A Planner position is required by virtue of the Lawrence
County Commission's agreement or grant assurances with TVA"); doc. no. 37-1, at ECF 38 (same).

Note well that, in view of the following facts recited in the July 18,2013 EMA Proposal
i. e., the salary of the "TV A Planner" was paid entirely with funds supplied by
quoted in text
TV A, and approximately 65% of the salary of the "Deputy EMA Director" was paid by state and
federal funds (35% from the Alabama Emergency Management Agency, and 30% from TV A) - the
proposal to promote plaintiff "Brenda Morgan from EMA Deputy Director to Director" may have
resulted in little or no actual savings to Lawrence County. See doc. no. 28-16, at ECF 3 (Nov. 26,
2013 Resolution Eliminating Position ofDeputy EMA Director) (recording that "100 percent ofthe
salary ofthe TV A Planner position is funded by TV A; as a result, no cost savings would be realized
if the position was eliminated"); doc. no. 37-1, at ECF 38 (same).
36

37

See doc. no. 34-2 (Brenda Morgan Employment Application), at ECF 2.

16

those which have been determined to be filled through a contracted
temporary services company, will normally be advertised through an
appropriate media, to include posting at locations readily available to
county employees, to ensure adequate advertisement in the recruiting
area.
4.3 .5. Content ofAdvertisement. All advertisements will provide
a description ofthe job, necessary qualifications, pay grade, pay range,
deadline for applying, date and time of any qualifying examination and
where applications may be picked up and returned. All advertisements
will contain the statement: "Lawrence County is an Equal Opportunity
Employer." All advertisements will also indicate that subsequent
vacancies will be filled from names on the eligibility list that will be
prepared from the qualified applications and the length of time that the
list will remain active.
4.3.6. Duration ofAdvertisement. All advertisements will remain
open for receipt ofapplications for at least seven (7) calendar days from
the date of the notice.
Doc. no. 34-1 (Lawrence County Personnel Handbook) §§ 4.3.4. - 4.3.6., at ECF 19
(underscored emphasis in original, italicized emphasis supplied).38
Defendant alleged in its initial brief in support of summary judgment that, "[a]fter Frost
officially retired, Plaintiff was temporarily appointed as acting EMA director while the position was
advertised in accordance with policy." Doc. no. 27 (Defendant's Brief in Support of Summary
Judgment), at 4 (alteration and emphasis supplied).
Plaintiff denied that the vacant EMA Director's position was advertised "in accordance with
policy." Doc. no. 32 (Plaintiff's Brief), at ECF 5. Her denial was based upon the fact that, during
a Commission meeting held "on or around September 24,2013, Commissioners Burch and Davis
voted to promote a male individual to the position ofCounty Assistant Engineer without advertising
the position as required by the Handbook [provisions quoted in text]." ld. at ECF 14 (alteration
supplied); see also doc. no. 28-1 (Morgan Deposition), at 96-97; doc. no. 28-2 (Burch Deposition),
at 52; doc. no. 28-3 (Davis Deposition), at 43; doc. no. 37-1 (Jones Deposition), at 39 (testifying that
the "procedure that [the Commission had] been following ever since [he had] been there," was: "if
I'm the Assistant and if someone steps out, then the Assistant takes over . ...") (alterations,
emphasis, and ellipsis supplied).
Plaintifffailed to note, however, that two Commissioners do not constitute a governing
majority. Indeed, the motion of Commissioners Burch and Davis to hire a male County Assistant
38

17

E.

Wednesday, September 11,2013
The difficult financial circumstances reflected by the Commission's decision

to borrow $400,000 for payment of the County's normal operating expenses were
exacerbated on September 11,2013, when the directors of Intemational Paper, the
County's largest employer, announced that the company's Courtland plant would be
closed by the end of the first quarter of 2014. That closure left 1,100 workers
jobless,39 and adversely impacted the County's tax base.

F.

Saturday, September 28, 2013
One of plaintiff's duties as Acting EMA Director was to prepare a proposed

agency budget for the fiscal year beginning on October 1, 2013. 40 That proved to be
an unusually stressful task as a result ofthe County's financial difficulties, as well as
the allegations contained in an article published in the September 28, 2013 edition of
The Decatur Daily, and entitled "Salaries raised without OK vote: LawCo unaware
TVA funds went to EMA officials." The full text of that article read as follows:
Engineer without advertising the position vacancy in accordance with Personnel Handbook § 4.3.4
did not pass. See doc. no. 37-1 (Jones Deposition), at 42-43. Moreover, plaintiff admitted that the
"Lawrence County Personnel Handbook ... prescribes the procedures that the [Commission] must
follow when hiring, firing and disciplining employees. Under the hiring procedures set forth in the
Handbook, the [Commission] is required to advertise vacant positions. . .." Id. (ellipses,
alterations, and emphasis supplied).
39 See http://www.al.com/business/index.ssf/20 13/09/international~aper_largest_em.html
("International Paper, largest employer in Lawrence County, to close plant by early 2014, layoff
1,100") (last visited Apr. 20, 2016).
40

See doc. no. 28-1 (Morgan Deposition), at 30.

18

MOUL TON - Two Lawrence County Emergency Management
Agency employees received raises that were never approved, county
officials said Thursday.
The County Commission plans to rectify the matter by reducing
pay for both positions when it approves its budget Monday.
Interim County Administrator Tricia Gilbreath [sic] said for some
reason, 30 percent of the money the county receives from the Tennessee
Valley Authority went to salaries of ex-EMA Director Hillard Frost and
Assistant Director Brenda Morgan. Lawrence County receives the
money because of its location near [TVA's] Browns Ferry Nuclear
Plant.
The move increased Frost's pay to more than $80,000 annually
and put Morgan's salary at more than $64,000 per year. Morgan County
is more than twice the size of Lawrence County, and its EMA director
makes just more than $60,000 annually.
Gilbreath [sic] said she cannot find anything in the minutes about
a Commission vote to reclassify the two positions. It was not known
how much Frost and Morgan were making before they began receiving
the TVA money.
Interim administrator Donna Llewellyn said only the commission
can authorize employee raises. She said 30 percent ofthe $123,000 the
county gets annually is being used to supplement salaries.
Mose Jones is the only commissioner who was in office when
Frost and Morgan started receiving the money in 2008. He said he
remembers the commission discussing the money but couldn't remember
if there was a vote.
"What is the county paying them?" Jones asked.
"Too much," Commissioner Joey Hargrove said.

19

Morgan has been serving as [Acting EMA] director since Frost
retired this past summer. She was not aware of the commission's
discussion and declined to comment on the matter.
The commission is proposing to cut the director's pay to $48,951,
which still is more than what Colbert and Winston counties pay their
director.
Morgan's pay would be trimmed from $64,640 to $41,962
annually.
The commission also agreed to re-advertise for a permanent
director and post the new salary.
"Since we have an opening, now is the time to fix the
classification problem," Commissioner Bobby Burch said.
He said the county had been using general fund money to
supplement EMA services such as evacuation planning because the
salaries were "eating up the TVA money."
Llewellyn said EMA has a planner, but unlike Frost and Morgan,
all of her $59,034 annual salary is coming from TVA and 911 money.
Burch said the county could have used part of the TV A money to
help buy public storm shelters and weather sirens after the April 27,
2011, tornado outbreak that killed 14 in Lawrence County.
Doc. no. 32-4, atECF 69-70 (copy ofarticle from www.decaturdaily.com)(alterations
supplied); see also doc. no. 52-1, at ECF 2-3 (copy of same article as printed in The
Decatur Daily).

G.

Monday, September 30, 2013
Just two days after publication of the Decatur Daily article, the County
20

Commission met for the purpose of adopting a budget for the 2013-14 fiscal year.
Plaintiff attended in order to address three potential EMA budgets that she had
prepared,41 but the majority of her presentation was devoted to refuting the Decatur

Daily's accusation that she and Hillard Frost had received "raises that were never
approved" by the County Commission,42 and attacking the credibility of the person
identified by the newspaper's reporter as the source of that charge: Interim County
Administrator Tricia Galbreath.
As will be discussed more fully in Part III.Q. of this opinion, infra, Lawrence
County Commission Chairman Prentis Davis subsequently cited plaintiffs behavior
during the September 30th Commission meeting as one basis for the adverse
employment actions that led to this suit. He accused her of being "disrespectful"
when addressing members ofthe Commission, "insubordinate" when questioning the
Commissioners' "judgment" about budgetary decisions affecting the County EMA
office (and particularly her own salary), and "abusive" when confronting the Interim
County Administrator about statements attributed to her in the newspaper article. 43
Throughout plaintiff's comments to the Commissioners, she repeatedly referred to her
budget proposals by the letters "A," "B," and "e."
41

See, e.g., doc. no. 32 (Plaintiff's Response in Opposition to Summary Judgment), ~ 14, at
ECF 6 ("Plaintiff disputes that she came to the September 30, 2013 meeting to simply present the
budget she had prepared. Rather, Plaintiff came to the September 30,2013 meeting to correct certain
inaccuracies regarding the EMA budget presented at the previous meeting that she was not present
for [sic] that were subsequently printed in the paper.") (citation omitted).
42

43

Doc. no. 28-15, at ECF 6 (Oct. 30,2013 Letter).

21

This court listened to an audio recording of the Commission meeting,44 and
directed an official reporter to prepare a transcript. A copy of the transcript is
attached to this opinion as an "Appendix.,,45
Chairman Davis and other Commissioners asked plaintiff on several occasions
to "move on," and to confine her comments to the three budget proposals she had
prepared, but she repeatedly focused her remarks on her salary, and what she
described as "rumor control" necessitated by the Decatur Daily article. 46
Plaintiff hand-printed numbers beside ten of the eighteen paragraphs of the
newspaper article,47 and distributed copies to each Commissioner. She sequentially
addressed each of the numbered paragraphs, while posing rhetorical questions to the
Commissioners, such as: "Did y'all approve the budgets the last two years ... ?,,48
When Mose Jones
44

the only Commissioner who expressed support for plaintiff

Doc. no. 29 (Recorded Audio Files Stored on CD).

As frequently is the case, a cold, typewritten transcript is a poor substitute for hearing the

tone of words actually spoken.
45

46

Appendix, at 11 (doc. no. 27, at Track 4, 1:20).

47 See doc. no. 52-1, at ECF 2-3 (a copy of the article as printed in The Decatur Daily, and
bearing plaintiff's handwritten numbers beside ten of the article's eighteen paragraphs).

48 Appendix, at 13 (doc. no. 27, at Track 4, 1:35) (ellipsis supplied). The significance of
plaintiff's rhetorical question was based upon these facts: four ofthe five members ofthe Lawrence
County Commission were "new," in the sense that they had been elected in 2010; and, the Interim
County Administrator (also a new appointee) could find no evidence in Commission minutes that
the amounts paid as annual salaries to Hillard Frost and plaintiff had been approved by the County
Commissioners who served prior to 2010. Hence, plaintiff was arguing that the lack of minute
entries was unimportant, because the incumbent Commissioners had approved the EMA's budgets
- which clearly depicted the amounts paid as salaries to each EMA employee - during the two
previous fiscal years.

22

during the meeting

addressed a subject in one ofthe paragraphs toward the end of

the newspaper article, plaintiff chided him: "Ifyou will stay in number, I won't have
to flip back and forth."49
At another point, after being asked by Chairman Davis to "stay on [the]
budget," plaintiff rebuffed him, saying: "Let's get back on this [i.e., discussion ofthe
Decatur Daily article], please."so

Plaintiff's tone when addressing Interim County Administrator Tricia
Galbreath was argumentative and, at times, disrespectful.

For example, when

Galbreath attempted to speak in her own defense about plaintiff's accusation that
Galbreath had either failed or refused to distribute copies ofjob descriptions for the
EMA Director and Deputy Director positions to all members of the Commission,
plaintiff snapped: "You don't have to speak. I'm passing it around."sl Her anger
was barely suppressed under a thin veneer of courtesy.
Plaintiff berated Galbreath for telling the newspaper reporter that Hillard
Frost's salary as EMA Director "was more than $80,000 annually."s2 It appears that
amount was an aggregate of salaries separately paid to Frost for two County

49

Appendix, at 19 (doc. no. 27, at Track 7, 0:28).

50

Appendix, at 27 (doc. no. 27, at Track 9,0: 15) (alterations supplied).

51

Appendix, at 16 (doc. no. 27, at Track 5, 4:10).

52

Doc. no. 52-1, at ECF 2 (paragraph bearing plaintiff's handwritten number "3").

23

positions held by him: i.e., Director of the Lawrence County EMA, and Director of
the Lawrence County 911 Center. S3 Plaintiff rebuked Galbreath, saying: "You are
the County Administrator

acting. You should have known the difference."s4

Plaintiff subsequently attempted to excuse her behavior by saying that she had
"little sleep" prior to the September 30th Commission meeting, and that she had done
"the best [she] could do" under the circumstances. 55 Nevertheless, plaintiff chose to
express what may have been valid concerns about the accuracy ofthe Decatur Daily
article in a manner that left her vulnerable to Chairman Davis's accusation that her
behavior had been "disrespectful," "insubordinate," and "abusive."

H.

Thursday, October 3,2013

Three days after plaintiffs appearance at the Commission's September 30th
budget meeting, she told her EMA co-worker, Tammy Vinson, that "snakes were out
to get her and those snakes had revealed theirselves [sic]," but "she had took [sic]
care of them," or "chopped their heads off."56 On the same morning, plaintiff told
Vinson that
files were missing out of her office. She said the only person that had

53

See doc. no. 28-1 (Morgan Deposition), at 38.

54

Appendix, at 21 (doc. no. 27, at Track 7, 2:40).

55

See doc. no. 28-1 (Morgan Deposition), at 118 (alteration suppJied).

56 Doc. no. 28-12 (Transcript ofFeb. 3,2014 Personnel Board Hearing: Vinson Testimony),

at 140-41.

24

a key was me and Hillard, and Hillard was in Orange Beach. And I told
her, I said, I promise you, I haven't took [sic] anything out of your
office. And she said, okay. And I said, I promise I haven't took [sic]
anything out of your office.
Doc. no. 28-12 (Transcript of February 3, 2014 Personnel Board Hearing: Vinson
Testimony), at 99; see also id. at 125.
Later that same day, plaintiff told Vinson that she was experiencing high blood
pressure and "needed to rest.,,57 She decided to take sick leave. 58 Vinson agreed to
respond to emergency calls while plaintiff was out of the office. 59 Vinson testified
that plaintiff appeared "a little distraught," "stressed," and "out of sorts" before
leaving the office. 60
I.

Friday, October 4,2013

Sometime during the "middle ofthe night between Thursday, October 3,2013,
and Friday, October 4, 2013,,,61 plaintiff received a telephone call from a 911

Doc. no. 28-1 (Morgan Deposition), at 63.
58 See id.

57

59 See doc. no. 28-12 (Transcript of Feb. 3, 2014 Personnel Board Hearing;
Vinson
Testimony), at 140-41.
6°Id. at 112, 120.

This statement was stipulated by the parties as the time frame within which events critical
to the issues of this case occurred. See doc. no. 55 (Joint Stipulations of Fact) ~ 1 ("The middle of
the night between Thursday, October 3,2013, and Friday, October 4, 2013, is when Plaintiff entered
the Hill residence."). The parties also stipulated that statements contained in letters from
Commission Chairman Prentis Davis to plaintiff "citing the incidence as having occurred in the
middle of the night between October 5, 2013, and October 6,2013 ... are not correct." Id. ~ 2
(ellipsis and emphasis supplied, internal citations omitted).
61

25

operator. She recounted the ensuing conversation as follows:
I remember picking up the phone and the dispatch telling me that there
had been a wreck in the Bankhead Forest, it had a fatality, and that there
was some diesel spill or something to the effect that it probably had
burned up but that they need[ ed] - they had requested EMA. And 1­
she said something about they had called ADEM [i.e., the Alabama
Department of Environmental Management], and they said, Call EMA
first. And I had explained to the dispatcher that I was on leave and that
I wasn't supposed to be receiving this call, and she said, Oh, I wasn't
aware. And I paused and I thought, Tammy is going to be working
tomorrow, so I'll take the call and respond to it where she can have her
sleep to do EMA on Friday [sic].
Doc. no. 28-1 (Morgan Deposition) at 67 (alterations supplied).62 Plaintiff testified
that she also was "concerned about [the security of] her job" if she did not personally
respond to the call for emergency assistance. 63
As plaintiff drove toward the accident site, however, the fatigue and stress that
had caused her to take sick leave increasingly weighed upon her -

so much so that

she reached the point of believing that she would be "taking [her] life in danger" if
she continued her journey.64 She also testified that she was "not thinking straight,"
and was "scared to be in the Bankhead Forest.,,65 Plaintiff cited her fatigue, stress,
62

See also doc. no. 36-2 (Vinson Deposition), at 11; doc. no. 28-3 (Davis Deposition), at 79.

63 Doc. no. 28-12 (Transcript ofFeb. 3,2014 Personnel Board Hearing: Morgan Testimony),
at 78 (alteration supplied).

64

Doc. no. 28-1 (Morgan Deposition), at 68 (alteration supplied).

65Id. at 84 ("Before I went any further to a wreck, not one step further was I going to go. On
the way, I was thinking and not knowing nothing. It was time to pause because I was not thinking
straight."); id. at 82 (describing her feeling that something bad would happen to her in the Bankhead
Forest).

26

and fears as reasons for her stopping, en route to the accident site, at the residence of
an elderly couple named Martha and Thurston Hill.
She did not immediately approach the Hills' home, but instead pulled into the
driveway ofthe house located next door: the home ofthe Hills' daughter and son-in­
law, Sandra and Ricky Nelson. 66 She sounded her automobile's hom in an attempt
to attract the attention ofthe sleeping occupants, but eventually realized that was "not
a good idea," because Sandra and Ricky Nelson did not know her. 67 So, she "pulled
out of the [Nelsons'] driveway, [and] . . . into Thurston and Martha Hill's
driveway.,,68
It then was the early morning hours ofFriday, October 4th,69 and the house was

dark as plaintiff walked to the front entrance. She knocked, and when no one
responded, she turned the knob and found that the door was not locked. 70 She
entered, and was confronted by Mr. and Mrs. Hill in their hallway.

Plaintiff

attempted to explain her reasons for entering the home unbidden, and asked if she
could use their telephone to call Tammy Vinson and request that she report to the
66Id at 68-69 (stating that, even though she "had thought about stopping at Thurston and
Martha Hill's house," she remembered "that he had been sick, and I said, I just don't want to stop
there. And I pulled in their daughter's driveway and blowed ....") (ellipsis supplied).
67Id
68Id (alterations and ellipsis supplied).
69

See supra note 61.

70 Doc. no. 28-1 (Morgan Deposition), at 69; doc. no. 28-12 (Transcript of Feb. 3,2014
Personnel Board Hearing: Morgan Testimony), at 39, 41.

27

accident scene. 71
Notably, plaintiff had a cellular telephone and a radio in her truck, but she had
not attempted to use either device before entering the Hills' residence and asking for
pennission to use their land-line telephone. 72
Later that same morning (and during regular business hours), the Hills'
daughter, Sandra Nelson, drove to the Lawrence County EMA office to report the
incident in person. 73 According to Tammy Vinson, who received her complaint, Mrs.
Nelson reported that a lady named "Morgan" had identified herself as working for
EMA, and pulled into the driveway of her home after midnight,14
blowing her horn and all. And she said, me and my husband was getting
up and ... I saw her go into my mother's house. [Ms. Morgan] was real
upset and said she kept telling her, said you know me. And she said she
would pull her shirt up and show her EMA badge and said that I work
for EMA, you know me. And she stated then, she said that she seemed
upset. And she said, they're trying to set me up, they're trying to kill
me.

71

See doc. no. 28-1 (Morgan Deposition), at 69.

72

See id. at 84 ("Radios and phones do not pick up there in Bankhead Forest in a lot of

areas.").
73

See doc. no. 55 (Joint Stipulations of Fact) 'Il3 ("Friday, October 4,2013, is when Sandra

Nelson came to the EMAl911 officc and reported the incident to Tammy Vinson and the other
women in the EMAl911 office. (Doc. 28-14)."). See also doc. no. 28-12 (Transcript ofFeb. 3,2014
Personnel Board Hearing: Vinson Testimony), at 102; doc. no. 28-14 (Written Statements by
Tammy Vinson, Donna Campbell, Judy Letson, and Rhonda Dunlop); doc. no. 36-2 (Vinson
Deposition), at 13-15.
74

See doc. no. 55 (Joint StipUlations of Fact) 'Il 1 ("The middle of the night between

Thursday, October 3, 2013, and Friday, October 4, 2013, is when Plaintiff entered the Hill
residence. ").

28

Doc. no. 28-12 (Transcript of February 3, 2014 Personnel Board Hearing: Vinson
Testimony), at 102-03 (ellipsis, alteration, and emphasis supplied).
J.

Sunday, October 6, 2013
Plaintiff delivered a card to Tammy Vinson's home on the Sunday following

the foregoing events, for the stated purpose ofexpressing that she "trusted" Vinson. 75
When asked during deposition whether she had enclosed money within the card,
plaintiff testified that she did "not recal1.,,76
Later that same day, while visiting her mother, plaintiff attempted to call her
husband. The first telephone unit that plaintiff attempted to use had no dial tone, and
she concluded that someone had "cut" the line to her mother's home. 77 Plaintiff then
used her mother's cell telephone to call the 911 center, to ask that law enforcement
officers be dispatched to her mother's home. 78 When the officers arrived, however,
plaintiff did not come to the door. Instead, she told the officers through an open

window that another telephone unit in her mother's house had functioned properly,
and she apologized for the inconvenience she had caused. 79 The officers reported that

75

Doc. no. 28-1 (Morgan Deposition), at 74-77.

76Id. at 78.

77 Id. at 78-79, 85;see also doc. no. 28-1
Hearing: Morgan Testimony).

at 54 (Transcript ofFeb. 3,2014 Personnel Board

78 See doc. no. 28-1 (Morgan Deposition), at 79; doc. no. 55 (Joint Stipulations of Fact) ~ 4
("Plaintiffs 911 call occurred on Sunday, October 6,2013. (Doc. 32-3 at p. 78).").
79

See doc. no. 28-12, at 150-51 (Transcript ofFeb. 3,2014 Personnel Board Hearing: Davis

29

plaintiff also said that "she loved them."so
Plaintiff subsequently provided two incoherent explanations for her conclusion
that "someone" had "cut" the telephone line to her mother's home. The first was
given during her February 3, 2014 Personnel Board hearing:
My mother had had problems with a neighbor prior. And she had told
me something. My husband and I had been out of town and - for just
- on a Friday night. And she had told me that the neighbor had said
something to her about - we were in Tennessee and my mom did not
even know we were in Tennessee. My mom said that this neighbor had
said he had connections in Tennessee.
Doc. no. 28-12 (Transcript of Personnel Board Hearing: Morgan Testimony), at 55.
The second explanation was provided during her August 25,2015 deposition:
I had picked up my one ofmy mother's cordless phones to call
my husband and it did not work, and my mother had just told me
something that upset me concerning one of her neighbors that she had
had some disputes with, [who] said something about - my husband and
I had went to Tennessee on Friday night, and I was trying to get some
sleep and he - she had talked to her neighbor and he said something
about he had connections in Tennessee. And I said, What are you
talking about? She said, Well, I don't know. I didn't even know you
were in Tennessee. And when I called my husband - and I could not
get him on the phone because the phone - I thought the phone line had
been cut. I picked up, to the best of my knowledge, my mom's
Testimony); doc. no. 28-1 (Morgan Deposition), at 85 ("I had picked up one of my ... mom's other
cell- cordless phone [sic], and it worked. 1 had found out that the other phone, the battery had
died. 1 was really embarrassed, and 1 opened up the window when the cop was getting out ofthe car
and I told him that the phone line was not cut and I was sorry, or something to that effect, for making
the call.") (ellipsis supplied).
Doc. no. 28-12, at 151 (Transcript of Feb. 3,2014 Personnel Board Hearing: Davis
Testimony) (emphasis supplied).
80

30

cellphone and called 911 because I thought the phone line had been cut.
Doc. no. 28-1 (Deposition of Brenda Morgan), at 78-79 (alteration supplied).
The 911 dispatch operator reported the foregoing incident to Tammy Vinson;81
and she, in turn, forwarded the report to the Chairman of the Lawrence County
Commission, Prentis Davis. 82

K.

Monday, October 7, 2013
Ricky Nelson reported plaintiff's invasion of his father- and mother-in-Iaw's

home by a telephone call to the Lawrence County Sheriff's Office on the morning of
Monday, October 7, 2013. 83 He described plaintiff as being "kind of hysterical,
rambling on about somebody trying to get her, needing some help ... that she felt like
she'd been kind of lured up there.,,84 Captain Tim McWhorter of the Lawrence
County Sheri ff' s Office later testified that the Hill family reported the incident to him

for safety reasons, because "they were afraid . . . that something could have
happened" _. specifically, that "Mrs. Morgan could have got harmed, got shot. ,,85

81

See id. at 107; see also doc. no. 36-2 (Vinson Deposition), at 14.

See doc. no. 28-15, at ECF 7 (Notice of Proposed Action); doc. no. 28-3 (Davis
Deposition), at 85.
82

See doc. no. 28-13 (Lawrence County Sheriff s Office Criminal Investigation Division
Report); doc. no. 55 (Joint Stipulations of Fact) ~ 5 ("Ricky Nelson reported the incident to the
Lawrence County Sheriffs Office on Monday, October 7,2013. (Doc. 28-13).").
83

84 Doc. no. 28-12 (Transcript of Feb. 3, 2014 Personnel Board Hearing:
McWhorter
Testimony), at 83, 87 (ellipsis supplied).
85Id. at 92 (ellipsis and emphasis supplied).

31

Prentis Davis, the Chairman of the Lawrence County Commission, related a
telephone conversation with Martha Hill on this same date, during which she told him
that plaintiff
had came [sic] into her house around 1:00 or 2:00 and was basically
yelling and screaming. And I believe she said she was in the bed at the
time and she got up and her and her husband got up and looked down
the hallway and seen that there was definitely somebody in the house.
And she, I guess, approached Mrs. Morgan [plaintiff]. And she said she
was screaming andflashing her shirt that she was from EMA, somebody
was trying to get her, ["]they're on to me.["]

[Martha Hill] ... was definitely concerned. She did mention, she said,
["]Lord, child, we'll just call the law and get you some help.["] Then
she told me that Mrs. Morgan said, ["]Lord, don't do that, they're in on
it, too. ["]
Doc. no. 28-12 (Transcript of February 3, 2014 Personnel Board Hearing: Davis
Testimony), at 145-46 (ellipses, emphasis, and alterations supplied).
Commissioner Jon Mark Nelson testified that Thurston and Martha Hill were
regular patrons ofhis convenience store,86 and they had told him on some date shortly
after the incident "that Ms. Morgan had come into their house while they were
sleeping[,] yelling about people being after her.,,87
Plaintiffs subsequent assessment of her behavior demonstrated a lack of

86

Doc. no. 28-20 (Nelson Declaration), ~ 2.

87

ld ~~ 2-3 (alteration and emphasis supplied).

32

insight into both its bizarre nature and its dangerousness. She said: "I don't know
how I could have handled it any better."ss She testified that she "apologized to Mrs.
Hill that night, and [Mrs. Hill] told [her] that she had no problems whatsoever with
[her] being there."s9 Plaintiff also alleged that she and Mrs. Hill "sat down and had
coffee," and reminisced about "old times," following her unauthorized entry.90 When
asked during the February 3,2014 Personnel Board hearing whether she had told the
Hills that "somebody was trying to kill her," plaintiff replied: "Not that I recal1.,,91
After Commission Chairman Prentis Davis learned of the events that had
occurred over the preceding weekend, he sent the following letter to plaintiff on
Monday, October 7,2013:
This letter is to notify you that you are being placed on
administrative leave with pay pending an investigation into recent
events suggesting that you may no longer be qualified to hold your
position. This action is not punitive or disciplinary in nature; rather, it
arises out of my concern for the safety of citizens of Lawrence County,
including yourself. While you are on administrative leave, you are not
authorized to take any actions or perform any work on behalf of
Lawrence County. Accordingly, you are required to tum over any and
all County property currently in your position.
Doc. no. 28-15, at ECF 2 (Oct. 7, 2013 Letter).

88

Doc. no. 28-12 (Transcript ofFeb. 3,2014 Personnel Board Hearing: Morgan Testimony),

at 37.

89Id. at 43 (alterations supplied).
90Id. at 44.
91

Id. at 69 (alteration supplied).

33

L.

Tuesday, October 8, 2013

Several significant events are recorded in the minutes of the regular meeting
of the Lawrence County Commission that occurred on Tuesday, October 8, 2013.
First, the Commissioners discussed the question of
whether the EMA Director position should be an exempt employee or
notL] and what [the pay] grade [or classification for] this position
should be. TVA funding for this position was also discussed.
Commissioner Hargrove made a motion to table until next meeting and
to ask a TVA representative to come and explain their funding at that
time. Commissioner Jones gave a second and all Commissioners voted
aye.
Doc. no. 28-5, at ECF 12 (Oct. 8,2013 Minutes) (alterations and emphasis supplied).
The Commission later voted to "go into executive session" for the purpose of
discussing "an individual employed by the county [sic] and some considerations that
need to be dealt with by the County.,,92
After emerging from executive session, the Commissioners voted unanimously
to amend the previously-published agenda to include consideration of the following
resolutions:
RESOLUTION RELATING TO EMPLOYMENT OF

BRENDA MORGAN:

The resolution states that Ms. Morgan is placed on administrative leave

with pay effective October 2, 2013 [sic] and that the Chairman is

designated as the appointing authority ofMs. Morgan. Commissioner

Burch made a motion to adopt this resolution with a second from

92

Doc. no. 28-5, at ECF 16 (Minutes of Oct. 8,2013 Meeting).

34

Commissioner Nelson.
All Commissioners voted aye except
Commissioner Jones who abstained.
RESOLUTION APPOINTING ACTING EMA DIRECTOR:
This resolution states that Tammy Vinson is appointed as acting
Director of Lawrence County Emergency Management Agency until
further notice. Commissioner Hargrove made a motion to adopt this
resolution with a second from Commissioner Burch. All commissioners
voted aye.
Id. at ECF 17 (emphasis supplied).

M.

Thursday, October 10, 2013
Two days after the foregoing Commission meeting, Chairman Davis hand-

delivered the following letter to plaintiff:
The Lawrence County Commission voted to make me your
appointing authority as of October 7, 2013. As your appointing
authority, I am notifYing you of a meeting to be held on Monday,
October 14,2013, at 10:00 a.m. at the law office of David L. Martin at
681 Main Street in Moulton regarding your employment.
As stated in my letter to you of October 7, 2013, recent events
suggest that you may no longer be qualified to hold your position with
the Lawrence County Emergency Management Agency. The purpose of
the October 14 meeting is simply to discuss the events with you.
An investigation ofthese matters is ongoing. No discipline ofany
kind has been proposed. We just want to hear your side of the story so
that the Lawrence County Commission can determine the best way to
proceed in order to ensure that the safety of all citizens of Lawrence
County, including you, is protected.
If you cannot attend this meeting, please contact me at
256-565-7393 as soon as possible. If you are unable to reach me, you
35

may contact County Administrator Tricia Galbreath at 256-974-2401.
Please be aware that failing to attend this meeting without calling
to re-schedule will be considered to be vio lation ofa direct order ofyour
appointing authority.
Doc. no. 28-15, at ECF 3 (Oct. 10,2013 Letter).

N.

Monday, October 14,2013
Plaintiff met with Chairman Davis on October 14,2013, in accordance with the

directive contained in the foregoing letter.

O.

Thursday, October 17, 2013
Three days after that meeting, Chairman Davis hand-delivered a third letter to

plaintiff, stating simply that she would "remain on administrative leave with pay until
further notice.,,93

P.

Tuesday, October 22,2013
The minutes of the October 22, 2013 regular meeting of the Lawrence County

Commission record the following actions affectingthevacantEMAD irectorposition:
EMA CLASSIFICATIONS:
There was discussion about a representative from TV A possibly being
able to come speak at the next meeting.
Commissioner Hargrove made a motion to put the EMA Director
position in [the County's Pay Classification] Class XI with the TVA
money included in the salary[, and] not in addition to. Commissioner
93 See id. at ECF 5 (Oct. 17,2013 Letter) ("This letter is to notifY you that you will remain
on administrative leave with pay until further notice.").

36

Burch gave a second and all Commissioners voted aye except
Commissioner Jones who voted no.

Commissioner Hargrove made a motion to table the Deputy Director
Classification.
Commissioner Jones gave a second and all
Commissioners voted aye.
EMA POSITION:
There was discussion on contacting the applicants to let them know of
the Pay Classification change. Commissioner Nelson made a motion to
re-advertise for the EMA Director Position with the [new, starting] Pay
Classification included. The people that have already applied will be
contacted to see if they still want their application considered.
Commissioner Jones gave a second. Commissioners Jones and Nelson
voted yes while Commissioners Burch and Hargrove abstained. Motion
passes.
Doc. no. 28-5, at ECF 20 (Oct. 22, 2013 Minutes) (alterations and emphasis
supplied). The significance of changing the payroll classification for the EMA
Director position from a "Class XIV" to a "Class XI" was that the annual salary ofthe
person selected to replace Hillard Frost would be approximately $28,000 less than the
amount previously paid to Frost. 94
It is important to note the "motion to table the Deputy Director classification. ,,95
That action suggests that the Commission was contemplating elimination of the
Deputy EMA Director position as early as October 22, 2013.
94 See doc. no. 38-1 (Affidavit of Peggy King), ~ 7, at ECF 3 ("I attended a Commission
Meeting in October of2013 where the Commission voted to reduce the EMA Director's pay grade
level classification from a level XIV to a level XI, equating to approximately a $28,000 pay cut for
the incoming EMA Director ....") (ellipsis supplied).
95Id. tT 3.

37

Q.

Wednesday, October 30, 2013

Chairman Davis hand-delivered a fourth letter to plaintiff on October 30th,
stating that he intended to terminate her employment, for cause, on November 5th:
This letter is a Notice ofProposed Action under Section 9.11.2 of
the Lawrence County Personnel Handbook. This will serve to inform
you that 1 intend to terminate your employment with the Lawrence
County Commission, effective November 5, 2013, for the following
Group Two violations:
9.6.19: Abusive Conduct
9.6.21: Conduct Unbecoming an Employee
9.6.22: Insubordination
9.6.30: Other Unacceptable Conduct
This termination is based on the culmination of an investigation
into recent events in which you were involved. The events have
damaged relationships in the community, with the members of the
Lawrence County Commission and within the Lawrence County
Commission office, while also raising serious questions regarding your
judgment and leadership abilities.
The first incident is your behavior at the meeting ofthe Lawrence
County Commission on September 30, 2013, where you were
disrespectful towards the members of the Commission and openly
questioned their judgment in regard to making budgetary decisions
affecting the EMA, including your salary. The conduct constituted
insubordination.
Further, you were abusive towards your co-employee, Ms. Tricia
Galbreath. I understand that you may have some kind of dispute with
Ms. Galbreath; however, you have made it clear several times,

38

including in our meeting of October 14,2013, that you are unwilling to
attempt to resolve this dispute in a professional and courteous manner.
It is of particular concern to me that you have discussed this dispute
with other employees, referring to Ms. Galbreath as a "snake" on more
one occaSlOn.
The second incident occurred on October 5, 2013[96] when you
entered a private home uninvited shortly after 1:00 a.m. while in route
to an unrelated emergency call.
The third incident occurred on October 6, 2013 when you called
911 from your mother's residence in Moulton and made a false
allegation that her phone lines had been cut.
Your behavior on any ofthese occasions was unacceptable for any
employee ofthe Lawrence County Commission, much less for someone
in the position of acting EMA Director.
You have a right to respond to the above matters orally or in
writing within three (3) business days. You also have the right to
request an informal hearing in front of me, where you may present
evidence on your behalf. You may either represent yourself and/or be
represented by a person of your choosing. Ifyou choose to request a
hearing, this hearing will be held on November 5, 2013 at 2:00 p.m. at
the meeting room ofthe Lawrence County Commission, located at 12001
Alabama Highway 157, Moulton, Alabama.
If you do not request a hearing or otherwise respond to this
Notice, your termination will be effective on November 5, 2013. In the
event that you request a hearing, your administrative leave with pay will
end on November 5,2013. However, you may use your vacation or any
other paid leave time after that date.
Doc. no. 28-15, at ECF 6 (Oct. 30,2013 Letter) (footnote and emphasis supplied).
The parties stipulated that this date is not correct. See doc. no. 55 (Joint Stipulations of
Fact), at 2, ~ 1 ("The middle of the night between Thursday, October 3, 2013, and Friday, October
4,2013, is when Plaintiff entered the Hill residence.").
96

39

R.

Friday, November 1,2013

Plaintiff exercised the right outlined in the preceding letter to request a hearing
before Chairman Davis. In preparation for it, she drafted with the aid ofan attomey­
friend an affidavit for execution by Martha Hill. Plaintiff took the affidavit to Mrs.
Hill, who signed it on Friday, November 1,2013. 97 The full text of that document
reads as follows:
1. My name is Ms. Martha Hill. I am a resident of the State of
Alabama and am over the age of twenty-one and competent to give this
statement.
2. On October 4, 2013, Ms. Brenda Morgan came to my house
about 1:00 a.m. 1 have known Brenda/or over 30 years. Brenda asked
if she could come in my house and make some telephone calls.
3. I allowed Brenda to come in my house and make her calls.
Brenda seemed very tired and did not think she could go into the
Bankhead Forrest [sic] to check on a truck accident. Brenda called
someone and asked if that person could check on the accident.

4. I did not have a problem with Brenda coming to my house that
evemng.
Doc. no. 39-2 (Hill Affidavit) (emphasis supplied).98
S.

Tuesday, November 5, 2013

97

See doc. no. 39-2 (Hill Affidavit), at ECF 2 (Notary Public's certification dated Nov. 1,

2013).
98 A reasonable juror could not conclude that Mrs. Hill "allowed" plaintiff to enter her home,
when it is undisputed that Mrs. Hill was not expecting plaintiff, did not answer the door, and did not
even see plaintiff until she was standing in the Hills' hallway.

40

When plaintiff presented Mrs. Hill's affidavit to Chainnan Davis during the
November 5th hearing, his "first reaction was that [the statements contained in it
were] completely opposite" to the description of events previously related to him by
Mrs. Hill during their telephone conversation on or about October 7, 2013. 99 He
added that Mrs. Hill had said to him that, even though she had known plaintiff "for
a while," she had not spoken to her in "five or six years."1OO For such reasons,
Chairman Davis assigned little weight to the affidavit. 101 Moreover, he believed the
incident to be a serious one: "something we couldn't tum our attention away from.
It was definitely a fireable offense according to our handbook. y.oujust couldn't let

it go, so to speak."I02
T.

Friday, November 15,2013
Ten days after the hearing before Chainnan Davis, plaintiff chose not to wait

for his decision on the evidence presented, and filed a charge of discrimination with
the Equal Employment Opportunity Commission ("EEOC").

She alleged

discrimination based upon her sex and perceived disability.103 She hand-delivered a
Doc. no. 28-12 (Transcript of Feb. 3, 2014 Personnel Board Hearing: Davis Testimony),
at 148-49 (alteration supplied).
100 Id. at 149.
99

101 Davis also surmised that, "[u]nder the circumstances, I almost felt like Mrs. Hill was
probably pretty good people and didn't want to cause any trouble, and that she may have signed it
to keep Mrs. Morgan out of any trouble." Id. (alteration supplied).

1021d. at 155.
103 See doc. no. 36-1, at ECF 39 (EEOC Charge Filed Nov. 15,2013). See also doc. no. 1

41

copy of the charge to both Chairman Davis and Lawrence County Attorney David
Martin on the same day it was filed. 104
U.

Tuesday, November 19, 2013
Chairman Davis hand-delivered a fifth letter to plaintiff on November 19,2013.

The copy filed in the record of this case states that the letter was "Drafted November
11,2013," but not "Hand Delivered" until eight days later: "November 19, 2013."105
Laying aside the questionable veracity ofthe self-serving "Drafted" date - i.e.,
November 11, 2013 was Veterans Day, a legal holiday in both Alabama and the
United States, and four days before plaintifffiled her EEOC Charge

the letter

clearly states that it was "Hand Delivered" to plaintiff on "November 19,20 13,"four

days after her EEOC charge had been filed.
The letter stated that Chairman Davis had changed his mind, and decided to
downgrade the sanction for plaintiffs conduct from termination of employment for
cause, to suspension without pay for "twenty (20) work days," beginning on the same
date that termination was slated to have occurred (i.e., November 5,2013).
The Jetter also reiterated the fact that the County Commission had rescinded
plaintiffs appointment as "Acting EMA Director" on October 8, 2013, and
(Complaint), ~ 40; doc. no. 1-1 (Right to Sue Letters); doc. no. 5 (Answer), ~ 40.
104

See id. at ECF 38 (Letter Informing Chairman Davis of EEOC Charge).

105

Doc. no. 28-15, at ECF 8 (alteration supplied).

42

reassigned her to her previous position ofDeputy EMA Director. The full text ofthe
letter reads as follows:
This letter is a Notice of Suspension under Section 9.10 of the
Lawrence County Personnel Handbook. I have considered both the
evidence that you presented at the pre-disciplinary hearing and your
long record of service with the Lawrence County Commission, and I
have decided not to terminate your employment at this time. Instead, I
am imposing suspension without pay oftwenty (20) work days, effective
November 5, 2013, based on my determination that you committed the
following Group Two offenses:
9.6.21: Conduct Unbecoming an Employee
9.6.30: Other Unacceptable Conduct
These violations are based on your conduct on October 5 [sic], [1061
when you entered a private horne in the middle of the night while
supposedly responding to an emergency call, and October 6, when you
called 911 making a false allegation that phone lines had been cut. Your
conduct on both those occasions in interacting with members of the
public and with law enforcement officials was unacceptable. That these
incidents did not result in more harm being done does not change the
fact that you showed very poor judgment on both of these occasions,
which damaged critical relationships and raised very serious questions
regarding your leadership abilities.
This suspension is also based on your commISSIOn of the
following Group One and Two offenses:
9.4.4: Work Interference
9.4.13: Other Conduct
9.6.19: Abusive Conduct
106

See supra note 96.

43

These violations are also based on your behavior at the meeting
ofthe Lawrence County Commission on September 30,2013, and on the
manner in which you have handled an apparent dispute between yourself
and Ms. Galbreath, both in the September 30 meeting an [sic] on other
occasions. Your behavior has been unprofessional and has needlessly
interfered with Commission operations.
The modification of the proposed discipline should in no way be
taken as a signal that I do not consider these incidents to be very serious
in nature. While these incidents warrant termination under the
Handbook because of your long term employment with Lawrence
County I have chosen to suspend you without pay. You have the right
to request, in writing, within ten (10) calendar days an appeal in front of
the Lawrence County Appeals Board as to your suspension without pay
in accordance with Chapter Ten of the Personnel Handbook.
Further, this letter serves as a notification that your temporary
assignment as Interim [or "Acting"] EMA Director was canceled by the
Commission's appointment of a new Interim EMA Director, which
occurred on October 8, 2013. You have therefore been reassigned to the
position of deputy EMA director. This reassignment is not a
disciplinary action; therefore, you do not have the right to appeal this
reassignment.
Doc. no. 28-15, at ECF 8 (Nov. 19,2013 Letter) (emphasis, footnote, and alterations
supplied).
V.

Monday, November 25, 2013

Plaintiff submitted a letter to the Lawrence County Appeals Board on
November 25, 2013, noticing her "appeal of the decision of Lawrence County
Commissioner Prentis Davis suspending [her] without pay for 20 work days.,,107

107

See doc. no. 36-1, at EeF 40 (Nov. 25, 2013 Letter) (alteration supplied).

44

W.

Tuesday, November 26, 2013

The minutes of the Commission meeting held on November 26,2013, record
the following actions:
EXECUTIVE SESSION:
Mr. Martin [the County Attorney] stated that the executive session was
to discuss potential litigation. Commissioner Jones made a motion to
go into executive session. Commissioner Nelson gave a second and all
Commissioners voted aye.
Commissioner Jones made a motion to come back into regular session.
Commissioner Nelson gave a second and all Commissioners voted aye.
EMA CLASSIFICATION:
Commissioner Burch made a motion to adopt the Resolution
Eliminating the Position of Deputy EMA Director. Commissioner
Hargrove gave a second. Commissioner Jones voted no with all other
Commissioners voting yes. Motion passed.
Doc. no. 37-1, at ECF 44 (Nov. 26,20 13 Minutes) (alteration and emphasis supplied).
The resolution thus adopted reads as follows:
RESOLUTION ELIMINATING POSITION OF

DEPUTY EMA DIRECTOR

Whereas, the Lawrence County Commission received a July 18,
2013 letter from the three staff members of the Lawrence County
Emergency Management Agency stating that two employees could
adequately perform the duties necessary for the operation of the
Lawrence County EMA and recommending, in part, that another
employee not be hired after the retirement of EMA Director Hillard
Frost [see Part I1LB., supra];

Whereas, at the time ofthe July 18,2013 letter the members ofthe
Lawrence County Commission were considering eliminating one of the
45

three EMA positions as a cost-saving measure and the Commission has
continued to consider the matter since that time;
Whereas, the Lawrence County Commission recently reduced the
salary of the EMA Director position as a further cost-saving measure
[see Part HLP., supra];
Whereas, the job titles of the three Lawrence County EMA
positions are EMA Director, EMA Deputy Director and TVA Planner;
Whereas, the TVA Planner position is required by virtue of the
Lawrence County Commission's agreement or grant assurances with
TVA and a 100 [sic] percent of the salary of the TVA Planner position
is funded by TVA; as a result, no cost savings would be realized if the
position was eliminated;
Whereas, it is required by law that each county in the State shall
have an EMA Director and, further, it is necessary for the efficient
operation of the Lawrence County EMA that the position of EMA
Director should remain as one ofthe two staff positions ofthe Lawrence
County EMA; and
Whereas, in view of the above, the only remaining staff position
that the Lawrence County Commission can eliminate which will not
have a negative impact on the operation ofthe Lawrence County EMA
is the position of Deputy Director;
NOW, THEREFORE, BE IT RESOLVED that the position of
Deputy Director of the Lawrence County Emergency Management
Agency is eliminated, effective December 3, 2013.
ADOPTED this 26th day of November, 2013.
Id. at ECF 38 (alterations and emphasis supplied); see also doc. no. 28-16, at ECF 3

(same).

46

County Attorney David Martin sent a letter to plaintiff on the same day that the
Commission adopted the foregoing resolution, informing her that her employment
would end as of December 3rd: i.e., the same date on which plaintiff's twenty-work­

day suspension without pay expired. lOS His letter read as follows:
The Lawrence County Commission voted today, November 26,
2013, to eliminate the position of Deputy EMA Director effective
December 3, 2013. Your employment with the Lawrence County
Commission will, accordingly, end as ofthat date.

This action is not disciplinary and is not in any way a reflection
on your job performance or personal conduct, but rather is being done
as part ofa general cost reduction program that has unfortunately been
necessitated by current economic conditions.
There are currently no vacant positions ofequal or lower grade in
the classified or part-time service either in your department or any
position controlled by the Commission for which you are qualified;
however, you are eligible for rehire and will be placed on the
reappointment re-employment eligibility list.
Thank you for your service to Lawrence County.
Doc. no. 28-16, at ECF 5 (Nov. 26,2013 Letter) (emphasis supplied).
X.

Monday, December 23, 2013

Plaintiff was included in each round of the interviews for applicants for the
Ifonly the National Holidays of November 11,2013 (Veterans Day) and November 28,
2013 (Thanksgiving) are subtracted from plaintiffs twenty-work-day suspension, that sanction
would have expired on Wednesday, December 4,2013. Assuming, however, that as is normally
the case in national, state, and local governments the day after Thanksgiving (Friday, Nov. 29,
2013) also was a holiday for Lawrence County's employees, then "twenty (20) work days" would
have expired on Tuesday, December 3,2013.
108

47

vacant EMA Director position, !09 but the Commission ultimately selected an external
candidate named Johnny Cantrell on Monday, December 23,2013: twenty days after
the termination of plaintiff s employment. lIO
The official description of the EMA Director position states that its occupant
must possess the "[a]bility to analyze situations and adopt quick, effective,
reasonable courses of action," and sufficient "[s ]tamina and endurance to work
under stress for several days at a time in emergency situations."l1! The Lawrence
County Personnel Handbook states that "mobs shall be filled, whenever possible,
with the most qualified eligible applicants,,,112 and that, "[nJormally,preference will
be given to qualified regular status classified employees; however, an appointing
authority will have the right to select an applicant who is not an employee, if that
person is considered to be the best qualified.,,!!3
Even though the Commi ssion had voted on October 22, 2013 to reduce the pay
classification for the incoming EMA Director from a class XIV to a class XI (a
$28,000 reduction), Cantrell received pay raises exceeding the aggregate amount of

109

See doc. no. 28-3 (Davis Deposition), at 50.

110

See doc. no. 28-2 (Burch Deposition), at 164.

III Doc. no. 28-17 (EMA Director Job Description), at ECF 4-5 (alterations and emphasis

supplied). The court notes that plaintiff complained that she was "getting tired," two hours into her
deposition. See doc. no. 28-1, at 48.

112

Doc. no. 34-1 (Personnel Handbook), at ECF 5 (alteration supplied).

113

ld at ECF 18, § 4.1.4 (alteration and emphasis supplied).

48

$10,000 within the first year following his date of hire. 114
Y.

The Relative Qualifications of Plaintiff and Johnny Cantrell

Plaintiff contends that she was "more qualified" for the Director position than
Johnny Cantrel1. 115 "[N]umerous" letters ofrecommendation had been submitted on
her behalf during the interview process, including letters from Hillard Frost and

114 See doc. no. 28-2 (Burch Deposition), at 166-67 (indicating that Cantrell's starting salary,
as of Dec. 23,2013, was $41,849.60, and that amount was increased to $52,000). The Commission
claims that it awarded those raises in order to compensate Cantrell for performing duties above and
beyond his role as EMA Director. Commissioner Bobby Burch explained the considerations as
follows:

See, Johnny carne in, and Johnny had a lot of IT background. Johnny was able to go
to the revenue commission and the sheriff's department. He's been around to the
commissioner's office. He's gone around - he's been able to save tons of money
networking our phones together by changing over our ITT [sic]. He's been doing all
this computer work.
We ... can't afford an IT person .... So now we do have an IT person,
somebody that's qualified and that's working.
He's not always in the office .... but he's a phone call away. But, you know,
EMA has to be there when things are bad. Sometimes you go through days when
there's nice weather and there's no threats and there's no warnings, and they have all
their stuff together. Instead ofjust sitting down there, you've got an employee that
can go around and can do all these things. . ..
And these other department heads have called me and said thank you for
letting him corne in and do these things, volunteering. And he has already saved tons
of money, just at the commission alone, being able to bundle and network our phone
packages and our cable and our DSL. And he's done that for others.
Plus, in addition, we found out that his qualification or his certification, or
whatever it is, we get reimbursed $11,000 more than what Hillard Frost brought.
Doc. no. 28-2 (Burch Deposition), at 168-69 (ellipses supplied).
115

See doc. no. 32 (Plaintiff's Response in Opposition to Summary Judgment), at 24-25.

49

"other EMA Directors around the state.,,1l6 She also had: logged 250 hours of
"Advance Level Emergency Management Re-Certification," 117 training that Cantrell
did not match; served as Deputy Director of the Lawrence County EMA for nine

years, whereas Cantrell served as Deputy Director of the Morgan County EMA for
only three months; 118 and, established relationships with "the mayors and agencies
[with whom and which the EMA worked] in the county.,,119
Commissioner Burch agreed that plaintiff was more "certified" than Cantrell,
but argued that she was not more "qualified.,,120 Cantrell had served in the United
States Air Force for nearly four years as a "Security Specialist,,,121 and also had
worked for the Morgan County EMA since 2002

a year longer than plaintiffs

tenure in the Lawrence County EMA office. 122 He had completed a number of
courses of instruction offered by the Federal Emergency Management Agency,123 as
116

Doc. no. 28-3 (Davis Deposition), at 52 (alteration supplied).

117

See doc. no. 34-2, at ECF 3 (Brenda Morgan Resume).

118

See doc. no. 28-2 (Burch Deposition), at 165.

119

Doc. no. 28-1 (Morgan Deposition), at 88-89 (alteration supplied).

120

Doc. no. 28-2 (Burch Deposition), at 127.

121 See doc. no. 28-7 (Cantrell Collective
Collective Ex. - Part 2), at ECF 5.

- Part 1), at ECF 2, 4; doc. no. 28-8 (Cantrell

122 Following a tornado that occurred on Feb. 6,2007, but while still employed by the Morgan
County EMA, Cantrell assisted the Lawrence County EMA in its relief efforts. See doc. no. 28-7
(Cantrell Collective Ex. Part I), at ECF 49 (Lawrence County EMA log signed by Tammy Vinson
showing that Cantrell contributed eighty hours ofwork to the relief effort).
123 Cantrell completed each of the following courses offered by the Federal Emergency
Management Agency ("FEMA"), among others: Introduction to the Incident Command System (doc.
no. 28-7 (Cantrell Collective Ex. - Part 1), at ECF 6); National Response Plan (NRP): an

50

well as other organizations,124 and had been certified by the Alabama Association of
Emergency Managers in 2005 as an "Intermediate Level Emergency Manager," and
in 20 11 as an "Advanced Level Emergency Manager." 125 His interview was described
as "impressive."126 According to Commissioner Bobby Burch, Cantrell "brought
things out in the interview to me that I didn't realize. He brought out things the EMA
should be doing that we were not doing."127
Tammy Vinson testified that, even though plaintiffhad entered the Hills' home
uninvited, she continued to believe that plaintiff was "qualified" to serve as Acting

Introduction (id. at ECF 8); Decision Making & Problem Solving (id. at ECF 11); The Role of
Voluntary Agencies in Emergency Management (id. at ECF 13); Radiological Emergency Response
(id. at ECF 15); Hazardous Materials for Medical Personnel (id. at ECF 17); National Incident
Management System, an Introduction (doc. no. 28-7 at ECF 19); Emergency Program Manager:
An Orientation to the Position (id. at ECF 21); Emergency Preparedness, USA (id. at ECF 23); An
Introduction to Hazardous Materials (id. atECF 27); Buildingfor the Earthquakes ofTomorrow (id.
at ECF 29); An Orientation to Community Disaster Exercises (id. at ECF 31); Animals in Disaster,
Awareness and Preparedness (doc. no. 28-7 at ECF 37); Animals in Disaster, Community Planning
(id. at ECF 39); Are You Ready? An In-Depth Guide to Citizen Preparedness (doc. no. 28-9 (Cantrell
Collective Ex. Part 3), at ECF 8); Household Hazardous Materials: A Guide for Citizens (id. at
ECF 10); An Introduction to Exercises (id. at ECF 11); Exercise Design (id. at ECF 14); Principles
ofEmergency Management (id. at ECF 15); Active Shooter: What You Can Do (id. at ECF 24);
Guide to Points ofDistribution (doc. no. 28-9 at ECF 27); and Developing & Managing Volunteers
(id. at ECF 49).
Cantrell attended the "Bomb-Making Materials Awareness Program" hosted by Auburn
University in Montgomery, and the "S torm Spotter Training" course hosted by the U. S. Department
of Commerce's National Weather Service. See doc. no. 28-8 (Cantrell Collective Ex. Part 2), at
ECF 12 and 23.
124

125

See doc. no. 28-8 (Cantrell Collective Ex.

Part 2), at ECF 6-7.

126 See doc. no. 28-2 (Burch Deposition), at 110, 165, 167-69, 189-90; doc. nos. 28-9 through
28-11 (Cantrell Collective Ex. - Parts 1 through 3).

121

Doc. no. 28-2 (Burch Deposition), at 122.

51

EMA Director. 128 Vinson based her assessment upon the facts as plaintiffrecounted

them, however

i. e., that the Hills had known her for decades, and Mrs. Hill was not

bothered by plaintiff's unauthorized and unannounced entry into her home. Thus,
Vinson added, "if the incident ... happened like [the Hill family] said it did, [then]

it was a concern." 129
Tricia Galbreath testified in her affidavit that she had heard Chairman Davis
and Commissioner Burch describe plaintiff as "crazy," and state that she had a
"mental problem.,,130 Galbreath also testified that Davis and Burch had stated their
opinion that plaintiff "would be making too much money as EMA director," 131 and
blamed plaintiff"for the County not receiving CDBG [i. e., Community Development
Block Grant] money earlier [that] year.,,132
On the other hand, Commission Chairman Prentis Davis stated that the
sanctions he imposed upon plaintiff were not based upon a perceived "disability," but

128

See doc. no. 36-2 (Vinson Deposition), at 16-17.

129

Jd. at 15 (ellipsis, alterations, and emphasis supplied).

130

Doc. no. 39-3 (Galbreath Affidavit), ~ 11.

See id. ~ 9. See also doc. no. 28-1 (Morgan Deposition), at 43 (stating that the

Commission's motive for "getting rid ofher" was to prevent her from earning the Director's salary).
131

See doc. no. 39-3 (Galbreath Affidavit), ~ 10 (alterations supplied). CDBG is a program
run by the United States Department ofHousing and Urban Development. One designated "program
area" for use of CDBG funding is "Disaster Recovery Assistance," under which the Department of
Housing and Urban Development "provides flexible grants to help cities, counties, and States
recover
from
Presidentially
declared
disasters."
http://portal.hud. gov/hudportallHUD?src=/program_offices/ comm~ lanning/communitydevel op
ment/programs (last accessed Mar. 29, 2016).
132

52

instead upon her "poor judgment":
Immediately after the events of the week of September 30,2013,
I was initially concerned that Ms. Morgan's erratic behavior might have
been caused by a health issue, particularly because she had stated during
that following week that she was having trouble with high blood
pressure and exhaustion. It became clear to me, however, that these
events were just a matter ofpoorjudgment on Ms. Morgan's part. The
fact that she has never seemed to understand exactly how badly entering
a house unannounced in the middle ofthe night could have turned out
for her only reinforces to me that her misconduct was a result of
deliberate choices made by her.
Doc. no. 28-18 (Davis Declaration),

~

3 (emphasis supplied). He testified during

plaintiffs February 3, 2014 Personnel Board Hearing that he also was concerned
about the County's exposure to liability if plaintiff continued to engage in such
behavior while working for the EMA.133
IV. DISABILITY DISCRIMINATION CLAIM
The Americans with Disabilities Act of 1990 provides: "No covered entity
shall discriminate against a qualified individual on the basis of disability in regard to
job application procedures, the hiring, advancement, or discharge of employees,
employee compensation, job training, and other terms, conditions, and privileges of
employment." See 42 U.S.C. § 12112(a). Plaintiff alleges that the Lawrence County
Commission violated that statutory prohibition by: (a) suspending her without pay

133

Doc. no. 28-12 (Transcript of Feb. 3,2014 Personnel Board Hearing: Davis Testimony),

at 155.

53

for twenty work days; (b) demoting her to the position of Deputy EMA Director; (c)
terminating her employment by eliminating the Deputy EMA Director position; and
(d) failing to hire her as permanent EMA Director. She contends that each of those
employment actions was based upon the Commissioners' perception of her as
"disabled."134
Plaintiff does not present direct evidence that the Commissioners regarded her
as "disabled." In the absence of such evidence, the Eleventh Circuit employs the
same burden-shifting framework originally developed to analyze the sufficiency of
circumstantial evidence offered in support of Title VII employment discrimination
claims in ADA cases. See, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802-03 (l973); Holly v. Clairson Industries, L.L.c., 492 F.3d 1247,1255 (lith Cir.

2007); Wascura v. City of South Miami, 257 F.3d 1238, 1242 (lith Cir. 2001);
Durley v. APAC, Inc., 236 F.3d 651, 657 (lith Cir. 2000); Hilburn v. Murata
Electronics North America, Inc., 181 F .3d 1220, 1226 (11 th Cir. 1999). The first step
of that now familiar framework requires a plaintiff to make out a case sufficient to
withstand a motion for summary judgment (or a motion for judgment as a matter of

i. e., r,'a prima facie case." A prima facie case under the AD A requires a

law) -

plaintiff to establish at least three elements: (1) that she either had, or was regarded

134

See doc. no. 32 (Plaintiffs Response in Opposition to Summary Judgment), at 15,21,25.

54

by the employer as having, a "disability" within the meaning of that term as defined
in the Act; (2) that she is "a qualified individual with a disability," meaning that she
can perform the essential functions of the employment position she held or sought,
with or without reasonable accommodations being made by the employer; 135 and (3)
that she suffered an adverse employment action because ofher disability. 136 See, e.g.,
Lucas v. W. W. Grainger, Inc., 257 F.3d 1249, 1255 (11th Cir. 2001). If the plaintiff
makes such a showing, that gives rise to a presumption that the employer intended to
discriminate on the basis of the plaintiffs disability.
Once such a presumption is raised, the burden then shifts to the employer to
articulate some legitimate, nondiscriminatory reason for the adverse employment
action(s) complained of.

If the employer meets its burden of production, the

presumption of discrimination raised by the plaintiffs prima facie case is rebutted,
and drops from the case. At that point, the burden shifts back to the plaintiff to show

135 See 42 U.S.C. § 12111(8) (defining "qualified individual with a disability" as "an
individual with a disability who, with or without reasonable accommodation, can perform the
essential functions of the employment position that such individual holds or desires"); see also 29
C.F.R. § 1630.2(m) ("Qualified individual with a disability means an individual with a disability
who satisfies the requisite skill, experience, education and other job-related requirements of the
employment position such individual holds or desires, and who, with or without reasonable
accommodation, can perform the essential functions of such position.").

There actually is a fourth element, implicit in the interstice between the second and third:
i. e., "a plaintiff must demonstrate that the employer had either actual or constructive knowledge of
the disability or considered the employee to be disabled." Gordon v. E.L. Hamm & Associates, Inc.,
100 F.3d 907, 910 (11th Cir. 1996) (citing Morisky v. Broward County, 80 F.3d 445, 447 (l1th Cir.
1996) (per curiam)).
136

55

that the employer's stated reason was a pretext for discrimination. The inquiry into
pretext requires the court to determine, in view of all the evidence, whether the
plaintiff has cast sufficient doubt upon the defendant's proffered nondiscriminatory
reasons to permit a reasonable factfinder to conclude that the employer's proffered
reasons were not what actually motivated its conduct. Cf, e.g., Crawford v. Carroll,
529 F.3d 961,975-76 (lIth Cir. 2008) (Title VII case).
With regard to the first prima facie element, the ADA defines the term
"disability" in three ways

that is, as including any individual who:

(i) has a physical or mental impairment which substantially limits one
or more of such person's major life activities; [or]
(ii) has a record of such an impairment; or
(iii) is regarded as having such an impairment.
42 U.S.C. § 12102(1) (alteration and emphasis supplied). The term "major life
activities" includes, but is not limited to, "caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, andworking."
42 U.S.C. § 12102(2)(A) (emphasis supplied).
Defendant contends that plaintiff "is not disabled," and that she "cannot
present substantial evidence that she was ever considered to be [i.e., was regarded as

56

being] disabled by the Defendants [SiC].,,137 In response, plaintiff argues that, even
though she admittedly did not have an actual "disability," the "evidence shows that
both Commissioner's [sic] Burch and Davis perceived Plaintiff as having a mental
disability at the time that Plaintiff was disciplined in the fall of 2013." 138 The only
evidence that plaintiff offers in support of that contention, however, is Chairman
Davis's statement that he was concerned that her erratic behavior was the result of a
"health issue,,,139 and the statements of Chairman Davis and Commissioner Burch that

137 Doc. no. 27 (Defendant's Brief in Support of Summary Judgment), at 14 (alteration
supplied). EEOC regulations define a person who is "regarded as having an impairment" in terms
of the attitudes, perceptions, beliefs of-or treatment by - other persons: i. e., as (1) an individual
who has a physical or mental impairment that does not substantially limit that person's major life
activities, but who is treated by his or her employer as having such a limitation; or as (2) an
individual who has a physical or mental impairment that substantially limits major life activities, but
only as a result ofthe attitudes ofothers toward such impairment; or as (3) an individual who has
no illness or malady defined by the EEOC as a physical or mental impairment, but who is treated
by his or her employer as having a substantially limiting impairment. See 29 C.F.R. § 1630.2(1);
Ellison v. Software Spectrum, Inc., 85 F.3d 187, 192 (5th Cir. 1996).

138 Doc. no. 32 (Plaintiffs Response in Opposition to Summary Judgment), § ILA., at 17
(arguing that defendant wrongfully discriminated against plaintiff when it disciplined her
i. e. ,
suspended her without pay for twenty work days
based upon the perception of Commissioners
Burch and Davis that she had "a mental disability"). See also id., § ILB.I., at 21 (arguing that
defendant discriminated against plaintiff when it "failed to hire/promote Plaintiff to the position of
EMA Director based on Plaintiff's perceived disability": i.e., "In this case, as set forth above,
Plaintiff has established that she was perceived to have a disability, that she was qualified, and that
she was not hired as permanent EMA Director. Thus, she has established her prima facie case [under
the ADA].") (emphasis and alteration supplied); see also id., § II.C.l., at 26 (arguing that defendant
discriminated against plaintiff when it "terminated" her employment - i. e., eliminated the Deputy
EMA Director position- based upon its perception ofher as disabled: "Indeed, the evidence in this
case demonstrates that Commissioners Burch and Davis both expressed that they thought Plaintiff
was 'crazy' and had a 'mental problem' close to [the] time Plaintiff was terminated" (emphasis and
alteration supplied».

139

See, e.g., doc. no. 28-18 (Davis Declaration), ~ 3.

57

she was "crazy," or had a "mental problem.,,14o
The context in which those remarks were uttered is important. Chairman Davis
testified in his affidavit that, "[i]mmediately after the events ofthe week ofSeptember
3 0, 2013," he "initially" believed that plaintiff's erratic behavior "might have been

caused by a health issue.,,141 The only health issues of which he indicated any
awareness, however, and the only health issues ofwhich plaintiff complained in this
record, were "high blood pressure" and "exhaustion.,,142
Chairman Davis testified that it soon became "clear" that plaintiff's actions
were not caused by a "health issue," but were, instead, the result ofpoor judgment; 143
and, the "poor judgment demonstrated by [plaintiff] ... raised very serious concerns
regarding her ability to do the job.,,144
Even if Chairman Davis believed that plaintiff's behavior was caused by her
health issues of high blood pressure and exhaustion, plaintiff's own testimony
undercuts the probative value of that evidence. Plaintiff testified that she only began
See doc. no. 32 (Plaintiffs Response in Opposition to Summary Judgment), at 17,21,26;
doc. no. 39-3 (Galbreath Affidavit), ~ 11.
140

Doc. no. 28-18 (Davis Declaration), ~ 3 (alteration supplied).
142Id.
141

143 Id. ~ 3. His affidavit also states that he has never considered plaintiff to be disabled. Id.
~

4.

Id. ~ 5 (alteration and ellipsis supplied). See Sutton v. Lader, 185 F.3d 1203, 1209 (lIth
Cir. 1999)(citing Chandler v. City ofDallas, 2 F.3d 1385, 1393 (5th Cir. 1993))("[A]n employer's
perception that an employee cannot perform a particular task safely" does not "establish that the
employer regarded the employee as disabled.") (alteration supplied).
144

58

to experience those conditions after misleading information was published in The
Decatur Daily on September 28, 2013: i. e., just five days before the bizarre events

that occurred during the first week of October, 2013. 145 The Eleventh Circuit has
stated that a "severe limitation that is short term and temporary is not evidence of a
disability." Garrett v. University oj Alabama at Birmingham Board oj Trustees, 507
F.3d 1306, 1315 (11 th Cir. 2007) (emphasis supplied); see also Sutton v. Lader, 185
F.3d 1203, 1209 (11 th Cir. 1999) (holding that, in order to "establish that an employer
regarded an employee as 'disabled' and thus covered by [either] the Rehabilitation
Act [or ADA], a plaintiff must introduce substantial evidence that the employer
regarded him as having a permanent or long-term impairment") (alterations and
emphasis supplied). 146 Cf Washington v. UPS, 567 F. App'x 749, 753-54 (lith Cir.
2014) (affirming the district court's holding that the plaintiff had failed to establish
a primafacie case, even though she had argued that the defendants perceived her as
being "disabled by stress," because she "did not offer any evidence that the
145

See doc. no. 28-1 (Morgan Deposition), at 58-59 (PlaintifItestified that, because of the

Decatur Daily article, she "had had very little sleep, [was] very stressed, [and] agitated to the point
where [she] did not want to be at the office because [she] did not feel like [herselfJ") (alterations
supplied); id at 64 ("I had not taken blood pressure pills for months until that week [i.e., the week
the Decatur Daily article was published].") (alteration supplied).
"Discrimination claims under the Rehabilitation Act are governed by the same standards
used in ADA cases ...." Cash v. Smith, 23] F.3d 1301, 1305 (lith Cir. 2000)(citing 29 U.S.C. §
794(d) ) (ellipsis supplied, footnote omitted); see also Holbrook v. City ofAlpharetta, 112 F .3d 1522,
1526 n.2 (11 th Cir. 1997). Thus, "[clases decided under the Rehabilitation Act are precedent for
cases under the ADA, and vice versa." Cash, 231 F.3d at 1305 n.2 (citing Pritchard v. Southern
Company Services, 92 F.3d 1130, 1132 n.2 (lith Cir. 1996» (alteration supplied).
146

59

decisionmakers considered her to be disabled such that she was substantially limited
in major activities") (citing 29 C.F.R. § 1630.2(1) (2007)).
The Eleventh Circuit also has held that exhaustion and high blood pressure,
without more, are not conditions that substantially impair a person's ability to
perform major life activities, such as working. See, e.g., Garrett, 507 F .3d at 1314-15
(Rehabilitation Act plaintiff s evidence that she suffered from fatigue and frequently
"collapse[d] because of exhaustion when she returned home from work" failed to
raise an issue of triable fact that she was disabled) (alteration supplied); Swain v.

Hillsborough County School Board, 146 F.3d 855, 856 n.l, 858 (lIth Cir. 1998)
(ADA plaintiff who suffered from urinary incontinence and high blood pressure was
"not an individual with a disability as defined by the ADA"). Thus, plaintiff cannot
establish that she was regarded as having a "disability" based upon Chairman Davis's
reference to her as having a "health issue."
Plaintiff also cannot rest her prima facie case upon the statements ofChairman
Davis and Commissioner Burch that she had a "mental problem," or was "crazy."
Plaintiff has presented no evidence (and the record in this case would not support a
finding) that those remarks pertained to any cognitive or intellectual deficiency.
Rather, the evidence before this court compels a conclusion that the remarks only
reflected the two Commissioners' perception of plaintiff as being paranoid, unable
60

to peacefully coexist with other County employees, disrespectful, or otherwise
disgruntled. The Eleventh Circuit has stated the following regarding workplace
comments of that nature:
To state a case of unlawful discrimination under the ADA, a plaintiff
must first prove he has a disability as defined by the Act. Gordon v. E.L.
Hamm & Associates, lnc., 100 F.3d 907, 910 (lith Cir. 1996) ....
Under [42 U.S.C. § 121 02(2)(C)], an individual is deemed to be disabled
ifhe is regarded as having a mental impairment that substantially limits
one or more of his major life activities. Standard v. A.B.E.L. Services,
lnc., 161 F.3d 1318, 1327 (lith Cir. 1998).
[The plaintiff] failed to present any evidence from which a
rational juror could find he was regarded as having a mental impairment.
[The plaintiff] points to evidence which shows other officers regarded
him as "paranoid," "disgruntled," "oppositional," "difficult to interact
with," "unusual," "suspicious," "threatening," and "distrustful." These
characterizations of [the plaintiffs] behavior merely show he had
serious personality conflicts with members of his department. Such
conflicts do not rise to the level of a mental impairment under the ADA.
See Stewart v. County of Brown, 86 F.3d 107, 111 (7th Cir. 1996)
(holding that an excitable, emotionally imbalanced individual is not
disabled under the ADA). We affirm the district court's grant of
summary judgment in favor of the City under § 12112(a).
Watson v. City of Miami Beach, 177 F.3d 932, 935 (lith Cir. 1999) (alterations
supplied).
The decision of the Middle District of Florida in Mickens v. Polk County
School Board, 430 F. Supp. 2d 1265 (M.D. Fla. 2007), is similar, and, persuasive:
[T]he [defendant's] characterizations of [the plaintiff] as "really upset,"
"insubordinate" "volatile" "disrespectful" "confrontational"
,
,
,
,
61

"combative" "defensive" "agitated" "irrational" "loud" "irate"
,
,
,
'"
"angry," "unprofessional," "unhappy," "threatening," "unpredictable,"
and "difficult," including testimony as to [the plaintiffs]
"uncharacteristic behavior" and his tendency to "fly off the handle,"
demonstrate (rather persuasively) [the plaintiff s] ongoing conflicts with
his supervisors and colleagues in the workplace. As a matter of law,
"such conflicts do not rise to the level of a mental impairment under the
ADA."

Id. at 1274 (quoting Watson, 177 F.3d at 935) (alterations supplied). See also, e.g.,
Schlegelmilch v. City ofSarasota Police Dept., No. 8:06CV139T27MAP, 2006 WL
2246147, at *9 (M.D. Fla. Aug. 3, 2006) ("Plaintiffs allegation concerning his
perceived disability, namely that everyone regarded him as 'crazy,' falls short ofRule
8's liberal pleading standard.

Specifically, Plaintiff fails to allege a perceived

disability that 'substantially limit[s] one or more of [Plaintiffs] major life activities.'

See42U.S.C. § 12102(2).") (alterations in original); Crawfordv.AT&T, 177F. Supp.
2d 1293, 1300 (N.D. Ga. 2000) ("The only evidence Plaintiff cites as evidence that
CWA 'regarded' Plaintiff as having a substantially limiting disability is an alleged
statement made by Dwayne Gray, ... that Plaintiff was 'crazy.' This statement does
nothing to show Mr. Gray or CWA regarded Plaintiff as suffering from an impairment
which limited his working ability.") (ellipsis supplied).
Finally, as this court observed in note 38, supra, two Commissioners do not
constitute a governing majority. The Lawrence County Commission consists offive

62

members, and plaintiff has presented no evidence that any of the three remaining
members of that governmental body entertained such opinions, much less uttered
remarks similar to those attributed to Chairman Davis and Commissioner Burch. In
short, this court finds that plaintiff cannot prove that she was regarded as having a
"disability," as that term is defined by the ADA, merely by presenting evidence that
two of the five Commissioners made comments that she suffered from a "health
issue," or that she had a "mental problem," or was "crazy."
Accordingly, plaintiff has not established a prima facie case of disability
discrimination, and the Commission is entitled to summary judgment on her ADA
claim.
V. TITLE VII GENDER DISCRIMINATION CLAIM

Plaintiff also alleges that the Lawrence County Commission discriminated
against her on the basis of her sex: when she was suspended without pay for twenty
work days; when she was demoted from Acting EMA Director to her former position
of Deputy EMA Director; when her employment was terminated by the decision to
eliminate the Deputy EMA Director position; and, when she was not selected to
replace Hillard Frost as permanent EMA Director. 147
On any Title VII claim, the plaintiff "bears the ultimate burden of proving

147

See doc. no. 32 (Plaintiffs Response in Opposition to Summary Judgment), at 15,21,25.

63

discriminatory treatment by a preponderance ofthe evidence." Crawford v. Carroll,
529 F.3d 961,975 (l1th Cir. 2008) (internal quotation marks omitted). To do so, the
plaintiff must present either direct or circumstantial evidence of an intent to
discriminate on the basis of plaintiff's gender. Again, however, plaintiff has not
presented any direct evidence of an intent to discriminate on the basis of her sex.
Consequently, each of her claims must be viewed through the familiar McDonnell

Douglas burden-shifting analytical framework. See, e.g., Walker v. Mortham, 158
F .3d 1177, 1193 (11 th Cir. 1998) (observing that "a Title VII plaintiff cannot succeed
in proving that she was intentionally discriminated against if she does not establish
a prima facie case of discrimination") (Tjofiat, J., plurality opinion).
A.

Disparate Disciplinary Treatment
In order to establish aprimafacie case ofdisparate disciplinary treatment under

Title VII of the Civil Rights Act of 1964, a plaintiff must show: (I) that she is a
member of a class of persons protected by the Act (e.g., a female); (2) that she
engaged, either disputedly or admittedly, in misconduct similar to that of a similarly
situated co-employee outside the protected class (e.g., a male); and (3) despite such
similarities, the male co-employee was not disciplined in the same manner as plaintiff

(i.e., suspended without pay for twenty work days). See, e.g., Alexander v. Fulton
County, 207 F.3d 1303, 1336 (lIth Cir. 2000); Lathem v. Department ofChildren
64

and Youth Services, 172 F.3d 786, 792 (lIth Cir. 1999); Jones v. Ge1Wens, 874 F.2d
1534, 1540 (lIth Cir. 1989).
Plaintiffhas not identified a male employee ofLawrence County who engaged
in conduct similar to that which formed the basis for her suspension without pay for
twenty work-days, but who was subjected to less severe disciplinary measures.
"Absent some other similarly situated but differently disciplined worker, there can be
no disparate treatment." Abel v. Dubberly, 210 F.3d 1334,1339 (lIth Cir. 2000).
Plaintiff attempts to avoid the requirement of producing a comparator by
relying upon the Eleventh Circuit's opinion in Smith v. Lockheed-Martin Corp., 644
F.3d 1321 (lIth Cir. 2011).148 Upon initial reading, the Smith opinion appears to
support plaintiff's reliance upon it. The pertinent portion of the opinion held that
establishing the elements of the McDonnell Douglas framework is not,
and never was intended to be, the sine qua non for a plaintiff to survive
a summary judgment motion in an employment discrimination case.
Accordingly, the plaintiff's failure to produce a comparator does not
necessarily doom the plaintiff's case.
Rather, the plaintiffwill always survive summary judgment ifhe
presents circumstantial evidence that creates a triable issue concerning
the employer's discriminatory intent. See Holifield v. Reno, 115 F.3d
1555, 1562 (lIth Cir. 1997) (declaring that, in cases where a plaintiff
cannot establish a prima facie case, summary judgment only will be
"appropriate where no other evidence of discrimination is present."
(citations omitted)); Silverman v. Bd. ofEduc., 637 F.3d 729, 733 (7th
Cir. 2011) ("To avoid summary judgment ... the plaintiff must produce
148

See doc. no. 32 (Plaintiffs Response in Opposition to Summary Judgment), at 15-16,18.

65

sufficient evidence, either direct or circumstantial, to create a triable
question of intentional discrimination in the employer's decision."). A
triable issue offact exists ifthe record, viewed in a light mostfavorable
to the plaintiff, presents "a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional discrimination by
the decisionmaker." Silverman, 637 F.3d at 734 (citations and internal
quotation marks omitted); see also James v. N. Y. Racing Ass 'n, 233 F.3d
149, 157 (2d Cir. 2000) ("[T]he way to tell whether a plaintiff s case is
sufficient to sustain a verdict is to analyze the particular evidence to
determine whether it reasonably supports an inference of the facts
plaintiff must prove - particularly discrimination.").
Smith, 644 F .3d at 1328 (emphasis supplied, footnote omitted, alteration in original).

Despite those statements, the Smith opinion does not provide an easy bypass
around the McDonnell Douglas analytical framework for plaintiffs who allege a Title
VII disparate disciplinary treatment claim, and who cannot identify a comparator who
engaged in similar conduct, but was subjected to less severe disciplinary measures.
Instead, close attention to the underlying facts of the Smith case illustrates that its
holding applies in a more limited scope.
The plaintiff in Smith was a Caucasian male who had worked as a supervisor
at the Lockheed-Martin Aeronautics Company plant in Marietta, Georgia. He had
received a "racially insensitive 'joke' email" entitled "Top Ten Reasons Why There
are No Black NASCAR Drivers" (the "NASCAR email"),149 and had forwarded the

For example, the email stated that there are no blacks in NASCAR racing because a
"[p]istol won't stay under the front seat," and because there is "[n]o passenger seat for the ho."
Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1324 (11 th Cir. 2011) (alterations in original).
149

66

email to his supervisor without reporting it to the company's Human Resources
Department. Following an investigation, Lockheed-Martin fired the plaintiff for
violating the company's zero tolerance policy prohibiting workplace discrimination
and harassment. 150 The plaintiff then commenced a "reverse discrimination" suit
under Title VII and § 1981, alleging that his former employer had discriminated
against him because ofhis race when terminating his employment. In support ofthat
claim, the plaintiff presented evidence of two African-American non-supervisory
employees at the Marietta plant who also had violated Lockheed's zero tolerance
policy by transmitting "racially insensitive" emails entitled "How to Dance Like a
White Guy" (the "White Guy Video"),151 but who had only been suspended for their
150 Lockheed's "zero tolerance policy" was designed to provide notice to employees that the
company's Human Resources department would discipline anyone who, while in the workplace,

engages in an act of discriminatory "harassment based on a legally protected status
such as race . . . when it has the effect of unreasonably interfering with an
individual's work performance or creating an intimidating, hostile or offensive work
environment." This includes using Lockheed email accounts "in ways that are
disruptive, abusive, obscene, or degrading, or offensive to others," such as the
distribution or "transmission ofethnic slurs or racial comments."
Smith, 644 F.3d at 1323 (emphasis in original, footnotes omitted). One of the omitted footnotes

stated that: "Discriminatory harassment is defined under the zero tolerance policy to include an
employee's use of 'racial slurs, ethnic jokes, sexual or lewd jokes, negative or derogatory
stereotypes, names, or labels that a reasonable person would find offensive. '" Id at 1323 n.2.
The White Guy Video "made various derogatory references about whites, referring to them
as 'cracker[s],' 'white[ies],' 'honk[ies],' and 'homo[s ].'" Id at 1338 (alterations in original, footnote
omitted). The omitted footnote observed that "[t]he video also contained sexually explicit references
to masturbation and female genitalia and portrayed Adolf Hitler." Id at 1338 n.63. It also is
significant to note that Lockheed did not argue that there was "any material difference in the level
of racial offensiveness between the White Guy Video and the NASCAR email." Id at 1338 n.62.
151

67

conduct, as opposed to terminated. The district court, however, found that the
non-supervisory African-American employees were not "similarly situated" to the
plaintiff, who had worked as a supervisor, and entered summary judgment in favor
of Lockheed-Martin.
On appeal, Judge Tjoflat's opinion for the Eleventh Circuit panel[152] agreed
with the district court that the plaintiff had not presented valid comparator
evidence,153 but nevertheless reversed the district court's grant ofsummary judgment,
saying that the facts of the "reverse discrimination" claim lodged by the white
plaintiff in Smith had to be viewed against the backdrop of a racially-motivated,
workplace shooting that had occurred in 2003 at the Lockheed-Martin Aeronautics

152 In addition to Judge Gerald Bard Tjoi1at, the panel consisted of Judge Edward E. Carnes
and Judge Thomas M. Reavley of the Fifth Circuit Court of Appeals, sitting by designation.
153 Indeed, nowhere in the Smith Court's lengthy decision is there any reference to the
Circuit's decision in Maniccia v. Brown, 171 F.3d 1364 (1Ith Cir. 1999), holding that, when
deciding whether employees are "similarly situated comparators," district courts should "consider
whether the employees are 'involved in or accused ofthe same or similar conduct and are disciplined
in different ways.'" Id. at 1368 (quoting Jones v. Bessemer Carraway}vfed. Ctr., 137 F.3d 1306,
1311 (11 th Cir.), opinion modified by 151 F.3d 1321 (1998) (in turn quoting Holifield v. Reno, 115
F.3d 1555, 1562 (1Ith Cir.l997)) (emphasis supplied).

"The most important factors in the disciplinary context are the nature ofthe offenses
committed and the nature of the punishments imposed." [Jones, 137 F.3d at 1311]
(internal quotations and citations omitted). We require that the quantity and quality
of the comparator's misconduct be nearly identical to prevent courts from
second-guessing employers' reasonable decisions and confusing apples with oranges.
Manieeia, 171 F.3d at 1368 (alteration supplied) (citing Dartmouth Review v. 1369 Dartmouth
College, 889 F.2d 13, 19 (1 st Cir. 1989) ("Exact correlation is neither likely nor necessary, but the
cases must be fair congeners. In other words, apples should be compared to apples.")).

68

Company plant in Meridian, Mississippi. The gunman in that incident was a white
employee who had repeatedly harassed his black coworkers and publicized his white
supremacist views while working at the Meridian plant. He shot and killed five
coworkers and wounded eight others before taking his own life. See id. at 1329 &
n.26. In the wake of that horrific incident, some groups, including national news
media outlets and the plaintiffs in various civil suits brought by victims and the
personal representatives of the estates of deceased victims, "began to blame the
shootings on company HR officials, claiming that those officials knew of [the
gunman's] racist propensities long before the shootings transpired, but did little to
curb his harassing ways." Id. (alteration supplied).
On the heels of several of the initial civil lawsuits, the EEOC, in
July 2004, made similar allegations against Lockheed HR officials.
Following an investigation into the Meridian shootings, the EEOC
prepared a report that expressly faulted Lockheed's HR for having
fostered a workplace environment in Meridian that was hostile to black
employees. While the EEOC acknowledged that [the racist gunman],
alone, had created a racially hostile work environment through his
threatening comments to black coworkers, its investigation concluded
that Lockheed had allowed this hostility to intensify by not adequately
responding to these known race-based threats. Moreover, the EEOC
suggested, such hostility toward black employees still festered over a
year after the shootings, as HR had yet to remedy it.

Then, in the spring of 2005, less than a year after the EEOC
issued its report and while many of the civil cases remained ongoing,
69

Lockheed learned that ABC News planned to produce a report
commemorating the second anniversary ofthe Meridian shootings. The
special report was to be aired on the network's investigatory-news
magazine show, "Primetime Live."

ld. at 1330. Thus, facing civil liability and negative national publicity, the company's
Human Resources Department began what could be described as a campaign ofracial
"overcompensation." That was especially apparent in the varying ways in which
white, as opposed to black, employees were disciplined.
It was in the midst of that tense atmosphere that the white male supervisory
plaintiff in Smith forwarded the racially insensitive "joke email" to his supervisor.

ld. at 1324. Lockheed's HR department created a "matrix" to determine the
appropriate disciplinary action for each employee who had transmitted the NASCAR
email.

[d. at 1336.

That matrix notably "included a column reflecting each

employee's race," in which the employer wrote the letter "W" to denote "white," or
"B" to denote "black." ld. In May of2005, the plaintiffwas terminated for violating
the company's "zero-tolerance policy" for discrimination. ld. Four other white

employees who held non-supervisory positions also were terminatedfor transmitting
the NASCAR email.Seeid.at1332-33. 1341. A few months later, when the "White
Guy Video" was transmitted by company employees, including several black nonsupervisory employees, Lockheed's HR Department once again formulated a matrix

70

to determine the appropriate level of discipline. Smith, 644 F.3d at 1338-39. This
time, however, the matrix "did not include a notation for employee race." Id. The
employees who had forwarded the White Guy video were not terminated pursuant to
Lockheed's "zero tolerance" policy, but were, instead, subjected to temporary
suspensions. Id.
The Eleventh Circuit reversed the district court's entry of summary judgment
in favor of Lockheed-Martin after determining that the distinction between non­
supervisory and supervisory employees should not have prevented the plaintiff from

surviving summary judgment when that distinction was viewed in conjunction with
the substantial circumstantial evidence indicating thatthe employer had discriminated
against the plaintiff because he was white. Id. at 1328. Specifically, the Eleventh
Circuit opinion stated that the "great discrepancies in the punishments received by the
white non-supervisors . . . in contrast to their black peers, yields a reasonable
inference that, in the summer of 2005, [Lockheed's Head of HR] intentionally
discriminated against them because they are white." Smith, 644 F .3d at 1343 (ellipsis
and alteration supplied).
When the Smith opinion is viewed in context, therefore, it is clear that the
"convincing mosaic of circumstantial evidence" that was present there is not present
in this case. There is no evidence that the Lawrence County Commission engaged in
71

a pattern of disciplinary discrimination based upon an employee's gender, and
plaintiffhas not identified (nor alleged that there were) any instances in which female
employees were disciplined more severely than male employees. Accordingly, the
court concludes that this is not a case to which the narrow holding of Smith should
apply.
There is no other circumstantial evidence ofgender-based discrimination in this
record. Thus, plaintiffs failure to produce evidence of a comparator is fatal to her
claim of disparate disciplinary treatment based on the Commission's suspension of
her employment without pay for twenty work days. See Smith, 644 F.3d at 1327-28
("If the record contained no circumstantial evidence from which a jury could
otherwise infer that [the plaintiff] was fired because ofhis race, our discussion would
end here, and we would affirm the district court's judgment.") (alterations supplied,
footnotes omitted); see also Abel, 210 F.3d at 1339 ("Absent some other similarly
situated but differently disciplined worker, there can be no disparate treatment.").
B.

Demotion to Position of Deputy EMA Director

There are four prima facie elements to a claim that a plaintiffs demotion,
allegedly for work-related misconduct, violated Title VII.

The plaintiff must

demonstrate that: she is a member of a class ofpersons protected by Title VII (in this
case, a female); the demotion was a "tangible" adverse employment action; she was
72

qualified to perform the duties ofthe job position from which she was demoted; and,
finally, that she was either (a) replaced by a person outside her protected class, or (b)
that similarly situated employees who were not members of her protected class
engaged in nearly identical misconduct, but were not demoted. See, e.g., Alexander
v. Fulton County, 207 F.3d 1303, 1336 (l1th Cir. 2000); Lathem v. Department of

Children and Youth Services, 172 F.3d 786, 792 (11 th Cir. 1999); Jones v. Bessemer
Carraway Medical Center, 137 F .3d 1306, 1311 n.6 (11 th Cir. 1998); Holifield v.
Reno, 115 F.3d 1555, 1562 (lIth Cir. 1997).
Plaintiff can satisfY the first three elements of a prima facie case, but not the
fourth. When plaintiff was demoted to her former position ofDeputy EMA Director,
she was replaced in the position of "Acting EMA Director" by another female:
Tammy Vinson. Further, plaintiffhas not produced evidence ofany male comparator
who engaged in conduct similar to that discussed in Parts IILG. through IILJ. ofthis
Opinion, supra, but was not demoted. Finally, as discussed in the immediately
preceding Part of this Opinion, plaintiff has not presented a "convincing mosaic of
circumstantial evidence" ofgender discrimination, such that she is entitled to survive
summary judgment under the narrow holding ofSmith v. Lockheed-Martin Corp., 644
F.3d 1321 (11th Cir. 2011). Accordingly, plaintiff has failed to demonstrate aprima

facie case of gender discrimination in the Commission's act of demoting her from
73

Acting EMA Director to her previous position of Deputy EMA Director.
C.

Termination by Elimination of the Deputy EMA Director Position

Generally speaking, "[a]n employee establishes a prima facie case of
discrimination in termination when the employee shows (l) membership in a
protected class, (2) qualification for the position held, (3) termination, and (4)
replacement with a person outside the protected class." Walker v. NationsBank, N.A.,
53 F.3d 1548, 1556 (11th Cir. 1995)(citing Rollins v. TechSouth, Inc., 833 F.2d 1525,
1532 n.14 (11th Cir. 1987)) (alteration supplied).
However, in cases where the employee was discharged as part of a purported
"reduction in force"

or, as in the present case, the position occupied by the

plaintiff was eliminated

~

and the plaintiff was not replaced by any person, the

plaintiff
may establish a prima facie case of discrimination by (l) showing that
[s]he was a member of a protected group and was adversely affected by
an employment decision; (2) proving that [s]he was qualified for [her]
own position or to assume another position at the time ofthe discharge;
and (3) producing sufficient evidence from which a rational fact finder
could conclude that [her] employer intended to discriminate against
[her] in making the discharge decision.
Standard v. A.B.E.L. Services, 161 F .3d 1318, 1331 (11 th Cir. 1998) (citing Benson
v. Tocco,

Inc., 113 F.3d 1203,1208 (lith Cir. 1997)) (alterations supplied).

It is undisputed that plaintiff, a female, was a member of a class of persons

74

protected by Title VII. Defendant denies the second element, that plaintiff was
qualified to serve as either Deputy Director or Director ofthe EMA office. Even so,
numerous facts support plaintiffs qualifications:

e.g., (a) Hillard Frost, the

incumbent Director who had worked with and supervised plaintiff for almost a
decade, recommended that the Commission select her to succeed him as EMA
Director; (b) Commissioner Mose Jones testified that plaintiff was "definitely
qualified" to serve as EMA Director; 154 (c) plaintiff had served as Deputy Director for
nine years,155 and had effectively performed the duties oj the EMA Director during
the final three years of Hillard Frost's tenure; 156 (d) numerous letters recommending
plaintiffs sel ecti on for the EMA Director positi on were submitted to the Commissi on
by other EMA Directors around the State; ( e) plaintiff had earned 250 hours of
"Advance Level Emergency Management Re-Certification"; and (f) plaintiff had
worked for the Commission for twenty-four years. In light ofthe foregoing, this court
finds that plaintiff was "qualified" for the Deputy Director position.
With regard to the last prima facie element, however, plaintiff has presented
no evidence from which a reasonable jury could conclude that the Commission
intended to discriminate against her on the basis ofher gender when it eliminated the
154

Doc. no. 37-1 (Jones Deposition), at 26.

155

See doc. no. 34-2 (Brenda Morgan Resume), at ECF 3.

156 See doc. no. 28-2 (Burch Deposition), at 92 ("Everybody knew that Brenda has been doing

Hillard's job for the last three years.").

75

Deputy EMA Director position.
As an initial matter, plaintiffs brief in opposition to summary judgment
misleadingly states that: "(1) she was in a protected class as a female; (2) she was
qualified to perform the job [of Deputy EMA Director]; and (3) she was terminated;
and (4) Cantrell, a male, took over her job as EMA Director."IS7 Even though
plaintiff never officially occupied the position of "EMA Director," she effectively
performed many of Hillard Frost's duties as Director during the final three years of
his tenure. IS8 She also served for a briefperiod as "Acting EMA Director." Even so,
when plaintiff was demoted on October 8, 2013 to her former position of Deputy
EMA Director, it was Tammy Vinson

not Johnny Cantrell

who replaced her as

Acting EMA Director. 159 Cantrell was not hired as permanent EMA Director until
December 23, 2013: twenty days after the termination of plaintiff s employment by
elimination of the Deputy EMA Director position. 160 Stated differently, there was no
direct transition of power over the EMA Director position

on paper, or in practice

from plaintiff to Cantrell. Rather, the transition was from Frost to plaintiff to

157 Doc. no. 32 (Plaintiff's Response in Opposition to Summary Judgment), at 26 (alteration
and emphasis supplied).
158

Doc. no. 28-2 (Burch Deposition), at 92.

See doc. no. 28-5, atECF 17 (Oct. 8,2013 Minutes) (stating that Tammy Vinson had been
"appointed as acting Director of Lawrence County Emergency Management Agency until further
notice").
159

160

See doc. no. 28-2 (Burch Deposition), at 164.

76

Vinson to Cantrell. Plaintiff, therefore, cannot establish that she was replaced by
someone outside of her protected class.
Moreover, plaintiff does not allege that any of the Commissioners made any
gender-related comments regarding the elimination of the Deputy EMA Director
position.

Finally, she does not allege that the position of Deputy Director

subsequently was reinstated, and filled with a male candidate.
For all of the foregoing reasons, plaintiff cannot establish a prima facie case
of gender discrimination when the Commission terminated her employment by
eliminating the Deputy EMA Director position.

D.

Failure to Hire Plaintiff as Permanent EMA Director
To establish a prima facie case of gender discrimination for failure to hire,

plaintiff must show that: she is a female, a classification protected by Title VII; she
applied for, and was qualified to fill, the position for which the defendant was
accepting applications; despite her qualifications, she was not hired; and, after her
rejection, the employer filled the position with a male, a person outside plaintiffs
protected class. See, e.g., Texas Department ofCommunity 4ffairs v. Burdine, 450
U.S. 248,258-59 (1981); McDonnell Douglas Corp., 411 U.S. at 802 (failure to hire
based on plaintiffs race); Schoenfeldv. Babbitt, 168 F.3d 1257, 1267, 1268 (1Ith Cir.
1999) (failure to hire based on white male applicant's race and gender); Walker, 158
77

F .3d at 1179 n.2, 1185-93 (explaining that a plaintiff need not introduce evidence of
the relative qualification of the person hired instead of plaintiff as part of his prima
facie case for failure to promote); Crawford v. Western Electric Company, Inc., 614
F.2d 1300,1315 (5thCir. 1980).161
The only disputed element is plaintif:fs qualification for the Director position.
For the reasons outlined in the immediately preceding Part ofthis Opinion, the court
finds that plaintiff was qualified to serve as permanent EMA Director. Therefore, she
has established a prima facie case.
The defendant asserts two nondiscriminatory reasons for rejecting plaintif:fs
application, and selecting Johnny Cantrell instead: the Commission believed Cantrell
was the most qualified candidate, because he held a college degree, possessed "more
overall experience in the emergency management field than Plaintiff," had served in
the United States Air Force, and articulated innovative ideas for improving the
County's financial health during his interviews; and, plaintif:fs behavior while
serving as Acting EMA Director did not reflect well upon her ability to serve as
permanent Director. 162
As the Eleventh Circuit observed in a frequently-cited opinion, Combs v.
In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (lith Cir. 1981) (en bane), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions handed down prior to the
close of business on September 30, 1981.
161

162

See doc. no. 27 (Defendant's Brief in Support of Summary Judgment), at 22-23.

78

Plantation Patterns, Meadowcrajt, Inc., 106 F.3d 1519 (11th Cir. 1997):

When deciding a motion by the defendant for judgment as a
matter of law in a discrimination [or retaliation] case in which the
defendant has proffered nondiscriminatory reasons for its actions, the
district court's task is a highly focused one. The district court must, in
view of all the evidence, determine whether the plaintiff has cast
sufficient doubt on the defendant's proffered nondiscriminatory reasons
to permit a reasonable factfinder to conclude that the employer's
proffered "legitimate reasons were not what actually motivated its
conduct," Cooper-Houston v. Southern Ry. Co., 37 F.3d 603, 605 (11 th
Cir. 1994 ) (citation omitted). The district court must evaluate whether
the plaintiff has demonstrated "such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer's
proffered legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence." Sheridan [v. E.I. DuPont de
Nemours and Co., 100 F.3d [1061,] 1072 [(3d Cir. 1996)] (citation and
internal quotation marks omitted); see also Walker, 53 F.3d at 1564
(Johnson, J., concurring) (discussing methods of proving pretext).
However, once the district court determines that a reasonable jury could
conclude that the employer's proffered reasons were not the real reason
for its decision, the court may not preempt the jury's role ofdetermining
whether to draw an inference of intentional discrimination from the
plaintiffs prima facie case taken together with rejection of the
employer's explanations for its action. At that point, judgment as a
matter of law is unavailable.
Combs, 106 F.3d at 1538 (alterations supplied). See also Hulbert v. St. Mary's
Health Care System, Inc., 439 F.3d 1286, 1298 (1Ith Cir. 2006) (citing Wascura v.
City o/South Miami, 257 F.3d 1238, 1245-46 (lIth Cir. 2001)).

In order to survive summary judgment, plaintiff must persuade this court that
both oj the reasons stated by defendant as the basis for its decision to prefer Johnny

79

Cantrell over plaintiff were merely pretexts for unlawful gender discrimination. See

Chapman v. Al Transport, 229 F.3d 1012,1037 (lIth Cir. 2000) ("In order to avoid
summary judgment, a plaintiff must produce sufficient evidence for a reasonable
factfinder to conclude that each oj the employer's proffered nondiscriminatory
reasons is pretextual.") (emphasis supplied).
Moreover, Title VII requires a showing that "some illegal, discriminatory

intent as opposed to purely personal or otherwise non-prohibited animus truly
motivated the personnel involved" in the adverse employment decision. Abel,210
at 1339 (emphasis supplied).
Plaintiff attempts to prove pretext in four ways. First, she states that her acts
of misconduct cannot be used to prove that she was not "qualified.,,163 The question
of whether plainti ff was qualified to serve as EMA Director -

and this court found

in Part V.C. ofthis Opinion, supra, that she was qualified for the position - does not
inform her ability to demonstrate pretext, but only her ability to establish a prima

facie case. 164
Second, plaintiff states that some of the criteria upon which the Commission
based its selection of Cantrell were not requirements set forth in the EMA Director
163

Doc. no. 32 (Plaintiff's Response in Opposition to Summary Judgment), at 23-24.

If plaintiff is trying to suggest that it was unreasonable for the Commission to believe that
Johnny Cantrell was more qualified, the court does not agree. See the discussion in Part III.X ofthis
Opinion, supra.
164

80

job listing. 165 The only authority cited by plaintiff in support of her contention that
such conduct evinces pretext is the following statement by the Middle District of
Alabama in an unpublished opinion:
It may be that under different facts, not currently before the court, this

court would agree that a plaintiff may establish pretext where an
employer relies on a qualification that was not listed in the position
announcement, such as a case in which the successful applicant also has
a deficiency in the minimal requirements.

Marshall v. Daleville City Board ofEducation, No.1 :05-cv-386-WHA, 2006 WL
2056581, at *24 (M.D. Ala. July 24, 2006) (emphasis supplied). That statement
merely is dicta within nonbinding authority. Moreover, the scenario contemplated
by that court

i.e., a "case in which the successful applicant also has a deficiency

in the minimal requirements" - cannot be said to apply to Johnny Cantrell, who had
worked for the Morgan County EMA longer than plaintiff had worked in the
Lawrence County EMA office, and gained experience handling emergency situations
while serving in the military.

He also articulated innovative ideas during his

interviews, which, the Commission concluded, would manifest in effective EMA
leadership, greater efficiency of the County's telephone and computer systems, and
the County's receipt of federal grant money during a time when the County suffered

165 See doc. no. 32 (Plaintiffs Response in Opposition to Summary Judgment), at 24. See
doc. no. 28-17 (EMA Director Job Description), at ECF 4-5 ("Knowledge, Skills and Abilities,"
"Physical Characteristics," and "Other Characteristics").

81

from a reduction in revenue. It cannot be said that Cantrell did not meet the minimal
requirements for the position, or that the Commission fabricated irrelevant job
requirements in order to place Cantrell in the position.
Third, plaintiff argues that, because she was "at least as qualified" as Cantrell,
she should have been "given preference" in accordance with the County Personnel
Handbook. 166 Plaintiff did not specify the Handbook provision upon which she
relied. Even so, this court reviewed the entire sixty-page Handbook, and found one
provision that appears to support plaintiff s contention.
4.1.4. Employee Consideration. When a vacancy occurs in the
classified or part-time service, all employees, regardless of their
category and status ofservice, may apply for the vacancy. All employee
applicants will be evaluated and ranked based upon their job-related
qualifications. The names ofqualified employees will be integrated into
the established eligibility list for the vacancy in accordance with these
procedures and guidelines (Chapter 5). Normally, preference will be
given to qualified regular status classified employees; however, an
appointing authority will have the right to select an applicant who is not
an employee, if that person is considered to be the best qualified.
Doc. no. 34-1 (Personnel Handbook), at ECF 18 (emphasis supplied). Notably, the
emphasized portion of that provision, prefaced as it is with the qualifying adverb
"[n]ormally," does not compel the Commission to reject external candidates (like
Johnny Cantrell) in favor of internal employees (like plaintiff). To the contrary, the
provision explicitly authorizes an appointing authority to hire an external candidate,
166

Doc. no. 32 (Plaintiffs Response in Opposition to Summary Judgment), at 24.

82

"if that person is considered to be the best qualified." Plaintiff has presented no
evidence indicating that the Commission did not consider Johnny Cantrell to be the
best qualified candidate for the position of permanent EMA Director.
Finally, plaintiff asserts pretext based upon the Commission's failure to follow
the normal hiring policy of having the entire Commission interview candidates,
because only Commission Chairman Prentis Davis, Commissioner Bobby Burch, and
Interim County Administrator Tricia Galbreath conducted plaintiff s first interview
for the EMA Director position. 167 The Eleventh Circuit has acknowledged that an
employer's failure to follow its own policies "may be suggestive of discrimination."
Morrison v. Booth, 763 F.2d 1366, 1374 (11th Cir. 1985) (emphasis supplied). Even

so, plaintiffhas not demonstrated that the Commission's failure to follow the alleged
"policy" prejudiced her, because she has neither argued, nor presented evidence
showing, that Johnny Cantrell was interviewed by the entire Commission during his
first interview.
interviews

In fact, Commissioner Burch testified that the first round of

during which both plaintiff and Cantrell were interviewed -

were

conducted only by himself, Prentis Davis, and Tricia Galbreath. l68
In summary, none ofplaintiffs arguments demonstrate that the Commission's

at 25; doc. no. 1 (Complaint), 'j[16. Plaintiff does not cite to this policy in the
Personnel Handbook.
167Id.

168

See doc. no. 28-2 (Burch Deposition), at 74-76.

83

stated reasons for failing to select her as EMA Director were merely a pretext for
unlawful gender discrimination. Because she cannot show that any of the contested
employment decisions were the result of prohibited gender bias, summary judgment
is due to be granted in favor of the Commission on plaintiffs Title VII claim.

VI. AGE DISCRIMINATION CLAIMS
Plaintiff also asserts claims of age discrimination under the federal Age
Discrimination in Employment Act of 1967,29 U.S.C. § 623(a)(l) ("ADEA"),169 as
well as the Alabama Age Discrimination in Employment Act, Ala. Code § 25-1-20
(1975) ("AADEA,,).170 Another judge in this District held in Henry v. Jefferson

County Personnel Board, 519 F. Supp. 2d 1171 (N.D. Ala. 2007) (Proctor, J.), that
a plaintiff could not simultaneously pursue claims under both the ADEA and
AADEA:
The Alabama Age Act plainly states that it is a statute ofalternative, not
duplicative, relief. "The starting point for all statutory interpretation is
the language of the statute itself." United States v. DBB, Inc., 180 F.3d
1277,1281 (lIth Cir. 1999). The Alabama Age Act provides that
plaintiffs "may elect to pursue their remedies under Title VII ... and the
Age Discrimination in Employment Act, 29 U.S.C. § 621 or in the
See doc. no. 1 (Complaint), ~~ 59-71; see also doc. no. 51-2 (EEOC Charge of Age
Discrimination), at ECF 2. 29 U.S.c. § 623 (a)(1 ) provides that it is unlawful for an employer "to
fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual
with respect to his compensation, tenns, conditions, or privileges of employment, because of such
individual's age." The prohibitions of the Age Discrimination in Employment Act are "limited to
individuals who are at least 40 years of age." 29 U.S.C. § 631 (a).
169

170

See doc. no. 1 (Complaint), '1~ 72-77.

84

alternative bring a civil action in the circuit court ofthe county in which
the person was or is employed." Ala. Code § 25-1-29 (1975) (emphasis
added). [171] The Alabama Age Act clearly entitles a plaintiff to only "one
recovery of damages." Ala. Code § 25-1-29 (1975). Because the plain
language ofthe Alabama Age Act forces a plaintiff to choose either suit
under the ADEA or, in the alternative, suit under the Alabama Age Act,
and because Plaintiff in this case has filed suit under the ADEA, the
court finds that Plaintiff's claim under the Alabama Age Act is
duplicative. Having determined that Plaintiff may only pursue her
federal ADEA claim in this case, the court turns to the substantive
analysis of that claim.[ln]
Henry, 519 F. Supp. 2d at 1185-86 (ellipsis supplied, emphasis and footnotes in
original), aff'd, 252 F. App'x 308 (11 th Cir. 2007). This court finds the rationale of

171

Section 25-1-29 provides, in its entirety:

Any person aggrieved may elect to pursue their remedies under Title VII of
the Civil Rights Act of 1964 as amended, and the Age Discrimination in Employment
Act 29 U.S.C. Section 621 or in the alternative bring a civil action in the circuit court
of the county in which the person was or is employed for such legal or equitable
relief as will effectuate the purposes of this article. However, if an action is brought
in the federal court, any action pending in the state court shall be simultaneously
dismissed with prejudice. Further, any party bringing action under this section shall
only be entitled to one recovery ofdamages. Any damages assessed in one court will
offset any entitlement to damages in any other state or federal court. In any action,
a person shall be entitled to a trial by jury of any issue of fact in any action for
recovery of amounts owed as a result of a violation of this article, regardless of
whether equitable relief is sought by any party in the action. Any employment
practice authorized by the federal Age Discrimination in Employment Act shall also
be authorized by this article and the remedies, defenses, and statutes of limitations,
under this article shall be the same as those authorized by the federal Age
Discrimination in Employment Act except that a plaintiff shall not be required to
pursue any administrative action or remedy prior to filing suit under this article.
Ala. Code § 25-1-29 (1975).
172 In any event, the court notes that the analysis ofPlaintiff' s claims under the Alabama Age
Act and the ADEA is the same. See, e.g., Bonham v. Mortgage, Inc., 129 F. Supp. 2d 1315 (M.D.
Ala. 2001).

85

the Henry opinion to be persuasive, and holds that plaintiff's AADEA claim is due
to be dismissed as duplicative.
In cases based upon the federal ADEA statute, the plaintiff has the ultimate
burden of proving that age was a determinative factor in the employer's adverse
employment decision.
When a plaintiff alleges disparate treatment, "liability depends on
whether the protected trait (under the ADEA, age) actually motivated
the employer's decision." Hazen Paper Co. v. Biggins, 507 U.S. 604,
610, 113 S. Ct. 1701,123 L. Ed. 2d 338 (1993). That is, the plaintiff's
age must have "actually played a role in [the employer's
decisionmaking] process and had a determinative influence on the
outcome." Ibid.
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141 (2000) (alteration

in original) (emphasis supplied).
A plaintiff may prove an employer's intention to discriminate on the basis of
age in three ways: i. e., "by direct evidence of discriminatory intent; by meeting the
test originally set out for Title VII cases in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973); or by statistical proof of a pattern of discrimination." Verbraeken
v. Westinghouse Electric Corp., 881 F .2d 1041, 1045 (11 th Cir. 1989); see also, e.g.,

Alphin v. Sears, Roebuck & Company, 940 F .2d 1497, 1500 (1Ith Cir. 1991 ) (same);
Earley v. Champion Int'l. Corp., 907 F.2d 1077,1081 (lIth Cir.1990) (same).

Plaintiff has not presented, nor does she allege that there is, direct evidence of age
86

discrimination. 173

She also has not offered statistical proof of a pattern of

discrimination on the basis of age. Accordingly, she must support her claims with
circumstantial evidence in accordance with the burden-shifting framework initially
developed for use in Title VII cases by the Supreme Court's opinion in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973).174
A.

Disparate Disciplinary Treatment
There are four elements of a prima facie claim for discriminatory discipline

based upon the plaintiffsage: (1) the plaintiff must show that she was a member of
173 "Only the most blatant remarks, whose intent could only be to discriminate on the basis
of age constitute direct evidence." Clark v. Coats & Clark, Inc., 990 F.2d 1217, 1226 (lIth Cir.
1992).

Even though the McDonnell Douglas opinion and its progeny - e.g., St. 1'vfary's Honor
Center v. Hicks, 509 U.S. (1993), and Texas Department ofCommunity AfJairs v. Burdine, 450 U.S.
248 (1981) involved discrimination claims under Title VII, a variant ofthe analysis also has been
consistently applied to claims based upon the ADEA. See Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 141-42 (2000) (noting widespread use of McDonnell Douglas framework to
analyze age-discrimination claims based upon circumstantial evidence, and assuming, but not
holding, that it applies to ADEA claims) (citing 0 'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308, 311 (l996) (assuming that l\1cDonnell Douglas analytical framework applies to ADEA
claims based on circumstantial proofs)). See also, e.g., Chapman v. AI Transport, 229 F.3d 1012,
1024 (lith Cir. 2000) (en banc) (same); Bogle v. Orange County Board ofCounty Commissioners,
162 F.3d 653, 656 (lIth Cir. 1998) ("Since Bogle has presented no direct evidence that Orange
County discharged him because of his age and relied, instead, on circumstantial evidence, the
burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, ..., governs his ADEA
case.") (ellipsis supplied); Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11 th Cir. 1998)
(applying McDonnell Douglas framework in an ADEA case); Mitchell v. Worldwide Underwriters
Ins. Co., 967 F.2d 565, 566 (lith Cir. 1992)(same); Alphin v. Sears, Roebuck & Co., 940 F.2d 1497,
1500 (lith Cir. 1991) (same); Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 (lith Cir. 1987)
("This court applies a slightly modified version of the test set forth in McDonnell Douglas Corp. v.
Green" when evaluating the strength of circumstantial evidence to prove a prima facie case of age
discrimination.). See also, e.g., Gross v. FBLFinancial Services, Inc., 557U.S. 167, 175 n.2 (2009);
Childress v. Caterpillar Logistics Services, Inc., No. 09-12772, 2010 WL 827907, at *1 n.3 (11 th
Cir. Mar. 11, 2010).
174

87

the class of persons protected by the ADEA -

i.e., that she was at least forty years

of age on the date discipline was imposed; 175 (2) she was qualified to perform the
duties of her job; (3) she was subjected to a tangible adverse disciplinary sanction

(e.g., suspended without pay for twenty work days); and (4) the employer treated
similarly-situated employees who were either less than forty years of age, or
"substantially younger" than plaintiff, more favorably. See, e.g., Brooks v. CSX

Transportation, Inc., 555 F. App'x 878,883 (l1th eir. 2014) (listing prima facie
elements of, e.g., ADEA "discriminatory discipline or termination" claim). See also

MacKenzie v. Denver, 414 F.3d 1266, 1277 (10th eir. 2005) ("[T]he requirements of
a prima facie claim of disparate treatment require a plaintiff to produce evidence at
a minimum establishing (1) that she was a member ofthe protected class, (2) she was
disciplined, and (3) she was treated differently than similarly-situated non-protected
employees for the same or similar conduct.") (alteration supplied).

Cf, e.g.,

Maynard. v. Board of Regents, 342 F.3d 1281, 1289 (lIth eir. 2003) (Title VII
racially-discriminatory discipline claim).
When deciding whether employees are similarly situated, district courts are
directed to "consider whether the employees are 'involved in or accused ofthe same

or similar conduct and are disciplined in different ways.'" Brooks, 555 F. App'x at
175

29 U.S.C. § 631 (a) ("The prohibitions in this chapter shall be limited to individuals who
are at least 40 years of age.").

88

883 (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999» (emphasis
supplied). As stated in Part V.A., supra, plaintiff has not identified any other
employee who was involved in, or accused of, similar misconduct. Moreover, for
reasons similar to those discussed in the same Part of this Opinion, she cannot
sidestep her obligation ofproducing a comparator under the narrow holding ofSmith
v.

Lockheed-Martin Corp., 644 F.3d 1321 (l1th Cir. 2011). As is the case regarding

her claim of gender discrimination, there is no "convincing mosaic of circumstantial
evidence" that she was discriminated against on the basis of her age. Accordingly,
she cannot establish a primafacie case ofdiscriminatory discipline under the ADEA.
B.

Demotion to Plaintiff's Former Position of Deputy EMA Director

When a demotion is the adverse action complained of, a plaintiff may establish
a prima facie case by showing that (1) she was at least forty years of age, (2) she was
demoted, (3) she was qualified to perform the duties of the job from which she was
demoted, and (4) a substantially younger person was placed in or promoted into her
former position. See, e.g., Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432
(11 th Cir. 1997) (discussing prima facie elements in the context of "an ADEA case
involving discharge, demotion, or failure to hire") (citing, e.g.,

a 'Connor

v.

Consolidated Coin Caterers Corp., 517 U.S. 308, 313 (1996) (stating that an ADEA
plaintiff must show that he was replaced by someone "substantially younger," not
89

necessarily by someone under age 40)). Indeed, an ADEA disparate treatment claim
is not like a Title VII race or sex discrimination claim, because
the plaintiff in an age discrimination case need not necessarily prove
that his replacement was outside the protected class, that is, under forty
years of age. The plaintiff in an age discrimination case may establish
a prima facie case merely by establishing that his replacement was
younger than he, provided that the discrepancy between the ages, along
with any other relevant evidence, is sufficient that a fact finder could
reasonably infer age discrimination.
Corbin v. Southerland International Trucks, 25 F.3d 1545, 1549 (lIth Cir. 1994).

Plaintiff, who was fifty-two years of age on the date she was demoted to her
former position of Deputy EMA Director, was a member of the group of persons
protected by the ADEA. She also was qualified to perform the duties ofActing EMA
Director. 176 Accordingly, it must be determined whether plaintiffs replacement was
"substantially younger" than she.
When plainti ff was demoted, she was replaced as Acting EMA Director by
Tammy Vinson, 177 who was 2 years, 9 months, and 28 days younger than plaintiff. 178
The Eleventh Circuit has held that an age difference of just a few years may be
sufficient to establish that a plaintiff was replaced by someone "substantially
See the discussion in Part V.c., supra (finding that plaintiff was qualified to perfonn
duties of Deputy EMA Director position), and Part V.D., supra (finding that pI aintiff was qualified
to perfonn duties of pennanent EMA Director position).
176

177

See the discussion in Parts IILL. and III.D., supra.

Compare doc. no. 36-1, at ECF 39 (showing plaintiffs date of birth) with doc. no. 59-1
(showing Tammy Vinson's date of birth).
178

90

younger." See, e.g., Damon v. Fleming Supermarkets ofFlorida, Inc., 196F.3d 1354,
1360 (l1 th Cir. 1999) (five-year difference sufficient); Carter v. DecisionOne Corp.,
122 F.3d 997, 1003 (lIth Cir. 1997) (per curiam) (three-year difference sufficient);

Carter v. Miami, 870 F .2d 578, 583 (11 th Cir. 1989) (four-year difference sufficient).
Even so, the Eleventh Circuit offered a message of caution in a recent opinion:
We recognize that we have previously held, in cases where
plaintiffs presented substantial evidence of discriminatory animus
beyond mere age difference, that a smaller age difference was sufficient
to meet the "substantially younger" element of the ADEA prima facie
case. See Damon v. Fleming Supermarkets ofFla. , Inc., 196 F.3d 1354,
1360 (lIth Cir. 1990) (holding that a 37-year-old was "substantially
younger" than a 42-year-old). But we agree with the district court that,
in this case, [the plaintiff] failed to create an inference ofdiscrimination
because a six-year age difference, without more, does not establish that
[the plaintiff's] age was the but-for cause ofthe School Board's failure
to hire him. See 0 'Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308,312, 116 S. Ct. 1307, 134 L. Ed. 2d 433 (1996) ("The prima
facie case requires evidence adequate to create an inference that an
employment decision was based on an illegal discriminatory criterion.").
See also Steele v. United States VA, 2011 U.S. Dist. LEXIS 58200,2011
WL 2160343, at * 10 (M.D. Fla. June 1,2011) (concluding that a 13-year
age difference, without more, is insufficient to meet this standard);
Matthews v. City ofDothan, 2006 U.S. Dist. LEXIS 91711, 2006 WL
3742237 at *12 (M.D. Fla. Dec. 18, 2006) (ruling that six-year age
difference was insufficient to create an inference of age discrimination,
when no other evidence of discriminatory animus was present).

Suarez v. School Board ofHills borough County, Florida, No. 15-12891,2016 WL
212503, at *9 n.l (lIth Cir. Jan. 19,2016) (emphasis and alterations supplied). See

also 0 'Connor, 517 U.S. at 313 (describing the three-year difference between a 68­
91

year-old plaintiff and his 65-year-old replacement as "very thin evidence" of age
discrimination, and stating that an inference of age discrimination "cannot be drawn
from the replacement of one worker with another worker insignificantly younger")
(emphasis supplied).
This court therefore must determine whether, in addition to the almost three­
year age difference between plaintiffand Tammy Vinson, there is substantial evidence

of discriminatory animus. The record contains neither direct nor circumstantial
evidence ofprohibited age bias. Plaintiff testified in her deposition that no one ever
told her that the Commission took any ofthe adverse employment actions against her
on account ofher age. 179 Moreover, there is no evidence that anyone made comments
to plaintiff about her age, or the age of any other employee. Furthermore, there is no
evidence that the Commission was systematically eliminating older employees.
Finally, there is no Eleventh Circuit case holding that an age difference ofless than
three years, without additional evidence ofage discrimination, is sufficient to satisfY
the "substantially younger" element. Accordingly, plaintiff cannot establish a prima
facie case of age discrimination in the Commission's act of demoting her to her

former position of Deputy EMA Director.
C.

Termination by Elimination of the Deputy EMA Director Position

179

Doc. no. 28-1 (Morgan Deposition), at 94.

92

In order to make out a prima facie case for discriminatory termination of
employment under the ADEA, a plaintiff must show that (1) she was a member ofthe
class of persons protected by the Act -

that is, individuals who are at least forty

years of age, 180 (2) she was discharged, (3) she was qualified to perform the duties of
the job from which she was dismissed, and (4) she was replaced by a person who was
either less than forty years of age, or "substantially younger." See, e.g., Reeves v.

Sanderson Plumbing Products, Inc., 530 U.S. 133, 142 (2000); O'Connor v.
Consolidated Coin Caterers Corp., 517 U.S. 308, 311 (l996); Bogle v. Orange
County Board of County Commissioners, 162 F.3d 653, 656-57 (11th Cir. 1998);
Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (lith Cir. 1998); Jameson
v. Arrow Company, 75 F.3d 1528, 1531 (lith Cir. 1996); Benson v. Tocco, Inc., 113

F.3d 1203, 1207-08 (lith Cir. 1997); Elrodv. Sears, Roebuck & Co., 939 F.2d 1466,
1469-70 (11 th Cir. 1991); Earley v. Champion International Corp., 907 F .2d 1077,
1082 (I Ith Cir. 1990); Verbraeken v. Westinghouse Electric Corp., 881 F.2d 1041,
1045 (11th Cir. 1989); Barnes v. Southwest Forest Industries, Inc., 814 F.2d607, 609
(I 1th Cir. 1987).

Plaintiff satisfies the first three elements. Even so, the record does not contain
any evidence that the Deputy Director position was eliminated as a result of
180

29 U.S.C. § 631(a) ("The prohibitions in this chapter shall be limited to individuals who
are at least 40 years of age.").

93

prohibited age bias. Plaintiff testified during her deposition that none ofthe County
Commissioners or their agents ever stated that her position was eliminated as a result
of her age. 181 There also is no evidence that the Commissioners were systematically
eliminating older workers, or took any other actions that demonstrated an age-related
bias. Accordingly, plaintiff cannot establish a prima facie case ofage discrimination
in the elimination of the Deputy EMA Director's position.
D.

Failure to Hire Plaintiff as Permanent EMA Director

Plaintiff also claims that the Commission discriminated against her on the basis
of her age when it rejected her, and selected Johnny Cantrell, to fill the EMA
Director's position vacated by the retirement of Hillard Frost.1 82 When a plaintiff
alleges that an employer failed to hire her because of her age, she must show that (1)
she was a member ofthe class ofpersons protected by the ADEA (that is, individuals
who are at least forty years ofage),183 (2) she was qualified to perform the duties of
the job she sought, (3) she was not hired, and (4) the position was awarded to a
person who was either less than forty years of age, or "substantially younger" than
plaintiff. See) e.g., Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (lIth
Cir. 1998) (citing 0 )Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308
181

See doc. no. 28-1 (Morgan Deposition), at 94.

1S2

Doc. no. 32 (Plaintiff's Response in Opposition to Summary Judgment), at 22.

29 U.S.C. § 631(a) ("The prohibitions in this chapter shall be limited to individuals who

are at least 40 years of age.").
lS3

94

(1996)). Here, the only disputed element is the last: the question of whether Johnny
Cantrell

who was 48 years, 10 months, and 2 days old on the date he was selected

as EMA Director - was "substantially younger" than plaintiff, who was 52 years, 4
months, and 23 days old on the same date. 184 (Stated differently, Cantrell was 3 years,
6 months, and 28 days younger than plaintiff.)
As discussed in the immediately preceding Part of this Opinion, such an age
difference may be sufficient to satisfy the "substantially younger" element. See, e.g.,
Carter v. DecisionOne Corp., 122 F.3d 997, 1001, 1003 (11 th Cir. 1997) (three-year
difference sufficient when considered in conjunction with the decision-maker's

Compare doc. no. 36-1, at ECF 39 (showing plaintiffs date of birth) with doc. no. 35-1,
at ECF 40, and doc. no. 36-1, at ECF 46 (both of which indicate Cantrell's date of birth).
"[R]eplacement by one within the protected category [i.e., over 40 years of age] will not preclude
proof of a prima facie case." Pace v. Southern Railway System, 701 F.2d 1383, 1390 (11 th Cir.
1983) (alterations supplied, emphasis in original). Even so, "in no case does the court hold that as
a matter of law a prima facie case is established if a plaintiff simply shows [she] is in the protected
group, was adversely affected by an employment decision, was qualified and was replaced by one
younger than [herself]." Id at 1390 (alterations supplied). To the contrary, the Eleventh Circuit has
stated:
184

The mere fact that one employee is replaced with another who is younger certainly
does not, without more, give rise to an inference that age was even considered in the
decision to dismiss or demote the first employee. Historical experience does often
lend support to suspicions that replacements of black with whites or women with
men are not coincidental. However, whenever employees are replaced, their
replacements are invariably either older or younger than they are, and the
distinctions are usually unimportant.

Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1443 (1Ith Cir. 1985) (emphasis supplied).
Thus, the plaintiff is not required to prove that she was replaced by someone less than 40 years of
age, but only by someone "substantially younger." 0 'Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 313 (1996).

95

statements (a) that he "had gotten rid of the 'old sleazy people' employed by the
Company when he began running it," and (b) that "it was preferable to have a nubile
young woman making sales calls because a sales prospect might grant her an
interview just to take a look at her"); Carter v. Miami, 870 F.2d 578,580,583 (11 th
Cir. 1989) (four-year difference sufficient where decisionmaker stated that he did not
want his office run by "little old Jewish ladies").
Nevertheless, the Eleventh Circuit also held in a more recent opinion that a six­

year difference in age, without any other evidence of age discrimination, is not
sufficient. See Suarez v. School Board ofHillsborough County, Florida, No. 15­
12891, 2016 WL 212503, at *9 n.1 (1Ith Cir. Jan. 19,2016). In other words, the
question ofwhether a comparator is "substantially younger" than a plaintiff depends
not only upon the numerical difference in age, but also upon the factual context ofthe
case

that is, whether there is other evidence ofdiscrimination on the basis ofage.
There is no evidence in addition to the approximately 3.5-year age difference

between plaintiff and Cantrell, much less substantial evidence, indicating that the
Lawrence County Commissioners took the age disparity into account when selecting
Cantrell, rather than plaintiff, as permanent EMA Director. Plaintiff testified in her
deposition that she had "assume[d]" that Cantrell was "[a]round fortyish" when he
was selected as Director, and that she had based that assumption on "[h]is young
96

children and just conversations that we [i.e., plaintiff and Cantrell] had had and
stuff." 185 When asked what facts made her believe age was the reason she was not
selected as permanent Director "as opposed to something else," plaintiff replied:
"Well, one of the things was I was a 52-year-old female that had applied for the job
and a much, I assumed, younger male had received the job.,,]86 Even so, she testified
that no one ever "ma[de] comments to [her] suggesting that [she] did not get the
position because of [her] age.,,187 Finally, when asked at the end of her deposition
whether there were any reasons not previously discussed as to why plaintiffbelieved
she had been a victim of age discrimination, she replied, "no.,,188
Plaintiff cannot demonstrate any evidence ofage discrimination aside from the
fact that an individual who was about three-and-a-halfyears her junior received the
position for which she had applied. Under the law ofthis Circuit, that age difference,
without more, is not sufficient to satisfY the "substantially younger" element.
Accordingly, plaintiff cannot establish a primafacie case ofage discrimination in the
Commission's failure to hire her as permanent EMA Director.
In light of all ofthe foregoing, plaintiff's claims of age discrimination are due

185

Doc. no. 28-1 (Morgan Deposition), at 87 (alterations supplied).

186Id. at 93-94.

187Id. at 94 (alterations supplied)

188Id. at 157.

97

to be dismissed.

VII. RETALIATION CLAIM
Finally, plaintiff alleges thatthe series ofmaneuvers that effectively terminated
her employment

i. e., (i) she was suspended without pay for twenty work days, and

demoted to her former position of Deputy EMA Director on November 19,2013, (ii)
the Commission voted one week later (on November 26, 2013) to eliminate the
position of Deputy EMA Director as of December 3, 2013, thereby effectively
terminating her employment by eliminating the position she occupied before the end
of her twenty-work-day suspension; 189 and (iii) she was not hired for the permanent
EMA Director position on December 23,2013

were carried out in retaliation for

her act of filing an EEOC charge on November 15,2013. 190
Generally speaking, a plaintiff must prove three elements in order to establish
aprimajacie retaliation claim under any of the federal employment discrimination
statutes: (1) she engaged in statutorily protected expression; (2) she suffered an
adverse employment action; and (3) there was a causal linkage between the protected

189

See the discussion in Part IILW., supra.

190 See doc. no. 32 (Plaintiff's Response in Opposition to Summary Judgment), at 28-30; doc.
no. 28-1 (Morgan Deposition), at 101-02. Plaintiff supplemented her original EEOC charge on
December 5, 2013, with a charge of retaliation, and again on April 24, 2014, with a charge of age
discrimination. See doc. no. 36-1 (EEOC Charge of Sex and Disability Discrimination), at ECF 39;
doc. no. 51-1 (EEOC Charge of Retaliation), at ECF 2-3; doc. no. 51-2 (EEOC Charge of Age
Discrimination), at ECF 2-3.

98

conduct and the adverse employment action.

See, e.g., Shannon v. BellSouth

Telecommunications, Inc., 292 F.3d 712, 715 (1Ith Cir. 2002); Bass v. Board of
County Commissioners, 256 F .3d 1095, 1117 (1Ith Cir. 2001); Johnson v. Booker T.
Washington Broadcasting Service, Inc., 234 F.3d 501, 507 (11 th Cir. 2000).
Once a prima facie case is established, the burden then shifts to the
defendant employer to come forward with legitimate, non-discriminatory
reasons for its actions that negate the inference of retaliation. See
Goldsmith [v. City ofAtmore, 996F.2d [1155], 1163 [(1 IthCir. 1993)].
The plaintiff must then demonstrate that she will be able to establish at
trial that the employer's proffered non-discriminatory reasons are a
pretextual ruse designed to mask retaliation. Cf Isenbergh v. Knight­
Ridder Newspaper Sales, Inc., 97 F.3d 436,440 (1Ith Cir. 1996).
Stewart v. Happy Herman's Cheshire Bridge, 117 F.3d 1278, 1287 (11 th Cir. 1997)
(alterations supplied).
Commission Chairman Prentis Davis hand-delivered a letter to plaintiff on
October 30,2013, notifying her of his intent to terminate her employment for cause,
effective November 5,2013. (See doc. no. 28-15, at ECF 6, and the discussion in
Part III.Q., supra).
Plaintiff filed a charge of discrimination with the Equal Employment
Opportunity Commission on November 15,2013, sixteen days after her receipt of the
October 30th letter described in the preceding paragraph, and ten days after the
November 5th date on which Chairman Davis stated her termination for cause would

99

take effect. 191 The act of filing an EEOC charge clearly constituted "protected
expression." See, e.g., Bass v. Board ofCounty Commissioners oj Orange County,

Florida, 256 F.3d 1095, 1117 (lith Cir. 2001); Gupta v. Florida Board oj Regents,
212 F.3d 571, 587 (lith Cir. 2000).
On November 19, 2013, four days after plaintiff filed her EEOC charge,
Chairman Davis hand-delivered another letter to plaintiff, informing her that: (1) he
had changed his mind, and decreased the sanction for the conduct enumerated in his
letter from termination of employment to suspension without pay for twenty work
days; (2) her temporary appointment as Acting EMA Director had been rescinded by
the Commission's appointment of Tammy Vinson as "Acting EMA Director" on
October 8, 2013; and (3) she had been reassigned to her former position of Deputy
EMA Director. (See doc. no. 28-15, at ECF 8, and the discussion in Parts III.L and

III.U., supra).
On November 26,2013, eleven days after plaintiff filed her EEOC charge, the
Commission abolished the Deputy EMA Director position, and County Attorney
David Martin sent plaintiff a letter notifying her that her employment effectively
would be terminated on December 3,2013. (See doc. no. 37-1, at ECF 44, and the
discussion in Part III.W., supra).

191

Doc. no. 32 (Plaintiff's Response in Opposition to Summary Judgment), at 28.

100

On December 23,2013, thirty-nine days after plaintiff filed her EEOC charge,
the Commission rejected her application for the position of EMA Director, and
selected Johnny Cantrell instead. (See the discussion in Part III.X., supra.)
Thus, plaintiff suffered a series of adverse employment actions after filing her
EEOC charge. The disputed element of plaintiff's prima facie case is whether there
was a causal linkage between plaintiff's protected conduct and the subsequent
adverse employment actions.
The Eleventh Circuit has stated that, "[t]o establish a causal connection, a
plaintiff must show that 'the decision-makers [were] aware ofthe protected conduct,'
and 'that the protected activity and the adverse action were not wholly unrelated. '"
Gupta, 212 F.3d at 590 (quoting Farley v. Nationwide Mutual Insurance Co., 197

F.3d 1322, 1337 (lIth Cir. 1999)) (first alteration supplied, second in original). "For
purposes of a prima facie case, 'close temporal proximity' may be sufficient to show
that the protected activity and the adverse action were not 'wholly unrelated. '"
Gupta, 212 F.3d at 590 (quoting Farley, 197 F.3d at 1337) (emphasis supplied).

Even so, "when an employer contemplates an adverse employment action
before an employee engages in protected activity, temporal proximity between the

protected activity and the subsequent adverse employment action does not suffice to
show causation." Drago v. Jenne, 453 F.3d 1301, 1308 (lIth Cir. 2006) (emphasis
101

supplied). See also Clark County School District v. Breeden, 532 U.S. 268, 272
(2001) (observing that an employer's act of "proceeding along lines previously
contemplated, though not yet definitively determined, is no evidence whatever of
causality").
Defense counsel argued during the motion hearing held on May 18, 2016 that,
because plaintiff's employment with the Lawrence County Commission was fated to
end either way - i.e., regardless ofwhether the mechanism for achieving that result
was plaintiff's termination/or cause, or the elimination o/the position to which she

was demoted/ollowing the events that occurred between September 30 and October
6, 2013 -

plaintiff cannot demonstrate that her act of filing an EEOC charge on

November 15,2013 motivated the Commission to take adverse employment actions
against her after that date.
Moreover, the record suggests that the Commission was contemplating the
elimination of the Deputy EMA Director position at least as early as October 22,
2013,192 more than three weeks before plaintiff filed her EEOC charge.
In response, plaintiff's counsel referenced another case from this district that,
he believes, provides some clarification about the causation principles articulated by
See the discussion in Part III.P., supra, and doc. no. 28-5, at ECF 20 (Oct. 22, 2013
Minutes, recording that: "Commissioner Hargrove made a motion to table the Deputy Director
Classification. Commissioner Jones gave a second and all Commissioners voted aye.").
192

102

the Supreme Court in Breeden, and the Eleventh Circuit in Drago. See Jones v.

Water Works Board, No.2: 10-cv-1323-AKK, 2012 WL 2856651 (N.D. Ala. July 5,
2012) (Kallon, J.).
In Jones, the plaintiff asserted a claim of retaliation under Title VII and 42
U.S.C. § 1981. See id. at *7. The record revealed that the employer's human
resources ("HR") representative recommended, in an email dated June 6, 2008, that
the plaintiff be given a "final warning" for misconduct. fd. at * 13. Three days later,
on June 9, 2008, the plaintiff "complained of discrimination and retaliation" in a
letter to that same HR representative. fd. Then, approximately one month later, on
July 11,2008, plaintiff was fired. fd. The defendant-employer argued, based upon
the holdings in Breeden and Drago, that the plaintiff could not prove the causation
element of a prima facie retaliation claim because she had sent her letter to the HR
representative

i.e., engaged in protected expression

after the employer "had

already begun investigating and contemplating" possible disciplinary actions against
the plaintiff, as evidenced by the HR representative's June 6th email. The district
judge disagreed. He first noted that the Supreme Court's opinion in Breeden, as well
as the Eleventh Circuit's opinion in Drago, had both addressed a fact scenario in
which

the precise adverse employment action contemplated by the defendant
103

before the plaintiff's statutorily protected activity actually occurred.
The defendant in Breeden contemplated transferring plaintiffbefore the
statutorily protected activity, and the plaintiff asserted that the transfer
constituted an adverse employment action. 532 U.S. at 271-72.
Similarly, in Drago, the defendant considered demoting plaintiff five
months prior to plaintiffs statutorily protected activity, and plaintiff
alleged that this demotion served as the adverse employment action.
453 F.3d at 1307-09. Conversely here, the evidence shows that, before
HR received Plaintiff s complaint letter, the [employer] contemplated .
. . asking [plaintiff's direct supervisor] to discipline Plaintiff. ..;
however, there is no evidence that the [employer] contemplated
discharging Plaintiff prior to her statutorily protected activity.... As
such, the court refuses to find Plaintiff s retaliation claim precluded
under Breeden and Drago.
Jones, 2012 WL 2856651, at * 13 ( emphasis and ellipses supplied). In other words,
Judge KaHon held that the plaintiff satisfied the element of causation

in spite of

the fact that an allegedly adverse employment action (in the form of issuing plaintiff
a disciplinary "final warning" for misconduct) was contemplated by the employer
prior to her protected expression

because the action that was actually carried out

(i.e., termination) was different from and more tangible than the action previously
contemplated.
This court agrees that the imposition ofa more draconian adverse employment
action following an act of protected expression would support a finding that the
protected expression led to an act of retaliation. In the present case, however, it
cannot be said that the severity of the adverse employment action increased after

104

plaintiff filed her EEOC charge. 193 However clumsily the Commission ultimately
achieved the separation ofplaintiff from employment with the County, the result was
the same: plaintiff's employment was terminated.
Defense counsel also argued, both in brief, and at the May 18, 2016 motion
hearing, that the manner in which plaintiff's employment was ultimately terminated

(i. e., elimination of her position versus termination for cause) actually benefitted
plaintiff: i.e.,
Prentis Davis had originally proposed Plaintiff's termination for cause,
but he reduced the proposed discipline in light ofPlaintiff' s prior service
and employment history after Plaintiff's due process hearing. It is true
that Plaintiff ended up without a job either way . . . . [Even so,
termination for cause] would have made Plaintiff ineligible for rehire;
would have placed her unemployment benefits in jeopardy; and would
have been a permanent black mark on her job history.

For reasons this court does not fully comprehend, plaintiffs counsel vehemently argued
during the motion hearing held on May 18, 2016 that the court should accept the veracity of the
notation on Chairman Davis's November 19th letter to plaintiff, stating that the letter was "Drafted:
November 11,2013." See doc. no. 28-15, at ECF 8. Counsel's argument, as this court understands
it, was that the notation demonstrated that the adverse employment action ultimately taken against
plaintiff (i.e., suspension without pay for twenty work days) was contemplated at least as early as
November 11, 2013, four days before plaintiff filed her EEOC charge. Under the legal principles
set forth in Breeden and Drago, that argument would only bolster the Commission's contention that
the plaintiff s protected expression on November 15, 2013 did not cause the Commission to suspend
her without pay for twenty work days. Even if plaintiffs counsel meant to argue that, prior to
plaintiffs filing her EEOC charge, the adverse employment action was suspension without pay
(without more), and, after plaintiff s filing her EEOC charge the adverse employment action not only
was suspension without pay, but also demotion, and elimination of the position to which she was
demoted, that argument also would not aid the plaintiff. The record contains substantial evidence that
the elimination of the Deputy Director position was seriously considered by the Commission prior
to November 15,2013. Moreover, plaintiffs demotion actually occurred on October 8, 2013, when
the Commission unanimously voted to designate Tammy Vinson as Acting EMA Director.
193

105

Doc. no. 27 (Briefin Support of Summary Judgment), at 27 (ellipsis, alteration, and
emphasis supplied). There is merit to that argument.
In light ofall ofthe foregoing, the court concludes that the causation principles
set forth in Drago and Breeden preclude plaintiff from demonstrating a prima facie
case of retaliation in her suspension without pay for twenty work days, demotion to
the position of Deputy Director, and the subsequent elimination of the Deputy
Director position.
With regard to her claim of retaliation in the Commission's rejection of her
application for the permanent EMA Director position, there also is abundant evidence
that the Commission contemplated taking that adverse employment action prior to
receiving notice, on November 15th, that plaintiff had filed an EEOC charge.
Plaintiff's acts of misconduct occurred between September 30th and October 6th.
Almost immediately thereafter, on October 7th, Chairman Davis sent plaintiff a letter
informing her that she was being placed on administrative leave with pay, and stating
that he was "concem[ ed] for the safety ofthe citizens ofLawrence County, including
[plaintiffj.,,]94 The following day, the Commission unanimously passed a resolution
designating Tammy Vinson as Acting EMA Director, apparently (and reasonably)
believing that it would be inappropriate or unsafe to allow plaintiff to continue to

194

Doc. no. 28-15, at ECF 2 (alterations supplied).

106

serve in that capacity.195 Finally, and perhaps most tellingly, Chairman Davis
informed plaintiff in an October 30, 2013 letter that her employment was being
terminated for cause. 196 The second paragraph of that letter stated:
This termination is based on the culmination of an investigation
into recent events in which you were involved. The events have
damaged relationships in the community, with the members of the
Lawrence County Commission and within the Lawrence County
Commission office, while also raising serious questions regarding your
judgment and leadership abilities.
Doc. no. 28-15, at ECF 6 (emphasis supplied). The immediacy ofthe Commission's
response to the events of September 30th through October 6th, the safety concerns
expressed by Chairman Davis in his letters to plaintiff, and the fact that plaintiff was
slated for termination make it clear that the Commission believed, prior to the date

on which plaintifffiled her EEOC charge, that she was not a suitable candidate to
serve as permanent EMA Director.
In light of the principles set forth in Drago and Breeden, plaintiff cannot
establish aprimafacie case ofretaliation for any ofthe adverse employment actions
taken against her after the date on which she filed her EEOC charge. Therefore,
summary judgment is due to be granted in favor of the Commission on plaintiff's
retaliation claims.

195

Doc. no. 28-5, at ECF 17 (Minutes of Oct. 8,2013 Meeting).

196

See doc. no. 28-15, at ECF 6.

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VII. CONCLUSION AND ORDERS

For all ofthe reasons discussed in the foregoing opinion, it is ORDERED that
defendant's "Motion to Strike or, in the Alternative, for In Camera Review" be, and
the same hereby is, GRANTED IN PART, and DENIED IN PART. Defendant's
motion for summary judgment is GRANTED, and all claims alleged by plaintiff are
dismissed with prejudice. Costs are taxed to plaintiff. The Clerk is DIRECTED to
close this file.
DONE and ORDERED this 20th day of June, 2016.

108