Sweeney v. Alabama Alcoholic Beverage Control Bd., CIV.A. 98-D-728-N.

• Decision Date: 14 September 2000
• Docket Number: No. CIV.A. 98-D-728-N.,CIV.A. 98-D-728-N.
• Citation: 117 F.Supp.2d 1266
• Parties: Sandra C. SWEENEY, Plaintiff, v. State of ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, Defendant.
• Court: U.S. District Court — Middle District of Alabama

117 F.Supp.2d 1266 Sandra C. SWEENEY, Plaintiff,
v.
State of ALABAMA ALCOHOLIC BEVERAGE CONTROL BOARD, Defendant. No. CIV.A. 98-D-728-N. United States District Court, M.D. Alabama, Northern Division. September 14, 2000.

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Jacqueline L. Mixon, Montgomery, AL, for plaintiff.

Joseph W. Adams, Adams, Spivey & Adams, LLC, Ozark, AL, Robert S. Hill, Montgomery, AL, for defendant.

MEMORANDUM OPINION AND ORDER

DE MENT, District Judge.

This case is before the court sua sponte for reconsideration of the court's partial denial of Defendant State of Alabama Alcoholic Beverage Control Board's ("ABC Board") Motion For Summary Judgment, filed February 1, 2000. In a Memorandum Opinion And Order entered on April 17, 2000, the court granted in part and denied in part the ABC Board's Motion For Summary Judgment. The court denied the ABC Board's Motion For Summary Judgment on Plaintiff's retaliation claim brought under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. §§ 12101, et seq.¹ The court entered summary judgment in favor of the ABC Board on all Plaintiff Sandra C. Sweeney's

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("Sweeney") remaining claims. For the reasons to follow, the court finds that the ABC Board's Motion For Summary Judgment is due to be granted on Plaintiff's ADA retaliation claim and that the section in Sweeney I, in which the court denied summary judgment on Plaintiff's ADA retaliation claim, is due to be vacated and superseded with this Memorandum Opinion And Order.

I. STANDARD FOR RECONSIDERATION

"[B]ecause the denial of a motion for summary judgment is an interlocutory order, the trial court is free to reconsider and reverse its decision for any reason it deems sufficient, even in the absence of new evidence or an intervening change in or clarification of the substantive law." Lavespere v. Niagara Machine & Tool Works, Inc., 910 F.2d 167, 185 (5th Cir. 1990); see also Bon Air Hotel, Inc. v. Time, 426 F.2d 858, 862 (5th Cir.1970)² (holding that, because the summary judgment "order was interlocutory, `the court at any time before final decree (could) modify or rescind it'") (quoting John Simmons Co. v. Grier Brothers Co., 258 U.S. 82, 88, 42 S.Ct. 196, 66 L.Ed. 475 (1922)). Based on the foregoing, the court exercises its discretion to reconsider its earlier partial denial of the ABC Board's Motion For Summary Judgment.

II. FACTUAL BACKGROUND

The facts are set forth in detail in Sweeney I and need not be repeated here in their entirety. 94 F.Supp.2d at 1245-53. The court, however, will set forth an abbreviated statement of facts that are relevant for purposes of the court's discussion below.

From October 15, 1994, until her termination on July 2, 1998, Plaintiff worked as a cashier at one of the ABC Board's retail stores in Montgomery, Alabama. See id. at 1245-46, 1250. One of Plaintiff's duties as a cashier included preparing and depositing the store's daily proceeds at a local bank. See id. at 1256.

On August 1, 1997, Plaintiff was robbed at gunpoint while making a deposit at the bank's night depository. See id. As a result, Plaintiff suffered emotional trauma, including posttraumatic stress disorder. See id. In order to recover from the trauma, Plaintiff took a leave of absence from work, and, at the recommendation of her district supervisor, sought treatment from a psychologist. See id. The psychologist placed certain restrictions on Plaintiff's duties as a cashier with the ABC Board, including that she only work the day shift and not make bank deposits. See id. The psychologist discussed Plaintiff's work limitations in a letter to J.E. Brown ("Brown"), the Director of the ABC Board's Stores Division. See id.

When Plaintiff returned to work a few weeks after the robbery, the store manager failed to comply with the psychologist's restrictions. See id. Plaintiff complained of the store manager's conduct to her psychologist, to the district supervisor, and to legal counsel with the Alabama State Employees Association. See id. Upon learning of the store manager's conduct, Plaintiff's psychologist wrote a letter to Brown, recommending that Plaintiff "stay off work until further evaluated." Id. at 1247. Plaintiff remained on leave and continued her treatment with the psychologist. See id.

On October 27, 1997, while Plaintiff was on leave, she filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). See id. at 1248. In her EEOC charge, Plaintiff alleged that the ABC Board violated the ADA by failing to provide reasonable accommodations for her disabilities stemming from the August 1997 bank robbery. See id.

Ultimately, on April 1, 1998, and while her EEOC charge was still pending, Plaintiff

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returned to work in her position as a cashier. See id. at 1249. In a letter to Brown, Plaintiff's psychologist stated that Plaintiff "is able to work in any capacity which she believes she can handle." Id. However, upon her return, the store manager continued to require Plaintiff to do tasks that she did not feel comfortable performing. See id. at 1250. These tasks included working until midnight, working alone, and accompanying other employees to the bank to make the daily deposits. See id. Plaintiff, thus, complained of further ADA discrimination to her district supervisor, among others. See id.

On June 20, 1998, while at work, Plaintiff became involved in an altercation with a co-employee and allegedly assaulted (or attempted to assault) the co-employee. See id. at 1251. Based on this altercation, on June 26, 1998, Brown recommended Plaintiff's termination in a letter to Robert B. Leavell ("Leavell"), the ABC Board's Administrator. See id. In that letter, Brown stated as follows:

This is a decision paper.

PURPOSE: To recommend dismissal of [Plaintiff] for serious violations of policy. DISCUSSION: After receiving a report that [Plaintiff] had attempted to attack a coworker at Store 3 during duty hours, Tommy Miller and David Kilpatrick conducted an investigation. The investigation seems to validate the fact that [Plaintiff] did attempt to attack a coworker, but was restrained by her husband another store employee. The video surveillance tapes and statements by other store employees support this allegation.

During the course of the investigation, other information surfaced which indicates [Plaintiff] had violated numerous employee work rules. According to statements by other store employees and [Plaintiff's] own admission, she has engaged in what we deem to be inappropriate employee conduct.

RECOMMENDATION: [Plaintiff] be dismissed from State service for violation of State General Work Rules as stated in ABC Policies and Procedure, chapter ABC-7-16-.02(1)(d) and (g), and ABC-7-16-.02(2)(d), (e), and (n).

See id.

Leavell approved Brown's recommendation on June 26, 1998. See id. Thereafter, Leavell forwarded a letter to Plaintiff, informing her that "[i]nformation has been submitted that appears to warrant your dismissal from State service because of your violation of State General Work Rules." Id. at 1250-51. In this letter, Leavell listed the violations as follows:

Chapter ABC-7-16-,02(1)(d): Inattention to job — Doing anything distracting while on the job.

Chapter ABC-7-16,02(1)(g): Disruptive conduct of any sort, including a lack of cooperation and/or an unpleasant behavior toward fellow employees and/or supervisor.

Chapter ABC-7-16-,02(2)(d): Fighting

Chapter ABC-7-16-,02(2)(e): Use of abusive or threatening language.

Chapter ABC-7-16-,02(2)(n): Disgraceful conduct on or off the job.

Id. at 1251.

Further, in the same letter, Leavell informed Plaintiff that her pretermination hearing was set on July 1, 1998, at which time Plaintiff would "have the opportunity to present information in response to these allegations." Id. After the pretermination hearing, the ABC Board terminated Plaintiff from employment. See id. at 1251. Leavell memorialized the ABC Board's decision in a letter to Plaintiff dated July 2, 1998, which provides in pertinent part as follows:

Dear Ms. Sweeney:

In my letter dated June 26, 1998, you were notified that I was considering dismissal action because of your alleged violations of specific State of Alabama and ABC Board general work rules.

An informal pre-dismissal hearing was scheduled for July 1, 1998, at 3:30 p.m., wherein you were given the opportunity to address the specific allegations and/or present any mitigating considerations

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relevant to the alleged violations. You were present at the hearing and represented by Counsel and did present your response to the charges. I have carefully considered the specific allegations made against you, and the Hearing Officers['] findings that you were a willing participant in lewd and unprofessional conduct toward customers, and did engage in threatened hostile actions toward a coworker. It is appropriate, based on these findings, to proceed with dismissal action.

You are dismissed from State service effective July 2, 1998.

A dismissed employee may, within ten days after receipt of written notice, appeal the action by filing with the State Personnel Board an answer to the charges made against you.

(Def.'s Mot. Summ. J., Ex. B.³)

Plaintiff denies that she committed the infractions which led to her termination. Plaintiff's evidence of that denial consists of her deposition testimony, where she stated as follows:

A. [The ABC Board] accused me of attacking a coworker. Having improper physical contact with, you know, customers in a sexual nature.

Q. And you are saying you did not try to attack the coworker or did not have the improper contact with a customer?

A. I was signing out.

Q. I'm sorry?

A. I was signing out. I was getting ready to leave to go home, counting my money. And I guess she just figured that I was going to attack her, which that's not the case. It involved a shouting match.

Q. And the improper physical contact?

A. Well, this particular guy was told...