Holloway v. Water Works & Sewer Bd. of Vernon
| Decision Date | 15 May 2014 |
| Docket Number | No. 7:13–CV–1075–LSC.,7:13–CV–1075–LSC. |
| Citation | 24 F.Supp.3d 1112 |
| Court | U.S. District Court — Northern District of Alabama |
| Parties | Roger HOLLOWAY, Plaintiff, v. WATER WORKS AND SEWER BOARD OF the TOWN OF VERNON, Defendant. |
Russell B. Robertson, Laird & Robertson PC, Jasper, AL, for Plaintiff.
Timothy P. Donahue, Daniel Robert Pickett, Donahue & Associates LLC, Birmingham, AL, for Defendant.
Before the Court is a motion for summary judgment filed by Defendant Water Works and Sewer Board of the Town of Vernon (“The Board”). (Doc. 14). The Board has been sued by its former employee, Plaintiff Roger Holloway (“Holloway”) under the Age Discrimination in Employment Act (“ADEA”). 29 U.S.C. § 621 et seq. The Board has moved for Summary Judgement based on its belief that it does not qualify as an “employer” under the act. Because the Board does so qualify, the motion for summary judgment is due to be DENIED.
The parties have stipulated to a single set of undisputed facts. The Board, which was incorporated on January 13, 1956, is administered by a Board of Directors consisting of five members who are elected to staggered terms by the governing body of the Town of Vernon (“Vernon”). The Certificate of Incorporation and by-laws state that members of the Board of Directors cannot be officers of Vernon, and the Vernon City Council can only remove Board members when the member's term expires, or in the case of an ethics violation.
The Board operates the water and sewer systems of Vernon. Although the parties cite different code sections under which the Board could be incorporated, the two sections are virtually identical. See Ala.Code §§ 11–50–231 and 11–50–311. The Board of Directors maintains by-laws that govern its activities. Under the by-laws, the Board has the power to “acquire, construct, operate, and maintain a water and sewer system.” (Doc. 15 at 5). The Chairman of the Board is the executive officer of the Board and presides at all meetings.
The by-laws give the Board the power to appoint employees, “who hold their positions, exercise such powers and perform such duties as determined by the Board.” (Id. ) The Board sets the salaries, work schedules, and assignments of all Board employees without the approval of Vernon. It also evaluates its employees separately from Vernon, and has its own building, bank accounts, financial records, and tax existence. The Board pays the employees from its own funds; Vernon does not pay the salaries of the Board's employees.
The day-to-day operations of the Board are supervised by the General Manager, who reports directly to the Board of Directors. Holloway served as General Manager of the Board until he was terminated on July 15, 2012. The Board terminated Holloway without the input or approval of the Town of Vernon. Also, the Board's payroll records show that the Board had no more than twelve employees during the year preceding Holloway's termination.
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The party moving for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of [the evidence] which it believes demonstrate the absence of genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The movant can meet this burden by presenting evidence showing that no genuine dispute of material fact exists, or by showing that the nonmoving party has failed to present substantial evidence of an element of its case on which it bears the ultimate burden of proof. Id. at 322–23, 106 S.Ct. 2548. In evaluating the arguments of the movant, the court must view the evidence in the light most favorable to the nonmoving party. Mize v. Jefferson City Bd. of Educ., 93 F.3d 739, 742 (11th Cir.1996).
Once the movant has met its burden, Rule 56(e) “requires the nonmoving party to go beyond the pleadings and by her 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. 2548 (quoting Fed.R.Civ.P. 56(e) ). Mize, 93 F.3d at 742. But when the non-movant's evidence cannot stand on its own, summary judgment is appropriate: “A factual dispute is genuine only if a ‘reasonable jury could return a verdict for the nonmoving party.’ ” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.2002) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1437 (11th Cir.1991) ).
The controlling question before the Court is whether the Board qualifies as an employer under the ADEA. The ADEA defines employer as follows:
The term “employer” means a person engaged in an industry affecting commerce who has twenty or more employees for each working day in each of twenty or more calendar weeks in the current or preceding calendar year: Provided, That prior to June 30, 1968, employers having fewer than fifty employees shall not be considered employers. The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State and any agency or instrumentality of a State or a political subdivision of a State, and any interstate agency, but such term does not include the United States, or a corporation wholly owned by the Government of the United States.
29 U.S.C. § 630(b). The parties agree that the Board has fewer than twenty employees. Therefore, in order to be an employer for purposes of the statute, it must be an “agency or instrumentality of a State or a political subdivision of a State.” Id. To answer this question, the Court must first ask whether the Vernon is, in fact, a political subdivision of the State of Alabama.
The Eleventh Circuit has not directly addressed the question of whether a town or city is a political subdivision of a state for purposes of the ADEA. In other contexts, municipalities are treated differently from arms of the state. For example, the Supreme Court has held that where state immunity applies, it does not extend “to units of local governments, such as cities and counties.” Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 368–69, 121 S.Ct. 955, 148 L.Ed.2d 866 (2001) (). Counties and municipalities likely also do not possess Eleventh Amendment immunity under the ADEA. Van Voorhis v. Hillsborough Cnty. Bd. of Cnty. Comm'rs, 512 F.3d 1296, 1301 (11th Cir.2008).
Congress amended the “employer” definition in the ADEA to include the language concerning states and their political subdivisions in 1974. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 78, 120 S.Ct. 631, 145 L.Ed.2d 522 (2000). The Supreme Court described these amendments as an extension of the law. Johnson v. Mayor & City Council of Baltimore, 472 U.S. 353, 356, 105 S.Ct. 2717, 86 L.Ed.2d 286 (1985) (). Although these cases did not hold that municipalities are covered by the ADEA's definition of employer, they do suggest it. The Third Circuit took a much more direct approach, stating that “the ADEA could not be more explicit in imposing liability for age discrimination against municipalities.” Potence v. Hazleton Area School Dist., 357 F.3d 366, 373 (3rd Cir.2004).
Although it has not made the kind of absolute statement found in Potence, the Eleventh Circuit has noted that state and local governments were originally excluded from the definition of employer under the AD EA but this exception was removed by the 1974 amendments. Knight v. State of Ga., 992 F.2d 1541, 1543 (11th Cir.1993). In addition it has held that an ADEA claim against a county survived summary judgment, without addressing whether the county was a political subdivision of a state or had twenty employees. Van Voorhis, 512 F.3d at 1301 (11th Cir.2008). Furthermore, in three recent unpublished decisions, the Eleventh Circuit has addressed the merits of ADEA claims against cities, without questioning whether the statutory definition of employer was met. Lerman v. City of Fort Lauderdale, Fla., 346 Fed.Appx. 500 (11th Cir.2009) (); Morrison v. City of Bainbridge, Ga.,
432 Fed.Appx. 877 (11th Cir.2011) ; Mitchell v. City of LaFayette, 504 Fed.Appx. 867 (11th Cir.2013). In contrast, this Court found no authority for the proposition that a city was not a political subdivision of a state under the ADEA. Therefore, the Court finds that Vernon is a political subdivision of the State of Alabama for the purposes of the statute.
Holloway, of course, works not for Vernon itself but for the Board. The Board is an employer for ADEA purposes if it is an “agency or instrumentality” of Vernon. The Board correctly notes that cases interpreting Title VII of the Civil Rights Act are instructive on questions surrounding the ADEA. Garcia v. Copenhaver, Bell & Associates, M.D.'s, P.A., 104 F.3d 1256, 1263–64 (11th Cir.1997). None of the cases the Board cites, however, pose the question at issue here. See Calderon v. Martin Cnty., 639 F.2d 271, 272–73 (5th Cir. Unit B 1981)1 (...
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