Dubisar-Dewberry v. DIST. ATTORNEY'S

• Decision Date: 28 March 1996
• Docket Number: Civil Action No. 95-D-228-S.
• Parties: Toni DUBISAR-DEWBERRY, Plaintiff, v. The DISTRICT ATTORNEY'S OFFICE OF the TWELFTH JUDICIAL CIRCUIT OF the STATE OF ALABAMA, Defendant.
• Court: U.S. District Court — Middle District of Alabama

927 F. Supp. 1479

Toni DUBISAR-DEWBERRY, Plaintiff, v. The DISTRICT ATTORNEY'S OFFICE OF the TWELFTH JUDICIAL CIRCUIT OF the STATE OF ALABAMA, Defendant.

Civil Action No. 95-D-228-S.

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

March 28, 1996.

COPYRIGHT MATERIAL OMITTED

J. Rick Hollingsworth, Enterprise, AL, for Toni Dubisar-Dewberry.

Anita L. Kelly, Kenneth Lamar Thomas, Thomas, Means & Gillis, P.C., Montgomery, AL, for Joel Folmar, Bruce DeVane, The District Attorney's Office of the Twelfth Judicial Circuit of the State of Alabama.

MEMORANDUM OPINION

DE MENT, District Judge.

Before the court is defendant District Attorney's Office for the Twelfth Judicial Circuit of the State of Alabama's ("Office of the District Attorney") motion filed July 24, 1995, for summary judgment. Plaintiff Toni Dubisar-Dewberry ("Ms. Dubisar-Dewberry") filed a response in opposition on August 8, 1995. The Office of the District Attorney then filed a supplement to his motion for summary judgment on February 27, 1996. After careful consideration of the arguments of counsel, the relevant case law, and the record as a whole, the court finds that the motion for summary judgment of the Office of the District Attorney is due to be granted.

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 2552-53. 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. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 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 2510-11.

STATEMENT OF FACTS

Ms. Dubisar-Dewberry commenced this action on February 17, 1995, seeking redress for alleged discrimination on the basis of a violation of the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), in accordance with Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Pl.'s Comp. at ¶ 1. Ms. Dubisar-Dewberry is a white female who was hired as the Twelfth Judicial Circuit Child Support Coordinator for Coffee County, Alabama. She was personally appointed to this position by District Attorney Joel Folmar ("Mr. Folmar") in October, 1990, to serve at his pleasure pursuant to § 12-17-220 of the Alabama Code. Al Smith's Aff. at ¶ 3; Pl.'s Resp. to Def.'s Mot. to Dismiss at ¶ 5. She continued as Child Support Coordinator until she was terminated in October, 1993. Pl.'s Resp. to Inter. No. 2. She claims that she was terminated because she was pregnant and unmarried. Pl.'s Comp. at ¶ 1.

The position of Child Support Coordinator requires a combination of specialized legal, clerical and administrative work in the area of child support. Ms. Dubisar-Dewberry was required to handle the day-to-day duties of the child support enforcement program. See generally Job Criteria of Child Support Coordinator. In regard to these duties, she answered primarily to the Deputy District Attorney in charge of child support, Bryan Morgan ("Mr. Morgan"). See Mr. Morgan's Aff. at 1-2. She was also responsible for developing and recommending new or unified procedures to assist Mr. Folmar in carrying out services with respect to child support. Al Smith's Aff. at ¶ 3.

The nature and requirements of the position of Child Support Coordinator are established via an agreement or contract between the District Attorney and the County and State Department of Human Resources ("DHR"). Because her job was funded primarily through money obtained through DHR, the District Attorney was required to report costs and expenses to the State DHR Office. See Pl.'s Exh. B. Furthermore, the position of Child Support Coordinator required daily reporting of time and attendance. See Manual For Child Support Enforcement at 11-3.

In August and September, 1993, the Office of the District Attorney began reviewing its contract with the DHR to determine whether it would continue to prosecute child support cases. Aff. of Mr. Smith at ¶ 5. One factor the it considered was that the child support program had cost the office more money than it had been reimbursed by DHR all three years the program had been in operation.¹ As a result of the three-year deficiency, Mr. Folmar decided that the office needed to be reorganized. Mr. Smith's Aff. at ¶ 5.

On September 16, 1993, Mr. Folmar advised Ms. Dubisar-Dewberry at a meeting with her, Mr. Folmar, Chief District Attorney Al Smith, and Chief Investigator and Chief Administrator Bruce DeVane ("Mr. DeVane"), that she was going to be terminated effective October 1, 1993, as part of the reorganization of the child support office. Aff. of Mr. Smith at ¶ 5. Subsequently, all child support personnel were given a memorandum dated September 16, 1993, from the District Attorney wherein he advised the child support staff that a new contract had not been negotiated with DHR, and that if a new contract was not approved, child support services would terminate on September 30, 1993. They were further advised that check revenues had declined and that state appropriations continued to be prorated, and as a result, a reduction in workforce was necessary.

On October 12, 1993, Ms. Dubisar-Dewberry told Becky Ellis, the Assistant Office Manager of the Enterprise office, that she was pregnant. At no time did the plaintiff ever advise Mr. Folmar that she was pregnant. Ms. Dubisar-Dewberry's Dep. at 88-89.

On October 26, 1993, Ms. Dubisar-Dewberry requested and had a meeting with Mr. DeVane, at which time she told him that she was unhappy with being terminated with only one-week notice. Mr. DeVane told Mr. Folmar of this meeting, and Mr. Folmar instructed Mr. DeVane to tell the plaintiff that she could leave immediately and consider herself on annual leave for the remainder of the month. Ms. Dubisar-Dewberry's Dep. at 123. Ms. Dubisar-Dewberry decided to leave. On her way out, she advised another employee that she had destroyed child support computer data. Ms. Dubisar-Dewberry's Dep. at 125-132.

Ms. Dubisar-Dewberry stated in her deposition that neither Mr. Folmar, Mr. Smith, nor Mr. DeVane ever told her that she was terminated because she was pregnant and unmarried. Ms. Dubisar-Dewberry's Dep. at 103-104. Furthermore, the EEOC issued a determination that the investigation of Ms. Dubisar-Dewberry's charge of discrimination did "not disclose evidence that the Office of the District Attorney employment decisions were motivated by Ms. Dubisar-Dewberry's pregnancy." Def.'s Exh. 4.

The Office of the District Attorney argues that Ms. Dubisar-Dewberry's employment with their office falls within the ambit of the "personal staff" exception to Title VII as set out in 42 U.S.C. § 2000e(f). As such, it contends that Ms. Dubisar-Dewberry is barred from bringing an action pursuant to Title VII. The Office of the District Attorney also maintains that, even if Ms. Dubisar-Dewberry falls within the definition of an employee for purposes of Title VII, the decision to terminate her employment had nothing to do with her pregnancy. Because the court finds the argument of the...