Douglas v. Evans, Civil A. No. 94-D-327-N.

• Decision Date: 25 January 1996
• Docket Number: Civil A. No. 94-D-327-N.
• Citation: 916 F. Supp. 1539
• Parties: Sandra DOUGLAS, Plaintiff, v. James H. EVANS, etc, et al., Defendants.
• Court: U.S. District Court — Middle District of Alabama

916 F. Supp. 1539

Sandra DOUGLAS, Plaintiff, v. James H. EVANS, etc, et al., Defendants.

Civil A. No. 94-D-327-N.

United States District Court, M.D. Alabama, Northern Division.

January 25, 1996.

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Algert S. Agricola, Jr., Montgomery, AL, Ann K. Wiggins, Robert L. Wiggins, Jr., C. Paige Williams, Birmingham, AL, for plaintiff.

Robert D. Segall, Montgomery, AL, Kenneth Lamar Thomas, Montgomery, AL, for defendants.

MEMORANDUM OPINION¹

DE MENT, District Judge.

Before the court is defendant James H. Evans ("Mr. Evans") and defendant Jeff Sessions' ("Mr. Sessions") motions for summary judgment filed October 2, 1995. Mr. Sessions' motion adopts and incorporates the arguments and positions set forth in Mr. Evans' motion and also addresses the issues arising from the plaintiff's allegations of age and race discrimination. Thus, because the motions involve similar issues and arise from the same set of facts, the court will address them simultaneously. The plaintiff, Sandra Douglas ("Ms. Douglas"), filed a response to both motions on November 6, 1995. After careful consideration of the arguments of counsel, the relevant case law and the record as a whole, the court finds that the defendants' motions are due to be granted.

JURISDICTION AND VENUE

Jurisdiction is proper, as the plaintiff alleges violations of 42 U.S.C. §§ 1981 and 2000e et seq. (hereinafter "Title VII"), the Equal Protection and Free Speech clauses of the United States Constitution as made applicable to the states by the Fourteenth Amendment, and 29 U.S.C. §§ 621 et seq., the Age Discrimination in Employment Act.² Personal jurisdiction and venue are not contested.

SUMMARY JUDGMENT STANDARD

On a motion for summary judgment, the court is to construe the evidence and factual inferences arising therefrom in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). Summary judgment can be entered on a claim only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). As the Supreme Court has explained the summary judgment standard:

The plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. In such a situation, there can be no genuine issue as to any material fact, since a complete failure of proof concerning an essential element of the non-moving party's case necessarily renders all other facts immaterial.

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The trial court's function at this juncture is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citations omitted). A dispute about a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 248, 106 S.Ct. at 2510; see also Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir.1989).

The party seeking summary judgment has the initial burden of informing the court of the basis for the motion and of establishing, based on relevant "portions of `the pleadings, depositions, answers to interrogatories, and admissions in the file, together with affidavits, if any,'" that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Celotex, 477 U.S. at 323, 106 S.Ct. at 2552. Once this initial demonstration under Rule 56(c) is made, the burden of production, not persuasion, shifts to the nonmoving party. The nonmoving party must "go beyond the pleadings and by his own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324, 106 S.Ct. at 2553; see also Fed.R.Civ.P. 56(e).

In meeting this burden the nonmoving party "must do more than simply show that there is a metaphysical doubt as to the material facts." Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355, 89 L.Ed.2d 538 (1986). That party must demonstrate that there is a "genuine issue for trial." Fed.R.Civ.P. 56(c); Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356. An action is void of a material issue for trial "where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita, 475 U.S. at 587, 106 S.Ct. at 1356; see also Anderson, 477 U.S. at 249, 106 S.Ct. at 2511.

FINDINGS OF FACT

The plaintiff, Ms. Douglas, has served over thirteen years and under three Attorney Generals during her tenure with the Alabama Attorney General's Office. Ms. Douglas has served with distinction as is evidenced by the evaluations she received during her employment. Ms. Douglas has, at all times, worked in the Attorney General's Consumer Utility Section. Ms. Douglas has served as acting director of that section for ten years and supervised attorneys who were assigned to the Consumer Utility Section. Although she is unaware of any writing by which she was named permanent director of the Utility Section, she assumes that she became permanent in that assignment. Dep. of Douglas at 31-37. In addition, although she is not a lawyer, the job description of the Utilities Division chief includes preparing briefs for the Supreme Court of Alabama. Dep. of Douglas at 238-39. In fact, Ms. Douglas admits that she has drafted pleadings, written legal appellate briefs and supervised lawyers in connection with such legal work. Dep. of Douglas at 238-39.

From the beginning of his administration, Mr. Evans wanted a lawyer to serve as head of the Utilities Section.³ Dep. of Evans at 21-22, 26 & 162; Aff. of Turner; Aff. of Pitt. Mr. Evans desired a lawyer because: (1) he believed that only a lawyer could represent the state before the Public Service Commission (Dep. of Evans at 51); (2) the head of the Utilities Section needed to know how to develop a record (Dep. of Evans at 194-96); (3) the head of the Utilities Section needed to know how to present evidence and cross-examine witnesses (Dep. of Evans at 194-96 & 198-200); and (4) the Utilities Section often dealt with legal issues (Dep. of Evans at 88, 91, 162, 194-96 & 198-200). As such, in 1991, shortly after Mr. Evans became Attorney General and months before any issue arose concerning South Central Bell or Bell Advertising and Publishing Corporation, Mr. Evans offered the Utilities Division chief's position to Redding Pitt. Aff. of Pitt. Mr. Pitt, who currently is the United States Attorney for the Middle District of Alabama and who had experience in utilities under Mr. Evans' predecessor, declined the offer. Aff. of Pitt.

In August of 1991, based on an audit conducted by the SEARUC Southern Task Force on BellSouth Corporation and its affiliates, the staff of the Public Service Commission ("PSC") believed that revenues realized by South Central Bell's affiliate, Bell Advertising and Publishing Corporation ("BAPCO"), had not been attributed in the proper amount to South Central Bell. Accordingly, on September 20, 1991, the PSC issued an order directing South Central Bell to show cause why it should not refund alleged overcharges and reduce rates in the future. Dep. of Douglas at 97-99.

In October of 1991, Ms. Douglas, in her role as acting chief of the Utilities Division, recommended to Mr. Evans that the Attorney General intervene in this matter. Dep. of Douglas at 99-101; Dep. of Evans at 47-48 & 79-80. Allegedly, the audit substantiated the conclusion reached by Ms. Douglas that Alabama South Central Bell consumers were entitled to a refund of possibly as much as forty million dollars. After consulting with Mr. Evans, regarding this concern, Mr. Evans agreed to take the necessary action to resolve the matter and directed Ms. Douglas to intervene. Dep. of Douglas at 101-103; Dep. of Evans at 79-81. Accordingly, Ms. Douglas filed a notice on Mr. Evans' behalf manifesting his intent to intervene in the action, which was set for hearing in October, 1991. However, the hearing never took place as the PSC canceled the meeting unexpectedly.

In December, 1991, Ms. Douglas claims to have learned that South Central Bell and the PSC were clandestinely engaging in settlement negotiations regarding the BAPCO matter. Dep. of Douglas at 103-04. Consequently, Ms. Douglas requested, and Mr. Evans granted her, permission to take all necessary actions to halt the covert discussions. Dep. of Douglas at 103-04; Dep. of Evans at 133. However, Ms. Douglas never received the opportunity to place her plan into work because the PSC settled the case on January 16, 1992. Ms. Douglas believes that this settlement was not in good faith.

Also in December of 1991, William Mayer ("Mr. Mayer") was hired by the Attorney General's office. Aff. of Mayer. While Mr. Mayer served in the military, he had gained experience in utility-related matters. Id. In addition, he had attended a course on utility rate making. Id. Mr. Mayer had previously worked with Mr. Evans in the Montgomery County District Attorney's office as a litigator. Dep. of Evans at 36 & 197-98. Mr. Mayer became involved with utility matters in the Attorney General's office, and by January 1992, he was well involved in the BAPCO issues. Aff. of Mayer; Dep. of Douglas.

In early January of 1992, Mr. Evans asked Mr. Mayer to give him an independent evaluation of the BAPCO matter. Aff. of Mayer; Dep. of Evans at 88,...