Morgan v. Cnty. Comm'n of Lawrence Cnty., Civil Action No. 5:14-CV-01823-CLS

CourtUnited States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
Decision Date20 June 2016
Docket NumberCivil Action No. 5:14-CV-01823-CLS


Civil Action No. 5:14-CV-01823-CLS


June 20, 2016


Brenda Morgan's complaint alleged six claims against her former employer, the County Commission of Lawrence County, Alabama: i.e., gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII");1 disability discrimination under Title I of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12111 et seq. ("ADA");2 retaliation under both Title VII §

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2000e-3(a) and ADA § 12203;3 and age discrimination under the federal Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623(a)(1) ("ADEA"),4 as well as the Alabama Age Discrimination in Employment Act, Ala. Code § 25-1-20 (1975) ("AADEA").5

This court, upon its own motion, ordered plaintiff to show cause why her ADEA and AADEA claims should not be dismissed due to her failure to allege that her age was the "but-for" cause of the adverse employment actions taken against her.6 That order was based upon a series of cases in this court in which Judge William M. Acker, Jr., and the undersigned had held that "'an employee cannot claim that age is a motive for the employer's adverse conduct and simultaneously claim that there was any other proscribed motive involved.'" Hendon v. Kamtek, Inc., 117 F. Supp. 3d 1325, 1330 (N.D. Ala. 2015) (Acker, J.) (quoting Culver v. Birmingham Board of Education, 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala. 2009) (Acker, J.)) (emphasis in original).7 Such holdings were based upon the Supreme Court's opinion in Gross

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v. FBL Financial Services, 557 U.S. 167 (2009), stating that, in order to prevail on a claim of age discrimination under the ADEA, "a plaintiff must prove that age was the 'but-for' cause of the employer's adverse decision." Id. at 176 (emphasis supplied). Plaintiff responded that she could not "establish that her age was the 'but-for' cause of the adverse employment actions [taken against her]," and conceded that those claims should be dismissed.8

After the date on which this court entered the foregoing show-cause order, however, the Eleventh Circuit reversed Judge Acker for holding, in Savage v. Secure First Credit Union, 107 F. Supp. 3d 1212 (N.D. Ala. 2015) — a case in which the plaintiff had alleged claims based upon Title VII, 42 U.S.C. § 1981, the ADA, and the ADEA — that the plaintiff

"must prove that age was the 'but-for' cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S. Ct.

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2343, 174 L. Ed. 2d 119 (2009). Adopting the "but-for" cause requirement, instead of the "mixed motive" possibility, squares with "the ordinary meaning of the ADEA's requirement that an employer took adverse action 'because of' age[, which] is that age was the 'reason' that the employer decided to act." Gross, 557 U.S. at 176, 129 S. Ct. 2343. "Because an ADEA plaintiff must establish 'but for' causality, no 'same decision' affirmative defense can exist: the employer either acted 'because of' the plaintiff's age or it did not." Mora v. Jackson Mem'l Found., Inc., 597 F.3d 1201, 1204 (11th Cir. 2010). "The only logical inference to be drawn from Gross is that an employee cannot claim that age is a motive for the employer's adverse conduct and simultaneously claim that there was any other proscribed motive involved." Culver v. Birmingham Bd. of Educ., 646 F. Supp. 2d 1270, 1271-72 (N.D. Ala. 2009). Therefore, "a plaintiff must make it perfectly clear in her pleading that there are no proscribed motivations other than [the one alleged]." Montgomery v. Bd. of Trustees of the Univ. of Alabama, 2015 WL 1893471, at *5 (N.D. Ala. Apr. 27, 2015).

Savage, 107 F. Supp. 3d at 1215 (alterations in original). The Eleventh Circuit's opinion reversing the district court said simply that "[i]t is a well-settled rule of federal procedure that plaintiffs may assert alternative and contradictory theories of liability." Savage v. Secure First Credit Union, No. 15-12704, slip. op. at 2 (11th Cir. May 25, 2016) (alteration in original, citation omitted).

The Eleventh Circuit's opinion was not published. Accordingly, it is not binding precedent.9 Even so, this court construed it as a clear warning of potential reversible error, and allowed plaintiff to reinstate her claims of age discrimination

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under the ADEA and AADEA.10

The remainder of this opinion addresses the merits of defendant's "Motion to Strike or, in the Alternative, for In Camera Review,"11 as well as the same party's motion for summary judgment.12


Defendant's motion requests that this court strike: portions of the deposition testimony of Lawrence County Commissioner Mose Jones; the affidavit of former County Administrator Peggy King; and the affidavit of Tricia Galbreath, who served for a period following the resignation of Ms. King as Interim County Administrator.13

A. Deposition Testimony of Commissioner Mose Jones

Commissioner Jones testified that he "was getting some information that Commissioner Burch and several of them was having problems with [plaintiff, Brenda Morgan]."14 Moreover, when plaintiff's counsel asked about the basis for the Commission's decision to eliminate the position of Deputy Director of the Lawrence

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County Emergency Management Agency, Jones stated:

A. Well, you know, in my opinion — and that's the reason why I voted "no" — because, in my opinion, they didn't want Brenda to have the position. Because what I told them, that if you want to eliminate the — plus they cut the pay, they cut the pay in the position. And so, Brenda wasn't really going to apply for the lower pay, but then she went back and did apply. And from my way of thinking on it and the reason why I voted "no" is because they didn't want her to have the position.

Q. Who, specifically, didn't want her to have the position?

A. I believe that Commissioner[s] Burch, and Prentis Davis and Joey Hargrove didn't want her to have the position. Now, whether that is true or not, I don't know, but I know that I know that [sic] they was trying to get rid of her and she knew that, too.

Q. And those three were all Commissioners on the Commission, the County Commission, at that period of time?

A. That's right.

Q. What led you to that belief? Was it statements that they made?

A. What I heard, conversation. Lawrence County is a small county, and you have a whole lot of conversation going on, and just listening to people talk and listening to her talk.

Q. Do you remember specific conversations — and I know it was a while ago — but specific conversations?

A. Well, some of them just said that they didn't want her to have the job; they just wanted somebody else to have it.

Doc. no. 37-1 (Jones Deposition), at 20-22 (emphasis and alteration supplied).

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The Commission objects to that testimony as being not relevant, not based on personal knowledge, and inadmissible hearsay. See Fed. R. Evid. 401, 602, 701.

The foregoing excerpts from the deposition of Commissioner Jones might be admissible as an "opposing party's statement," if Commissioner Jones had testified that Commissioners Burch, Davis, and Hargrove had said to him (or stated in his presence and hearing) that "they didn't want her to have the job; they just wanted somebody else to have it." See Fed. R. Evid. 801(d)(2).15 Here, however, it is clear from the context of the contested testimony that Commissioner Jones's "opinion" (or "belief) about the motivations of the three Commissioners was not founded upon what any one of them had said, either to him or in his presence and hearing, but was

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instead based upon "a whole lot of conversation[s]" by unidentified third parties in the "small county."16 That is classic hearsay within hearsay, and it cannot be reduced to admissible evidence at trial. See Fed. R. Evid. 805 ("Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.") (emphasis supplied).

Commissioner Jones also testified that, "sometimes, it's a whole lot of politics being played."17 The federal anti-discrimination statutes upon which plaintiff's claims are based are not concerned with the issue of whether a majority of the five County Commissioners "didn't want [plaintiff] to have the job" for unspecified "political reasons." Instead, those statutes are implicated only when a plaintiff demonstrates that the adverse employment actions complained of were motivated by one of the characteristics protected by federal law.18

Thus, the Commission's motion to strike the foregoing excerpts from the deposition of Commissioner Mose Jones is due to be granted.

B. Affidavit of Peggy King

Peggy King's affidavit states that the salaries of the Director and Deputy

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Director of the Lawrence County Emergency Management Agency ("EMA") discussed in an article published in the September 28, 2013 edition of The Decatur Daily under the title "Salaries raised without OK vote" (see the discussion in Part III.F., infra) were, in fact, approved by the Lawrence County Commission in 2008 or 2009.19 Her affidavit also states that the Commission voted in October 2013 to reduce the salary of the incoming EMA Director by approximately $28,000, but that, after Johnny Cantrell was hired to fill the position vacated by Hillard Frost, the Commission voted to increase Cantrell's base salary.20 Moreover, Ms. King testified that plaintiff performed "well" during her tenure as Deputy EMA Director.21 The foregoing statements are cumulative of other evidence of record, and the motion to strike them will be denied as moot.22

Ms. King also testified that the interview process preceding the selection of a new EMA Director was not equitable, in the sense that the Commissioners "ma[de] it easier for [Johnny Cantrell]" than for...

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