Howard v. Highlands Medical Center et al

Filing 46

MEMORANDUM OPINION AND ORDER DISMISSING CASE that the defendant's motion for summary judgment is GRANTED and plaintiff's ADEA claim is DISMISSED WITH PREJUDICE and costs are taxed to plaintiff as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 5/13/2016. (AHI)

FILED
2016 May-13 PM 12:37
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
NORTHEASTERN DIVISION
LINDA J. HOWARD,
Plaintiff,
vs.
JACKSON COUNTY HEALTH
CARE AUTHORITY,
Defendant.

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) Civil Action No. 5:15-CV-00393-CLS
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MEMORANDUM OPINION AND ORDER
This action is before the court on defendant’s motion for summary judgment.1
Upon consideration of the pleadings, evidentiary submissions, and briefs, the court
concludes that the motion should be granted.
I. PROCEDURAL HISTORY
Plaintiff, Linda Howard, filed this action in the Circuit Court of Jackson
County, Alabama, on March 2, 2015.2 Her complaint purported to assert age
discrimination claims under each of the following statutes, even though most do not
countenance such claims: i.e., Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”); the federal Age Discrimination in Employment Act of

1

Doc. no. 23.

2

Doc. no. 1-1 (Complaint), at 1.

1967, 29 U.S.C. § 621 et seq. (“ADEA”); the Genetic Information Nondiscrimination
Act, Pub. L. No. 110-233, 122 Stat. 881 (2008) (“GINA”); the Older Workers Benefit
Protection Act, Pub. L. No. 101-433, 104 Stat. 978 (1990); the Equal Pay Act of
1963, 29 U.S.C. § 206(d)(1);3 the Alabama Age Discrimination in Employment Act,
Ala. Code § 25-1-20 et seq. (1975) (“AADEA”); and the Americans with Disabilities
Act, 42 U.S.C. § 12101 et seq. (“ADA”).4 That pleading also asserted state-law
claims of negligence and breach of contract.5
Highlands Medical Center, Cumberland Health and Rehab, and Brad Hinton
were named as defendants.6
Defendants properly removed the action to this court on March 5, 2015, on the
basis of federal question jurisdiction.7 See 28 U.S.C. §§ 1331, 1367(a). By order
entered on August 10, 2015, the court dismissed as defendants the nonjuridical
entities Highlands Medical Center and Cumberland Health and Rehab, and dismissed
plaintiff’s claims based upon Title VII, GINA, and the AADEA, as well as her statelaw breach of contract and negligence claims.8 The court also dismissed plaintiff’s

3

See also Pub. L. No. 88-38, 77 Stat. 56 (1963).

4

Doc. no. 1-1 (Complaint), ¶ 7(a).

5

Id. ¶¶ 10-13 (Negligence), 14-17 (Breach of Contract).

6

See id.

7

Doc. no. 1 (Notice of Removal).

8

See doc. no. 15 (Order), at 10.
2

ADEA claim as to defendant Brad Hinton, thereby terminating Hinton as a
defendant.9 Finally, the court ordered plaintiff to file an amended complaint naming
“Jackson County Health Care Authority” as the proper juridical entity.10
Plaintiff’s amended complaint, even though correctly naming “Jackson County
Health Care Authority” as the sole defendant, alleged violations of “TITLE VII of the
Civil Rights Act, . . . the Genetic Infomration [sic] Nondiscrimination Act, . . . [and]
Alabama Code § 25-1-21,” the Alabama Age Discrimination in Employment Act.11
Moreover, under “Count One — Age Discrimination,” plaintiff alleged damages
resulting from “the negligence and carelessness of the Defendant.”12 The court
accordingly struck that pleading as being noncompliant with the court’s previous
order, and ordered plaintiff to file a second amended complaint.13
Plaintiff’s second amended complaint asserts claims of age discrimination
under both the ADEA and the Older Workers Benefit Protection Act.14 That pleading
does not assert claims under either the Equal Pay Act or ADA. Plaintiff therefore has
abandoned those claims.
9

Id. See Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1996) (supervisors cannot be held
liable in their individual capacities under the ADEA).
10

Doc. no. 15 (Order), at 10.

11

Doc. no. 16 (First Amended Complaint), ¶ 4 (alteration and ellipses supplied).

12

Id. ¶ 7.

13

See doc. no. 17 (Order Striking First Amended Complaint).

14

See doc. no. 18 (Second Amended Complaint).
3

Moreover, on April 27, 2016, this court ordered plaintiff to show cause, on or
before May 4, 2016, why her claim bottomed on the Older Workers Benefit
Protection Act should not be dismissed, due to her failure to state a claim upon which
relief could be granted.15 See Fed. R. Civ. P. 12(b)(6). Plaintiff failed to do so.
Accordingly, this court dismissed that claim by order entered on May 9, 2016.16
In summary, this action now asserts only one claim — i.e., a claim of age
discrimination under the federal ADEA — against one defendant, the Jackson County
Health Care Authority.
The scheduling order entered in this action on June 18, 2015 specified that
“[a]ll discovery must be commenced in time to be completed by January 20, 2016.”17
Defendant promptly served requests for discovery, and plaintiff served responses
thereto on August 28, 2015.18 Plaintiff did not serve her own discovery, however,
until January 13, 2016, only one week prior to the discovery deadline.19 Defendant
accordingly asked this court to enter a protective order stating that
Plaintiff’s Interrogatories and Requests for Production were not timely
filed, so as to be due responses before the discovery cutoff. As the
Plaintiff has expressed interest in a deposition, and in consideration of
15

See doc. no. 43 (Show Cause Order).

16

See doc. no. 45 (Order Dismissing Fewer Than All Claims).

17

See doc. no. 14 (Scheduling Order) (alteration supplied).

18

See doc. nos. 12, 19.

19

See doc. nos. 27, 28.
4

[a previously-scheduled state court setting] creating a schedule problem
for the undersigned, the Defendant asks that such Protective Order
extend to any attempt to depose any witnesses or parties at this late date.
Doc. no. 30 (Motion for Protective Order), ¶ 16 (alteration supplied). After reviewing
the motion and the response filed by plaintiff, the court concluded that the excuses
offered by plaintiff’s counsel — that he has less legal experience than defendant’s
counsel,20 and that “Defendant’s offensive . . . maneuvers” had “kept the Plaintiff in
a defensive, responsive position”21 — did not constitute good cause for modification
of the scheduling order. Accordingly, the court granted defendant’s motion.22
II. SUMMARY JUDGMENT STANDARD
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
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 proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
20

Doc. no. 31, at 1.

21

Id. at 2 (emphasis in original, ellipsis supplied).

22

See doc. no. 33 (Order).
5

“In making this determination, the court must review all evidence and make all
reasonable inferences in favor of the party opposing summary judgment.” Chapman
v. AI Transport, 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc) (quoting Haves v.
City of Miami, 52 F.3d 918, 921 (11th Cir. 1995)). Inferences in favor of the nonmoving party are not unqualified, however. “[A]n inference is not reasonable if it 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 (11th Cir. 1983). 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) (emphasis supplied).
See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52 (1986) (asking
“whether the evidence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a matter of law”).
III. FACTUAL BACKGROUND
Defendant, Jackson County Health Care Authority, is a governmental agency
organized to provide health care services through facilities located in Jackson County,

6

Alabama.23 See Ala. Code § 22-21-310 et seq. (1975). Plaintiff was employed as an
environmental services aide (“ESA”) at defendant’s “Cumberland Health and Rehab”
nursing home facility in Bridgeport, Alabama, from January 15, 2007 until her
termination on September 4, 2013.24
Defendant contends that it terminated plaintiff’s employment for acts of
misconduct: specifically, theft of canned soft drinks and personal hygiene products.25
The facility’s “Employee Rules of Conduct” state that “theft, or unauthorized removal
of [the facility’s] property, fraud, or conversion thereof, are terminable offenses on
the first offense.”26
Plaintiff admits that she removed and consumed canned soft drinks that had
been purchased by the facility and reserved for use by the facility’s residents.27 She
testified that she consumed “[p]robably at least one [canned soft drink] a day” for the
duration of her tenure at Cumberland Health and Rehab28 (i.e., more than 1,500 soft

23

Doc. no. 23-1 (Sivley Affidavit), ¶ 4.

24

See doc. no. 41 (Linda Howard Employee Record), at ECF 5; doc. no. 23-1 (Sivley
Affidavit), ¶ 5.
25

Doc. no. 23 (Motion for Summary Judgment), at 17. The Employee Record maintained
by defendant for plaintiff states that plaintiff was terminated for “unauthorized removal of company
property — found items in her personal belongings.” Doc. no. 41, at ECF 5.
26

See doc. no. 23-8 (Employee Rules of Conduct), at 5 (alteration and emphasis supplied);
doc. no. 23-1 (Sivley Affidavit), ¶ 14
27

Doc. no. 23-3 (Plaintiff’s Response to Defendant’s Request for Admissions), ¶¶ 3-6.

28

Doc. no. 23-4 (Howard Deposition), at 39 (alterations supplied).
7

drinks if plaintiff worked for defendant approximately five days per week for over 6.5
years) but asserted that such conduct was pervasive among the facility’s staff. In her
own words: “There ain’t a one in this place that ain’t done it.”29
On September 4, 2013, the facility’s Personnel Director, Cheryl Haney, and
Administrator, Brad Hinton, asked plaintiff for permission to search her personal bags
at the conclusion of her shift.30 Plaintiff consented. Haney and Hinton discovered
canned soft drinks, mouthwash, and rubbing alcohol inside the bags, all of which had
been taken from the facility’s supply cabinets.31 Plaintiff denies that she placed the
items in her bag. She claims to have been “set up” by coworkers Evelyn Kelley, Jack
Anderson, and/or Lisa Russell, who, she alleges, planted the contraband in her bags.32
Administrator Hinton obtained written statements from two coworkers — i.e., Gudrun
Stevens and Karen Williams — who reported that plaintiff had been stockpiling
canned soft drinks from the facility for an upcoming family vacation to the Smoky
Mountains in Tennessee. Stevens reported that she saw plaintiff on

29

Id. at 34 (alteration supplied).

30

Doc. no. 23-3 (Plaintiff’s Response to Defendant’s Request for Admissions), ¶ 8; doc. no.
23-4 (Howard Deposition), at 35, 40 (alteration supplied).
31

See doc. no. 23-1 (Sivley Affidavit), ¶ 7 (“The alcohol and mouthwash [found in plaintiff’s
personal bags on the date of her termination] are of brands that are not available for retail purchase.”)
(alteration supplied).
32

Doc. no. 22-3 (Plaintiff’s Responses to Interrogatories), ¶ 13. See also id. ¶ 15 (“There
were other employees that had been around my bag. I know I didn’t put anything in my bag that
didn’t belong to me.”); see doc. no. 23-4 (Howard Deposition), at 41, 89-91.
8

September 3, 2013 in [the] Environmental Services Supply room with
3 of the facilities [sic] cokes in hand, she then proceeded to wrap them
in paper towels. Once she seen that I had saw her[, plaintiff] stated[,] “I
need these for the smokies, and you know I don’t have any money,
please don’t say nothing.”
Doc. no. 23-7, at ECF 2 (Gudrun Stevens’s Statement) (alterations supplied); see also
id. at ECF 3 (Karen Williams’s Statement) (where Karen Williams testified that, “[o]n
Monday 9-2-13 I seen [plaintiff] put three cokes in [the] refrigerator and she said she
was going to take them to the smokies”) (alterations supplied). Plaintiff testified that
Stevens and Williams were “lying.”33 Nevertheless, defendant’s Personnel Director
and Administrator believed that plaintiff’s possession of the canned soft drinks and
hygiene products constituted theft, and plaintiff’s employment was terminated for
cause on September 4, 2013.
That was not the first occasion on which the facility’s management team had
experienced difficulties with plaintiff or cited her for misconduct. In fact, defendant
had terminated plaintiff’s employment approximately six months earlier, on March
20, 2013, for her third violation of the facility’s “tobacco-free-campus policy” within
a one-year period.34 After being notified of her termination, plaintiff drove to the
33

Doc. no. 23-4 (Howard Deposition), at 53.

34

Doc. no. 23-1 (Sivley Affidavit), ¶ 10. Termination is the standard penalty for a third
violation of that policy. Id. When asked during deposition how the facility’s administration had
discovered the violations, plaintiff stated, “It was the ones in my ‘partment [sic] that kept running
their mouth.” Doc. no. 23-4 (Howard Deposition), at 13.
9

facility for the purpose of showing her supervisors the substance that she had been
using at work. She explained that it was not a tobacco product, but an “herbal dip
called Smokey Mountain” (i.e., tobacco-free “snuff”).35 She asked Administrator
Hinton to reinstate her employment based upon that distinction, and he agreed to
commute her punishment from termination to a one-week suspension.36
Plaintiff testified during her deposition that she only “dipp[ed] snuff” when a
coworker named Linda Beavers also was working, because Ms. Beavers made her “so
nervous, bullying me[,] that I have to take a dip.”37 The following inconclusive line
of questioning also occurred during plaintiff’s deposition:
Q:

Now, if there were reports that you were seen spitting snuff into
a sink in a resident’s room, would you admit that or deny it?

A:

Yes, sir, I would.

Q:

You would admit it?

A:

Yes, sir, I would.

Q:

Okay. How often did that happen?

35

Doc. no. 23-4 (Howard Deposition), at 23. See also http://www.smokeysnuff.com.

36

Doc. no. 23-1 (Sivley Affidavit), ¶¶ 10, 18; see also doc. no. 23-3 (Plaintiff’s Responses
to Interrogatories), ¶ 17 (“I was terminated on March 20, 2013, because they thought I was using
tobacco; but I was using Snuf, which is herbs not tobacco, and after I showed them the Snuf, Brad
Hinton agreed it was herbs not tobacco and he hired me back.”); doc. no. 23-4 (Howard Deposition),
at 19, 21, 23.
37

Doc. no. 23-4 (Howard Deposition), at 15 (alteration supplied).
10

A:

I don’t — As far as I know, I’ve never spit in no sink.

Q:

Okay. So you deny that you spat —

A:

I deny that.

Q:

— into a sink?

Doc. no. 23-4 (Howard Deposition), at 16 (emphasis supplied).
A few other incidents also are mentioned in the record. For example,
defendant’s Human Resources specialist, Susanna Sivley, testified that plaintiff had
spoken to her coworkers about having a gun, and possibly bringing the gun to work.38
Plaintiff also admitted that she had been involved in two physical altercations with
coworkers, although she insists that she was not the aggressor on either occasion.39
When plaintiff was terminated for the second time — i.e., the September 4,
2013 incident that forms the basis of this suit — she was 64 years of age.40 As of that
date, defendant employed a total of six full-time environmental services aides
(“ESAs”) at the Cumberland Health and Rehab facility.41 The average age of the

38

Doc. no. 23-1 (Sivley Affidavit), ¶ 11.

39

Plaintiff noted one incident during which a coworker named Linda Beavers “knock[ed] me
back against the wall in there in the laundry room.” Doc. no. 23-4 (Howard Deposition), at 49
(alteration supplied). Plaintiff also testified that “Lisa Russell hit me in the back coming down the
hall and liked to knock me down.” Id. at 50.
40

Doc. no. 23-1 (Sivley Affidavit), ¶ 6.

41

Id. ¶ 12.
11

other five full-time ESAs was 51 years.42

All were over 40 years of age.43

Administrator Brad Hinton was 61 years of age,44 and Personnel Director Cheryl
Haney was 56 years of age.45
Plaintiff filed a timely charge of discrimination with the Equal Employment
Opportunity Commission on January 10, 2014.46 She alleged the following:
I am 64 years old. I began my employment with [Cumberland
Health and Rehab] on June 16, 2007,47 as a housekeeper. It is my good
faith belief that I performed my duties in a satisfactory manner. On
April 01, 2013 [sic], I was written up for using a tobacco product
(snuff). I was discharged in the spring of 2013, for using an herbal snuff
that is tobacco free. After appealing to the Cumberland Health Board,
I was reinstated because I was actually using a non-tobacco product. I
was told I would not be allowed to use the non-tobacco product upon my
return to work. When I returned my supervisor[s], Judy Thompson and
Brad Hilton [sic], would follow behind me checking my work. No other
housekeeper was treated in this manner. I was discharged on September
04, 2013. After I was discharged I was replaced by Katlyn [sic]
Johnson who is 21 years old.
The reason for my discharge was that I stole a coke and a bottle
of mouthwash, which I deny. Brad Hilton [sic], Administrator, viewed
the surveillance tapes and could not see that I took anything.48
42

Id.

43

Id.

44

Id. ¶ 17.

45

Id.

46

See doc. no. 23-9 (EEOC Charge).

47

Plaintiff’s Employee Record indicates that she was hired on January 15, 2007. See doc.

no. 41.
48

Plaintiff testified in deposition that Administrator Hinton had refused to review the security
camera footage. See doc. no. 23-4 (Howard Deposition), at 48-49.
12

I believe the employer’s reason for my discharge was a pretext
and that I was actually discharged because of my age in violation of
Title VII of the Civil Rights Act of 1967 [sic], as amended.
Doc. no. 23-9 (EEOC Charge) (alterations, footnotes, and ellipsis supplied).
Defendant contends that plaintiff was replaced by Donna Roberts, who was 53 years
of age.49
After plaintiff’s termination on September 4, 2013, she applied for, but was
denied, unemployment benefits by the Alabama Department of Industrial Relations.
Plaintiff then requested pursuant to Alabama Code § 25-4-92 (1975), and received on
October 28, 2013, a telephone hearing before an Administrative Hearing Officer.50
The specific issue addressed during that hearing was: “[w]hether the claimant [i.e.,
plaintiff] was discharged or removed from work for a dishonest or criminal act
committed in connection with work . . .”51 The Administrative Hearing Officer
concluded that “[t]he preponderance of evidence shows that the claimant was

49

Doc. no. 23-1 (Sivley Affidavit), ¶ 15. Donna Roberts was promoted to full-time
environmental services aide on October 21, 2013. Doc. no. 23-11 (Donna Roberts Employee
Record).
50

That section states, in pertinent part: “To hear and decide disputed claims and other due
process cases involving a decision of the Department of Industrial Relations, the director shall
appoint one or more impartial appeals tribunals, consisting in each instance of an officer or an
employee of the Department of Industrial Relations.” § 25-4-92(a).
51

Doc. no. 23-12 (Department of Labor Telephone Hearing Report), at ECF 2 (alterations
and ellipsis supplied).
13

discharged for misappropriation of employer property for her personal use.”52
Accordingly, the Officer sustained the finding of the Examiner that plaintiff was
disqualified from receiving unemployment benefits pursuant to Alabama Code § 254-78(3)(a) (1975).53
Plaintiff subsequently applied for leave to appeal to the Board of Appeals for
the Alabama Department of Labor, pursuant to Alabama Code § 25-4-92(c) (1975).54
The Board of Appeals denied the application.55
Plaintiff then appealed her denial of unemployment benefits to the Circuit
Court of Jackson County, Alabama, pursuant to Alabama Code § 25-4-95 (1975).56
That section states, in pertinent part, that “[w]ithin 30 days after the decision of the

52

See id. at ECF 3 (alteration and emphasis supplied).

53

That section states, in pertinent part: “An individual shall be disqualified for total or partial
unemployment . . . . (a) If he was discharged or removed from his work for a dishonest or criminal
act committed in connection with his work. . . .” § 25-4-78(3)(a) (ellipses supplied).
54

That section states:

The decision of an appeals tribunal shall become final 15 days after notice of such
decision has been mailed, postage prepaid, to the claimant and other parties to the
proceedings, at the address furnished, or, if none shall have been furnished, at their
last known addresses, unless within that time application be made to the board of
appeals for permission to appeal to the board of appeals.
Ala. Code § 25-4-92(c) (emphasis supplied).
55

See doc. no. 23-13, at ECF 2.

56

Doc. no. 23-1 (Sivley Affidavit), ¶ 21. That appeal was docketed as Linda Howard v.
Alabama Department of Industrial Relations, Case No. CV-2014-3, Circuit Court of Jackson
County, Ala. (Jan. 17, 2014). Id.
14

Board of Appeals has become final, any party to the proceeding . . . may secure a
judicial review thereof by filing a notice of appeal in the circuit court of the county
of the residence of the claimant . . . .” § 25-4-95 (alteration, ellipses, and emphasis
supplied).
When plaintiff’s appeal came before Jackson County Circuit Judge Jenifer C.
Holt, the Jackson County Health Care Authority — the defendant in that action, as
well as the present suit — filed a motion for summary judgment. Judge Holt
conducted a hearing on October 7, 2015, and granted the motion the following day.57

57

The pertinent portion of Judge Holt’s order stated that:

This case comes before the court upon the pleadings and the motion for
summary judgment filed by the defendant, Jackson County Health Care Authority.
The plaintiff has filed no written response to the motion for summary judgment but
appeared by counsel, George Hartline, for the hearing on October 7, 2015. Gary W.
Lackey, appeared for the defendant, Jackson County Health Care Authority.
Allysone O. Hatfield appeared for the defendant, Alabama Department of Industrial
Relations.
This action is an appeal by the plaintiff from the adverse decisions of the
Department of Industrial Relations’ administrative process. The administrative
hearing officer determined that the plaintiff is disqualified from benefits under the
provisions of Section 25-4-78(3)(a) of the Unemployment Compensation Law.
Upon consideration of all matters offered in support of and in opposition to
the defendant’s motion for summary judgment, the court is of the opinion that there
exist no genuine issues of material fact and that the defendant is entitled to judgment
as a matter of law.
ACCORDINGLY, IT IS ORDERED, ADJUDGED, AND DECREED that
the defendant’s motion for summary judgment is granted.
Doc. no. 23-14 (State-Court Order Granting Summary Judgment), at ECF 3-4.
15

Plaintiff did not appeal from the judgment of the State circuit court.
IV. DISCUSSION
Plaintiff’s response to defendant’s motion for summary judgment fails to
directly admit or deny each of the allegedly undisputed facts recited by defendant.
Instead, plaintiff’s counsel states that “much of the ‘undisputed relevant material
facts’ supplied by the Defendant are neither relevant nor material, and are intended
to cast the Plaintiff as a troublemaker; some kind of gun-toting, wild-eyed, rulebreaking, soda-stealing, tobacco-chewing cowgirl (born in 1949).”58 The failure of
plaintiff’s counsel to directly address each of the allegedly undisputed facts recited
by defendant as required by the Appendix to the Uniform Initial Order has adversely
affected his client, because the court deems as admitted all facts not disputed by
plaintiff in her responsive brief.59

58

Doc. no. 25 (Plaintiff’s Response in Opposition to Summary Judgment), at 4.

59

Appendix II to the Uniform Initial Order states, in pertinent part:

The first section [of the non-movant’s brief in opposition to the motion for summary
judgment] must consist of only the non-moving party’s disputes, if any, with the
moving party’s claimed undisputed facts. The non-moving party’s response to the
moving party’s claimed undisputed facts shall be in separately numbered paragraphs
that coincide with those of the moving party’s claimed undisputed facts. Any
statements of fact that are disputed by the non-moving party must be followed by a
specific reference to those portions of the evidentiary record upon which the dispute
is based. All material facts set forth in the statement required of the moving party
will be deemed to be admitted for summary judgment purposes unless controverted
by the response of the party opposing summary judgment.

16

The ADEA makes it “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, terms, conditions, or privileges of employment, because
of such individual’s age.” 29 U.S.C. § 623(a)(1) (ellipsis supplied). The protections
of the ADEA extend to those individuals who “are at least 40 years of age but less
than 70 years of age.” 29 U.S.C. § 621(a).
“A plaintiff can establish age discrimination through either direct or
circumstantial evidence.” Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013)
(citing Mora v. Jackson Memorial Foundation, Inc., 597 F.3d 1201, 1204 (11th Cir.
2010)). Plaintiff asserts that the following statements uttered by coworkers constitute
“direct evidence” of age discrimination: coworker Judy Thompson’s statement that
“she [i.e., Thompson] was going to retire before [facility Administrator] Brad Hinton
got rid of her on account of her age”;60 and coworker Evelyn Kelley’s statement that
“younger people can get around better than the older people.”61 In addition, plaintiff

Doc. no. 10, at 15 (alteration supplied, emphasis in original).
60

Doc. no. 23-3 (Plaintiff’s Response to Defendant’s Interrogatories), ¶ 2 (alterations
supplied). See also doc. no. 23-1 (Sivley Affidavit), ¶ 19 (“Although Linda [sic] Thompson was,
at one point, Linda Howard’s immediate supervisor, Thompson never had the authority to make
personnel decisions, including, but not limited to, hiring, discharge, and/or discipline. Such authority
rested solely with Brad Hinton and Cheryl Haney, along with myself [i.e., Susanna Sivley] . . . .”
(alteration and ellipsis supplied).
61

Doc. no. 23-3 (Plaintiff’s Response to Defendant’s Interrogatories), ¶ 2.
17

asserts that Administrator Hinton “regularly” asked her when she intended to retire
whenever she asked to take a break.62 She construes that fact as direct evidence of
an age-related animus. She was not able to recall the dates on which those any of the
foregoing statements allegedly were made, however.63
“Only the most blatant remarks, whose intent could be nothing other than to
discriminate . . . constitute direct evidence of discrimination.” Carter v. Miami, 870
F.2d 578, 582 (11th Cir. 1989) (ellipsis supplied). “In an age discrimination context,
the quintessential example of direct evidence would be a management memorandum
saying, ‘Fire [the plaintiff] — he is too old.’” Roberts v. Design & Manufacturing
Services, 167 F. App’x 82, 85 (11th Cir. 2006) (quoting Merritt v. Dillard Paper Co.,
120 F.3d 1181, 1190 (11th Cir. 1997) (in turn quoting Earley v. Champion
International Corp., 907 F.2d 1077, 1081 (11th Cir. 1990))) (alteration supplied,
some internal quotation marks omitted). Moreover,
not every comment concerning a person’s age presents direct evidence
of discrimination. The . . . Court made clear in [Young v. General Foods
Corp., 840 F.2d 825 (11th Cir. 1988)] that remarks referring to
characteristics associated with increasing age or facially neutral
comments from which a plaintiff has inferred discriminatory intent, are
not directly probative of discrimination.
Carter, 870 F.2d at 582 (ellipsis and alteration supplied).
62

Id. ¶ 3.

63

Id. ¶ 2.
18

The statements cited by plaintiff do not constitute direct evidence of
discrimination. Judy Thompson’s statement concerned herself, and was not related
to plaintiff’s employment. Evelyn Kelley’s statement simply was a remark “referring
to characteristics associated with increasing age.” See id. Finally, the Eleventh
Circuit has held that a supervisor’s inquiries as to when an employee intends to retire
do not constitute direct evidence of discrimination when such questions are not
uttered in close temporal proximity to an adverse employment action, and when age
was not the stated reason for the adverse employment action:
Because the alleged statements can be subject to more than one
interpretation, the district court did not err by concluding that [the
supervisor’s] comments were not direct evidence of employment age
discrimination. [The supervisor] never stated that he was going to fire
[the plaintiff] because he was too old. All of the proffered statements,
which were primarily made months before Roberts was terminated,
require inferential leaps that [the supervisor] terminated [the plaintiff]
due to his age, which, under the law of this Circuit, is not direct
evidence of employment discrimination.
Roberts v. Design & Manufacturing Services, 167 F. App’x 82, 85 (11th Cir. 2006)
(emphasis in original, alterations supplied). Plaintiff has neither presented evidence,
nor argued that Administrator Hinton’s alleged retirement inquiries were made
contemporaneously with her termination. Moreover, the reason for plaintiff’s
September 4, 2013 termination — as recorded in her Employee Record, and as
verbalized to plaintiff on the date that she was fired — was not age, but “unauthorized
19

removal of company property.”64
Accordingly, plaintiff must satisfy the burden-shifting framework for claims
based upon circumstantial evidence that was promulgated by the Supreme Court in
a series of three decisions rendered over a period of two decades, beginning with
McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973), then elaborated in
Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and finally
elucidated in St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). Although those
cases involved discrimination claims based upon Title VII of the Civil Rights Act of
1964, a variant of the analysis also applies 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 O’Connor v. Consolidated Coin Caterers Corp., 517
U.S. 308, 311 (1996) (assuming that McDonnell Douglas analytical framework
applies to ADEA claims based on circumstantial proofs)). See also, e.g., Chapman
v. AI Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc) (same); Bogle v.
Orange County Board of County Commissioners, 162 F.3d 653, 656 (11th Cir. 1998)
(“Since Bogle has presented no direct evidence that Orange County discharged him
64

See doc. no. 41 (Linda Howard Employee Record), at ECF 5.
20

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
(11th Cir. 1998) (applying McDonnell Douglas framework in an ADEA case).
The analytical framework developed by McDonnell Douglas and its progeny
has three steps, the goal of which is that of “progressively . . . sharpening the inquiry
into the elusive factual question of intentional discrimination.” St. Mary’s Honor
Center, 509 U.S. at 506 (quoting Burdine, 450 U.S. at 255 n.8) (ellipsis in original).
The plaintiff bears the initial burden of establishing a prima facie case. Reeves, 530
U.S. at 142; Chapman, 229 F.3d at 1024; Clark v. Coats & Clark, Inc., 990 F.2d 1217
(11th Cir. 1993). “If a plaintiff establishes a prima facie case . . . the employer must
articulate a legitimate, nondiscriminatory rationale for the [contested employment
action]. If the employer does so, the burden shifts back to the plaintiff to prove that
the employer’s asserted reason is pretextual.” Young v. General Foods Corp., 840
F.2d 825, 828 (11th Cir. 1988) (ellipsis and alteration supplied); see also Chapman,
229 F.3d at 1024.
A.

Prima Facie Case
To demonstrate a prima facie case for an ADEA violation based upon

termination of employment, the plaintiff must prove four facts: (1) that she was a
21

member of the class of persons protected by the ADEA, that is, individuals between
the ages of 40 and 70;65 (2) that she was discharged; (3) that she was qualified to
perform the duties of the position from which she was dismissed; and (4) that she was
replaced by a substantially younger person. See, e.g., Reeves, 530 U.S. at 142; Bogle,
162 F.3d at 656-57; Turlington, 135 F.3d at 1432; Benson v. Tocco, Inc., 113 F.3d
1203, 1207-08 (11th Cir. 1997); Jameson v. Arrow Company, 75 F.3d 1528, 1531
(11th Cir. 1996); Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1469-70 (11th Cir.
1991); Verbraeken v. Westinghouse Electric Corp., 881 F.2d 1041, 1045 (11th Cir.
1989), cert. dismissed, 493 U.S. 1064 (1990).
The only disputed element of plaintiff’s prima facie case is whether plaintiff
was replaced by a “substantially younger person.”66 In that regard, defendant states:
“The Plaintiff’s position as a full time ESA was filled, after her termination, by

65

The protections of the ADEA extend to those individuals who “are at least 40 years of age
but less than 70 years of age.” 29 U.S.C. § 621(a).
66

See doc. no. 23 (Motion for Summary Judgment), at 13. The Eleventh Circuit expounded
the “substantially younger” requirement in Corbin v. Southerland International Trucks, 25 F.3d
1545, 1549 (11th Cir. 1994), saying:
Unlike race and sex discrimination cases, 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.
22

Donna Roberts, who was 53 years old on the day of the Plaintiff’s termination.”67 As
previously noted, plaintiff’s EEOC charge stated that she was “replaced by Katlyn
[sic] Johnson who is 21 years old.”68
This court has reviewed the Employee Records maintained by defendant for
Donna Roberts and Kaitlyn Johnson. Roberts was promoted to full-time ESA (i.e., the
position formerly occupied by plaintiff) on October 21, 2013 (i.e., 47 days after
plaintiff’s termination on September 4, 2013).69 Kaitlyn Johnson was employed by
defendant as a part-time ESA from April 5, 2013 (i.e., 152 days prior to plaintiff’s
termination on September 4, 2013), until December 1, 2013, and never worked as a
full-time ESA for defendant.70 Moreover, plaintiff conceded in her responses to
defendant’s requests for admissions that “Kaitlyn Johnson was employed by
[defendant] as a part time ESA from April 5, 2013 [i.e., 152 days prior to plaintiff’s
termination], until December 1, 2013, and never worked full time as an ESA for
[defendant].”71
Therefore, the appropriate inquiry is whether Donna Roberts, who was 53 years

67

Doc. no. 23 (Motion for Summary Judgment), at 7, ¶ 16.

68

Doc. no. 23-9 (EEOC Charge), at ECF 3.

69

Doc. no. 23-11 (Donna Roberts Employee Record), at ECF 2.

70

Doc. no. 23-10 (Kaitlyn Johnson Employee Record).

71

Doc. no. 23-3 (Plaintiff’s Response to Request for Admissions) ¶ 18 (alterations supplied);
see also doc. no. 23-10 (Kaitlyn Johnson Employee Record).
23

of age on the date of plaintiff’s termination, was “substantially younger” than
plaintiff, who was 64 years of age: an age difference of eleven years.72
The Eleventh Circuit previously has held that an age difference of just a few
years may be sufficient to establish that a plaintiff was replaced by someone
“substantially younger.” See, e.g., Damon v. Fleming Supermarkets of Florida, Inc.,
196 F.3d 1354, 1360 (11th Cir. 1999) (five years is sufficient); Carter v. DecisionOne
Corp., 122 F.3d 997, 1003 (11th Cir. 1997) (per curiam) (three years is sufficient);
Carter v. Miami, 870 F.2d 578, 583 (11th Cir. 1989) (four years is 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
72

“[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 (11th
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:
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 (11th 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.” O’Connor v. Consolidated Coin Caterers Corp.,
517 U.S. 308, 313 (1996).
24

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 of Fla., Inc., 196 F.3d 1354,
1360 (11th 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 of discrimination
because a six-year age difference, without more, does not establish that
[the plaintiff’s] age was the but-for cause of the School Board’s failure
to hire him. See O’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 of Dothan, 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 of Hillsborough County, Florida, No. 15-12891, 2016 WL
212503, at *9 n.1 (11th Cir. Jan. 19, 2016) (emphasis and alterations supplied).
Therefore, this court must address the question of whether, in addition to the
eleven-year age difference between plaintiff and her replacement, there is substantial
evidence of discriminatory animus.
Plaintiff identifies only the statements of Judy Thompson, Evelyn Kelley, and
Brad Hinton as evidence of age discrimination.

As previously stated, those

statements do not constitute direct evidence of discrimination. Even so, construing

25

the evidence in the light most favorable to plaintiff, this court concludes that those
statements, in conjunction with the fact that plaintiff was replaced by an individual
eleven years her junior, are sufficient to satisfy the “substantially younger” element.
Therefore, plaintiff has demonstrated a prima facie case.
B.

Legitimate, Nondiscriminatory Reasons
The defendant may rebut the presumption of discrimination that arises from

plaintiff’s demonstration of a prima facie case by offering legitimate,
nondiscriminatory reasons for her termination. Defendant states:
In this case, however hotly Plaintiff disputes the September 3,
2013 theft of the items found in her bag, she admitted in her deposition
that she had consumed sodas from the Defendant’s supplies for
residents, on a near-daily basis, contrary to a policy with which she also
admitted she was familiar.
....
In addition to the Plaintiff’s admitted misappropriation, it is not
disputable that the Defendant was presented with evidence on
September 3, 2013, from which it could reasonably have inferred that
the Plaintiff stole the items found in her bag. In addition to [Plaintiff’s
possession of the items], the Defendant obtained statements from two
coworkers stating not only that the Plaintiff had admitted theft, but that
her theft was motivated by an upcoming trip to the Smoky Mountains.
Doc. no. 23 (Defendant’s Brief in Support of Motion for Summary Judgment), at 1819 (ellipsis and alteration supplied).
An employer’s honest belief that an employee violated a company policy
26

constitutes a legitimate, nondiscriminatory reason for termination. See, e.g., Kilgore
v. Trussville Development, L.L.C., No. 15-11850, 2016 WL 1138412 (11th Cir. Mar.
24, 2016) (“An employer does not unlawfully discriminate against an employee ‘if
the employer fired an employee because it honestly believed that the employee had
violated a company policy, even if it was mistaken in such belief.’”) (quoting Smith
v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987)); Kragor v. Takeda
Pharmaceuticals America, Inc., 702 F.3d 1304, 1309 (11th Cir. 2012) (noting that
evidence that an employee “violated” or “appeared to violate” the employer’s policy
constituted a legitimate, non-discriminatory reason for terminating the employee);
Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989) (“[T]he City has articulated
a legitimate, non-discriminatory reason for disciplining Jones — at the November 15
disciplinary hearing Jones admitted that he had committed all of the rule violations.”)
(alteration supplied).
Because defendant has produced substantial evidence that plaintiff violated its
policy prohibiting unauthorized removal of facility property, it has satisfied its burden
of producing a legitimate, nondiscriminatory reason for plaintiff’s termination.
C.

Pretext and the Doctrine of Collateral Estoppel
Defendant contends that the findings of the Alabama Department of Industrial

Relations on plaintiff’s unemployment compensation claim preclude her from
27

relitigating the reason for her discharge and, thus, conclusively establish that
defendant terminated her for theft.
Collateral estoppel “precludes a party from relitigating in a subsequent action
or proceeding an issue raised in a prior action or proceeding and decided against the
party or those in privity.” Urfirer v. Cornfeld, 408 F.3d 710, 716 (11th Cir. 2005).
The Eleventh Circuit held in Maniccia v. Brown, 171 F.3d 1364 (11th Cir. 1999), that
a “state court’s decision upholding an administrative body’s findings has preclusive
effect in a subsequent federal court proceeding if: (1) the courts of that state would
be bound by the decision; and (2) the state proceedings that produced the decision
comported with the requirements of due process.” Id. at 1368; see also Travers v.
Jones, 323 F.3d 1294, 1296 (11th Cir. 2003) (“When a state agency, acting in a
judicial capacity, resolves disputed issues of fact properly before it that the parties
have had an adequate opportunity to litigate, federal courts must give the agency’s
fact finding the same preclusive effect to which it would be entitled in the State’s
court.”).
In some employment law contexts, Congress has abrograted, by statute, the
doctrine of collateral estoppel for State administrative agency decisions. See, e.g.,
Astoria Federal Savings & Loan Association v. Solimino, 501 U.S. 104, 107 (1991)
(holding that judicially unreviewed findings of a State administrative agency made
28

with respect to an age discrimination claim have no preclusive effect on federal
proceedings).73 Even so, the Astoria doctrine does not apply to the judiciallyreviewed findings of the Alabama Department of Industrial Relations in the present
case. Accordingly, the court will address the question of whether the findings of the
Alabama Department of Industrial Relations, as judicially reviewed and affirmed on
appeal to the Circuit Court of Jackson County, are entitled to preclusive effect under
Alabama law. See Elliott, 478 U.S. at 799 (“[W]e hold that when a state agency
‘acting in a judicial capacity . . . resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate,’ federal courts must
give the agency’s factfinding the same preclusive effect to which it would be entitled
in the State’s courts.”) (quoting Utah Construction & Mining Co., 384 U.S. at 422)
(alteration, ellipsis, and emphasis supplied, internal citation omitted).
73

The Astoria Court held that the filing requirements of the ADEA imply that the findings
of a State agency are not entitled to preclusive effect, and cited three examples in support of that
holding. See Astoria, 501 U.S. at 110-11. First, the ADEA requires that, when a state has enacted
its own age discrimination law, a complainant first must pursue the state-law claim in state court
before filing an ADEA action in federal court. Id. (citing 29 U.S.C. § 633(b)). Second, the statute
provides that “‘no suit may be brought under [the ADEA] before the expiration of sixty days after
proceedings have been commenced under the State law, unless such proceedings have been earlier
terminated.’” Id. (quoting 29 U.S.C. § 633(b)) (alteration supplied). Third, the statute provides a
similar deadline for filing a charge with the EEOC, providing that “‘[s]uch a charge shall be filed
. . . within 300 days after the alleged unlawful practice occurred, or within 30 days after receipt by
the individual of notice of termination of proceedings under State law, whichever is earlier.’” Id.
(quoting 29 U.S.C. § 626(d)(2)) (alteration supplied, ellipsis in original). Those provisions “plainly
assume the possibility of federal consideration [of ADEA claims] after state agencies have finished
theirs,” and federal proceedings after the conclusions of state proceedings “would be strictly pro
forma if state administrative findings were given preclusive effect.” Id. (alteration supplied).
29

Alabama law provides that decisions of State agencies have preclusive effect
when each of the following conditions is satisfied:
(1) there is identity of the parties or their privies; (2) there is identity of
issues; (3) the parties had an adequate opportunity to litigate the issues
in the administrative proceeding; (4) the issues to be estopped were
actually litigated and determined in the administrative proceeding; and
(5) the findings on the issues to be estopped were necessary to the
administrative decision.
Ex parte Shelby Medical Center, Inc., 564 So. 2d 63, 68 (Ala. 1990) (quoting Pantex
Towing Corp. v. Glidewell, 763 F.2d 1241, 1245 (11th Cir. 1985)); see also Wal-Mart
Stores, Inc. v. Smitherman, 743 So. 2d 442, 445 (Ala. 1999), overruled on other
grounds by Ex parte Rogers, 68 So. 3d 773 (Ala. 2010) (quoting Ex parte Smith, 683
So. 2d 431, 433 (Ala. 1996)).
Plaintiff’s unemployment compensation claim was brought pursuant to an
Alabama statutory system that permits some unemployed individuals to receive
unemployment compensation benefits. See Ala. Code § 25-4-1 et seq. (1975). That
statutory scheme provides, however, that “a claimant is partially disqualified from
receiving unemployment-compensation benefits if he or she was discharged for
misconduct committed in connection with work.”

Ala. Code § 25-4-78(3)(c)

(emphasis supplied). Here, the Alabama Department of Industrial Relations found
that plaintiff was “discharged from [her] last bona fide work with this employer for

30

misconduct committed in connection with work,” and consequently, was subject to the
disqualifying provision under § 25-4-78(3)(c).74
The court therefore will address the five elements of collateral estoppel set
forth under Alabama law, to determine whether plaintiff is precluded from relitigating
the reason for her termination.
1.

Identity of the parties or their privies

The first element, which requires an identity of the parties or their privies, is
satisfied.75
2.

Identity of issues

Plaintiff contends that the issue before this court is not identical to the issue
that was litigated before the State administrative agency:
The issue on appeal in the Jackson County Circuit Court that was
“litigated” (summarily denied) had to do with the rights of the Plaintiff
to unemployment benefits, not to the rights of the Plaintiff to be free
from age discrimination. Therefore, collateral estoppel does not apply.
Even if Defendant’s argument were conceded by Plaintiff (that the
Jackson County Circuit Court’s ruling is binding on this Court), it still
would not follow that this claim is precluded. The Plaintiff could have
been rightfully denied unemployment benefits and at the same time have
been wrongfully discriminated against for her age. Not even the
Plaintiff is arguing that there wasn’t some “misconduct” here; she drank
sodas on the job that were technically only for the residents at her job
74

See doc. no. 23-12, at ECF 2 (alteration and emphasis supplied).

75

See doc. nos. 23-12, 23-13, and 23-14.
31

because she felt this was, while technically prohibited, effectively
accepted and overlooked as to all employees by the Defendant. This
technical violation was held to be enough, apparently, for the Jackson
County Circuit Court, granting a Motion for Summary Judgment filed
by the Defendant, to find that there was no reason to overturn the
Department of Industrial Relations’ decision to deny unemployment
benefits; there was no trial on the facts and no “proof” of the allegations
of theft against the Plaintiff (except the Plaintiff’s admissions regarding
the sodas) other than the word of the Defendant.
Doc. no. 25 (Plaintiff’s Response in Opposition to Summary Judgment), at 7-8
(emphasis in original).
This court disagrees.

Plaintiff’s counsel confuses the issue of age

discrimination with the question of whether defendant’s stated, non-discriminatory
basis for the contested employment action is pretextual. The Department of Industrial
Relations was tasked with deciding whether plaintiff was disqualified from receiving
unemployment compensation under the statute providing that “[a]n individual shall
be disqualified for total or partial unemployment: . . . If he was discharged from his
most recent bona fide work for misconduct connected with his work . . .” Ala. Code
§ 25-4-78(3)(c) (1975) (alteration, ellipses, and emphasis supplied). That State
agency found that:

“[t]he claimant [i.e., plaintiff] was discharged for

misappropriation of employer property for her personal use.”76
Moreover, and more significantly, as the Eleventh Circuit observed in Mora
76

Doc. no. 23-12, at ECF 3 (alterations supplied).
32

v. Jackson Memorial Foundation, Inc., 597 F.3d 1201 (11th Cir. 2010),
the Supreme Court [has] ruled out the idea of a “mixed motive” ADEA
claim, instead requiring plaintiffs to show that age was the “but for”
cause of an employment action. [Gross v. FBL Financial Services, Inc.,
– U.S. –, 129 S. Ct. 2343, 2350 (2009)]. The ADEA requires that “age
[be] the ‘reason’ that the employer decided to act.” Id. 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. Id. at 2352 (“The burden of persuasion
does not shift to the employer to show that it would have taken the
action regardless of age, even when a plaintiff has produced some
evidence that age was one motivating factor in that decision.”).
Mora, 597 F.3d at 1204 (alterations and emphasis supplied). In other words, a
finding that plaintiff was terminated for any reason other than her age conclusively
eliminates the possibility that defendant can be found liable under the ADEA. In
light of all of the foregoing, the court concludes that the “identity of issues” element
is satisfied.
3.

Adequate opportunity to litigate the issue

The third element of collateral estoppel under Alabama law requires that the
parties be afforded an adequate opportunity to litigate, in the State agency
administrative proceeding, the issue to be estopped. The Alabama Supreme Court has
held that Alabama’s Unemployment Compensation Act affords parties an adequate
opportunity to litigate the issue of discharge in an unemployment compensation claim
hearing. See Smitherman, 743 So. 2d at 446. The Court provided the following
33

reasoning in support of that holding:
The Unemployment Compensation Act requires that the appeals tribunal
“afford[] the parties reasonable opportunity for [a] fair hearing.” Ala.
Code 1975, § 25-4-93. The procedure for conducting the hearing is
prescribed by regulations of the Department of Industrial Relations. See
[Ala. Code] § 25-4-92(b); see generally Ala. Admin. Code r. 4.480-1-4.04 to -.06. Those regulations provide for a hearing at which the parties
are afforded the opportunity to present evidence and testimony of
witnesses given under oath. See Ala. Admin. Code r. 480-1-4-.04. A
party may be represented by an attorney. See [Ala. Admin. Code] r.
480-1-4-.05. The parties are also afforded the opportunity to request
that the hearing officer issue subpoenas to compel the attendance of
witnesses or the production of documents or other things. See [Ala.
Admin. Code] r. 480-1-4-.06.
Id. (first two alterations in original, other alterations supplied).
The record in this case shows that an administrative hearing was held, by
telephone, during which the “[c]laimant [i.e., plaintiff] and employer representative
with witness” were present.77 Also, Beth C. Moore, the Administrative Hearing
Officer, made findings of fact based upon the testimony presented to her during the
telephone hearing.78
Although there is no evidence of record that plaintiff asserted before the
Department of Industrial Relations or Administrative Hearing Officer that her
termination was related to her age, that does not mean that she did not have the

77

See id. at ECF 2 (alterations supplied).

78

See id.
34

opportunity to assert that argument. In order to receive unemployment benefits,
plaintiff was required to demonstrate that she was not discharged for misconduct
committed in connection with work. See Smitherman, 743 So. 2d at 447. If she
believed that defendant discharged her on the basis of her age, then she had the
burden to prove that assertion. See id. In conclusion, this court finds that plaintiff
was given an adequate opportunity to litigate the issue of the reason for her
termination.
4.

Actually litigated and determined

The fourth element also is satisfied, because the reason for plaintiff’s
termination was actually litigated in the State administrative proceeding, and was
actually determined by the Administrative Hearing Officer.79
5.

Necessary to the State agency’s decision

Finally, the fifth element is satisfied, because the Board of Industrial Relations
needed to determine the reason for plaintiff’s termination in order to decide whether
plaintiff was eligible to receive unemployment compensation.
Accordingly, all elements necessary under Alabama law for collateral estoppel
to apply have been satisfied, and plaintiff is precluded from relitigating the reason for
her termination. This court must accept, as an established fact, the finding of the
79

See generally doc. no. 23-12.
35

Alabama Department of Industrial Relations that plaintiff was terminated for
misconduct. Thus, defendant has established that it did not terminate plaintiff’s
employment based on her age, and is entitled to summary judgment on plaintiff’s
ADEA claim.
D.

Pretext Analysis Without Consideration of the Doctrine of Collateral
Estoppel
Even if plaintiff was not estopped from relitigating that question, her assertion

that defendant’s legitimate, nondiscriminatory reason for terminating her is merely
a pretext for age discrimination would fail on its merits. Her responsive brief states:
Plaintiff drank sodas on the job that were there for the residents of the
care facility. Defendant now states that five employees have been
terminated since 2010 for theft. (Defendant’s Motion, page 7), but
conveniently leaves out whether it was drinking sodas that did them in
or something more serious. Plaintiff intends to inquire through
discovery whether any or all of those five were fired because they drank
sodas intended for residents.
Doc. no. 25 (Plaintiff’s Response to Motion for Summary Judgment), at 8.
As the court understands that statement, plaintiff initially had planned to
demonstrate that the legitimate, nondiscriminatory reason proffered by defendant for
plaintiff’s termination was merely a pretext for age discrimination by presenting
evidence of comparators. Plaintiff did not develop such evidence, however. Even
though the time allotted for discovery spanned a period of six months, plaintiff

36

inexcusably delayed until one week prior to the discovery deadline before serving her
first requests for discovery upon defendant. This court, finding that there was no
good cause for such an egregious delay, granted defendant’s motion for a protective
order — thereby relieving defendant of any obligation to answer plaintiff’s eleventhhour discovery requests.
Plaintiff also attempts to demonstrate pretext by stating that, even though she
admittedly drank beverages reserved for use by the facility’s residents, “the rest of
them dranked [sic] them too.”80 The Eleventh Circuit has stated that “evidence
demonstrating that the decision-maker engaged in the same policy violation proffered
for an employee’s termination is ‘especially compelling’ evidence of pretext.”
Damon v. Fleming Supermarkets of Florida, Inc., 196 F.3d 1354, 1366 (11th Cir.
1999) (quoting Ross v. Rhodes Furniture, Inc., 146 F.3d 1286, 1291) (11th Cir.
1998)). Plaintiff does not assert that the decisionmakers (i.e., Administrator Brad
Hinton and/or Personnel Director Cheryl Haney) violated the policy. In fact, in her
deposition, plaintiff specifically identified several coworkers who allegedly had
engaged in misconduct similar to her own, while conspicuously excluding the names
of any of her supervisors.81
80

Doc. no. 25 (Plaintiff’s Response in Opposition to Summary Judgment), at 5 (citing doc.
no. 23-4 (Plaintiff’s State-Court Deposition), at 39).
81

See doc. no. 23-4, at 39 (“Evelyn Kelley and them, Jack, Gert, all of them did.”).
37

Finally, defendant makes the point that, “less than six months before Plaintiff
claims she was terminated with discriminatory intent, she was reinstated following
her third violation of the Defendant’s tobacco-free-campus policy. The
decisionmakers who terminated Plaintiff for theft [i.e., Administrator Brad Hinton
and Personnel Director Cheryl Haney] also made the reinstatement decision.”82 The
court finds that point persuasive. Indeed, it is doubtful that, if those individuals had
desired to terminate plaintiff on the basis of age-related animus, they would have
commuted her termination to a one-week suspension when they bore no obligation
to do so.
In summary, plaintiff has failed to prove that the legitimate, nondiscriminatory
reason proffered by defendant is merely a pretext for age discrimination. Therefore,
the court concludes that plaintiff’s ADEA claim is due to be dismissed, and
defendant’s motion for summary judgment granted.
V. CONCLUSION AND ORDER
In accordance with the foregoing, it is ORDERED that defendant’s motion for
summary judgment is GRANTED. Plaintiff’s ADEA claim is DISMISSED WITH
PREJUDICE. Costs are taxed to plaintiff. The Clerk is directed to close this file.

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Doc. no. 23 (Motion for Summary Judgment), at 24 (alteration supplied).
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DONE and ORDERED this 13th day of May, 2016.

______________________________
United States District Judge

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