Patterson v. Yazoo City, Mississippi et al
Filing
170
ORDER denying 104 Motion for Partial Summary Judgment; denying 105 Motion for Partial Summary Judgment; denying 108 Motion for Summary Judgment; granting 112 Motion for Summary Judgment; denying 145 Motion for Summary Judgment; denying 149 Motion for Partial Summary Judgment Signed by Honorable David C. Bramlette, III on 2/24/2012 (PL)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
WESTERN DIVISION
HENRY LEWIS PATTERSON, “H.L.”
VERSUS
PLAINTIFF
CIVIL ACTION NO. 5:10-CV-00153-DCB-JMR
YAZOO CITY, MISSISSIPPI;
YAZOO COUNTY, MISSISSIPPI; and
YAZOO RECREATION COMMISSION
DEFENDANTS
MEMORANDUM OPINION AND ORDER
This cause comes before the Court on Plaintiff’s Motion for
Partial Summary Judgment [docket entry no. 104], Yazoo City’s
Motion for Partial Summary Judgment [docket entry no. 105] and
Supplemental Motion for Summary Judgment [docket entry no. 145],
Yazoo Recreation Commission’s Motion for Summary Judgment [docket
entry no. 108] and Supplemental Motion for Summary Judgment [docket
entry no. 149], and Yazoo County’s Motion for Summary Judgment
[docket entry no. 112] and joinder in Yazoo City’s and Yazoo
Recreation Commission’s Supplemental Motions [docket entry nos.
153, 154]. Having carefully considered said Motions, the Parties’
opposition thereto, applicable statutory and case law, and being
otherwise fully advised in the premises, the Court finds and orders
as follows:
I. Facts and Procedural History
In 1979, the Mississippi Legislature authorized Yazoo City
(the “City”) and Yazoo County (the “County”) to establish the Yazoo
Recreation Commission (the “Commission”) to manage and control the
parks and recreation facilities within their joint jurisdictions.
S.B. 2954, Reg. Sess., 1979 Miss. Laws 943. The Bill authorizing
the Commission’s formation provides that the Commission is to be
composed of twelve members and jointly funded from municipal and
county property taxes. Id. at § 2. The City and the County are each
responsible
for
appointing
five
Commission
members
and
the
municipal and county school boards appoint the remaining two
members. Id. Moreover, the City and County must approve the annual
budget,
id.
at
§
3,
appropriate
funds
necessary
for
the
Commission’s operation, id., concur in all of the Commission’s
hiring decisions, id. § 5(c), and agree to the Commission’s salary
and benefit programs for its employees. Id. § 5(d). All other
powers
are
delegated
to
the
Commission.
In
particular,
the
Commission is empowered to employ a superintendent to have “actual
charge of the parks, playgrounds and recreation facilities and the
enforcement and execution of all rules and regulations.” Id. §
5(c). It is that responsibility that gives rise to the current
Complaint.
In 1997, the Commission promoted Plaintiff H.L. Patterson from
the position of assistant superintendent to superintendent,1 which
at the time carried a salary of $40,000 per year. Patterson Dep. at
1
Before becoming the assistant, the Commission employed
Patterson as a program director. Patterson Dep. at 35.
2
35.2 As superintendent, Patterson was solely responsible for the
day-to-day operations of the Commission with duties ranging from
supervising
personnel,
coordinating
recreational
activities,
groundskeeping, and repairing of park facilities and equipment. See
generally, Superintendent of Recreation Job Description, docket
entry no. 105-4. In addition to these general responsibilities, the
job required him to possess the “ability to learn the practices and
techniques
of
modern
bookkeeping
and
purchasing”
and
may
occasionally require the ability to perform manual labor. See id.
At all times during his tenure as superintendent, Patterson’s
position was subject to review by the Commission “on the basis of
operational efficiency, results accomplished, and on the basis of
public response to departmental activities.” Id.
The Defendants contend that, starting around 2004 or 2005,
Patterson’s job performance began to decline. Patterson testified
that around 2004 or 2005 private citizens began to organize and
undertake cleanup efforts of the parks, which included picking up
litter, cutting grass, and mending baseball fences. Patterson Dep.
at 88-91; Guthrie Dep. at 39-40. Also, sometime during that period
the Commission’s equipment began to fall into disrepair. Patterson
Dep.
at
88-91;
Guthrie
Dep.
at
2
39-40.
Further,
Patterson
Excerpts from Patterson’s deposition appear in multiple
places in the record. In the interest of consistency, the Court
will refer to the pagination of the deposition transcript, as
opposed to the artificial pagination assigned in CMECF to each
individual filing.
3
acknowledged that budget deficits were not uncommon during his time
as superintendent.3 Patterson Dep. at 178-79, 253-54. Guthrie, the
Commission’s
chairman,
testified
that
at
one
point
during
Patterson’s tenure the Commission’s bank account was overdrawn by
as much as $30,000.00. Guthrie Dep. at 32.
In 2009, a new group of commissioners (alternatively referred
to hereinafter as “the Board”) was appointed to the Commission.4
Patterson Dep. at 41. The events surrounding the transition from
the “old Board” to the “new Board” are unclear, but Patterson
understood that the new commissioners intended to demand a better
performance from the Commission employees than did the outgoing
commissioners.5 To that end, members of the Board verbally informed
Patterson
that
there
were
a
number
of
areas
where
his
job
3
Patterson blames the Commission’s financial situation on
Ardis Russell, a CPA who audited the Board’s finances and provided
feedback to Patterson and the Board when necessary. Russell was a
City employee who had no official position with the Commission but
nevertheless appears to have acted as the de facto financial
advisor for the Board. See Patterson Aff. at ¶¶ 4-11.
4
The use of the term Board in this opinion differs from the
use of the “Board” in the law establishing the Commission, which
refers to the Board of Alderman of Yazoo County, Mississippi as the
“Board”. S.B. 2954, Reg. Sess., 1979 Miss. Laws 943.
5
Patterson stated that he threatened to sue some of the
members of the outgoing board if they fired him. Patterson
indicates that threat had something to do with some of the outgoing
commissioners’ decisions to step down from the board. Patterson
Dep. at 190-91.
4
performance needed to improve.6 Guthrie Dep. at 46-47. Moreover,
some of the new commissioners began monitoring the employees’
performance, Patterson Dep. at 57-61, and shortly thereafter,
Patterson claims that three of the five Commission’s employees
resigned, id. at 42, with at least one employee stating that the
new Board’s more stringent demands constituted “harassment.” Id. at
61. It was also around that time that Patterson understood that the
new Board intended to fire him. Id. at 189-91. Tension appears to
have arisen between new commissioners and Patterson around this
time when Diane Delaware, a Commissioner whom Patterson described
“wants this and wants that,” attempted to assign tasks to the
Commission’s secretary, Polly Crumb. Id. at 165-69. Patterson, who
believed Crumb to be his personal secretary, told Delaware to stop
giving instructions to the Commission’s secretary. Id.
Pursuant to its authority, at an April 1, 2009 meeting the
Commission unanimously voted to relieve Patterson of his position
as superintendent. Minutes of Yazoo Recreation Commission (April 1,
2009), docket entry no. 105-13. Patterson had no prior knowledge of
this meeting nor was he present at the meeting, Guthrie Dep. at 45,
although
he
testified
that
he
had
learned
through
informal
conversations that his job was in jeopardy. Patterson Dep. at 18991. The minutes from that meeting cite no specific reasons for the
6
The record does not clearly indicate that the commissioners
clarified that there would be consequences for failing to meet
their demand.
5
decision. See Minutes of Yazoo Recreation Commission (Feb. 19,
2009). In his deposition, Guthrie, the Commission’s Rule 30(b)(6)
designee, avers that the Commission fired Patterson because of his
poor job performance.
Guthrie Dep. at 33. Particularly, Guthrie
states that the Board fired Patterson for (1) overdrawing the
Commission’s account by $30,000; (2) sustaining overdraft charges
on the Commission’s account approximately one-hundred times, (3)
not knowing where his employees were, and (4) not maintaining the
parks.7 Id. at 32-33, see also, id. at 89 (stating the members of
the Board inspected the Commission’s equipment shortly before the
decision was made and found it in disrepair). The day after the
meeting Guthrie asked Patterson to resign as superintendent. Id. at
31-32. When Patterson refused, Guthrie informed him that his
employment with the Commission had been terminated. Id. at 32.
The superintendent position remained unfilled for well over a
year after Patterson was fired, although Henry Campbell, the
Commission’s Program Director, appears to have unofficially assumed
most of the Superintendent’s duties, with the exception of managing
the Commission’s finances or making employment decisions for the
Commission. Id. at 52-57. On May 7, 2010, almost a year after
Patterson had been fired, Campbell submitted a letter to the
7
Guthrie also indicated that he was dissatisfied with the
Commission’s work prior to his appointment to the Board, testifying
that as the Little League commissioner he had witnessed the poor
shape of the baseball fields and surrounding grounds. Guthrie Dep.
at 39.
6
Commission requesting a pay raise and the authority to hire another
employee. Campbell Letter, docket entry no. 105-11. In January
2011, the Commission promoted Henry Campbell to fill Patterson’s
former position.8
Patterson tells a different story. In his Complaint, he
alleges that he was fired because the Commission wanted to replace
him with a younger, non-disabled person and thus deprived him of
his position without adequate due process of law. See Amended
Complaint, docket entry no. 67. Due to health issues, Patterson’s
right leg was amputated in January 2008. Id. ¶ 21. In September
2008, Patterson’s left leg was amputated. Id. Patterson maintains
that “[a]t all times prior to and after the amputation of his legs,
[he] was fully qualified for the Superintendent of Recreation
position, had a successful performance record in the position and
met his employer’s legitimate expectations.” Id. ¶ 23. As evidence
of his satisfactory record, Patterson points to the absence of any
negative
performance
evaluations,
written
warnings,
or
other
evidence that would suggest the Board’s dissatisfaction with his
job performance. Guthrie Dep. at 31; see, e.g., Pl. Reply Memo. at
8, docket entry no. 120.
Despite his record, however, Patterson claims that immediately
prior to his second amputation the Commission sought to replace him
8
The Court can find no evidence of this assertion in the
record, although both Parties assent to its accuracy. See Yazoo
City Memo. at 8, docket entry no. 106.
7
with Henry Campbell, a non-disabled, younger employee,9 and that
the Commission then manufactured its reasons for terminating him
after he returned to the job with satisfactory results. The record
indicates
that
the
City
voted
to
transfer
Campbell
to
the
Commission the same month Patterson underwent his second surgery,10
and
less
than
a
month
after
Patterson
was
fired
from
the
Commission, the City again voted that Campbell be moved from the
City payroll to the Recreation Commission effective April 27,
2009.11 Sept. 8, 2008 Minutes, docket entry no. 120-6 at 30; April
29, 2009, Minutes, docket entry no. 120-6 at 37. Guthrie testified
that after being transferred Campbell performed many of the same
tasks performed by Patterson, albeit with lesser pay. Guthrie Dep.
at 55 (stating that Campbell did not perform budgeting). In early
2011, Campbell was promoted to supervisor. Patterson suggests that
Campbell’s transfer and eventual promotion are prima facie evidence
9
Campbell was fifty-one (51) years old at the time Patterson
was fired. Patterson was sixty (60).
10
The September 8, 2008, Minutes of the Regular Meeting of the
Board of Mayor and Aldermen of the City of Yazoo City, Mississippi
indicate that the City, “after discussion upon motion by Alderman
Varner, duly seconded by Alderwoman Williams, the Board of Mayor
and Aldermen voted unanimously to increase the Parks and Recreation
Commission budget by $40,000.00 beginning October 1 making Henry
Campbell an employee of the P&R Commission thus eliminating the
city’s recreation budget.” Sept. 8, 2008 Minutes, docket entry no.
120-6, pg. 30.
11
The Minutes provide: “Alderman Varner moved that Henry
Campbell be moved from the City Payroll to the Parks and Recreation
Commission with an increase of funds by $40,000 a year and all
functions of the Wardell Leach Park become under the direction of
the Parks and Recreation Commission effective April 27.”
8
of his claims.12
Accordingly, Patterson filed an EEOC charge of discrimination
against “Yazoo Recreation Commission, et al.” on August 13, 2009.13
Almost a year later, the EEOC denied Patterson’s claim for benefits
under the ADA concluding that “[t]he Respondent employs less than
the required number of employees or is not otherwise covered by the
statutes.” Dismissal and Notice of Rights, docket entry no.
67-1.
Patterson then filed a Complaint against the Defendants, alleging
violations of the Age Discrimination in Employment Act (“ADEA”), 29
U.S.C. § 621, et. seq., and the Americans with Disabilities Act
(“ADA”), 42 U.S.C. § 12101, et. seq.14 Patterson later amended his
Complaint to state a 42 U.S.C. § 1983 procedural due process
violation. Following discovery, all Parties moved for summary
judgment. Patterson moved for summary judgement on his due process
claim; Yazoo City on the ADA and ADEA claims, and Yazoo County and
the Commission on all claims.
Not long after the Parties completed the briefing of their
motions, however, the Court allowed the Defendants to supplement
12
In his deposition, Guthrie testified to having no knowledge
of the details of how Henry Campbell came to work for the
Commission. Guthrie Dep. at 53.
13
The charge of discrimination specifically alleges that Yazoo
City and Yazoo County jointly fund the Commission and appoint its
personnel. Dismissal and Notice of Rights, docket entry no. 67-1.
14
Prior to his filing of the Amended Complaint in this Court,
Patterson obtained a Notice of Right to Sue from the Equal
Employment Opportunity Commission (“EEOC”).
9
their motions after it was discovered that Patterson had filed for
disability benefits pursuant to the Social Security Disability
Insurance
(“SSDI”)
plan
lawsuit.
Patterson’s
shortly
application
before
with
he
the
filed
the
Social
present
Security
Administration (“SSA”) now appears in the record. See Patterson SSA
Report (Form SSA-3368), docket entry no. 149-1. The application
makes a number of factual assertions that the Defendants argue
contradict Patterson’s testimony provided during his deposition and
in his affidavit. On his application, Patterson claims that he
became unable to perform his job on January 28, 2008 the date of
his first amputation. Id. at § 2. Patterson specifically concludes:
“I am in a wheelchair. I am unable to work. I am unable to do any
physical work due to inability to walk.” Id. at § 2.
After reviewing his application, the Office of Disability
Determination Services (“DDS”) found Patterson was indeed eligible
for disability benefits, stating:
You state you are disabled and unable to work because of
a double amputation, poor circulation in leg, which lead
to akd and have had both legs amputated due to pain and
poor circulation and now in a wheelchair. You state that
you became disabled on 01/28/08. The medical evidence to
be considered in your claim has been reviewed along with
statements given about your condition(s). It has been
determined that you are disabled. However, your
disability did not begin until 09/08/08. Based on all of
the evidence in your case, this is the date you first
became eligible for disability benefits.
10
DDS Letter, docket entry no. 149-1.15 The Defendants’ supplemental
motions suggest that the fact that Patterson is now claiming
disability benefits is yet another reason for the Court to deny his
ADA and ADEA claims. The Court now turns to consider the merits of
the Parties’ arguments.
II. Summary-Judgment Standard
Summary judgment is apposite “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with
the affidavits, if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c). “A fact is
‘material’ if its resolution in favor of one party might affect the
outcome of the lawsuit under governing law. An issue is ‘genuine’
if the evidence is sufficient for a reasonable jury to return a
verdict for the non-moving party.” Ginsberg 1985 Real Estate P’ship
v. Cadle Co., 39 F.3d 528, 531 (5th Cir. 1994) (citations omitted).
The
party
moving
for
summary
judgment
bears
the
initial
responsibility of apprising the district court of the basis for its
motion and the parts of the record which indicate the absence of a
genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
15
In the letter, DDS explains that it “assists the Social
Security Administration in obtaining information on applications
for Social Security and Supplemental Security Income benefits and
on continuing disability reviews for these benefits.” Id.
11
“Once the moving party presents the district court with a
properly supported summary judgment motion, the burden shifts to
the
non-moving
party
to
show
that
summary
judgment
is
inappropriate.” Morris v. Covan World Wide Moving, Inc., 144 F.3d
377, 380 (5th Cir. 1998). “The evidence of the non-movant is to be
believed, and all justifiable inferences are to be drawn in his
favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
But the nonmovant 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).
Moreover, “[t]he mere existence of a scintilla of evidence is
insufficient to defeat a properly supported motion for summary
judgment.” Anderson, 477 U.S. at 252. The nonmovant must instead
come forward with “specific facts showing that there is a genuine
issue for trial.” Fed. R. Civ. P. 56(e). Summary judgment must be
rendered when the nonmovant “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., 477 U.S. at 322.
The Court is ever mindful that summary judgment should be
exercised cautiously in discrimination cases which often require
courts to delve into motive and intent. Hayden v. First Nat. Bank
of
Mt.
Pleasant,
Accordingly,
with
Tex.,
595
regard
to
F.2d
994,
employment
12
997
(5th
Cir.
discrimination
1979).
claims,
courts should be hesitant to grant summary judgment based on
“potentially
inadequate
factual
presentation.”
Id.
(citations
omitted). Nevertheless, summary judgment in favor of the defendant
is hardly uncommon in discrimination cases and is appropriate if
the
plaintiff’s
claim
has
no
basis
in
fact.
Wallace
v.
SMC
Pneumatics, Inc., 103 F.3d 1394, 1396 (7th Cir. 1997).
III. ADA and ADEA Claims
1. Whether the City, County, or Commission Are “Employers” Subject
to an ADA and ADEA suit
“Determining whether a defendant is an ‘employer’ under Title
VII involves a two-step process.” Muhammad v. Dallas Cnty. Cmty.
Supervision & Corrs., 479 F.3d 377, 380 (5th Cir. 2007) (citing
Deal v. State Farm Cnty. Mut. Ins. Co., 5 F.3d 117, 118 n.2 (5th
Cir. 1993)). The court must first decide if the defendant is an
‘employer’ as defined by the relevant statute. Muhammad, 479 F.3d
at
380
(citation
omitted). If
the
defendant qualifies
as
an
employer, then the court must determine whether the plaintiff and
defendant have an employment relationship. Id. (citation omitted).
In the instant case, there is considerable dispute as to whether an
employment relationship exists between the City and County and
Patterson. As all Parties acknowledge, a finding in the negative
would prove fatal to Patterson’s ADA and ADEA claims because the
Commission alone lacks the requisite number of employees to the
pass the first prong of the employer test and therefore would not
13
be subject to suit under the ADA and ADEA.16 42 U.S.C. § 12111(5)
(ADA, requiring fifteen (15) employees); 29 U.S.C. § 630(b) (ADEA,
requiring twenty (20) employees). The EEOC dismissed Patterson’s
discrimination charge for precisely this reason. Whether the City,
County, or Commission is subject to suit is an element that
Patterson most prove in order to sustain his discrimination claims,
Arbaugh v. Y&H Corp., 546 U.S. 500, 516 (2006), and is a question
of fact to be decided by the fact-finder. Johnson v. Crown Enters.,
Inc., 398 F.3d 339, 343 (5th Cir. 2005) (suggesting that whether
two employees are a single employer is a question of fact);
Schweitzer v. Advanced Telemktg. Corp., 104 F.3d 761, 764, 765 (5th
Cir. 1997)(reversing a jury verdict for failure to give
Trevino
instructions); see also, Lyes v. City of Riviera Beach, Fla., 166
F.3d 1332, 1346 n.9 (11th Cir. 2008).
Relying on an Eight Circuit case, Patterson suggests that the
City
and
County,
which
presumably
each
employ
over
fifteen
employees,17 are liable for the acts of the Commission under a
joint-agency theory of liability. L. C. Eddy, Inc. v. City of
16
Whether the Commission qualifies as an employer under the
statutes in not at issue in this case. All parties appear to agree
that it does not.
17
Again, the Parties do not contest that both the City and
County have the required number of employees to be considered an
employer as defined by those statutes.
14
Arkadelphia, Ark., 303 F.2d 473 (8th Cir. 1962).18 The Defendants
counter that the Fifth Circuit does not recognize a joint-agency
test for Title VII claims; instead, the Defendants propose that a
straightforward analysis of the commonly used “hybrid economic
realities/common-law control test” would reveal that Patterson
cannot
be
considered
an
employee
of
the
City
and
County.
Schweitzer, 104 F.3d at 764 (applying the hybrid test to ADEA
claims) (citing Fields v. Hallsville Indep. Sch. Dist., 906 F.2d
1017 (5th Cir. 1990)(same)); Bloom v. Bexar Cnty., 130 F.3d 722,
726 (5th Cir. 1997) (applying the hybrid test in an ADA suit).19
18
L.C. Eddy is not a discrimination case and has limited
application to the case at bar. Further, while both the ADA and
ADEA provide for agency liability, agency in the Title VII context
has been narrowly construed to cover only “supervisory or
managerial employees to whom employment decisions have been
delegated.” Muhammad, 479 F.3d at 383; see also, Barrow v. New
Orleans S.S. Ass’n, 10 F.3d 292, 297 (5th Cir. 1994); Deal, 5 F.3d
at 119. The Commission was created to “manage and control all
parks, playgrounds, buildings and other recreational facilities in
the City of Yazoo City and Yazoo County, Mississippi, and to
establish, implement and maintain recreation programs of any and
all kinds, types, and description whatsoever.” S.B. 2954 § 2, Reg.
Sess., 1979 Miss. Laws 943. The Commission, having been created for
this distinct purpose, does not qualify as an agent of the City and
County subject to ADA and ADEA liability.
19
The tests for determining who is an employer subject to suit
under the ADA and ADEA are borrowed from Title VII precedent. See,
e.g., Bloom, 130 F.3d at 725. Because the ADA and ADEA were modeled
on Title VII, see, e.g., O’Loghlin v. Cnty. of Orange, 229 F.3d
871, 876 (9th Cir. 2000) (ADA); Gross v. FBL Fin. Servs., Inc., 557
U.S. 167, --, 120 S. Ct. 2343, 2356 n.6 (2009) (ADEA), and because
the same tests for determining the existence of an employment
relationship are used interchangeably between Title VII and ADA and
ADEA claims, the Court does not distinguish between different types
of employment discrimination statutes, e.g., race, gender, age,
disability, throughout its discussion of whether the County and
15
Further, the Defendants state that, to the extent Patterson’s
joint-agency theory of liability can be recharacterized as alleging
that the City, County, and Commission constitute a single-employer,
application of the relevant Trevino test is foreclosed by Fifth
Circuit precedent.
In employment discrimination cases, the Fifth Circuit uses two
tests
for
ascertaining
whether
a
plaintiff-employee
has
a
relationship with an alleged defendant-employer.20 The Trevino test,
the earlier of the two tests to appear in this circuit, was
developed by the National Labor Relations Board (“NLRB”) for the
purpose of analyzing “whether consolidation of separate private
corporations is proper in determining the relevant employer for
purposes of enforcing the National Labor Relations Act.” Trevino v.
Celanese Corp., 701 F.2d 397, 404 n.10 (5th Cir. 1983).21 Many
circuits have found the NRLB test is aptly suited for the same
City can be considered Patterson’s employer. The court notes,
however, that the ADEA differs from other discrimination cases in
that an employer must employ twenty (20) or more employees to be
subject to suit.
20
The single-employer test is often referred to as the singleenterprise test, the integrated-enterprise test, and sometimes the
joint-employer test. See Gogreve v. Downtown Dev. Dist., 426 F.
Supp. 2d 383, 390-91 & n.17 (E.D. La. 2006); see also Turner v.
Baylor Richardson Med. Ctr., 476 F.3d 337, 344 (5th Cir.
2007)(referring to the single-employer test at the joint-employer
test).
21
Developed by the National Labor Relations Board, the Trevino
test is commonly referred to as the NLRB test in other
jurisdictions. See, e.g., Lyes, 166 F.3d at 1341-42.
16
purpose in the employment discrimination context because of the
similarities between the NLRA and Title VII. Lyes, 166 F.3d at 1341
(citing Armbruster v. Quinn, 711 F.2d 1332, 1336 (6th Cir. 1983));
see also Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1241 (2d
Cir. 1995); Childs v. Local 18, Int'l Bhd. of Elec. Workers, 719
F.2d 1379, 1382 (9th Cir. 1983). Similarly, the Fifth Circuit uses
the NLRB or Trevino test for determining whether two superficially
distinct entities are so interconnected that their employees can be
aggregated for the purposes of meeting the definition of employer
in a discrimination suit. Schweitzer, 104 F.3d at 764.
The
alternative
test,
known
as
the
“hybrid
economic
realities/common law” control test, was developed after the Trevino
test to determine whether the plaintiff and a single defendantemployer have an employer-employer relationship. See, id. at 764.
For example, this test is useful when questions arise as to whether
a single plaintiff-employee should be considered an employer or
independent contractor of a single-defendant entity. Id. at 764
n.2. In other words, when applying this test the Court focuses on
the relationship between the plaintiff-employee and the alleged
defendant-employer. Id. The hallmark of the hybrid test is whether
the alleged defendant-employer had the “right to control” the
plaintiff. Deal, 5 F.3d at 119.
The
Schweitzer
Court
carefully
utility of the two tests:
17
distinguished
between
the
[T]he hybrid test should be used as an initial inquiry to
resolve, if need be, whether a plaintiff is an employee
of the defendant (or one of the defendants, in a multi
defendant case) for the purposes of Title VII. If the
plaintiff is found to be an employee of one of the
defendants under the hybrid test, but questions remain
whether
a
second
(or
additional)
defendant
is
sufficiently connected to the employer-defendant so as to
be considered a single employer, a Trevino analysis
should be conducted.
Put simply, the Trevino test applies to the relationship between
multiple employers-defendants, and the hybrid test applies solely
to the relationship between the plaintiff and a single employerdefendant. Reduced to these terms, it is clear in the present case
that the Trevino test is the more appropriate to the present
scenario because it is uncontroverted that the Commission was
Patterson’s employer. The disputed issue before the Court is
whether the City, County, and Commission were so interconnected
that they constitute a single-employer for the purposes of ADA and
ADEA liability. A lengthy analysis would not be necessary, however,
had the Trevino court not stated in a footnote that the four-part
“standard is not readily applicable to governmental subdivisions.”
Trevino, 701 F.2d at 404 n.10(citing Dumas v. Town of Mt. Vernon,
612 F.2d 974, 979 n.9 (5th Cir. 1980), overruled on other grounds
by Larkin v. Pullman-Standard Div., Pullman, Inc., 854 F.2d 1549
(11th Cir. 1988)).
Over the last twenty or so years, this Trevino dictum has
gained favorable treatment. Turner v. Baylor Richardson Med. Ctr.,
476 F.3d at 344 (5th Cir. 2007)(“Further, our prior case law
18
suggests that a government employer, such as RHA, may not be
considered part of an integrated enterprise under the Trevino
framework.” (emphasis added)); Garrett-Woodberry v. Miss. Bd. of
Pharmacy, 300 Fed. Appx. 289, 291 (5th Cir. 2008) (unpublished)
(“It seems clear that the ‘single employer’ test should not be
applied here, as the Board is a state agency and is thus a
governmental subdivision.”) (emphasis added), aff’g, 2008 WL 872444
(S.D. Miss. Mar. 27, 2008) (unpublished) (“[T]his Court finds that
the single/integrated and joint employer aggregation theories are
not applicable to the present case.”); Karagounis v. Univ. of Tex.
Health Sci. Ctr. at San Antonio, 168 F.3d 485, at *2 (5th Cir. Jan.
5, 1999) (unpublished table decision) (“[W]e held [in Dumas] that
the single employer theory was not applicable when one of the
defendants in question was a governmental subdivision.”); Ridha v.
Texas A & M University System, 2009 WL 1406355, at (S.D. Tex. May
15, 2009) (unpublished) (“The Court directs the parties to Fifth
Circuit authority holding that ‘integrated enterprise’ and ‘joint
employer’ theories do not apply to government employers such as the
University Defendant.”); Gogreve, 426 F. Supp. 2d at 390 (“The
‘joint employer’ test laid out in Trevino is not appropriate to
analyze the relationship between the Board, the DDD, and the
City.”).
While the Court acknowledges that the court of appeals and
district courts of this circuit appear to follow the rule that
19
Trevino test may not be used to aggregate seemingly interconnected
governmental entities, the effect of this precedent is unclear for
two reasons. First and most importantly, in the court of appeal’s
most recent published opinion on point, it stated that case law
“suggests that a government employer, such as RHA, may not be
considered part of an integrated enterprise under the Trevino
framework.”
Turner,
476
F.3d
at
344
(emphasis
added).
This
statement, however, is not a clear expression that the court of
appeals embraced this rule.22 Secondly, the unpublished court of
appeals opinions are not binding on this Court.23 5th Cir. R. 47.5.4
(“Unpublished opinions issued on or after January 1, 1996 are not
precedent.”). Even so, this Court hesitates to depart from the
rationale of its superior and sister courts.
The Trevino footnote is based on a another footnote in Dumas
v. Town of Mount Vernon, Alabama, in which court of appeals
“decline[d] to apply [the NLRB test] to hold that the Town and the
state or county, or all three, are a “single employer.” 612 F.2d
22
Further, that the Trevino test does not apply to
governmental municipalities was not critical to Turner’s holding,
and therefore this Court doubts whether the Turner court intended
its statement to create a rule of law. Indeed, the fact that the
Court did not fully endorse this rule in its holding suggests to
this Court that the Trevino test is not automatically foreclosed by
Fifth Circuit precedent.
23
The Court also notes that the latest court of appeal’s
unpublished decision on point gives as lukewarm an endorsement of
the rule as does Turner. Garrett-Woodberry, 300 Fed. Appx. at 291
(“It seems clear that the ‘single employer’ test should not be
applied here . . . .) (emphasis added).
20
979
n.9.
The
Dumas
court
did
not
state
that
the
test
was
inapplicable because the Town, state, and county were governmental
entities; it simply stated that it would not apply the NRLB test to
the existing situation.24 The Trevino Court cited this statement for
the proposition that the NLRB test is not “readily applicable” to
governmental entities. Again, this statement in a footnote comes
far short of establishing the rule that the NLRB test may not be
applied to aggregated employees of governmental subdivisions. It
merely observed that the test was not “readily applicable.” But
see, Garrett-Woodberry, 2008 WL 872444, at *2.
The observation that the NLRB test is not “readily applicable”
to governmental subdivisions has been consistently echoed by courts
that have examined the issue. Some courts have found that the NLRB
test that is ill-suited for its intended purpose in the government
context because it is specifically tailored to private entities.
See, e.g., Garrett-Woodberry, 2008 WL 872444, *3 n.2; Gogreve, 426
F. Supp. 2d at 390; Lyes, 166 F.3d at 1343-44 (citing Trevino, 701
F.2d at 404 n.10); Piper v. Junction City Hous. Auth., 1995 WL
88232, at *3 (D. Kan. Feb. 1, 1995)). Whether or not this test is
24
There are multiple explanations as to why the Court found
the Trevino test inapplicable. For example, neither the state or
county was named as a defendant in Dumas. The plaintiff’s singleemployer argument appears to be a last-ditch attempt to find
someone–anyone–who could be counted towards the Town’s total number
of employees. It is no surprise that in this instance the Dumas
court refused to apply the NLRB test, as it is arguable whether the
test even applies to parties not named as defendants. See
Schweitzer, 104 F.3d at 764.
21
an
appropriate
tool
for
evaluating
the
interconnectedness
of
governmental subdivisions, however, does not answer the question as
to what standard, if any, the Court should apply for determining
how interrelated political subdivisions should be treated for the
purposes of liability. In light of the foregoing cases, it appears
that there is no alternative test for making a single-employer or
joint-employer type argument in this circuit.25 The Defendants argue
for the hybrid test in the absence of a workable alternative. It
seems inappropriate, however, to default to a test whose utility,
if
Scheweitzer’s
holding
is
to
be
taken
literally,
has
no
application to the present scenario in which the Commission was
clearly Patterson’s primary employer “but questions remain whether
a second (or additional) defendant is sufficiently connected to the
employer-defendant so as to be considered a single employer.”
Schweitzer, 104 F.3d at 764.
25
The absence of an applicable test is often diminished by the
courts’ tendency to apply the Trevino test, despite its
unavailability. For instance, the Court of Appeals in Turner
applied the Trevino test to determine that Richardson Authority
Hospital, a governmental “subunit” of the State of Texas, and
Richardson
Medical
Center
Foundation, a
non-profit
Texas
corporation, could not be considered a single, integrated
enterprise before suggesting that the Trevino framework was not
applicable to their relationship. Turner, 476 F.3d at 341, 344-45;
see also, Garrett-Woodberry, 300 Fed. Appx. at 291, aff’g, 2008 WL
872444, at *2-*3 (both courts stating that the plaintiff could not
prevail under a single-employer theory even if that theory was
available). The courts’ continued application of the Trevino test
indicates to this Court that either (1) the test may not be as
inapposite as courts suggest, or (2) courts are not comfortable
that there is no relevant test.
22
Further, failure to follow Schweitzer’s sequential analysis
could lead to strange results. For instance, should the Court find
that
the
City
and
County
are
liable
for
the
termination
of
Patterson’s employment under the hybrid test, it would seem odd to
subject
the
City
or
County
to
total
liability,
while
the
Commission, as the primary decision maker, cannot be held liable
under the ADA and ADEA. Conversely, should the Court apply the
hybrid test and find the City and County had no right to the
control Patterson’s employment, failure to apply the Trevino test
could potentially shield all Parties from liability even if they
were clearly interconnected, when in the private context, they
could incur liability if there was evidence to suggest that they
were actively involved in employment decisions. These results are
not possible in the private context because in both situations the
total number of employees would be aggregated under the singleemployer theory to make all Parities liable.
A. The Hybrid Test
Under the hybrid test, courts view the “right to control” as
the most important consideration in determining whether an entity
acted as the employer of the plaintiff. Deal, 5 F.3d at 119. Three
factors
are
particularly
instructive
regarding
that
right
to
control: “whether the alleged employer has (1) the right to hire
and fire the employee, (2) the right to supervise the employee, and
(3) the right to set the employee’s work schedule.” Id. at 119
23
(numerals added) (citing Fields, 906 F. 2d at 1020); see also,
Garcia v. Shell Oil Co., 2009 WL 2047898, at *4 (S.D. Tex. July 10,
2009). As to the lesser component of the hybrid test–economic
realities test–district courts may consider a host of factors,26
with the most important being whether the “alleged employer paid
the employee’s salary, withheld taxes, provided benefits, and set
the terms and conditions of employment.” Deal, 5 F.3d at 119
(citing Mares v. Marsh, 777 F.2d 1066, 1068 (5th Cir. 1985)).
“Federal law controls whether a person is an employer under
Title VII, but courts can look to state law to understand the
nature of the employment relationship.” Oden v. Oktibbeha Cnty.,
Miss., 246 F.3d 458, 465 (5th Cir. 2001); see also, Simmons v.
Lyons, 746 F.2d 265, 270 (5th Cir. 1984). After reviewing the law
26
These factors include:
(1) the kind of occupation, with reference to whether the
work usually is done under the direction of a supervisor
or is done by a specialist without supervision; (2) the
skill required in the particular occupation; (3) whether
the “employer” or the individual in question furnishes
the equipment used and the place of work; (4) the length
of time during which the individual has worked; (5) the
method of payment, whether by time or by the job; (6) the
manner in which the work relationship is terminated;
i.e., by one or both parties, with or without notice and
explanation; (7) whether annual leave is afforded; (8)
whether the work is an integral part of the business of
the “employer”; (9) whether the worker accumulates
retirement benefits; (10) whether the “employer” pays
social security taxes; and (11) the intention of the
parties.
Fields, 906 F.2d at 1020 n.4 (quoting Spirides v. Reinhardt, 613
F.2d 826 (D.C. Cir. 1979)).
24
creating the Commission, the Court concludes that neither the City
or the County can be considered Patterson’s primary employer
inasmuch as neither had the right to exercise direct control over
the terms of Patterson’s employment. Senate Bill No. 2955 vests the
following powers and duties in the Commission: (a) to make bylaws;
(b) to elect officers and appoint employees; (c) to employ a park
superintendent; and (d) to fix salary and wages of all employees
and “to solely direct them in the discharge of their duties”; and
“to discharge employees when found inefficient or for other good
cause.” S.B. 2954 § 5 (a)-(f), Reg. Sess., 1979 Miss. Laws 943.
Thus, the commissioners unquestionably possess the majority of
control over the Commission employees, including management of the
superintendent. The Commission has the effective right to fire the
superintendent and has sole direction over the superintendent’s
day-to-day activities, which would include authority to set the
superintendent’s schedule.27
The Court is aware that during the course of his employment
Patterson used City-owned vehicles; was carried on the City’s
health insurance plan; and was instructed to communicate directly
to the City clerk regarding his equipment and budgetary needs. See
generally Knight Dep., docket entry no. 120-11; City Council
27
Under the “right to control test” the only factor that could
be interpreted to weigh in Patterson’s favor is the City and
County’s responsibility to concur in the hiring decision of the
superintendent. Concurring in hiring decisions does not amount to
the ability to control. See Mares, 777 F.2d at 1068.
25
Meeting Minutes, docket entry no. 120-6. But these economic indicia
of control do not override the right to hire and fire, the right to
supervise, and the right to set the employee’s work schedule.
Accordingly, under the hybrid test neither the City or the County
can be considered Patterson’s employer.
B. The Trevino Test
Under
the
Trevino
framework,
the
focus
shifts
from
the
relationship between the City, the County, and Patterson to the
relationship between the City, County, and the Commission. In lieu
of focusing exclusively on whether the City or County had the
“right to control” Patterson’s employment, the Court must consider
whether
or
interrelated
not
the
City,
operations,
County,
(2)
and
Commission
centralized
control
had:
of
(1)
labor
relations, (3) common management, and (4) common ownership or
financial control. Trevino, 701 F.2d at 404. Of these factors,
“centralized control of labor relations” is considered to be the
most important. Id. (citing Oaks v. City of Fairhope, 515 F. Supp.
1004 (S.D. Ala. 1981); Fike v. Gold Kist, Inc., 514 F. Supp. 722,
727 (N.D. Ala. 1981); EEOC v. Cuzzens of Ga., 15 FEP 1807 (N.D. Ga.
1977), rev’d on other grounds, 608 F.2d 1062 (5th Cir. 1979)).
Under this prong, courts focus primarily on one question: “which
entity
made
the
final
decisions
regarding
employment
matters
relating to the person claiming discrimination?’” Schweitzer, 104
F.3d at 764; see also Vance v. Union Planters Corp., 279 F.3d 295,
26
301 (5th Cir. 2002) (quoting Chaiffetz v. Robertson Research
Holding, Ltd., 798 F.2d 731, 735 (5th Cir. 1986)). Taking the
factors together, Trevino instructs courts to “focus on the control
a parent company exercises over the employment decisions of its
subsidiary.” Schweitzer, 104 F.3d at 764.
Courts that have considered the propriety of applying the
Trevino test to political subdivisions have found that the third
and fourth factors of the NRLB test are particularly unsuited for
analyzing the interconnectedness of governmental entities. Lyes,
166 F.3d at 1343; Garret-Woodberry, 2008 WL 87244, at *3 n.2. Any
analysis of “common management” or “common ownership or financial
control” will not be particularly helpful in this context as
governmental subdivisions like the City, County, and Committee “may
share sources of ultimate political control or funding, yet be
wholly distinct with respect to the day-to-day operations or their
control over the relationships of their employees.” Lyes, 166 F.3d
1344.28 Additionally, the “interrelated operations” factor, while
perhaps moderately indicative of whether two entities constitute a
single-employer,29 sheds little light on the critical focus of the
28
The Court notes for the record that there is no indication
that their was any overlap in membership between the City, County,
and Commission.
29
Application of this factor weighs in favor of the Plaintiff.
As stated above, Patterson used City-owned vehicles; Patterson was
carried on the City’s health insurance plan; Patterson often
communicated directly to the City clerk regarding his equipment and
budgetary needs. See generally Knight Dep., docket entry no. 12027
single-employer test: whether one entity exercises control over the
employment decisions of another. See Schweitzer, 104 F.3d at 764.
After carefully considering the record, the Court is persuaded
that Patterson has adduced enough evidence to create a fact issue
as to whether Yazoo City exercised control over the Commission’s
employment decisions, and further, whether the decision to transfer
Henry Campbell was related to Patterson’s disability. Shortly
before Patterson’s second amputation, the City voted to transfer
Henry Campbell to the Parks and Recreation Commission with $40,000
pay–pay equal to Patterson’s. Sept. 8, 2008, Minutes, docket entry
no. 120-6 at 30; see Patterson Dep. at 35. Again, following the
termination of Patterson’s employment with the Commission, the City
voted to transfer Campbell back to the Commission. April 29, 2009,
Minutes, docket entry no. 120-6 at 37. Tommie Guthrie, thenchairman of the Commission, testified that he does not know how
Campbell ended up working for the Commission and could not offer
facts
suggesting
it
was
the
Commission’s
decision
to
hire
Patterson, not the City’s. Guthrie Dep. at 53.
Accordingly, the Court finds that a fact-finder can reasonably
draw two conclusions: (1) the City has some control over the
11; City Council Meeting Minutes, docket entry no. 120-6. Further,
while the record is unclear as to how Ardis Russell came to monitor
the finances of the Commission, it appears that he had some direct
ties with the City and reported to the City, not the Commission,
regarding the state of the Commission’s finances. See id.; see also
Patterson Aff. ¶ 4-10.
28
employment
decisions
of
the
Commission,
despite
the
law’s
guidelines, and (2) the City’s action to transfer Henry Campbell to
the Commission could be interpreted as being related to Patterson’s
second surgery and ultimately his termination. To be clear, the
Court does not find evidence that the City had “the right to
control”
Patterson’s
employment
with
the
Commission
or
even
exercised direct control of the terms of Patterson’s employment,
but it does find evidence that the City was actively engaged in the
employment decisions of the Commission and may have taken action
that
was
Commission.
directly
If
this
tied
to
appears
Patterson’s
to
be
a
employment
distinction
with
the
without
a
difference, the Court can only respond that this finding is a
consequence of attempting to wade through the murkiness of current
case law. Accordingly, the Court finds that the City and Commission
could be considered employers under the ADA and ADEA under the
Trevino test.30
C. Whether the Trevino Test Should Be Applied
The Court, having reviewed the relevant case law, finds no
explanation why government entities should be treated differently
from private employers in employment discrimination suits. The
30
The Court considered applying the rebuttable presumption
test articulated in Lyes. See Turner, 476 F.3d at 344 n.3. For the
record, the Court notes that its finding would be the same under
the Eleventh Circuit’s rebuttable presumption test since the
presumption to which the City was entitled by law was overcome by
evidence of their active involvement in the employment decisions of
the Commission. See Lyes, 166 F.3d at 1395.
29
Court, therefore, sees no apparent reason why the Trevino test, or
some other analogous test better suited for its purpose, should not
apply to government entities since there is no question that
Congress intended for private and public employees to enjoy similar
protections under Title VII. Moore v. City of San Jose, 615 F.2d
1265, 1272-73 (9th Cir. 1980); Owens v. Rush, 636 F.2d 283, 287
(10th Cir. 1980). Further, a contrary holding seems inconsistent
with the well-accepted principle that the term “employer” should be
construed liberally in employment discrimination cases. See, e.g.,
Quijano v. Univ. Fed. Credit Union, 617 F.2d 129, 131 (5th Cir.
1980).
A total bar to liability may perhaps be intentional and
consonant with congressional intent. But precedent in this case
seems shaped more by the lack of a suitable test than underlying
policy. Some circuits have reached the same conclusion about the
limited utility of the NLRB test but have fashioned a substitute
test. Lyes, 166 F.3d 1332; Sandoval v. City of Boulder, Colo., 388
F.3d 1312, 1322 (10th Cir. 2004); Schwarz v. Berrien Springs Police
Dept., 80 FEP Cases 1682, at *9 (W.D. Mich. Aug. 6, 1999) (applying
the Lyes test). Other circuits choose to tailor the NLRB test to
governmental entities, despite its limitations. Artis v. Francis
Howell N. Band Booster Ass’n, Inc., 161 F.3d 1178, 1184 (8th Cir.
1998); Vandermeer v. Douglas County, 15 F. Supp. 2d 970, 974-80 (D.
Nev. 1998); Riley v. Cnty. of Pike, 761 F. Supp. 74, 77 (C.D. Ill.
30
1991). At least one circuit agrees that the single-employer test is
not suited for “cases involving the complex relations between
levels of government” and chooses to apply no test. Gulino v. N.Y.
State Educ. Dept., 460 F.3d 361, 379 (2d Cir. 2006).
And finally,
at least two circuits have rejected the usefulness of the NRLB test
for aggregating employers in both the government and private
contexts. Nesbit v. Gears Unlimited, Inc., 347 F.3d 72, 84-85 (3d
Cir. 2003); Papa v. Katy Industries, Inc., 166 F.3d 937, 942-43
(7th Cir. 1999).
In light of the foregoing discussion, this Court finds that,
in
the
absence
of
clear,
precedential
authority
mandating
otherwise, Patterson may aggregate City employees under the singleemployer theory. Further, the Court finds that Patterson has
produced enough evidence that the City could be his “employer” for
the purposes of the ADA and ADEA that he may present this issue to
a fact-finder. See Schweitzer, 104 F.3d at 65. Additionally,
although there has been little discussion of the matter, the Court
finds that under the hybrid test or the Trevino test, the County
could not be found to be Patterson’s employer subject to his ADA
and ADEA claims. There is no evidence that the County played any
role
whatsoever
in
Patterson’s
employment
or
the
employment
decisions of the Commission in general. Accordingly, the Court will
grant summary judgment in favor of the County with respect to
Patterson’s ADA and ADEA claims.
31
2. The Burden-Shifting Framework for Patterson’s ADA and ADEA
Claims
The ADA forbids an employer from discriminating “against a
qualified individual with a disability because of the disability of
such individual in regard to job application procedures, the
hiring,
advancement,
compensation,
job
or
discharge
training,
and
of
other
employees,
terms,
employee
conditions,
and
privileges of employment.” 42 U.S.C. § 12112(a). A qualified
individual
is
accommodation,
someone
can
“who,
perform
with
the
or
without
essential
reasonable
functions
of
the
employment position that such individual holds or desires.” 42
U.S.C. § 12111(8). Similarly, 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). To be a
qualified individual under the ADEA, the plaintiff must be at least
forty (40) years old. 29 U.S.C. § 631(a).
Discrimination
burden-shifting
claims
test”
are
evaluated
established
by
the
under
a
Supreme
“tripartite
Court.
See
Crawford v. Formosa Plastics Corp., 234 F.3d 899, 901-02 (5th Cir.
2000) (citing
McDonnell Douglas v. Green, 411 U.S. 792, 802-04
(1973)). Under the McDonnell Douglas framework, if the plaintiff
establishes a prima facie case of discrimination, the burden shifts
to the defendant to provide a legitimate, nondiscriminatory reason
32
for the alleged discriminatory act. Crawford, 234 F.3d at 902.
Having done so, the burden shifts back to the defendant to show
that the defendant’s nondiscriminatory reason is a pretext for
discrimination. Id. (citing Reeves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 142 (2000)).
To establish a prima facie discrimination case under the ADA,
a plaintiff must produce evidence to show: “(1) He is disabled or
is regarded as disabled; (2) he is qualified for the job; (3) he
was subjected to an adverse employment action on account of his
disability; and (4) he was replaced by or treated less favorably
than non-disabled employees.” McInnis v. Alamo Cmty. Coll. Dist.,
207 F.3d 276, 279-80 (5th Cir. 2000)(citing Burch v. Coca-Cola Co.,
119 F.3d 305, 320 (5th Cir. 1997)). The elements of a prima facie
case for age-discrimination claims, like all discrimination claims,
are substantially similar: (1) the plaintiff must be a member of a
protected class, (2) must be qualified for the position, (3) must
have
suffered
an
adverse
employment
action,
and
(4)
others
similarly situated must have been more favorably treated. Willis v.
Coca Cola Enters., Inc., 445 F.3d 413, 420 (5th Cir. 2006) (quoting
Rutherford v. Harris Co., Tex., 197 F.3d 173, 184 (5th Cir. 1999)).
3. Patterson’s ADA Claim and ADEA Claim
The Defendants suggest that Patterson has not presented the
Court with enough evidence to proceed to trial on his ADA claim. In
particular, the Defendants argue that Patterson cannot show that he
33
was (a) qualified for the position of superintendent or (b) that he
was replaced by a non-disabled employee, and thus he cannot make
out
a
prima
facie
case
of
discrimination.
Beyond
that,
the
Defendants argue that Patterson has proffered no evidence to
suggest
that
the
Commission’s
legitimate,
nondiscriminatory
explanation for the termination of his employment is a pretext for
unlawful discrimination.
A. Whether Patterson’s Factual Averments on his Disability
Application Preclude His Argument That He Was Qualified for the
Position of Supervisor
While the present lawsuit was pending in this Court, Patterson
filed a disability claim with the SSA. In his application for
disability benefits, the Plaintiff represented to the SSA that he
became unable to perform his job prior to the termination of his
employment as supervisor. See, Patterson SSA Report at § 2. The
SSA, after considering this evidence, determined that Patterson was
in fact disabled and was eligible to collect SSDI benefits. See DDS
Letter. The Defendants argue that Patterson cannot recover for his
ADA
and
ADEA
claims
because
specific
statements
on
his
SSA
application estop him from now arguing that he is qualified for the
position of supervisor.
The present position in which Patterson finds himself is not
uncommon. See, e.g., Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S.
795 (1999); Giles v. Gen. Elec. Co., 245 F.3d 474 (5th Cir. 2001);
McClaren v. Morrison Mgmt. Specialists, Inc., 420 F.3d 457 (5th
34
Cir. 2005); Reed v. Petroleum Helicopters, Inc., 218 F.3d 477 (5th
Cir. 2000). Faced with a similar scenario, the Supreme Court held
that receiving SSDI benefits and pursuing a disability claim under
the ADA were not inherently contradictory positions and therefore
receiving SSDI benefits does not “automatically estop the recipient
from pursuing an ADA claim.” Cleveland, 526 U.S. at 801. The Court
found, however, that courts could not simply ignore the apparent
contradictions between the two positions but should afford an ADA
plaintiff
the
opportunity
to
explain
contradictory
factual
assertions that would “at least superficially appear to negate an
essential element of the ADA case.” Reed, 218 F.3d at 479 (citing
Cleveland, 526 U.S. at 806). The plaintiff’s explanation should be
“‘sufficient to warrant a reasonable juror's concluding that,
assuming the truth of, or the plaintiff’s good faith belief in, the
earlier statement, the plaintiff could nonetheless perform the
essential
functions
of
her
job,
with
or
without
reasonable
accommodation.’” McClaren, 420 F.3d at 463 (quoting Cleveland, 526
U.S. at 807). Typically, the plaintiff’s explanation turns on
whether the ADA’s “reasonable accommodation” requirement affords
the plaintiff enough room to maintain the position that he is by
definition disabled under the Social Security Act but is qualified
for his former position with reasonable accommodation. See, e.g.,
Cleveland, 526 U.S. at 807; McClaren, 410 F.3d at 464, Reed, 218
F.3d at 479.
35
Patterson makes just such an argument.31 After a careful
reading of the above precedent, the Court finds that Patterson’s
“reasonable
accommodation”
argument
has merit.
Patterson
made
limited specific factual assertions in his application for benefits
to the SSA. See McClaren, 420 F.3d at 466 (noting that the
difference between the Reed and Giles outcomes was the factual
averments made to the SSA). The most substantive of these averments
are: (1) “I am unable to do any physical work due my inability to
walk” and (2) “I am not able to walk and drive.” Patterson SSA
Report at § 2. Neither of these factual assertions automatically
disqualifies him for the job of supervisor.
As an initial matter, the superintendent job description does
not specifically require either the ability to perform manual labor
or the ability to walk or drive; instead, the job is entirely
supervisory
in
nature.
See
generally,
Superintendent
Job
Description. Nevertheless, in his deposition, Patterson stated that
it was his custom as supervisor to perform manual labor alongside
his employees. Patterson Depo. at 75-76. Further, as an example of
the type of work the supervisor might perform, the job description
states that the supervisor “may perform manual labor associated
with
groundskeeping
and
maintenance
31
of
facilities.”
Id.
Just
The Court rejects Patterson’s argument that he cannot be
estopped by statements made on his disability application because
the application was completed by Linda Williams. Pl.’s Resp. to
Defs.’ Summ. J. Mot. at 8-9; docket entry no. 158.
36
because Patterson routinely performed manual labor or that the
supervisor sometimes “may perform” such labor does not override the
consideration that the ability to perform physical labor is not an
essential or even mandatory component of the supervisor’s job.
Therefore, Patterson’s inability to walk is not fundamentally
inconsistent with Patterson’s assertion that he was qualified for
his position.
Further, the Defendants suggest that Patterson’s inability to
drive
would
also
undermine
his
qualification
for
his
former
position. Patterson also testified that a significant part of his
job was, “go[ing] out every morning to see what need to be did; and
if it’s not done, [going] back that evening . . . [to] check it.”
Id. at 75-76. While the inability to drive would presumably hinder
his ability to supervise, transportation to and from work sites may
be something that could be reasonably accommodated. The Court is
not in
a
position
to determine
whether
the
Commission
could
reasonably accommodate Patterson’s transportation needs,32 but it
certainly cannot conclude that Patterson’s inability to drive is a
per se bar to performing the work of supervisor.
32
The Defendants do not address the specific reasons why it
would be impractical to accommodate Patterson’s need for
transportation.
A
reasonable
accommodation
is
defined
as
“[m]odifications or adjustments to the work environment, or to the
manner or circumstances under which the position held or desired is
customarily performed, that enable an individual with a disability
who is qualified to perform the essential functions of that
position.” 29 C.F.R § 1630.2(a)(ii).
37
Yazoo
City
suggests
that
Patterson’s
“reasonable
accommodation” argument is not available to him because he never
requested accommodation. See E.E.O.C. v. Chevron Phillips Chem.
Co., LP, 570 F.3d 606 (5th Cir. 2009). Yet, the City’s reliance on
this case is not helpful to its cause considering a plaintiff has
the burden of requesting accommodation only “where the disability,
resulting limitations, and necessary reasonable accommodations, are
not open, obvious, and apparent to the employer.” See id. at 621
(quoting Taylor v. Principal Fin. Grp., Inc., 93 F.3d 155, 165 (5th
Cir. 1996)). As the limitations arising from Patterson’s disability
should have been open, obvious, and apparent to the Commission, the
burden would have rested on his employers to consider whether
Patterson required reasonable accommodation.
Finally,
the
Court
acknowledges
that
Patterson’s
blanket
assertion “I am unable to work” considered in tandem with his
statement that he became disabled prior to his second amputation
seems contrary to the position he has taken before this Court.
Patterson SSA Report at § 2. But considering these statements in a
light most favorable to him, they could plausibly be construed as
context-related legal conclusions that can be reconciled with his
discrimination claims at trial. See Cleveland, 526 U.S. at 802 (“An
SSA representation of total disability differs from a purely
factual statement in that it often implies a context-related legal
conclusion, namely, ‘I am disabled for purposes of the Social
38
Security Act.’”). In sum, the Court finds that Patterson has not
made a factual assertion that would estop his ability to pursue his
ADA claim or ADEA claim in this Court and therefore should be
afforded the opportunity to explain potential discrepancies between
his statements to the fact-finder at trial. Id. at 807.
B. Whether Patterson Has Shown That He Was Replaced by a NonDisabled Employee
The Defendants further argue that Patterson cannot show that
he
was
replaced
by
a
younger,
non-disabled
individual,
and
therefore his ADA and ADEA claims fail at that prima facie stage.
In support of this argument, the Defendants rely on (1) that fact
that Campbell’s salary and duties, when he was transferred to the
Commission, were not identical to Patterson’s, and (2) that, when
Campbell was eventually promoted to the position of superintendent,
his promotion came too late for him to be considered Patterson’s
replacement.
Both of these arguments, while they have some basis in law,
come up short under the present circumstances. First, the Court is
satisfied that there is sufficient evidence before it to suggest
that Campbell performed enough of the same functions as Patterson
to be considered his replacement. Guthrie testified that Campbell
was the Commission’s “foreman . . . of the parks.” Guthrie Dep. at
54-55. When asked whether Campbell “[did] pretty much the same
thing that H.L. Patterson did?”, Guthrie responded, “No. To some
degree, yes, but no.” Id. Guthrie, however, elaborated that the
39
critical difference between the job performed by Campbell and the
work done by Patterson was that Campbell did not perform budgeting
tasks and could not hire employees for the Commission. Id. When
pressed on this issue, however, Guthrie could not say whether or
not Patterson had ever hired an employee. Id. While it appears that
Campbell may have had fewer duties than Patterson,33 based on the
testimony in the record, the Court finds that the plaintiff has
proffered sufficient evidence for a fact-finder to find that the
so-called “foreman . . . of the parks” essentially performed the
same
functions
as
the
former
supervisor,
e.g.,
oversight
of
groundskeeping, maintenance, and repair.
As to the point that Campbell received a lower salary for his
work and did not officially take the title of supervisor until
twenty (20) months after the termination of his employment, the
Court finds no authority for the proposition that these factors
preclude
the
above
conclusion.34
Specifically,
the
timing
of
33
Again, while the Court agrees that Patterson was ultimately
responsible for the Commission’s financial state, see Patterson
Dep. at 180, the record suggests that Ardis Russell had some
responsibility in monitoring the Commission’s finances and budget.
See Patterson Aff. ¶¶ 4-10. Taken as true, Ardis Russell’s presence
with the Commission only underscores the conclusion that the
supervisor was primarily responsible for groundskeeping and
maintenance of the City and Count’s parks and recreational
facilities.
34
The Defendants rely on a number of cases to conclude that
Campbell’s promotion to supervisor came too late for him to be
considered Patterson’s replacement. See Watkins v. Sverdrup
Technology, Inc., 153 F.3d 1308, 1312-13, 1316 (11th Cir.
1998)(hiring a “replacement” ten months after the termination of
40
Campbell’s promotion is not dispositive in this case in light of
the fact that his transfer to the Commission coincided with the
termination of Patterson’s employment. Further, while Campbell’s
lesser pay is perhaps evidence that he was not intended to replace
Patterson, it is not conclusive evidence that he did not replace
Patterson.35 Moreover, this information is neutralized by the timing
of his transfer, which suggests that the Commission (or the City)
intended him to at least serve as stop-gap until Patterson could be
formally replaced. In sum, a commonsense understanding of the word
“replaced” suggests that, based on the evidence before the Court,
the trier of fact could conclude that Campbell “[took] or filled
the place of” Patterson. American Heritage Dictionary 1048 (2d ed.
1991); see St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 509-510
(1993).
C. Whether Patterson Has Produced Enough Evidence of Pretext
Progressing to the final stages of the McDonnell Douglas test,
plaintiff’s employment); Frieze v. Boatmen’s Bank of Belton, 950
F.2d 538, 541 (8th Cir. 1991)(five months after); Sauer v. ICI
Paints in N. Am., 44 F. Supp. 2d 827, 832-33 (W.D. Tex.
1999)(twelve months after). While Sauer suggests that a twelvemonth delay might be too long under any circumstance to consider a
hired employee a replacement for ADEA purposes, none of these cases
relied on timing alone, and all accounted for other facts and
circumstances surrounding the non-replacement’s hire. These cases
only serve to underscore the fact-specific nature of this inquiry.
35
The Court reaches this conclusion without reference to
evidence that the City twice voted to transfer Campbell to the
Commission with a pay equal to Patterson’s former pay. See Sept. 8,
2008, Minutes, docket entry no. 120-6 at 30; April 29, 2009, docket
entry no. 120-6 at 37.
41
the Court finds that the Defendants have produced a legitimate,
nondiscriminatory reason for terminating Patterson’s employment,
thereby meeting their burden of production and shifting the burden
back
to
Patterson
to
produce
evidence
that
the
Defendants’
explanation is a pretext for discrimination. See St. Mary’s Honor
Ctr., 509 U.S. at 510. The Commission, speaking through Guthrie,
stated that it fired Patterson for poor job performance. Guthrie
testified
that
the
Board
grew
increasingly
dissatisfied
with
Patterson’s overall performance as supervisor and terminated him
for that reason alone. See Guthrie Dep. at 32-33. Specifically,
Guthrie pointed to Patterson’s failure to properly oversee the
Commission’s funds, neglect of his duty to maintain the parks, and
willingness to allow the Commission’s equipment to fall into
disrepair.36 See id. at 32-33, 89. Financial records produced by the
Defendants
corroborate
Guthrie’s
testimony
that
Patterson did
indeed mismanage the Commission’s funds. See Nov. 30, 2008 Balance
Sheet, docket entry no. 112-6; Commission Oct.-Nov. Profit-Loss
Statement, docket entry no. 112-7.
In
response
to
these
accusations,
Patterson
attempts
to
deflect blame for his poor performance, claiming that management of
the Commission’s funds was not his ultimate responsibility and that
36
For
the
record,
the
Court
rejects
Patterson’s
unsubstantiated legal assertion that the Court may not rely on
Guthrie’s testimony because the Board can only speak through its
minutes.
42
the Board consistently hamstrung his efforts to obtain the funds
and equipment necessary to do his job. See generally, Memo. in
Resp. to City’s Summ. J. Mot. at § IV-V, docket entry no. 120.
Although the record is unclear to what role Ardis Russell played in
oversight
and
management
of
the
Commission’s
finances,
see
Patterson Aff. ¶¶ 4-10, Patterson’s blame-shifting effort is not
convincing, particularly since it is a tacit admission that his
supervision
was
substandard.
Multiple
times
throughout
his
deposition Patterson came close to conceding the veracity of the
Defendants allegations, despite many statements to the contrary in
his pleadings. Patterson Dep. at 88-91, 165-68, 179-180, 253.
But, for the purposes of Patterson’s ADA and ADEA claims, the
Court’s
analysis
does
not
turn
on
whether
the
Defendants’
allegations are true. Put another way, Patterson does not have to
prove that the Commission’s proffered reasons for terminating him
are false, although doing so would perhaps be helpful to his cause,
rather he can prevail by producing evidence that the Commission’s
reasons for firing him are a pretext for discrimination. Reeves,
530 U.S. at
147 (“Proof
that
the defendant’s
explanation
is
unworthy of credence is simply one form of circumstantial evidence
that is probative of intentional discrimination, and it may be
quite persuasive.”). The ultimate inquiry in ADA or ADEA cases is
always “discrimination, vel non.” St. Mary’s Honor Ctr., 509 U.S.
at 519 (quoting U.S. Postal Serv. Bd. of Governors v. Aikens, 460
43
U.S. 711, 714 (1983)); Reeves, 530 U.S. at 142.
Patterson has consistently argued in all his representations
to this Court that the reasons proffered by the Defendants were not
the true reasons they fired him. The Defendants counter that,
despite the sincerity of Patterson’s belief, Patterson has fallen
short
of
meeting
his
final
burden
because
he
has
failed
to
substantiate his claim. See Henry v. Cont’l Airlines, 415 Fed.
Appx. 537, 540 (5th Cir. Mar. 3, 2011) (unpublished). In his
deposition, Patterson admitted that he has no “direct evidence” of
discrimination but relies on circumstantial evidence to bolster his
complaint.37 See Patterson Dep. at 185-88. First, Patterson suggests
that the Commission’s inability to produce negative performance
evaluations or documentation of disciplinary action is evidence
that the Commission’s reasons for firing him are pretextual. While
it not helpful to the Commission’s cause that no such written
records exist, it is not fatal. The burden remains on Patterson to
produce some evidence creating a genuine issue as to whether the
Commission fired him because of his age or disability. St. Mary’s
Honor Ctr., 509 U.S. at 514. Secondly, Patterson argues that timing
37
The Court notes that Patterson’s reliance on circumstantial
evidence is not as problematic as some of the Defendants suggest.
The McDonnell Douglas framework is designed to “allow both
plaintiffs and the courts to deal effectively with employment
discrimination revealed only through circumstantial evidence.” St.
Mary's Honor Ctr., 509 U.S. at 526. As the Supreme Court has noted,
plaintiff’s complaints are often built entirely upon circumstantial
evidence because “there will seldom be ‘eyewitness’ testimony as to
the employer’s mental processes.” Aikens, 460 U.S. at 716.
44
of Campbell’s transfer to the Commission is evidence that the City
preferred a non-disabled, younger employee.
Sweeping
aside
all
the
testimony,
the
Court
finds
that
Patterson has produced one document that undermines the credibility
of the Commission and creates a genuine issue of material fact as
to whether the Commission’s and the City’s proffered reasons for
terminating his employment are a pretext for discrimination. The
record clearly indicates that Campbell was transferred from the
City to
underwent
the
Commission during
his
transferred
second
to
the
the
amputation
Commission
same month
and
that
shortly
that
Campbell
after
Patterson
was
again
Patterson’s
termination. Sept. 8, 2008, Minutes, docket entry no. 120-6 at 30;
April 29, 2009, Minutes, docket entry no. 120-6 at 37. Both times
the City voted to transfer Campbell with a salary identical to
Patterson’s. See Patterson Dep. at 35.
This Court is aware that the timing of Campbell’s transfer
alone does not constitute conclusive evidence of discrimination.
See, e.g., Roberson v. Alltel Info. Servs., 373 F.3d 647, 656 (5th
Cir. 2004). That proposition may be true as a general matter, but
the Court views this evidence in the context of the record–in this
case in light of Patterson’s and Guthrie’s testimony. Guthrie
testified that Patterson’s poor performance began long before the
termination of his employment, Patterson Depo. at 88-91, yet
evidence before this Court suggests that the Commission expressed
45
dissatisfaction with his employment only after his first amputation
and took adverse action after his second amputation. Further,
Guthrie’s inability to explain how or why Campbell came to work for
the Commission only substantiates Patterson’s theory that the City
and Commission have been less than forthcoming regarding the
circumstances surrounding his employment. See Guthrie Depo. at 53.
To be clear, the Court makes no finding as to whether the
Commission’s stated reasons are indeed pretext for discrimination.
There are, of course, many reasonable explanations why the timing
of Campbell’s two transfers coincided with Patterson’s amputation
and firing. Indeed, if the Committee had more on which to rely than
Guthrie’s testimony and his interpretation of a few financial
documents,
the
Court
might
be
more
hesitant
to
deny
summary
judgment. But given the strength of the Defendant’s evidence
relative to the evidence produced by Patterson,38 the Court finds
that summary judgment, particularly in a discrimination case, would
be inappropriate. See Hayden, 595 F.2d at 997. Based on the
38
The Defendants make much of the fact that Patterson relies
heavily on self-serving, and sometimes contradictory, testimony in
order to support his discrimination claims. This observation,
however, ignores the equally obvious fact that, with the exception
of a few financial records, the Commission’s evidence is based
entirely on Guthrie’s ex post facto oral testimony regarding the
Board’s motive and intent. For the most part, the Commission and
the City have countered Patterson’s self-serving testimony with
their own self-serving testimony. In short, the Defendants’ case is
open to the same charges it levels against Patterson and the
credibility of their stated reasons for terminating his employment
are just as vulnerable.
46
evidence before it, and taking this evidence in a light most
favorable to the nonmovant, the Court finds that Patterson has
produced enough evidence that a fact-finder could reasonably find
in his favor. See Fed. R. Civ. P. 56.
III. Due Process Claim
Patterson’s final claim is a § 1983 claim for violation of his
due process rights.39 42 U.S.C. § 1983. The Due Process Clause of
the Fourteenth Amendment prohibits a state from depriving “any
citizen of life, liberty, or property except by due process of the
law.”
U.S. Const. Amend. XIV, § 1. In order to establish a
deprivation of due process the plaintiff must first show that he
has an interest subject to Fourteenth Amendment protection. Cabrol
v. Town of Youngsville, 106 F.3d 101, 108 (5th Cir. 1997). Then, a
plaintiff must demonstrate that the state deprived him of this
interest without providing adequate due process of law. Cleveland
Bd. of Educ. v. Loudermill, 470 U.S. 532, 542 (1985). “[O]nce it is
determined that the Due Process Clause applies, ‘the question
remains what process is due.’” Id. (quoting Morrissey v. Brewer,
39
42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory
or the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation
of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .
47
408 U.S. 471, 481 (1972)). At minimum, the Due Process Clause
affords the individual with a threatened protected interest a right
to have notice of the charges and the “opportunity to be heard.”
Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 313
(1950).
1. Whether
Employment
Patterson
Possessed
a
Property
Interest
in
His
What constitutes a legally protected interest is not always
easy to determine, but in this case, the Court has no trouble
concluding that Patterson had a constitutionally protected property
interest in his employment. “To have a property interest in a
benefit, a person clearly must have more than an abstract need or
desire for it. He must have more than a unilateral expectation of
it.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577
(1972). “A public employee has a property interest in her job if
she has a legitimate claim of entitlement to it, a claim which
would limit the employer’s ability to terminate the employment.”
Johnson v. Sw. Miss. Reg’l Med., 878 F.2d 856, 858 (5th Cir. 1989).
Entitlement can be established by an express agreement between the
parties or state law or policy. Cabrol, 106 F.3d 101, 106 (citing
Roth, 408 U.S. at 577; Loudermill, 470 U.S. at 538; Schaper v. City
of Huntsville, 813 F.2d 709, 713 (5th Cir. 1987)). Here, Patterson
argues that had a legitimate claim of entitlement to his employment
as supervisor by reference to state law. Johnson, 878 F.2d at 858.
Mississippi
is
an
at-will
48
employment
state.
Roberts
v.
Walthall Cnty. Gen. Hosp., 96 F. Supp. 2d 559, 562 (S.D. Miss.
2000)(citing Perry v. Sears Roebuck & Co., 508 So. 2d 1086 (Miss.
1987)). As such, there is a general presumption that “an employee
who has furnished no consideration in addition to the services
incident to his employment may be discharged at the will of his
employer.” Roberts, 96 F. Supp. 2d at 562 (citing Kelly v. Miss.
Valley Gas Co., 397 So. 2d 874 (Miss. 1981)). In this case,
however, the general at-will-employment presumption is superceded
by Senate Bill No. 2955, which provides that the Commission may
“discharge employees when found inefficient or for other good
cause.” S.B. 2954 § 5 (e), Reg. Sess., 1979 Miss. Laws 943.
The Fifth Circuit has drawn a distinction between those
Mississippi statutes which expressly provide a “terminable at will”
standard from those that supply a “good cause” standard. Conley v.
Bd. of Trs. of Grenada Cnty. Hosp., 707 F.2d 175, 179 n.3 (5th Cir.
1983). The latter standard was held out by the Court as an example
of falling on the far end of the spectrum of
language that
unquestionably affords the subject employee a property interest in
his employment. See id. at 179 (noting that the “terminable at
will” falls on the other end of the spectrum). Further, under
Mississippi law “‘where the removal can only be for cause, the
[employee] has the right to notice and an opportunity to disprove
the charges.’” Roberts, 96 F. Supp. 2d at 562 (quoting In Re:
49
Bishop, 52 So. 2d 18, 20 (1951)).40
The Court acknowledges that the Mississippi Supreme Court has
considered language that an employer may only terminate an employee
“for malfeasance, inefficiency or contumacious conduct” as not
conferring a property right on the employee. Hall v. Bd. of Trs. of
State Insts. of Higher Learning, 712 So. 2d 312, 320 (Miss. 1998)
(citations omitted) (emphasis added). Although this language is
similar to
the
language
in
question,
“good
cause”
is
almost
universally considered to bestow a property interest in favor of
the employee. See, e.g., Redd v. Nolan, 663 F.3d 287, 297 (7th Cir.
2011); Preston v. City of Pleasant Hill, 642 F.3d 646, 651 (8th
Cir. 2011); Royster v. Bd. of Trs. of Anderson Cnty. Sch. Dist. No.
Five, 774 F.2d 618, 620 (4th Cir. 1985). Id. Accordingly, the Court
finds
such
continued
language
“create[d]
employment”
constitutionally
and
protected
a
legitimate
therefore
property
that
expectation
Patterson
interest
subject
of
had
to
a
the
protections of the Fourteenth Amendment. Roth, 408 U.S. at 577.
2. Whether Patterson Was Denied Due Process of Law
“An essential principle of due process is that a deprivation
of
life,
liberty,
or
property
‘be
preceded
by
notice
and
opportunity for hearing appropriate to the nature of the case.’”
40
The holding in In re: Bishop was based purely on the court’s
interpretation of a Mississippi statute (that did not expressly
mention “good cause”) and makes no mention of constitutional
rights. See In Re: Bishop, 52 So. 2d at 18.
50
Loudermill, 470 U.S. at 542 (quoting Mullane, 339 U.S. at 313). The
principal has been interpreted to require something less than a
“the
judicial
model
of
an
evidentiary
hearing”,
Mathews
v.
Eldridge, 424 U.S. 319, 348 (1976), but, at minimum, the person in
jeopardy
of
loss
requires
some
pretermination
opportunity
to
present his “side of the story.” Loudermill, 470 U.S. at 542
(quoting Barry v. Barchi, 443 U.S. 55, 65 (1979)).
In addition to denying the existence of a property right, the
Defendants argue that Patterson received whatever process was owed
him. Patterson refutes this statement, claiming ignorance of the
Board’s impending decision. The Parties’ contrary positions in part
are predicated on their varying interpretations of what “notice” is
sufficient to charge Patterson with the obligation to present his
side of the story prior to termination. The Defendants understand
notice to mean any knowledge of the Board’s dissatisfaction with
Patterson’s job performance, while Patterson interprets notice to
require some type of formal charge.
There is no question that Patterson was aware that some of the
commissioners were dissatisfied with his job performance and that
his
job
was
in
jeopardy.
Guthrie
testified
that
the
new
commissioners contacted Patterson prior to his termination and gave
him a list of list of things he needed to improve. Guthrie Dep. at
46-47. This story is corroborated by Patterson’s own deposition in
which he acknowledged that he was aware the he could be fired.
51
Patterson Dep. at 61, 189. Patterson testified that around the
middle of March, 2009, Patterson heard from “people in general”
that he was going to be fired. Id. at 145-46. In his deposition,
when pressed on whether he learned this information from a specific
commissioner, he admitted he could not remember. Id. at 146.
Yet, despite the Board’s demand for improvement and knowledge
that “he would be fired”, Patterson appears not to have understood
the Board’s demand for improvement as instituting some sort of
probationary period after which his performance would be evaluated
by the Board. Morever, Patterson appears to be unaware that the
future of his employment with the Commission would be decided at
the April 1, 2009, meeting. In fact, there is only strained
evidence
that
the
Board
ever
formally
raised
or
discussed
Patterson’s performance prior to this meeting.41 It is entirely
plausible based on the record that the day he learned that charges
had been officially
brought
against
him
was
the
day
Guthrie
informed him that the Board had terminated his employment.
In each instance where a court has considered whether a
minimum amount of due process was met, the respondent was notified
of the pendency of some final action that could adversely affect
41
The Defendants read much into the February 11, 2009, Minutes
of the Commission; however, the minutes do not reflect the Board’s
dissatisfaction with Patterson’s work or that the Board determined
that “they would effectively have to start from scratch”. See
County’s Summ. J. Memo. at 8, docket entry no. 113; City’s Summ. J.
Memo. at 6, docket entry no. 106.
52
his rights and that a response was necessary in order to prevent
final adjudication of the matter. See generally, In re Kendavis
Holding Co., 249 F.3d 383 (5th Cir. 2001); In re Christopher, 28
F.3d 512 (5th Cir. 1994); Arnett v. Kennedy, 416 U.S. 134 (1974).
Indeed, knowledge of a proceeding that will be “accorded finality”
is fundamental to any notice requirement. Mullane, 339 U.S. at 314.
Otherwise, the right “to be heard has little reality or worth
unless one is informed that the matter is pending and can choose
for himself whether to appear or default, acquiesce or contest.”
Id.
The wisdom of this precedent is born out in the present
context. It would be counterintuitive to require Patterson to show
good cause why the Commission should not terminate his employment
without sufficient facts indicating that he received definite
notice that the termination of his employment was being formally
considered by the Board. To hold otherwise would impose upon
Patterson the obligation to respond to every unofficial complaint
or rumor, regardless of the context or source. Moreover, the
Commission’s position that Guthrie and the commissioners demanded
Patterson improve his performance “or else” only underscores the
importance of providing a hearing prior to making a final decision.
Had Patterson known that time for satisfying the Commission’s
demands for improvement had expired, he could have attempted to
provide some evidence that he had in fact complied with the
53
Commission’s requests or offer an alternative explanation as to why
he should not be fired. The opportunity to offer his side of the
story is exactly what the Due Process Clause affords. Loudermill,
470 U.S. at 543. Therefore, the Court finds that Patterson’s
knowledge of the Board’s general dissatisfaction with his work or
his awareness of rumors that his firing was imminent does not
constitute notice sufficient to charge him with the obligation to
present his side of the story.
Finally, the Court dismisses the notion that Guthrie’s brief
discussion with Patterson after the Board had voted to terminate
his employment afforded Patterson the right to be heard. See
Patterson Dep. 149-50 (stating that Guthrie told him he was fired
on
April,
Patterson’s
2,
2009);
last
day
April,
1,
2009,
Minutes
would
be
April
15).
(providing
Guthrie
that
presented
Patterson with the choice to resign or be fired. Each “choice,”
regardless of the semantics, led to the same unavoidable result.
The Board made its decision when it unconditionally voted to
terminate Patterson’s employment. Had Patterson prevailed upon
Guthrie not to fire him, Guthrie had no authority to override the
unanimous will of the Commission and reinstate him to former
position. The Court does agree with the Commission that, due to
its limited resources, even the slightest opportunity to present
his side of the story would have been enough to comport with the
54
Minimum requirements imposed by the Due Process Clause.42 See
Mathews,
424
U.S.
at
348.
Nothing
in
the
record,
however,
definitively supports the Commission’s conclusion that Patterson
was afforded a meaningful opportunity to be heard. Loudermill, 470
U.S. at 543 (citing Goss V. Lopez, 419 U.S. 565, 583-584; Gagnon v.
Scarpelli, 411 U.S. 778, 784-786 (1973)). Accordingly, the Court
cannot agree from the record before it that Patterson received the
process he was due.43
The Court, however, stops short of granting summary judgment
in Patterson’s favor. While the Commission’s understanding of
notice may be overbroad for summary judgment purposes, there is a
genuine issue of material fact as to what exactly was communicated
to Patterson regarding the Board’s intentions in the days and
42
There is some suggestion in the Defendants’ briefs that
perhaps Patterson should have requested a post-depravation hearing.
The Defendants have not advanced an important interest that would
justify prompt action and the postponement of a hearing. See Fed.
Deposit Ins. Corp. v. Mallen, 486 U.S. 230, 240-41 (1988).
Considering the record in this case and the nature of Patterson’s
former position, the Court entertains serious doubts whether such
interest could be found.
43
Additionally, for the reasons stated above, the Court
rejects the Defendants’ argument that such a hearing lacked
probable value. This legal conclusion relies heavily on the
Defendants prevailing belief that Patterson cannot recover for his
ADA or ADEA claims. If at trial Patterson can show that this
termination was not related to the reasons stated by the
Defendants, then it follows that he could have at least
theoretically convinced the Commission that the reasons it provided
were not the true reasons why they contemplating terminating his
employment. In short, Patterson’s prejudice claim is linked in part
to his ADA and ADEA claims.
55
months leading
up
to
the
termination
of
his
employment.
For
instance, the details of Patterson’s conversation with Guthrie and
the other commissioners about his poor performance are unclear,44
and Patterson could not say who told him that the Board intended to
fire him shortly before his employment was terminated. Patterson
Dep. at 145-46. Taking the evidence in a light most favorable to
the Defendants, it is possible that testimony at trial will reveal
that
Patterson
received
adequate
notice
of
his
impending
termination sufficient to charge him with the obligation to seek a
hearing with the Commission, and therefore the Court will deny
summary judgment as to all Parties.
3. Whether the County Can Be Liable for the Commission’s Possible
Due Process Violation
The final question this Court must address is whether the
County can be held liable for any potential due process violations
committed by the Commission. The County and Commission, having
focused exclusively on the issue of whether they can be considered
“employers” under the ADA and ADEA, only briefly address this issue
in their briefs. Similarly, Patterson makes a very brief argument
that under Monell v. Dep’t of Soc. Servs. the County is liable for
the Commission’s possible violation of Patterson’s due process
rights because it had a “custom” of ignoring the formal legal
44
Guthrie, it appears, interpreted his conversation as
providing Patterson a definite amount of time to improve his
performance before he was to be fired. Guthrie Dep. at 46-47.
56
distinctions between the separate entities. 436 U.S. 658 (1978).
Patterson, however, misunderstands Monell. Monell addressed
whether municipalities qualified as ‘persons’ within the meaning of
42
U.S.C.
government
§
1983. Id. at
662.
responsible
under
is
The
§
Court
1983
held
that
a
local
“when execution
of a
government’s policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official
policy, inflicts [an] injury.” Id. at 694. As a practical matter,
there is no evidence to suggest that the County and Commission had
a custom of commingling funds or sharing resources. Further, even
if they did, an unofficial policy of sharing resources did not
cause the injury about which Patterson complains. Patterson’s
“Monell” argument, in essence, is a veiled attempt to transform
Monell
into
a
vehicle
for
making
a
respondeat
superior-type
argument–an argument foreclosed by Monell itself. Id. at 692.
Accordingly, because Patterson does not offer any theory under
which the County can be considered subject to § 1983 liability for
the constitutional violations of the Commission, the Court will
also grant summary judgment in favor of the County with respect to
Patterson’s due process claims.
IV. Disposition
For the foregoing reasons, the Court finds that Patterson has
adduced evidence of enough specific facts that all of his claims
against
the
Commission
and
the
57
City
may
proceed
to
trial.
Conversely, the Court concludes that the Commission and City have
raised a genuine issue of material fact as to whether Patterson
received due process, and therefore summary judgment in his favor
is not warranted. Because there is no evidence, however, that the
County
played
any
role
in
the
employment
decisions
of
the
Commission or made any decisions related to Patterson’s employment
with the Commission, the Court finds it is entitled to summary
judgment as a matter of law with respect to all of Patterson’s
claims.
IT IS, THEREFORE, HEREBY ORDERED that the Plaintiff’s Motion
for Partial Summary Judgment [docket entry no. 104] is DENIED.
IT IS FURTHER ORDERED that Yazoo City’s Motion for Partial
Summary Judgment [docket entry no. 105] is DENIED.
IT IS FURTHER ORDERED that Yazoo Recreation Commission’s
Motion for Summary Judgement [docket entry no. 108] is DENIED.
IT IS FURTHER ORDERED that Yazoo County’s Motion for Summary
Judgement [docket entry no. 112] is GRANTED.
IT IS FURTHER ORDERED that Yazoo Recreation Commission’s
Supplemental Motion for Summary Judgment [docket entry no.
145], joined by Yazoo County [docket entry no. 154], is
DENIED.
IT IS FURTHER ORDERED that Yazoo City’s Supplemental Motion
for Summary Judgment [docket entry no. 149], joined by Yazoo
58
County [docket entry no. 153], is DENIED.
So ORDERED this the 24th day of February, 2012.
/s/ David Bramlette
UNITED STATES DISTRICT JUDGE
59
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