Morgan v. Cnty. Comm'n of Lawrence Cnty.
Decision Date | 20 June 2016 |
Docket Number | Civil Action No. 5:14-CV-01823-CLS |
Parties | BRENDA MORGAN, Plaintiff, v. THE COUNTY COMMISSION OF LAWRENCE COUNTY, Defendant. |
Court | U.S. District Court — Northern District of Alabama |
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 §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 Grossv. 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
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 discriminationunder 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
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 LawrenceCounty Emergency Management Agency, Jones stated:
Doc. no. 37-1 (Jones Deposition), at 20-22 (emphasis and alteration supplied).
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 wasinstead 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 () (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.
Peggy King's affidavit states that the salaries of the Director and DeputyDirector 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 plaintiff.23 Defendant objects to thattestimony on the basis that Ms. King...
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