Argo et al v. Gregory et al
Filing
51
ORDER granting in part and denying in part Defendant's 27 Motion for Summary Judgment. This case shall proceed to trial on Plaintiffs' age discrimination claims. Signed by Judge J. Randal Hall on 09/10/2014. (jah)
IN THE UNITED
FOR THE
STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION
WILLIAM ARGO, MICHAEL G.
JOHNSON and JOHN M. SPANGLER,
*
*
Plaintiffs,
*
v.
*
Sheriff TOMMY J.
GREGORY,
*
in his official capacity,
CV 212-213
*
*
Defendant.
*
ORDER
Presently
Gregory's
27.)
before
("Sheriff")
Plaintiffs,
Office
the
Court
motion
is
for
Defendant
summary
Sheriff
judgment.
Tommy
(Doc.
no.
former deputies in the Camden County Sheriff's
("Sheriff's
Office"),
were
terminated
on
June
29,
2011,
as part of a reduction in force purportedly because of a limited
budget.
However,
against
on
the
they
basis
of
allege
their
that
age
they
and
were
discriminated
retaliated
against
violation of the Age Discrimination in Employment Act,
§ 621,
et
seq.
and Michael
in
violation
U.S.C.
§
("ADEA").
Johnson
of
the
12102(1)(A).
Additionally,
claim that
American
As
29 U.S.C.
Plaintiffs William Argo
they were
with
in
discriminated
Disabilities
discussed below,
the
Act
against
("ADA"),
42
Sheriff's motion
for summary judgment is GRANTED IN PART AND DENIED IN PART.
I.
A.
BACKGROUND
Factual Background
1.
This
Sheriff's
Plaintiffs' Employment History and Terminations
case
arises
Office.
out
of
William Argo
former Sheriff Bill Smith as
at
8.)
Argo
obtained his
deputy
in
that
position
security.
(Argo
(Id.
Decl.
SI
position until his termination.
Johnson,
likewise,
Decl.
SISI
employment
was
hired
was
4.)
the
2001
by
(Argo Dep.
2005
when
he
transferred to work as
at
10; Argo
but was
Argo
Decl.
SI
a
4.)
reassigned to
remained
in
this
(Id. SI 5.)
hired
1-2.)
until
with
in
a corrections officer.
he worked at the front desk,
courtroom.
(Johnson
("Argo")
certification and was
in courthouse
Originally,
the
remained
POST
Plaintiffs'
He
by
was
Sheriff
Smith
originally
in
1996.
hired
as
a
corrections officer and received a promotion to Sergeant within
six months.
was
(Id.
transferred to
SI
4.)
transferred
5.)
(Id.
After
to
In this
civil warrants,
the
SI 2. )
In 1999,
work as
he became POST certified and
a patrol deputy shortly thereafter.
approximately
six months
on
civil
and
division.
position,
service
his
courts
responsibilities
patrol,
included
he
was
(Id.
SI
serving
transporting prisoners, and occasionally working
as a courtroom deputy.
(Id.
SI
position until he was terminated.
7.)
Johnson
remained in this
(See Doc. no. 31-1 SI 5.)
John
Spangler
(Spangler Dep.
position
8.)
Spangler
transport
Decl.
at
was
officer
SI 3.)
hired
by
Sheriff
Smith
in
2002.
Although the record does not reflect the
worked
when
at
point
one
he
He was transferred,
was
hired,
during
his
however,
he
served
tenure.
as
a
(Spangler
several weeks prior to
his termination and was working as a corrections officer when he
was laid off.
On
(IcL_ SISI 2-3.)
June
employees,
29,
2011,
were laid off.
of their termination,
was 43.
Plaintiffs,
(Id.)
along
(See Doc. no. 31 at 8.)
Argo was 70,
Board
year
of
Office
million.
Finance
the
Sheriff
requested
of approximately $8 million,
Commissioners
(including
the
approved
Camden
a
and Johnson
County,
(Gregory Dep.
a budget
but
budget
Jail/Corrections
(Fender Dep. at 12.)
for
other
Sheriff Gregory contends that the lay-offs were
Apparently,
fiscal
six
At the time
Spangler was 56,
necessary due to an "underfunded budget."
8.)
with
for
the
division)
that
for the
of
Sheriff's
only
this
represented
Plaintiffs argue the decrease was far less, only $164,170.
no.
$5.5
the Director of
decrease of approximately $600,000 from the 2011 budget.
Doc.
2012
the Camden County
Michael Fender,
testified
at 6,
a
(Id. )
(See
31-1 at 7.)
Sheriff Gregory explains that once he determined that lay
offs were necessary,
or
her
employees.
he asked each division leader to rank his
(Gregory
Dep.
at
7.)
Purportedly,
the
employees at the bottom of each list were those at risk of being
terminated.
(Id.)
Lori
Whitlow,
Assistant to Sheriff Gregory,
and warrants
4.)
She
and
civil
employee's
actions.
work
(Id.
divisions.
in making
supervisors'
she
considered an
and
any
disciplinary
supervisor,
no.
31 at
25.)
he
not
the
Similarly,
(Id.
at 26.)
considered
employee.
ranked
at
Spangler was
25-26,
officer,
rank
Rather,
disciplinary actions,
of
not
(Id.
at
Argo and Johnson
SI 10.)
the
April
bottom
Palmer,
his
ranked Spangler 22nd out of 35 employees.
out of 34.
list
did
lists.
31.)
was
Sheriff made
one
And
more
the
Charles
the
his
direct
(See Doc.
Byerly ranked Spangler 24th
employee's
job
performance,
any
and his own personal knowledge and opinion
bottom
of
of
Byerly testified that in making his
(Byerly Dep.
the
2,
list,
Applying these criteria,
however,
SISI
her
ranked at the bottom of their divisions.
Spangler,
(Whitlow Aff.
attendance,
history,
SI 9.)
Executive Administrative
supervised the courthouse security
service
testified that
the
two
of
at
the
full-time
because
Jessica
essential,
decision
full-time transport officer.
17.)
Although Spangler was
list,
Byerly
transport
Miller,
Spangler
that
he
was
officers.
the
other
terminated
only had
(Id. at 25-26,
explained
the
31.)
funds
that
(Id.
at
transport
when
the
for
one
2.
2012 Hirings
Despite laying off nine employees aged 70,
43,
66,
41,
funds,1
and
Gregory
38
because
continued
throughout
2011
to
and
of allegedly limited
advertise
2012.
hire
the
Sheriff
employees
- one
27, 2011,
two days prior to the lay-offs.
8.)
corrections
and
fact,
In
for
early
as
advertisements
September
requesting
30,
(See Doc.
over
additional
the
next
eighteen
corrections
applications
several
administrative clerk.
for
the
including
one
finance
(See Doc.
no.
the
three
- on June
31-1 at
Sheriff
placed
correctional
no. 27-3 at 71.)
hired
deputies,
officer,
31 at 8.)
Sheriff
employees
no.
Sheriff
four
50,
(Id.)
open
(See Doc.
months,
employees,
officers,
2011,
54,
hired
officer and two deputies
officer positions in the newspaper.
And
new
The ages of the new hires were 25, 39, and 51.
As
56,
and
an
twelve
one
The ages of the
new hires ranged from 19 to 51, and only three of the hires were
over the age of 40.
(Id.)
Argo and Spangler testify that they
were replaced by deputies with less training and experience who
were
significantly
younger
Spangler Decl. SISI 14-15.)
than
them.
(Argo Decl.
SISI
21-22;
And Johnson claims that he was senior
to and more qualified than his co-worker who was not terminated,
Brenda Nason.
1 The record
Nelson.
(See Doc.
(Johnson Decl.
does
no.
not
reflect
31-1 at 8.)
SISI 14-15.)
the age of the ninth
employee,
Brandi
Despite
not
being
reapply
Plaintiffs
aware
for
of
the
employment
did not
advertisements,
with
the
Plaintiffs
Sheriff's
believe that they needed to
did
Office.
reapply because
when they were terminated they were not informed that they would
have
to
reapply
Decl.
SI 17;
argue
that
age
if
they
wanted
Johnson Decl.
they were
terminations.
SISI 12-13;
not
discrimination
return
the
no.
to
service.
Spangler Decl.
rehired because
with
(See Doc.
to
EEOC
they
SI 10.)
filed
shortly
(Argo
They
claims
after
of
their
31-1 at 29.)
3. Argo and Johnson's ADA Claims
Argo
and
Johnson
also
claim
that
discriminated against them on the basis
(See Am. Compl.
hearing loss.
SISI 44-61.)
Gregory
of their disabilities.
Specifically,
Johnson suffered from
However, Johnson did not file ADA discrimination
charges with the EEOC.
the other hand,
Sheriff
(See Doc. no. 27-4 at 115.)
Argo,
on
did file discrimination EEOC charges based upon
his disability - colon cancer,
which he was diagnosed with in
2010.
Following surgery to remove the
(See Argo
Decl.
SI 9.)
cancer, Argo was out of work for approximately six weeks.
(Id.)
Despite undergoing chemotherapy treatments when he returned to
work,
Dep.
his doctor did
at 27-28.)
initially,
after
not place
any limitations on him.
(Argo
And while he did not suffer any side effects
the
third or
experience nausea and diarrhea.
fourth
treatment
(Id. at 28-29.)
he
began
to
His condition,
however,
did not have any effect on his ability to carry out his
duties other than the need to be
breaks.
(Id.
at 30,
able to take frequent restroom
32.)
B. Procedural Background
On December 27,
(Doc.
no.
1.)
individual
2012,
The
capacity
Plaintiffs
Sheriff
claims
filed
on
filed suit in this Court.
motion
25,
June
a
to
2013.
dismiss
(Doc.
the
no.
14.)
Plaintiffs subsequently filed an Amended Complaint dropping the
individual capacity claims,
on July 30,
2013.
which were dismissed by Court Order
(Doc. nos.
17,
19.)
On September 25,
2013,
Sheriff Gregory filed his motion for summary judgment on all of
Plaintiffs'
claims.
(Doc.
responses has expired,
no.
27.)
The
time
for
any
further
and the motions are ready and ripe for
adjudication.
II.
Summary
genuine
56(a).
the
judgment
dispute
entitled
to
SUMMARY JUDGMENT
as
judgment
is
appropriate
to any
material
STANDARD
only
fact
if
is
no
and the movant
is
as a matter of law."
"there
Fed.
R.
Civ.
P.
Facts are "material" if they could affect the outcome of
suit
under
the
Liberty Lobby, Inc.,
governing
477 U.S.
substantive
242,
law.
248 (1986).
Anderson
v.
The Court must
view the facts in the light most favorable to the non-moving
party,
U.S.
Matsushita Elec.
574,
Indus. Co.
v.
Zenith Radio Corp.,
475
587 (1986), and must draw "all justifiable inferences
in
[its]
1428,
favor."
1437
U.S.
(11th Cir.
v.
Four Parcels of Real
1991)
(en banc)
Prop.,
941
F.2d
(internal punctuation and
citations omitted).
The
Court,
moving
by
motion.
How
1115
reference
Celotex
to
proof
party
carry
Corp.
this
at trial.
(11th
to
has
the
initial
materials
v.
Catrett,
burden
depends
Fitzpatrick v.
Cir.
1993) .
on
When
burden
file,
477
on
of
the
U.S.
who
showing
basis
317,
bears
City of Atlanta,
the
non-movant
has
for
323
the
the
the
(1986).
burden
2 F.3d
the
of
1112,
burden
of
proof at trial,
the movant may carry the initial burden in one
of
by
two
ways
—
negating
an
essential
element
of
the
non-
movant' s case or by showing that there is no evidence to prove a
fact necessary to the non-movant's case.
See Clark v.
929 F.2d 604,
1991)
Clark,
Inc.,
Adickes
Corp.
v.
v.
S.H.
Kress
Catrett,
606-08
& Co.,
477 U.S.
398
317
(11th Cir.
U.S.
144
(1986)).
(1970)
whether
the
movant
has
met
(explaining
and Celotex
Before the Court can
evaluate the non-movant's response in opposition,
consider
Coats &
its
it must first
initial
burden
of
showing that there are no genuine issues of material fact and
that it is entitled to judgment as a matter of law.
City
of
Columbus,
120
F.3d
248,
254
(11th Cir.
Jones
1997)
v.
(per
curiam).
A mere conclusory statement that the non-movant cannot
meet
burden at
608.
the
trial
is
insufficient.
Clark,
929
F.2d at
If —
the
and only if —
non-movant
may
"demonstrat[ing]
that
bears
its
that
precludes
the
initial
avoid
there
summary
burden
response
the movant
of
to
burden.
negating
a
evidence
at
material
fact,
to
F.3d at
1116.
material
fact,
by
When
the
which
the
the
fact
tailor
carried
its
affirmatively
"must
directed
of
by
non-movant
must
movant
non-movant
a
issue
evidence
burden,
only
non-movant
presents
the
respond
verdict
sought to be negated."
If the movant
the
initial
judgment
Id.
trial,
withstand
trial on the material fact
its
indeed a material
the movant
sufficient
2
is
method
If
summary
judgment."
proof
the
carries
with
motion
at
Fitzpatrick,
shows an absence of evidence on a
non-movant must
either
show that
the
record
contains evidence that was "overlooked or ignored" by the movant
or
"come
withstand
forward
a
with
directed
additional
verdict
motion
alleged evidentiary deficiency."
cannot
carry
repeating
See
burden
conclusory
Morris
Rather,
its
v.
the
Ross,
by
non-movant
F.2d
must
at
Id.
trial
on
the
contained
1032,
sufficient
at 1117.
relying
allegations
663
evidence
1033-34
respond
with
based
on
to
the
The non-movant
pleadings
in
the
(11th
or
by
complaint.
Cir.
affidavits
1981).
or
as
otherwise provided by Federal Rule of Civil Procedure 56.
In
this
action,
the
Clerk
gave
Plaintiffs
appropriate
notice of the motion for summary judgment and informed them of
the summary judgment
rules,
the right
to file affidavits
or
other materials in opposition,
(Doc. no.
v.
are
28.)
Therefore,
Wainwright,
and the consequences of default.
the
notice
772 F.2d 822, 825
requirements of Griffith
(11th Cir.
1985)
(per curiam),
satisfied.
III.
Plaintiffs
allege
claims
retaliation under the ADEA.
discrimination
claims
address
the
for
age
In addition,
under
summary judgment on all
first
DISCUSSION
the
Sheriff's
contention
and
Argo and Johnson bring
ADA.
of Plaintiffs'
discrimination
Sheriff
claims.
that
Gregory
The
seeks
Court will
Plaintiffs'
are procedurally barred before turning to Plaintiffs'
claims
ADEA and
ADA claims.
A.
Administrative Exhaustion
Before reaching the merits of Plaintiffs'
claims,
the Court
must first address Sheriff Gregory's contention that Plaintiffs'
claims should be dismissed because they failed to exhaust their
administrative
remedies.2
"In
order
to
sue
in
court
for
violations of Title VII,3 a plaintiff must exhaust administrative
remedies,
which means
from the EEOC."
[he]
must
receive
Wilkerson v. H & S, Inc.,
(11th Cir. 2010); Forehand v.
Court
does
not
address
right-to-sue
letter
366 Fed. Appx.
49, 50
Fla. State Hosp. at Chattahoochee,
89 F.3d 1562, 1567 (11th Cir. 1996)
2 The
a
("Before instituting a Title
Plaintiff
Johnson's
ADA
claim
in
this
section.
3 The Sheriff appears to argue that the Title VII exhaustion
requirements apply equally under the ADEA. Because Plaintiffs do not contest
this argument, the Court applies the Title VII requirements.
10
VII
action
file
an
in
EEOC
federal
district
complaint
court,
against
the
receive
statutory notice
from the
sue the
respondent
in the
the
expiration
and
no
other
of
named
180
action
days,
has
discriminating
EEOC of
his
charge.").
the
been
a private plaintiff must
charge
taken
by
or
party
her
and
right
to
Further,
if,
has
not
dismissed
the
EEOC,
been
the
after
EEOC
is
required to notify the claimant and that claimant may bring suit
in district court within 90 days thereafter.
42 U.S.C.
§ 2000e-
5(f)(1).
In
the
Eleventh
Circuit,
"the
receipt
of
a
right-to-sue
letter is not a jurisdictional prerequisite to suit in district
court, but rather,
modification."
is a condition precedent subject to equitable
Forehand,
89
F.3d
Jekyll Island-State Park Auth.,
1983)
("[A]11
Title
henceforth to be
than
VII
at
1567;
see
713 F.2d 1518,
procedural
also
requirements
requirements.").
Here,
v.
1525 (11th Cir.
to
viewed as conditions precedent to
jurisdictional
Fouche
suit
suit
rather
Plaintiffs
suit before receiving their right-to-sue letters.
are
filed
Consequently,
they must rely upon equitable modification.
In this case,
(Doc.
no.
notices
1.)
of
Plaintiffs'
approximately
Plaintiffs filed suit on December 27,
2012.
Less than one month later they received their
right
charges
to
sue.
had
(See
been
eighteen months
Doc.
pending
and
11
there
no.
17
before
is
the
at
16-18.)
EEOC
no evidence
for
that
Plaintiffs
interfered
investigate
with
or
their charges.
Accordingly,
is proper,
and as a result,
exhausted
their
"the
678
1219
F.2d
of
a
satisfies
1211,
notice
of
(5th
right-to-sue
the
right
See
Cir.
letter
Pinkard
1982)
plaintiffs
in
any
way
v.
(holding
subsequent
to
that
sue
a
to
plaintiff
before
filing
action under Title VII" where there was nothing to
the
to
the
but while the action remains
precondition
the
efforts
equitable modification
remedies.
receipt
statutory
EEOCs
the Court finds that Plaintiffs have
commencement of a Title VII action,
pending,
the
administrative
Pullman-Standard,
that
frustrated
frustrated
the
obtain
a
civil
suggest that
EEOCs
effort
to
investigate the charges); Cross v. State of Ala., State Dep't of
Mental
Cir.
filed
Health
1995)
suit
&
Mental
Retardation,
49
F.3d
(equitable modification was proper
more
discrimination
than
two
charge
weeks
with
before
the
EEOC
filing
but
1490,
1504
(11th
where
plaintiffs
their
employment
ultimately
received
their notices of right to sue approximately 60 days later); Sims
v.
Trus
Joist
MacMillan,
22
F.3d
1059,
1063
(11th
Cir.
1994)
(stating that an individual's right to sue is not conditioned
upon
the
Plaintiffs'
EEOCs
claims
performance
are
not
of
barred for
administrative remedies.
B.
its
Age Discrimination Claims
12
administrative
failure
to
duties).
exhaust
their
Plaintiffs primarily assert age discrimination claims under
the ADEA.
fail
Under the ADEA,
or
refuse
otherwise
his
to
hire
discriminate
compensation,
employment,
U.S.C.
§
illegal
229
of
F.3d
plaintiff
relies
any
1024
plaintiff
employ
the
McDonnell-Douglas
Chapman,
229
must
F.3d at
the
ADEA,
1024.
as
is
respect
to
age."
Chapman
v.
AI
(citing
29
2000)
a
of
evidence
direct
claim
or
Hillsborough Cnty.
2008).
evidence
the
case
Bd.
When a
to
prove
here,
courts
burden-shifting
Under this
or
of
(11th Cir.
circumstantial
under
with
"establish
Van Voorhis v.
discrimination
individual
privileges
either
1300
employer to
or
Cir.
may
through
F.3d 1296,
on
(11th
an
any
individual
individual's
A
512
for
discharge
1012,
discrimination
Comm'rs,
to
conditions,
such
circumstantial evidence."
of Cnty.
is "unlawful
against
623(a)(1)).
age
or
terms,
because
Transport,
it
framework.
framework,
a plaintiff
first establish a prima facie case of discrimination.
Id.
A plaintiff may do so by showing that he was (1) a member of the
protected
action,
age
(3)
group,
qualified
(2)
subjected
to do the
to
job,
an
and
adverse
(4)
employment
replaced
otherwise lost a position to a younger individual.
In situations involving a reduction in force,
by
or
Id.
however,
the
employer seldom seeks a replacement for the discharged employee.
Accordingly, the fourth prong of the prima facie case is altered
to require that the plaintiff "produce evidence, circumstantial
13
or direct,
that
from which the factfinder might
the
employer
intended
decision at issue."
(11th Cir.
120,
1987)
129
(citing Williams v. Gen.
(5th
lead
a
discriminate
Mauter v. Hardy Corp.,
Cir.
1981)).
discriminatory intent,
could
to
reasonably conclude
To
defendant
consciously
relocating
plaintiff
factfinder
refused
because
to
his
the
146 Fed. Appx.
356, 359
1557
656 F.2d
requisite
present evidence that
conclude
age,
or
(2)
(1)
the
retaining
consider
that
or
the
regarded age as a negative factor in its actions.
Eng'g Co.,
the
F.2d 1554,
establish
to
of
825
reaching
Motors Corp.,
the plaintiff must
reasonable
in
(11th Cir.
defendant
Jones v. BE&K
2005).
If a plaintiff successfully establishes a prima facie case,
the burden
of production shifts to the employer to articulate
some legitimate non-discriminatory reason for its action.
v. Coats
This
& Clark,
intermediate
Inc.,
990
burden
is
F.2d 1217,
1227
"exceedingly
(11th Cir.
light,"
and
Clark
1993).
once
the
employer offers a justification, the plaintiff must prove by a
preponderance
of
the
evidence
that
the
employer's
proffered
reason for its actions is pretextual and that the employer did
in
fact
Corp.,
intend
to
discriminate.
894 F. Supp.
1573,
Stone, 24 F.3d 1330, 1334
1. Prima
Ward
1578 (S.D. Ga.
v.
1995)
(11th Cir. 1994)).
Facie Case
14
Gulfstream
Aerospace
(citing Batey v.
Plaintiffs
have
presented sufficient
evidence
a prima facie case of age discrimination.
to
establish
Sheriff Gregory does
not challenge that Plaintiffs are members of the protected class
and
that
Rather,
they
were
subject
to
an
the Sheriff contends that
adverse
employment
action.
Plaintiffs were not qualified
for their positions and have not produced evidence showing that
he intended to discriminate.
First,
Peace
Plaintiffs
Officer
extensive
attended
Training
(See Argo Decl.
The Court disagrees.
and
Council
graduated
School
and
from
were
the
POST-certified.
SI 3; Johnson Decl. SI 3; Spangler SI 4. )
experience
with
the
Sheriff's
Office
Georgia
prior
Each had
to
their
termination.
Argo had been employed by the Sheriff's Office for
approximately
ten
six.
year
years
(Argo Decl. SISI 1,
veteran with the
and
5.)
served
as
a
courtroom deputy
Johnson, similarly, was a fourteen-
Sheriff's office and had served over ten
years in his post as a civil service deputy.
1,
5.)
In
addition,
for
Spangler
had
been
(Johnson Decl.
employed
with
SISI
the
Sheriff's Office for approximately nine years and was certified
as a jailer.
in
accident
intolizer
conclusory
(Spangler Decl.
reconstruction,
5000,
and basic
assertions
to
SISI 1,
lidar,
first
the
aid.
4.)
He was also certified
radar,
(Id.
contrary,
produced or cited to any evidence that
were unqualified for their positions.
15
field
SI
5.)
Defendants
shows that
sobriety,
Other
have
than
not
Plaintiffs
Second,
evidence
to
Plaintiffs
satisfy
discriminatory
Sheriff
hiring
have
their
intent.
engaged
in
produced sufficient
burden
to
Plaintiffs
a
pattern
substantially younger
of
produce
have
circumstantial
some
evidence
demonstrated
firing
older
employees.
For
that
employees
example,
of
the
while
the
ages
of individuals terminated due to purported budgetary constraints
were 70,
8.)
At
66,
56,
54,
50,
the same time,
43,
the
41,
ages
the 2012 fiscal
year were 19,
28,
34, 34,
30, 33,
addition
to
33,
this
37,
pattern,
and 38.
of the
19,
38,
22,
39,
(See
Plaintiffs
no.
31 at
employees hired during
23,
43,
Doc.
24,
47,
25, 25,
and 51.
testified
26,
26,
(IdJ
In
regarding
a
conversation Roger Dyals had with Kevin Barber in which Barber
told Dyals that "he did not understand why Sheriff Gregory was
making comments about doing something about the "old people' at
the courthouse."
Decl.
SI 6.)
bound
and
(Argo Decl. SI 13; Johnson Decl. SI 8; Spangler
Barber said,
determined
to
"I don't know why the Sheriff is so
get
rid
'greybeard, '" pointing to Argo.
SI 8; Spangler Decl. SI 6.)
specifically named,
of
you
and
that
other
(Argo Decl. SI 13; Johnson Decl.
Although Johnson and Spangler are not
this testimony along with the pattern of
discriminatory terminations is sufficient to satisfy Plaintiffs'
burden to produce some evidence of the Sheriff's discriminatory
intent.4
4 Although Argo, Johnson, and Spangler testify to these remarks, Sheriff
16
2. Legitimate Nondiscriminatory Reason
Because
Plaintiffs
Sheriff Gregory must
reason
for
asserts
the
that
Office
year.
budget
is
established
termination
was
cut
on
of
were
by
Because
spent
he
terminated
the
majority
that
he
facie
Sheriff
the
$600,000
of
salaries,
the
he
case,
nondiscriminatory
because
approximately
employees'
testified
prima
Plaintiffs.
forced to lay off several employees.
cuts,
a
articulate a legitimate,
Plaintiffs
budget
fiscal
have
for
Gregory
Sheriff's
the
Sheriff's
claims
that
2012
Office
he
was
In order to carry out the
instructed
each
division
chief
to
rank their subordinates and that the employees at the bottom of
the list may lose their job.
Sheriff
has
met
his
(Gregory Dep.
burden
of
at 7.)
articulating
Thus, the
a
legitimate
nondiscriminatory reason for the termination of Plaintiffs.
See
Chavez v. URS
821
(11th Cir.
Fed.
2013)
Tech.
Servs.,
Inc.,
504
Fed.
Appx.
819,
(finding that a budget cut was a legitimate,
nondiscriminatory reason for termination).
3. Pretext
Accordingly, in order to avoid summary judgment, Plaintiffs
must introduce significantly probative evidence showing that the
asserted
Gregory
challenges
hearsay.
the
reason
Court
for
their
termination
only
Argo's
testimony
is
merely
regarding
these
pretext
for
statements
as
Thus, without resolving whether Argo's statements are admissible,
finds
that
Johnson
and
statements (along with the pattern
successfully prove a prima facie case.
Spangler's
testimony
regarding
these
of younger hires) is sufficient
(See Doc. no. 35 at 19.)
17
to
discrimination.
plaintiff's
ultimate
determining
showing
"The burden of proving pretext merges with the
factor
that
a
burden
in
his
of
discharge,
discriminatory
motivated
the
employer's
employer's
proffered
proving
and
reason
decision,
explanation."
that
it
more
or
was
a
be
met
by
can
likely
than
not
discrediting
by
Clark,
age
the
990
F.2d
at
1228.
Plaintiffs must "meet the proffered reason head on and rebut it,
and the
employee
wisdom
of
that
Cnty.,
Ala.,
cannot
reason."
446
F.3d
Plaintiffs
must
reasonable
finder
articulated
showing
Brooks
1160,
v.
simply quarreling
Comm'n
(11th
1163
Cnty.
Cir.
produce
sufficient
of
to
reason
fact
is
not
"weaknesses,
incoherencies,
Id.
succeed by
of
believable.
that
implausibilities,
to
may
Thus,
allow
Sheriff
They
the
Jefferson
2006).
evidence
conclude
with
a
Gregory's
do
this
by
inconsistencies,
or contradictions" in the proffered explanation.
"A reason is not pretext for discrimination 'unless it is
shown both
that
the
reason was
was the real reason.'"
Sheriff
appropriate
legitimate,
Gregory
because
false,
and
that
discrimination
Id.
contends
that
summary
Plaintiffs
have
not
nondiscriminatory reason
judgment
shown
his
is unworthy of credence.
Plaintiffs, however, present the following evidence:
the budget shortfall,
that
is
(1) despite
the Sheriff hired three individuals two
days prior to terminating Plaintiffs; (2) the Sheriff also hired
18
eighteen additional employees during the 2012
fiscal year;
(3)
the
on
two
Sheriff
from
occasions;
separate
deviated
and
discriminatory
The
Court
comments
concludes
his
(4)
that
that
ranking
system
the
Sheriff
evidence
a
Plaintiffs'
at
least
made
several
discriminatory
evidence
is
intent.
significantly
probative and demonstrates weaknesses and inconsistencies in the
Sheriff's proffered explanation.
Therefore,
Plaintiffs have met
their burden in demonstrating pretext.
First,
despite
necessitated
the
the
apparent
termination
of
budgetary
nine
constraints
trained
and
which
experienced
employees, the Sheriff approved the hire of three individuals on
June 27,
at 8.)
2011, two days prior to the layoffs.
(See Doc. no. 31
The ages of the three individuals hired were 25, 39, and
51, which stands in stark contrast to the ages of the terminated
employees: 70, 66, 56, 54, 50, 43, 41, and 38.5
Second,
in addition
(Id.)
to the pre-termination
hires,
Sheriff
Gregory continued to hire employees throughout the 2012 fiscal
year
despite
hired
six
the reduced
individuals
deputy sheriffs
part time.
in
(ages 26,
budget.
the
30,
Specifically,
Sheriff's
33,
Office,
and 37),
(See Doc. no. 31 at 8.)
the Sheriff
including
four
two of which were
The Sheriff also hired a
finance officer, an administrative clerk, and twelve individuals
in the
Jails/Corrections
division.
(Id.)
The
ages
5 The record does not indicate the age of Brandi Nelson,
individuals terminated on June 29, 2011.
19
(See Doc. no. 31 at 8.)
of
these
one of the
individuals were 19,
43,
and 47.
Third,
deviated
19,
22,
23,
24,
25,
26,
28,
33,
34,
34,
38,
(Id.)
Plaintiffs
from
his
presented
purported
different occasions.
evidence
ranking
that
system
on
the
at
Sheriff
least
two
Sheriff Gregory testified:
I asked my division chiefs, captains, supervisors not all of them were the ranking captain, but most of
them are - to "rank your people, one being your best
employee, one being the ones" - the bottom of the list
being the ones that could potentially be let go.
(Gregory Dep. at 7.)
The Sheriff,
however,
did not follow this
procedure in determining to terminate Spangler and at least one
other
employee
for
the
June
29,
2011
deputy in the corrections division,
layoffs.
Spangler,
a
was ranked 22nd out of 35
and 24th out of 34 employees on separate lists made by Charles
Byerly and April Palmer.
not
being
terminated.
terminated
time
ranked
at
the
Although
because
transport
(See Doc. no.
bottom by
either
Sheriff
explains
the
there
deputies,
were
created any separate
time.
Similarly,
was
of any ranking list.
insufficient
there
Gregory
division chief,
Captain
is
list
Jeremy
no
Despite
supervisor,
that
funds
evidence
he
was
Spangler
was
for
two
that
full-
Sheriff
for that position at that
Rogers,
the
investigative
terminated despite not being at the bottom
Indeed,
the record indicates that he was
responsible for creating a ranking list.
When questioned,
31 at 25-26.)
(Gregory Dep. at 51.)
Sheriff Gregory testified that Rogers was "a
20
division chief so I probably put him on the list .... I put
Jeremy
Rogers
Rogers
was
division
on
one
of
chief
decision."
favorable
a -
to
the
so
(Id.
I didn't
I
at
ones
I
make
laid
solely
off
list
....
would
have
When
read
in
these
deviations
but
because
had
51-52.)
Plaintiffs,
a written
to
he's
a
make
that
light
the
from
Jeremy
most
the
Sheriff's
purported ranking system can create a genuine issue of material
fact of pretext.
Inc.,
439
judgment,
F.3d
See Hurlbert v. St. Mary's Health Care System,
1286,
1299
(11th
Cir.
2006)
(reversing
summary
in part because "an employer's deviation from its own
standard procedures may serve as evidence of pretext").
Fourth,
the
discriminatory
Spangler Decl.
Sheriff
intent.
SI
6.)
made
multiple
(Argo Decl.
In sum,
SI
comments
13;
suggesting
Johnson
Decl.
SI
a
8;
Plaintiffs marshal significant
circumstantial evidence that the Sheriff's budgetary explanation
for the
terminations
proffered
was
legitimate
terminations
"head
implausibilities,
that
discrimination.
See
Sheriff's
for
nondiscriminatory
on,"
by
would
Brooks,
summary
446
21
met
for
findings
F.3d at
on
1163.
of
the
their
"weaknesses,
incoherencies,
judgment
ADEA Retaliation Claims
have
reason
demonstrating
permit
discrimination claims is DENIED.
C.
Plaintiffs
inconsistencies,
contradictions"
motion
pretextual.
pretext
Therefore,
Plaintiffs'
ADEA
or
and
the
age
Plaintiffs
ADEA,
alleging
action
against
also
that
claims
for
retaliation
Sheriff Gregory took an
To
plaintiff
must
statutorily
employment
facie
case
present
protected
action;
and
rehiring
of
conduct;
that:
(2)
the
506 F.3d 1361,
1363 (11th Cir.
under
(1)
he
he
suffered
adverse
related to the protected activity.
Inc.,
in
retaliation
evidence
(3)
them
employment
their filing complaints of age discrimination with the EEOC.
prima
not
adverse
the
for
a
by
under
retaliation
establish
them
bring
action
Thomas
v.
the
ADEA,
engaged
an
was
a
in
adverse
causally
Cooper Lighting,
2007).
To satisfy the adverse employment action requirements, "the
plaintiff must show that a reasonable employee would have found
the
challenged
action
materially
adverse."
Burlington
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006).
adverse
action
is one
that
"might have
N.
&
A materially
dissuaded a reasonable
worker from making or supporting a charge of discrimination."
Id.
"An employer's failure to recall or rehire an employee is
"undoubtedly an adverse employment action'
where the employee
reapplied for the position after termination."
Power Co.,
employer
282 Fed.
uses
Appx.
formal
780,
785 (11th Cir.
procedures
to
announce
Jones v.
2008).
Ala.
"If the
positions
and
identify candidates, the plaintiff cannot make out a prima facie
case unless he shows that he applied for the position."
Id.
(citing Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768
22
(11th
Cir.
general
2005)).
interest
application
is
requirement."
F.3d 1342,
in
being
under
to
circumstances,
submitting
satisfy
(citing Smith v.
(11th Cir.
such
without
rehired
insufficient
Id.
1345
Here,
J.
the
a
an
application
Smith Lanier & Co.,
352
2003)).
the parties do not dispute that Plaintiffs engaged in
statutorily
age
"Furthermore,
protected
conduct
discrimination.
when
Rather,
they
Sheriff
filed
EEOC
Gregory
charges
contends
of
that
Plaintiffs did not suffer any adverse employment action because
they did not reapply for any positions with the Sheriff's Office
after
their
termination
despite
knowing
about
the
openings.
Plaintiffs argue that they did not reapply because they were not
told
by
the
Sheriff
that
they
needed
to
reapply.
Decl. SI 17; Johnson Decl. SI 12; Spangler Decl. SI 10.)
(See Argo
Yet, when
asked whether he expected to be contacted by the sheriff when a
position came open, Argo testified, "No."
Johnson
testified
told him that
that
he was
when
he
was
"put down
(Argo Dep. at 21-22.)
terminated,
for rehire."
Sheriff
Gregory
(Johnson Dep. at
21, 37.)
But he didn't reapply because he "was sure they wasn't
hiring."
(Id. at 37.)
Similarly, Spangler was told that he was
eligible for rehire and that he would be "one of the first to be
rehired."
(Spangler Dep.
others were being hired,
because
he
was
never
at 14.)
Despite
being aware that
he testified that he never reapplied
contacted.
23
(Id.)
Plaintiffs
testified
that it was their understanding that after an employee is laid
off,
he will later be recalled to return when the reason for the
layoff no longer exists.6
Spangler Decl.
SI 11.)
Plaintiffs
occasion,
received
also
an
a
(Argo Decl. SI 18; Johnson Decl. SI 14;
introduce
employee
telephone
(Chancey Dep.
at
that
call
8-9.)
evidence
had
asking
that
been
her
Plaintiffs
on
at
previously
to
come
argue
that
least
one
terminated
back
taken
to
work.
together,
these facts permit a reasonable jury to find that they were not
rehired
in
retaliation
for
their
EEOC
age
discrimination
charges.
The Court,
Sheriff's
positions
however,
Office
and
used
disagrees.
formal
identify
It is undisputed that
procedures
candidates
by
to
announce
advertising
the
the
open
in
the
newspaper and requesting applications for those interested.
It
is also undisputed that Plaintiffs were aware that the Sheriff's
Office had hired several individuals and yet they did not submit
applications.
Moreover,
Plaintiffs have not cited to any case
or provided sufficient facts that excuse their failure to apply.
Ms. Chancey's testimony - that one terminated employee received
a call back
- is insufficient by itself to create a genuine
factual dispute that Sheriff Gregory had a standard practice of
6 Plaintiffs assert without citation that it is a "consistent practice
with most workplaces when individuals are laid off" for employers to call
them on the telephone and not require them to reapply.
(Doc. no. 31-1 at
29.)
24
recalling
previously
terminated
employees
without
having
them
reapply.
Although
Plaintiffs
were
not
told
that
they
needed
to
reapply,7 "[i]t is not unfair or unduly burdensome to expect a
plaintiff
to
prerequisite
submit
for
Janssen Ortho,
absence
of
an
application
stating
LLC,
467
evidence
standard practice
of
a
for
that
failure-to-hire
F.3d 802,
either
808
that
claim."
(1st Cir.
the
vacancy
recalling previously
In
Office
terminated
a
Velez
2006).
Sheriff's
as
v.
the
had
a
employees
without having them reapply or they were told that they need not
reapply,
Plaintiffs
have
not
shown
that
they
suffered
any
adverse employment action and thus cannot make out a prima facie
case
of
retaliation.
Consequently,
See
Jones,
282
Fed.
Appx.
at
785.
summary judgment in favor of Sheriff Gregory is
appropriate on Plaintiffs' ADEA retaliation claims.
D.
ADA Claims
Argo and Johnson also allege claims under the ADA.
The
Court addresses each of these below.
1.
Johnson's ADA Claims
Johnson alleges that he was laid off because of his age, but
also
11.)
because
of
his
hearing
impairment.
(See Johnson
Dep.
at
Thus, be believes he is entitled to recover under the ADA.
7 The
Court
notes
that
Sheriff
Gregory
Plaintiffs were told that they could reapply.
testified
that
each
(Gregory Dep. at 27.)
of
the
While
this testimony is not necessarily inconsistent with Plaintiffs' declarations,
the Court, nevertheless, accepts Plaintiffs' testimony as true and construes
all reasonable inferences in their favor.
25
(See
Am.
Compl.
ADA
claims
are
administrative
(Doc.
no.
SISI
44-61.)
barred
remedies
31-1
However,
at
because
by
30.)
filing
Johnson
he
an
did
ADA
Accordingly,
concedes
not
charge
exhaust
with
Johnson's
that
ADA
the
his
his
EEOC.
claims
are
DISMISSED.
2.
Argo
cancer
Argo's ADA Claims
also
in
alleges
violation
of
that
Sheriff
Gregory.
stated that he
going
to
get
was
the ADA.
cites to three statements,
by
he
terminated
In
support
of
First,
Argo
of
to
his
his
colon
claim,
Argo
two made by Amanda Crosby and one made
Crosby
told Argo
did not care what Argo was
rid
due
no matter
what.
that
the
Sheriff
going through,
(Argo Decl.
he was
SI
12.)
Second, Crosby testified in her deposition that:
[Sheriff Gregory said] if he couldn't come
work and do a hundred percent of his job
back
then
to
he
needed to be gone from here, and I said, "Well, you
know, he's going to get treatments; he's coming to
work."
I said, "We were trying to help him out at the
front desk and give him light duty, you know, so that
way he can work," and that was unacceptable.
I was
told if he couldn't go [sic] his job a [sic] one
hundred percent, then he needed to go to the house.
(Crosby Dep. at 93.)8
"was not 100%
And third, the Sheriff testified that Argo
of the Argo that
I knew him before the treatments
or after the treatments.
I mean,
it did take its
toll on him."
(Gregory Dep. at 27-28.)
Argo, without explanation or citation,
8 Crosby's deposition was not on record in this case.
Although the
Sheriff argues that it is therefore outside of the Court's consideration, the
Court need not decide this issue as it finds that Argo's claim fails.
26
concludes
that
this
"ultimate
inquiry"
considered
Argo's
evidence
-
creates
whether
disability
in
a
jury
Sheriff
his
question
Gregory
determination
on
the
improperly
to
terminate
him.
The Court finds Argo's response to Sheriff Gregory's summary
judgment motion deficient.
brief,
Argo
alone
never
explain,
claims,
the
as
to
the
proper
any
provide
contention that
argument
makes
In
his
response
slightest
legal
citations
brief
attempt
standards
to
cases
to
this
testimony
provide,
in
satisfies
apathetically
claims
that
this
scattered
ADA
of
his
formulate
his
burden,
record
let
his
support
respond to the arguments presented by Sheriff Gregory.
Argo
sur-reply
governing
summary judgment is inappropriate,
how
and
any
or
Rather,
evidence
answers the "ultimate inquiry."
There is no burden upon the district court to distill every
potential argument that could be made based upon the materials
before
it on
summary
judgment.
Blue Cross
Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990).
upon the parties to formulate arguments.
& Blue
Shield v.
Rather, the onus is
Road Sprinkler Fitters
Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568
(11th Cir.
1994).
"[T]he court is under no duty to exercise
imagination and conjure what a plaintiff might have alleged, but
did not, and do counsel's work him or her."
Pinto v. Universidad
De Puerto Rico, 895 F.2d 18, 19 (1st Cir. 1990).
27
"It is not for
the
court
Bowden
1228,
ex
manufacture
rel.
1236
arguments
its
to
Bowden
(M.D.
Ala.
propounded
peril,
v.
inasmuch
arguments
Wal-Mart
2000).
by
as
its
this
A
on
Stores,
Inc.,
litigant
adversary
Court
Plaintiff's
who
"adopts
will
not
124
fails
this
behalf."
F.Supp.2d
to
rebut
strategy
formulate
a
at
party's
arguments for it."
Morgan v. N. Miss. Med. Ctr., Inc., 403 F.Supp. 2d
1115,
2005).
1120
(S.D. Ala.
Simply put,
material
claims
fact
fail
Argo has failed to establish a genuine issue of
for
and
jury
the
resolution.
Sheriff's
Consequently,
motion
for
summary
Argo's
judgment
ADA
is
GRANTED.
IV.
For
the
reasons
set
CONCLUSION
forth
above,
for summary judgment (doc. no. 27)
IN PART.
This
case
shall
Sheriff
Gregory's
motion
is GRANTED IN PART AND DENIED
proceed to trial
on
Plaintiffs'
age
discrimination claims.
ORDER ENTERED
at Augusta,
Georgia,
this
/ O*^ day of
September, 2014.
STATES
DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA
28
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