Kohser v. Protective Life Corp.

• Decision Date: 25 March 2015
• Docket Number: Case No.: 2:11-CV-3915-VEH
• Parties: MELISSA KOHSER, Plaintiff, v. PROTECTIVE LIFE CORPORATION, Defendant.
• Court: U.S. District Court — Northern District of Alabama

MELISSA KOHSER, Plaintiff, v. PROTECTIVE LIFE CORPORATION, Defendant.

Case No.: 2:11-CV-3915-VEH

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

March 25, 2015

MEMORANDUM OPINION

I. Introduction and Procedural History

Plaintiff Melissa Kohser ("Ms. Kohser") initiated this job discrimination case against Protective Life Corporation ("Protective") on November 15, 2015, relating to her demotion and subsequent dismissal from the company. (Doc. 1). Her complaint contains seven counts: Count One is for discrimination under the federal Age Discrimination in Employment Act ("ADEA") (Doc. 1 ¶¶ 35-48); Count Two is for discrimination under the Alabama Age Discrimination in Employment Act ("AADEA") (Doc. 1 ¶¶ 49-54); Count Three is for race discrimination, harassment, and retaliation under 42 U.S.C. § 1981 (Doc. 1 ¶¶ 55-62); Count Four is for Title VII gender discrimination (Doc. 1 ¶¶ 63-69); Count Five is for violations of the Equal PayAct (Doc. 1 ¶¶ 70-77); Count Six is for negligent and wanton hiring, training, supervision, and retention (Doc. 1 ¶¶ 78-85); and Count Seven is for conversion. (Doc. 1 ¶¶ 86-98).

This matter is before the court on the objections (Doc. 60) of Ms. Kohser to Magistrate Judge John H. England, III's report and recommendation (the "R&R") (Doc. 59),¹ which recommends that Protective's Motion for Summary Judgment (Doc. 17) (the "Motion") be granted and that Ms. Kohser's lawsuit be dismissed with prejudice. (Doc. 59 at 54). Protective's Motion, evidentiary materials, and supporting brief were all filed on January 17, 2013. (Docs. 17-19). Protective made a supplemental evidentiary submission on January 18, 2013. (Doc. 21). Ms. Kohser filed her opposition to the Motion on September 5, 2013. (Doc. 44).² Protective followed with its reply (Doc. 48) on September 20, 2013.

The R&R was entered on January 13, 2015.³ (Doc. 59). Ms. Kohser's objections were filed on January 27, 2015. (Doc. 60). This case was randomlyreassigned to the undersigned judge on January 28, 2015. (Doc. 61). On February 6, 2015, Protective filed a response (Doc. 62) to Ms. Kohser's objections. The matter, therefore, is now under submission, and, for the reasons explained below, the court SUSTAINS Ms. Kohser's objections IN LIMITED PART, alternatively TERMS them as MOOT IN PART, and otherwise OVERRULES them. Additionally, the court ACCEPTS Magistrate Judge England's R&R as modified herein. Further, the Motion is due to be GRANTED, and this case is due to be DISMISSED WITH PREJUDICE.

II. Standards

A. Summary Judgment Generally

Summary judgment is proper only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R . Civ. P. 56(c). All reasonable doubts about the facts and all justifiable inferences are resolved in favor of the nonmovant. See Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). A dispute is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). "Once the moving party has properly supported its motion for summary judgment, the burden shifts to the nonmoving party to 'come forward with specific facts showing that there is a genuineissue for trial.'" International Stamp Art, Inc. v. U.S. Postal Service, 456 F.3d 1270, 1274 (11th Cir. 2006) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538 (1986)).

Finally "[i]f the movant bears the burden of proof on an issue, because, as a defendant, it is asserting an affirmative defense, it must establish that there is no genuine issue of material fact as to any element of that defense." International Stamp, 456 F.3d at 1274 (citing Martin v. Alamo Community College Dist., 353 F.3d 409, 412 (5th Cir. 2003)).

B. Employment Discrimination Generally

A plaintiff in an employment discrimination case maintains the ultimate burden of proving that the adverse employment decision was made because of intentional discrimination. See Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 2106, 147 L. Ed. 2d 105 (2000) ("Although intermediate evidentiary burdens shift back and forth under this framework, '[t]he ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.'" (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 1093, 67 L. Ed. 2d 207 (1981))); Nix v. WLCY Radio/Rahall Comms., 738 F.2d 1181, 1184 (11th Cir. 1984) ("A Title VII disparate treatment plaintiff must prove that the defendant acted withdiscriminatory purpose." (citing Clark v. Huntsville City Board of Education, 717 F.2d 525, 529 (11th Cir. 1983))).

Although the Supreme Court has established the basic allocation of burdens and order of proof in a disparate treatment case, see, e.g., McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Burdine, supra; Desert Palace v. Costa, 539 U.S. 90, 123 S. Ct. 2148, 56 L. Ed. 2d 84 (2003), that framework applies only in cases in which there is no direct evidence of discrimination. See Grigsby v. Reynolds Metals Co., 821 F.2d 590, 595 (11th Cir. 1987) ("The McDonnell Douglas-Burdine patterns of proof were designed to ease the evidentiary burdens on employment discrimin[a]tion plaintiffs, who rarely are fortunate enough to have access to direct evidence of intentional discrimination."(citing Thornbrough v. Columbus and Greenville R.R., 760 F.2d 633, 638 (5th Cir. 1985), abrogated on other grounds by St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed. 2d 40 (1993))).⁴

Under the McDonnell Douglas/Burdine scheme, a plaintiff first has the burden of proving by a preponderance of evidence a prima facie case of discrimination.Second, once the plaintiff proves a prima facie case, the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its employment decision. Finally, if the defendant carries its burden, the plaintiff must either prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are merely a pretext for discrimination or present sufficient evidence, of any type, for a reasonable jury to conclude that discrimination was a "motivating factor" for the employment action, even though the defendant's legitimate reason may also be true or have played some role in the decision. McDonnell Douglas, 411 U.S. at 802-05, 93 S. Ct. at 1824-26; Burdine, 450 U.S. at 252-54, 101 S. Ct. at 1093-94; Desert Palace, 539 U.S. at 101-02, 123 S. Ct. at 2155.

C. Age Discrimination

1. ADEA

The ADEA provides that "[i]t shall be 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 [or her] compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). In order to fall under the ADEA's protections, an employee must be "at least 40 years of age[,]" 29 U.S.C. § 631(a), and the plaintiff "retains the burden of persuasion to establish thatage was the 'but-for' cause of the employer's adverse action."⁵ Gross v. FBL Financial Services, Inc., 557 U.S. 167, 177, 129 S. Ct. 2343, 2351, 174 L. Ed. 2d 119 (2009) (emphasis added).

The Eleventh Circuit "has adopted a variation" of the prima facie case standard articulated by the Supreme Court for Title VII claims in McDonnell Douglas for cases arising under the ADEA. Mitchell v. Worldwide Underwriters Ins. Co., 967 F.2d 565, 566 (11th Cir. 1992). "Under this variation of the McDonnell Douglas test for establishing a prima facie case of discrimination, the plaintiff must show that he (1) was a member of the protected group of persons between the ages of 40 and 70, (2) was subject to adverse employment action, (3) was replaced with [or not selected for a position over] a person outside the protected group, and (4) was qualified to do the job." Mitchell, 967 F.2d at 566 (citing Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045 (11th Cir. 1989)); see also Standard v. A.B.E.L. Services, Inc., 161 F.3d 1318, 1333 (11th Cir. 1998) ("To establish his prima facie case of discriminatory failure to promote, Standard must show that (1) he was in a protected group; (2) he was not given the promotion; (3) he was qualified for the position and (4) someone outside of the protected group was given the position." (citing Coutu v.Martin County Bd. of County Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995))).

"If this is done, the defendant has the burden of going forward and articulating a legitimate, non-discriminatory rationale for the [adverse employment action]." Verbraeken, 881 F.2d at 1045. "Finally, if the defendant rebuts the presumption of discrimination, the plaintiff must prove by a preponderance of the evidence that the employer's asserted reason is merely a pretext for a discriminatory [action]." Id.

2. AADEA

Ms. Kohser also asserts violations of the AADEA. Claims arising under the AADEA are analyzed according to the same framework as the ADEA. See Robinson v. Alabama Cent. Credit Union, 964 So. 2d 1225, 1228 (Ala. 2007) ("[T]he federal courts have applied to AADEA claims the same evidentiary framework applied to federal age-discrimination claims."); id. (citations omitted) ("We agree that this framework . . . is the proper means by which to review an AADEA claim.").

D. District Court Review of Report and Recommendation

After conducting a "careful and complete" review of the findings and recommendations, a district judge may accept, reject, or modify the magistrate judge's report and recommendation. See 28 U.S.C. § 636(b)(1) ("A judge of the court may accept, reject, or modify, in whole or...