Bargeron v. Schleicher et al
Filing
45
ORDER granting 28 Motion for Summary Judgment. Signed by Judge B. Avant Edenfield on 4/30/13. (bcw)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
GEORGE B. BARGERON,
Plaintiff,
V
4:12-cv-71
.
DIANE SCHLEICHER; ROBERT
BRYSON; and THE CITY OF TYBEE
ISLAND, GEORGIA,
Defendants.
ORDER
I.
INTRODUCTION
Before the Court is Defendants' Motion
for Summary Judgment. ECF No. 28.
Defendants ask for judgment as a matter of
law on George Bargeron's claim of
retaliation under the Age Discrimination in
Id.
Employment Act ("ADEA"))
Defendants argue Bargeron cannot
demonstrate that the age discrimination
complaint he filed with the Equal
Employment Opportunity Commission
("EEOC") led to Defendants retaliating
against him. The Court agrees. Defendants'
motion is GRANTED.
II.
JURISDICTION
Subject matter jurisdiction is exercised
pursuant to 28 U.S.C. § 1331. Neither party
Defendants also seek summary judgment in their
favor on Bargeron's defamation claims. ECF No. 28.
Bargeron concedes that Defendants never published
the allegedly defamatory statement and thus that
judgment as a matter of law in favor of Defendants
Schleicher and Bryson is appropriate. See ECF No.
41-2 at 2 n.1. Accordingly, the Court GRANTS
Defendants' motion with respect to Bargeron's
defamation claims.
contests personal jurisdiction or venue, and
allegations sufficiently support both.
III. STANDARD OF REVIEW
"Summary judgment is appropriate when
the record evidence, including depositions,
sworn declarations, and other materials,
shows 'that there is no genuine dispute as to
any material fact and the movant is entitled
to judgment as a matter of law." Feliciano
v. City of Miami Beach, 707 F.3d 1244, 1247
(11th Cir. 2013) (quoting Fed. R. Civ. P.
56(a)).
All evidence and factual inferences,
however, must be viewed "in the light most
favorable to the non-moving party," and "all
reasonable doubts" resolved in his favor. Id
Nevertheless, the non-moving party "must do
more than simply show that there is some
metaphysical doubt as to the material facts."
Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986).
IV.
BACKGROUND
Employed since 1992 by the City of
Tybee Island ("City"), Bargeron served as
City Marshal from 1994 until his termination
in April 2011. ECF No. 41-1 at 2, 17.
Bargeron's troubles with his superiors
began in 1997 when he received his first
reprimand for raising his voice during an
unpleasant conversation with a city council
member. See Id. at 3. In 2005, Bargeron
received his first performance related
reprimand. Then-City Manager Bob
Thompson suspended Bargeron for "not .
performing [his] job to [his] fullest potential,
specifically the past due business license list,
the lack of regular enforcement schedule, and
the personal business conducted in City
Hall." ECF No. 31 at 7. In 2007,
Thompson's successor, Diane Schleicher,
hired as City Manager in 2006, sent Bargeron
a letter scheduling a disciplinary hearing "for
alleged incompetence in the performance of
the duties of [his] position." ECF No. 41-1
at 10.
Schleicher later moved Bargeron's
position from the zoning department to the
police department. Id. at 16-17. Initially,
James Price, chief of police at the time,
served as Bargeron's superior. Id. at 17. In
June 2010, however, Robert Bryson took
over for Price. Id. at 26-27. "From the day
Chief Bryson became interim Chief of Police
in June, 2010 . . * [he] would receive
complaints from City Council members
about Mr. Bargeron not doing his job." Id at
27. In fact, "Chief Bryson received steady
complaints all the time about Mr. Bargeron."
Id. (internal quotations omitted).
On July 1, 2010, only one month after
Bryson became chief of police, Schleicher
reduced Bargeron's hours from forty to
thirty-five. Id at 22-24. Bargeron was to
spend fifteen of the thirty-five hours on code
enforcement (city marshal work) and twenty
hours on police administrative matters. Id. at
24. For the administrative work, Bargeron
received "approximately $14/hour," while he
received "approximately $27/hour for City
Marshal work." ECF No. 41-34 at 7.
In response to the reduction in hours and
pay, Bargeron filed a charge of age
discrimination with the EEOC on August 11,
2010. ECF No. 41-1 at 28. A month of
"quiet" ensued during which Bargeron's
superiors refrained from discussing job
performance issues with Bargeron. ECF No.
41-34 at 5. Schleicher then began having
Bargeron "draft increasing numbers of
reports of his activity." ECF No. 41-1 at 33.
The reports started as quarterly tasks but
"they became monthly and the[n] weekly."
Id. Ultimately, in January 2011, without
providing Bargeron any training on the
software, Chief Bryson "started having Mr.
Bargeron write reports using" police incident
report software "because nobody believed
[Bargeron] was doing anything." Id at 29,
34.
Complaints about Bargeron's job
performance continued after he filed the
EEOC charge. Schleicher received a
complaint in November 2011 after Bargeron
investigated a potential code violation at
Islands Pharmacy, although that complaint
later proved to be unfounded. Id. at 34-35.
And in December 2011, "a property owner
complained about Mr. Bargeron's
investigation of her property." Id. at 35.
In particular, in late 2010 and early 2011
people complained "about trash cans being
left out for some time, and . . . that people
were not being cited enough" for leaving
them out. Id at 30. Bryson even issued a
verbal reprimand because of Bargeron's
"inability to perform his assigned duties"
with regards to the trash can issue. ECF No.
41-14 at 2. Bargeron, however, had been
"ordered to stop the trash can decal and
citation program . . . and to catch up on
delinquent licenses and taxes." ECF No. 4134 at 5-6. It was only after that order that the
complaints over trash can issues "began
again." Id. at 6.
Bargeron's "workload in response to
complaints and criticisms intensified in the
Fall and Winter of 2010-2011." Id. at 6-7.
Bargeron's claims, Defendants filed the
motion now before the Court.
Although Bargeron worked more than fifteen
hours per week on City Marshall work, he
"was paid at the lesser rate applicable to
administrative work." Id. at 7 (internal
quotations omitted). Bargeron's
administrative reduction in pay and hours
occurred before the EEOC charge filing, "but
assignment of higher-rate work such that the
lower pay rate applied increased during the
period of time after" Bargeron filed the
EEOC charge "to the time of his
termination." Id.
V. DISCUSSION
The ADEA prohibits, among other
things, discrimination by an employer against
an individual because that individual "has
opposed any practice made unlawful by" the
ADEA, "or because such individual . . . has
made a charge . . . or participated in any
manner in" a proceeding related to age
discrimination. 29 U.S.C. § 623(d). In other
words, an employer cannot retaliate against
an employee for their role in reporting age
See
discrimination to the government.
Hargretl v. Valley Fed. Say. Bank, 60 F.3d
754, 764 (11th Cir. 1995) (noting that "[a]n
employer violates the [ADEA] if it retaliates
against an employee for filing an EEOC
charge.").
Everything came to a head on April 11,
2011, eight months after Bargeron's EEOC
charge. Almost two weeks prior, Bargeron
wrote a police report of an investigation he
made into the local IGA grocery store's
automatic gate. See ECF No. 41-20. Bryson
believed that certain statements in the report
represented either lies or incompetency on
the part of Bargeron. See ECF No. 41-1 at
49. In part because two City police officers
had recently been terminated for falsifying
police reports, Bryson elected to terminate
Bargeron because of the March 28 report.
See ECF No. 34 at 25-27.
Where, as here, no direct evidence of
retaliation exists, the burden shifting
framework of McDonnell-Douglas v. Green
applies. See Hairston v. Gainesville Sun
Pub. Co., 9 F.3d 913, 919 (11th Cir. 1993)
(noting that "the principles of law applicable
to cases arising under very similar provisions
of Title VII" apply to ADEA claims as well);
see also Oscar Mayer & Co. v. Evans, 441
U.S. 750, 756 (1979) (concluding that
Congress intended construction of the ADEA
to follow that of Title VII where provisions
of both are "almost in haec verba."). The
first prong of that framework requires
Bargeron to establish "a prima facie case [of
retaliation] by showing: (1) a statutorily
protected expression, (2) an adverse
employment action, and (3) a causal link
Bargeron appealed his termination and on
April 21, Schleicher held a hearing on the
matter. ECF No. 41-27 at 1. Although
Schleicher withdrew the grounds Bryson
gave for the termination, she ultimately
upheld it "based upon the inadequate" factfinding by Bargeron prior to writing the
incident report at issue. Id.
Bargeron filed suit in response in state
court on February 9, 2012. ECF No. 1-1 at 2.
Defendants properly removed to this Court
on March 14, 2012. See ECF No. 1. After
this Court's Order dismissing certain of
2411 U.S. 792, 793 (1973).
3
filing, and argue that therefore the reduction
could not have been in retaliation for the
EEOC charge. See ECF Nos. 41-1 at 22, 24;
28 at 19.
between the protected expression and the
adverse action." Hairston, 9 F.3d at 919.
A. The Prima Facie Case
The evidence Bargeron presents
establishes the first two elements—statutorily
protected expression, and adverse
employment action—of a prima facie case of
retaliation. Bargeron engaged in protected
expression when he filed a charge of age
discrimination with the EEOC on August 11,
2010. ECF No. 41-1 at 28; See Hairston, 9
F.3d at 920. And Bargeron undeniably
suffered an adverse employment action when
Bryson discharged him on April 11, 2011.
See ECF No. 41-27. The evidence, viewed
in the light most favorable to Bargeron,
however, also demonstrates Bargeron
suffered another relevant adverse
employment action. 3
But Bargeron is not attempting to
categorize the pre-EEOC charge reduction in
pay and hours as an adverse employment
action; rather, Bargeron's argument—once
again construed, as it must be, in the light
most favorable to Bargeron, see Feliciano,
707 F.3d at 1247—is that he effectively
received a second, post-EEOC charge,
decrease in pay when forced to do city
marshal work without receiving the rate of
pay promised for that work. Such a decrease
in pay is an adverse employment action. See,
e.g., Doe v. Dekaib Cnty. Sch. Dist., 145 F.3d
1441, 1448 (11th Cir. 1998) (noting that
when a plaintiff alleges a "reduction in pay,"
"the plaintiff has alleged an employment
action that would appear adverse to any
reasonable person.").
Bargeron avers that after he filed his
charge with the EEOC he was made to do
City Marshal work "but was paid at the lesser
rate applicable to 'administrative work."
ECF No. 41-1 at 40. Defendants correctly
note that Bargeron's original reduction in pay
and hours came before the EEOC charge
With the statutorily protected expression
and adverse employment action elements of a
prima facie case established, all that remains
for Bargeron to show is that the expression
caused the adverse action. See Hairston, 9
F.3d at 919. This causation element
"require[s] merely that the plaintiff establish
that the protected activity and the adverse
action were not wholly unrelated." Simmons
v. Camden Cnty. Bd. of Educ., 757 F.2d
1187, 1189 (11th Cir. 1985), cert. denied,
474 U.S. 981 (1985) (internal quotations
omitted).
Bargeron's primary argument on the element of
adverse employment action is that the sum of
Defendants' post-EEOC charge actions constitute an
adverse action. See ECF No. 41-2 at 18; see also
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453
(11th Cir. 1998) (holding that, considered collectively,
being listed as a no-show at work on a day off, written
reprimands; and soliciting coworkers for negative
comments about the plaintiff constituted an adverse
employment action). The Court disagrees. Increased
reporting requirements, pressure to perform
preexisting job duties, citizen complaints about job
performance, and a supervisor stating that Schleicher
wanted Bargeron gone, do not, even considered
collectively, cross the "threshold level of
substantiality that must be met" for a series of events
to constitute an adverse employment action.
Wideman, 141 F.3d at 1456; ECF No. 41-2 at 17.
"At a minimum, a plaintiff must
generally establish that the employer was
actually aware of the protected expression at
the time it took the adverse employment
action." Hairston, 9 F.3d at 920 (quoting
-I
inappropriate for disposition on summary
judgment.
Goldsmith v. City of Aimore, 996 F.2d 1155,
1163 (11th Cir. 1993)). And though the
"burden of causation can be met by showing
close temporal proximity between the
statutorily protected activity and the adverse
employment action[,J . . . mere temporal
proximity, without more, must be 'very
close." Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364 (1 ith Cir. 2007).
With Bargeron having established a
prima facie case of discrimination, the Court
turns to the remaining prongs of the
McDonnell-Douglas framework.
B. Rebuttal and Pretext
For purposes of summary judgment,
Bargeron has shown enough to establish a
causal connection between filing the EEOC
charge and an adverse employment action.
First, Schleicher knew of Bargeron's EEOC
charge. See ECF No. 33 at 43. And second,
Bargeron puts forth evidence showing a close
temporal relationship between the EEOC
charge and an adverse employment action.
Certainly the eight months between the
EEOC charge and Bargeron's termination
cannot alone demonstrate causation. See
Thomas, 506 F.3d at 1364 (finding "[a] three
to four month disparity between the
statutorily protected expression and the
adverse employment action" not to be
enough). But Bargeron avers that a second
adverse action occurred shortly after the
EEOC charge—namely, the decrease in pay
from doing city marshal work for
administrative pay. ECF No. 41-1 at 40.
If the plaintiff, as in this case, establishes
a prima fade case, the defendant then has the
burden of rebutting the presumption of
retaliation by producing legitimate, nonretaliatory reasons for the adverse
employment action. Hairston, 9 F.3d at 919.
"If the defendant carries this burden of
production, the presumption raised by the
prima facie case is rebutted." Id. (quoting
Tex. Dep 't of Cmty Affairs v. Burdine, 450
U.S. 248, 255 (1981)).
The plaintiff then has the opportunity to
show the defendant's proffered nonretaliatory reasons are pretextual. Id at 920.
Despite the "burden shifting" of the
McDonnell-Douglas framework, the ultimate
burden of persuasion, of showing that the
defendant retaliated because of plaintiff's
protected expression, always lies with the
plaintiff. See, e.g., Kragor v. Takeda
Pharmaceuticals Am., Inc., 702 F.3d 1304,
1308 (11th Cir. 2012).
1. Rebuttal
Bargeron claims that he began to commit
more than fifteen hours per week to city
marshal work beginning "in the Fall and
Winter of 2010-2011." Id. at 39. That time
period is very broad of course, but construed
in the light most favorable to Bargeron it
could be that his decrease in pay came close
to the filing of the EEOC charge. Whether in
actuality it did is a question of fact
Defendants have produced sufficient
evidence of legitimate, non-discriminatory
reasons for both adverse employment actions
taken against Bargeron. First, Defendants
assert they terminated Bargeron for
incompetence generally, and "based upon the
inadequate" fact-finding in a police report
Bargeron submitted specifically. ECF No.
41-27 at 1. And second, Defendants claim
5
that Schleicher and Bryson did not know of
Bargeron working more than fifteen hours
per week on city marshal work and in fact
"expressly directed the opposite." See ECF
No. 43 at 2-3. Without knowledge of
Bargeron performing marshal work for
administrative pay, Defendants argue, they
could not possibly have instigated that
situation in retaliation for Bargeron's EEOC
charge. Id.
Rebuttal of a prima facie case of
retaliation typically involves a defendant
offering a reason for taking the adverse
employment action. See, e.g., Combs v.
Plantation Patterns, 106 F.3d 1519, 1539
(11th Cir. 1997) (finding legitimate the
following reasons for promoting another
employee instead of plaintiff: (1) the other
employee had more experience; (2)
supervisory recommendations supported the
other employee; and (3) the other employee's
own supervisory experience). Defendants
offer just such a reason for Bargeron's
termination—his continual incompetence in
performing the duties of city marshal. See,
e.g., ECF No. 36 at 2-3.
Defendants' reason for Bargeron's
alleged decrease in pay, however, is more of
a flat denial that Defendants acted as
Bargeron claims. It is not an explanation for
why they did act.
Nevertheless, lack of knowledge goes to
show that Defendants did not possess a
retaliatory intent or, for that matter, have
anything to do with Bargeron performing
high dollar work for low dollar pay. Most
importantly, Defendants alleged lack of
knowledge functions similarly to more
typical legitimate nondiscriminatory
reasons—it is evidence on which a
reasonable jury could base a finding that
Defendants did not retaliate against
Bargeron. See Combs, 106 F.3d at 1528
(holding that to satisfy the burden of
rebutting plaintiffs prima facie case, an
"employer need only produce admissible
evidence which would allow the trier of fact
rationally to conclude that the" adverse
employment action had not occurred because
of retaliatory animus). The Court therefore
finds that Defendants satisfied their burden
of producing a legitimate nondiscriminatory
reason for Bargeron's alleged decrease in
pay.
2. Pretext
In conducting a pretext analysis, "courts
examine whether the evidence reveals such
weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the
employer's proffered legitimate reasons for
its action that a reasonable factfinder could
find them unworthy of credence." Anderson
v. Dunbar Armored, Inc., 678 F. Supp. 2d
1280, 1307 (N.D. Ga. 2009) (quoting Vessels
v. Atlanta Ind. Sch. Sys., 408 F.3d 763, 770
(11th Cir. 2005) (internal quotations
omitted). But an employee must meet the
employer's proffered reason "head on and
rebut it[.] . . . [T]he employee cannot succeed
by simply quarreling with the wisdom of that
reason." Chapman v. Al Transp., 229 F.3d
1012, 1030(11th Cir. 2000).
Bargeron offers several pieces of
evidence to show that his termination and
other alleged adverse employment actions
were motivated by retaliatory animus: (1) the
testimony of Jonathan Lynn that, three to
four months prior to Bargeron's EEOC
charge, Schleicher told Lynn that he would
have no problem working as city marshal
"young enough to handle th[e] position,"
bears on Lynn's age, not Bargeron's.
Reading into that to mean Schleicher thought
Bargeron too old is a bridge too far. Lynn's
statement regarding Schleicher's May 2010
explanation for reassigning Bargeron and
lowering his pay does not demonstrate
retaliatory animus at all, not to mention the
statement came approximately three months
before Bargeron filed his EEOC charge.
Knudson's testimony is simple, inadmissible,
hearsay. 5 And a comment that "they want
you to quit" says nothing more than
Bargeron's superiors wanted him to quit. It
does not suggest that desire had anything to
do with Bargeron's EEOC charge,
particularly in light of the fact that the
statement came six months after the charge's
filing. Compare ECF No. 41-1 at 39, with id.
at 28.
because Lynn was "young enough to handle
this position." ECF No. 41-42 at 1; (2)
Lynn's testimony that in May 2010
Schleicher told him of Bargeron's reduction
in hours and pay and that the reduction
would not affect Bargeron because "he was
close enough to retirement age." Id. at 2; (3)
testimony from Steele Knudson, hired by the
City the month after Bargeron's dismissal,
that a City employee told him Schleicher
fired Bargeron because he was too old. See
ECF No. 4140; and (4) a supervisor's
comment in February 2011 that "[you know]
where this is going, they just want you gone,
they want you to quit." ECF No. 41-1 at 394
Bargeron's evidence does not directly
persuade "that a [retaliatory] reason more
likely motivated" Defendants. Hairs/on, 9
F.3d at 920.
Defendants aver they
specifically ordered Bargeron not to work
more than fifteen hours per week as city
marshal and that if he did work more than
that, they had no idea. See ECF No. 43 at 23. Bargeron's evidence of retaliatory intent
does not even address that explanation, much
less demonstrate pretext.
The evidence demonstrates that Bargeron
and his superiors—be it Schleicher, Bryson,
or another supervisor over the years—often
butted heads. The evidence also suggests
Schleicher (and others) found Bargeron
incompetent. A more generous reading leads
to the conclusion that perhaps Schleicher
simply did not like Bargeron. She certainly
did not want him as an employee of the City.
But no evidence raises a genuine issue of fact
as to whether Bargeron suffered retaliation as
a result of filing an EEOC charge of age
discrimination.
Bargeron's evidence also does not
inferentially show that Defendant's
"proffered explanation is unworthy of
credence." Hairs/on, 9 F.3d at 920. Lynn's
statement that Schleicher told him he was
Bargeron offers other evidence he alleges shows
retaliatory animus, such as the City's adoption, two
months before Bargeron's termination, of an
ordinance allowing at-will termination. See. e.g., ECF
No. 41-2 at 5-9. None of that evidence, however,
relates to the adverse employment action—an
effective decrease in pay—the Court finds capable of
constituting part of a prima fade case of retaliation.
Instead, the evidence relates primarily to Bargeron's
termination and to Bargeron's totality of the
circumstances theory of adverse employment action.
Bargeron's evidence, taken as a whole,
and taken in the light most favorable to
Bargeron, cannot form the basis for a finding
Hearsay is a statement a declarant makes outside of
testifying that is offered as evidence to prove the truth
of the matter asserted in the statement. Fed. R. Evid.
80 1(c).
7
of fact that would"allow a jury to find by a
preponderance of the evidence that
[Bargeron] has established pretext, and that
the action taken was in retaliation for
engaging in the protected activity."
1-Jairsion, 9 F.3d at 921. Judgment as a
matter of law therefore is appropriate.
VI. CONCLUSION
Despite establishing a prima facie case of
retaliation, Bargeron has not rebutted
Defendants' proffered legitimate
nondiscriminatory reason for Bargeron 'S
effective decrease in pay subsequent to his
filing an EEOC charge. His ADEA
retaliation claims therefore fail as a matter of
law. Defendants' motion for summary
judgment is GRANTED.
Thiday of April 2013.
B. AVANT EDENFIELD, JUI?GE '
UNITED STATES DISTRICJ COURT
SOUTHERN DISTRICT Of" GEORGIA
8
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