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Booth v. Houston

United States District Court, M.D. Alabama, Northern Division

November 3, 2014

LEE R. BOOTH, Plaintiff,
RANDALL V. HOUSTON, 19th Circuit District Attorney, Defendant

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[Copyrighted Material Omitted]

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For Lee R. Booth, Plaintiff: Ashley Nicole Penhale, LEAD ATTORNEY, Copeland Franco Screws & Gill PA, Montgomery, AL; Elizabeth Peyton Faulk, LEAD ATTORNEY, The Law Offices of E. Peyton Faulk, LLC, Montgomery, AL.

For Randall V. Houston, 19th Circuit District Attorney, Defendant: Benjamin Howard Albritton, Jr., LEAD ATTORNEY, Alabama Attorney General's Office, Montgomery, AL; Jack Wilfred Wallace, Jr., LEAD ATTORNEY, Alabama Office of the Attorney General, Montgomery, AL.

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Plaintiff Lee R. Booth suffered damage to her vocal cords after being on a ventilator for eleven days during an extended hospitalization in August 2009. Upon returning to her job as an assistant district attorney for the 19th Judicial Circuit of Alabama, which she had held since August 2004, Plaintiff contends that her employer discriminated against her based upon her speech disability, retaliated against her for opposing unlawful discrimination, and ultimately constructively discharged her in April 2013, in violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § § 701, et seq. Before the court is Defendant's motion for summary judgment (Doc. # 16), which has been fully briefed (Docs. # 17-18, 20-21, 25). After careful consideration

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of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendant's motion is due to be granted in part and denied in part.


The court exercises subject-matter jurisdiction pursuant to 28 U.S.C. § 1331. Personal jurisdiction and venue are uncontested.


To succeed on summary judgment, the movant must demonstrate " that there is no genuine dispute as to any material fact and [he] is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The court must view the evidence and the inferences from that evidence in the light most favorable to the nonmovant. Jean-Baptiste v. Gutierrez, 627 F.3d 816, 820 (11th Cir. 2010).

The party moving for summary judgment " always bears the initial responsibility of informing the district court of the basis for its motion." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). This responsibility includes identifying the portions of the record illustrating the absence of a genuine dispute of material fact. Id.; Fed.R.Civ.P. 56(c)(1)(A). Or, the movant can assert, without citing the record, that the nonmoving party " cannot produce admissible evidence to support" a material fact. Fed.R.Civ.P. 56(c)(1)(B). If the movant meets its burden, the burden shifts to the nonmoving party to establish -- with evidence beyond the pleadings -- that a genuine dispute material to each of its claims for relief exists. Celotex, 477 U.S. at 324. A genuine dispute of material fact exists when the nonmoving party produces evidence allowing a reasonable fact finder to return a verdict in its favor. Waddell v. Valley Forge Dental Assocs., 276 F.3d 1275, 1279 (11th Cir. 2001).


A. Plaintiff's First Five Years as an Assistant District Attorney

On August 16, 2004, Defendant Randall Houston, district attorney for the 19th Judicial Circuit of Alabama, appointed Plaintiff as a full-time assistant district attorney. The 19th Judicial Circuit includes Autauga, Chilton, and Elmore counties. Plaintiff began her employment in the Elmore County division, prosecuting cases in district court and traffic court, but at some point later, she began prosecuting felony cases in circuit court. (Pl.'s Dep., at 16.)

In September 2008, Plaintiff received a raise, and in April 2009, Defendant promoted Plaintiff to senior assistant district attorney. For the first five years of her employment, Defendant described Plaintiff as a " loyal and faithful employee" who made " conscientious decisions based on her interpretation of [his] prosecutorial philosophy." (Def.'s Aff., at 1.) But Defendant's opinion of Plaintiff's job performance was soon to change.

B. Plaintiff's Illness, Vocal Cord Damage, and Return to Work with Accommodations

In August 2009, after five years serving as an assistant district attorney, Plaintiff contracted a sepsis infection, requiring hospitalization. While hospitalized, her condition worsened and became critical, and for eleven days, she was on a ventilator and in a medically induced coma. Her condition stabilized, but important to this litigation, the ventilator caused damage to Plaintiff's vocal cords.

Plaintiff returned to work after fifty-two days paid leave. Although Plaintiff was able to speak, her voice had a low volume,

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which required " amplification in a courtroom." (Pl.'s Dep., at 36.) To help Plaintiff transition back into her position, Defendant assigned an intern to assist Plaintiff with her day-to-day responsibilities. Additionally, a speaker system was installed in the courtrooms to accommodate Plaintiff's lack of vocal volume. Plaintiff agrees that the technology in the Elmore County courtrooms, which included microphones at counsel's table, adequately accommodated her voice impairment. (Pl.'s Dep., at 36-37.)

C. Additional Surgeries and Medical Leave

Post-dating her return to work in 2009, Plaintiff has undergone nine surgeries to help improve her breathing and voice quality. Her speaking impairment has improved with each reparative surgery ( see Pl.'s Dep., at 35-36); however, as of April 2014, as indicated in her medical records, Plaintiff continues to have a mildly " low" and " [r]aspy" voice, and her " [v]oice quality [is] abnormal for [her] age and gender." (Apr. 2014 Clinic Notes (Doc. # 21-7, at 4).) Plaintiff's physician notes that, although her voice has improved when " speaking in quiet environments," it " is still very weak" when there is " background noise." Her physician also rendered the following postoperative diagnoses: " chronic hoarseness," " laryngeal insufficiency," " right true vocal fold motion restriction," " posterior commissure web status post reconstruction," and " secondary laryngomalacia from surgical treatment of #4." (Apr. 2014 Clinic Notes.)

It is undisputed that Defendant never denied Plaintiff leave or benefits for her medical absences. (Pl.'s Dep., at 34; see also Order on Pretrial H'rg, at 6 (Doc. # 50), in which Plaintiff stipulates that she " was provided with all the leave she requested and was never denied leave." ) Plaintiff also says that, when she took leave for additional surgeries, her leave was not " excessive" and that she tried to " make sure that [she] either had something continued" or " that the cases were worked up, and [that she had] talked to people about the cases that [she] had." (Pl.'s Dep., at 31-32.)

D. Plaintiff's Work Performance Issues from Defendant's Perspective[1]

Within a few months of Plaintiff's return to work in 2009 after her initial hospitalization, James Houts, who at the time was the chief deputy district attorney and Plaintiff's supervisor, complained to Defendant that Plaintiff was not able to " multi-task," was " not supervising effectively," " wasn't doing her work," and " was in and out of the office all the time." (Def.'s Dep., at 73, 74; see also Def.'s Aff., at 1.) Mr. Houts recommended that Defendant terminate Plaintiff based on " her inability to do her job effectively and excessive absences from work, which for the most part, were due to post medical events." (Def.'s Aff., at 1.) Defendant did not concur with the recommendation and suggested that Mr. Houts discuss these issues directly with Plaintiff and give her " an opportunity to correct whatever it was he was not happy with." (Def.'s Dep., at 73-74.) Defendant believed that Plaintiff " needed additional time to recover and [that] her inability to multi-task was mostly due to the stress of returning to work after her illness." (Def.'s Aff., at 2.) It is unclear from the record whether Mr. Houts discussed his concerns with Plaintiff. Defendant says, though, that Mr. Houts removed

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Plaintiff from assisting with scheduling docket events for Elmore County and that he " do[es] not think that [Mr. Houts] mentioned [Plaintiff's performance] to [him] again." (Def.'s Aff., at 2.)

During the same time frame, Beverley Stone, Defendant's chief of staff and director of special services, also began receiving complaints on a weekly basis from employees in the Elmore County office, primarily from support staff and interns. They complained that Plaintiff " was passing off her own work to others to complete," was " frequently leaving the office for unknown reasons," and generally was not available to provide direction to the staff. (Stone's Aff., at 2.) Because these individuals did not want to confront Plaintiff with their concerns and risk " hurt[ing] her feelings," Ms. Stone informed them that " there was nothing [she] could do." (Stone's Aff., at 2.)

At least once, Ms. Stone " casually spoke" with Defendant about some of the " morale problems" she believed that Plaintiff's job performance created in the Elmore County office, but Defendant " instructed [Ms. Stone] to try to get everyone to work with [Plaintiff] until she got back to 100%." (Stone's Aff., at 3.) Ms. Stone had at least one meeting with Plaintiff in late 2009 or early 2010 to address concerns that her leave resulting from the combination of her and her family members' medical appointments was excessive. Plaintiff " became very aggressive" when Ms. Stone suggested that Plaintiff try to find other family members or friends to help cover some of her family appointments. (Stone's Aff., at 3.)

Notwithstanding the complaints about Plaintiff's job performance, and Defendant's concerns about Plaintiff's steady decline in work performance, in March 2011, Defendant awarded a discretionary merit-based pay raise exclusively to Plaintiff, and a month later, Plaintiff received an additional two-percent, across-the-board raise. (Def.'s Dep., at 48-50.) When Plaintiff thanked Defendant by email for the merit raise, he replied, " You deserve it, wish it could be much more." (Mar. 23, 2011 email (Pl.'s Ex. 6).)

E. Plaintiff's Transfer to the Chilton County Office

Plaintiff worked in the Elmore County office through January 2012. At that time, Defendant moved Plaintiff to the Chilton County office and reassigned Assistant District Attorney CJ Robinson from Chilton County to Elmore County.[2] Plaintiff was one of two attorneys assigned to the Chilton County office; she retained her position as a senior assistant district attorney and had supervisory authority over Assistant District Attorney Brandon Bates. Defendant was hopeful that Plaintiff's supervisory abilities would improve if he moved her to the Chilton County office " where there is less work, less case load, . . . [and] different people." (Def.'s Dep., at 121-22.) In his affidavit, Defendant explains that " the stress level for [Plaintiff] would be much less in Chilton County," in part, because " Chilton County only has Grand Jury twice a year and the number of felony cases in Chilton County is substantially less than in Elmore or Autauga." (Def.'s Aff., at 4-5.) He further says:

I also believed this would give [Plaintiff] the opportunity to run an office on her own without me there to interfere with her supervisory style. I told [Plaintiff], when I reassigned her to Chilton County, that I expected her to take control of

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the situation and run the office like she knew I expected it to be run. When I moved Robinson to Elmore County[,] I also made him [Plaintiff's] . . . supervisor; however, he did not hold the title of Chief Deputy until several months later.

(Def.'s Aff., at 4-5.)

Plaintiff recalls that, after the fact, Defendant's Chief Investigator Ray Puckett told her that Defendant transferred her to Chilton County because Mr. Robinson and Mr. Bates " didn't get along" and that Defendant believed that, based upon her experience and age, Mr. Bates " may respect" her more than he respected Mr. Robinson. (Pl.'s Dep., at 42.) Later, Plaintiff also learned that Defendant transferred her to Chilton County because the work was " easier." (Pl.'s Dep., at 43.) Plaintiff felt, though, that the work was not easier in Chilton County because " [t]here was a lot more courtroom work" in district court and traffic court, and there were only two assistant district attorneys assigned to that office. (Pl.'s Dep., at 43.)

F. Microphone Accommodations in the Chilton County Courtrooms

At the time of Plaintiff's reassignment to Chilton County, the courtrooms in that county did not have any type of sound system. (Pl.'s Dep., at 37; Def.'s Aff., at 5.) At Plaintiff's request, Defendant purchased Plaintiff a portable amplification system that included a microphone for her use in the courtroom in Chilton County. Plaintiff has conceded that Defendant provided the " accommodation [she] needed." (Pl.'s Dep., at 39-40, 45, 53.)

G. Plaintiff's Work Performance in Chilton County

Between January 2012 and May 2012, Mr. Robinson, at Defendant's request, monitored Plaintiff's performance in the Chilton County office. Mr. Robinson describes in detail myriad problems he observed. He attests that, during her first grand jury in Chilton County, where the docket consisted of approximately 300 cases, Plaintiff was " disruptive and ill prepared to present cases from multiple officers and seemed ill equipped to steer the questions asked by grand jurors." (Robinson's Aff., at 2.) In his affidavit, Mr. Robinson does not indicate if he discussed with Plaintiff his concerns about her grand jury conduct.

Mr. Robinson also believes that Plaintiff repeatedly acted in a manner that suggested problems with her memory. According to Mr. Robinson, Plaintiff negotiated a plea agreement with terms that were contrary to multiple discussions he had had with her concerning proper handling of that particular case. She also either " disregard[ed]" office policy or forgot the policy when, in a different case, she negotiated a plea agreement that inappropriately included the defendant's waiver of potential civil claims. (Robinson's Aff., at 4.) Mr. Robinson further believes that Plaintiff forgot the policy requiring the physical presence of an attorney at all times in the office because " on more than one occasion," she left the Chilton County office without an attorney present. (Robinson's Aff., at 3.) These and other alleged deficiencies were the catalyst behind the convening of a meeting in May 2012.

H. The May 2012 Meeting

The May 2012 meeting, which Plaintiff secretly recorded, was held at the Elmore County office. Present for the meeting were Plaintiff, Ms. Stone, Mr. Puckett, and Mr. Robinson. The meeting occurred at Defendant's direction. (Def.'s Dep., at 116-17; Robinson's Aff., at 4.)

As the first order of business at the meeting, Plaintiff was " taken off" one capital murder case, not assigned to another,

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and given a limited role in a third capital murder case. Mr. Robinson says that Plaintiff was told only that these prosecutorial assignments were for " logistical reasons," which Mr. Robinson says was " true," but that Plaintiff's lack of " memory recall" also was an undisclosed " motivating factor." (Robinson's Aff., at 4.)

Ms. Stone then expressed " concerns" with Plaintiff's alleged " lapses in memory," which Ms. Stone categorized as the " only issue" impeding Plaintiff's job performance. Ms. Stone gave some illustrations of what she said demonstrated a " pattern" of memory loss that had developed since Plaintiff's hospitalization in August 2009, including: (1) Plaintiff's apparent failure to remember Defendant's directive that Plaintiff have no involvement in the criminal cases her husband, a police officer, had investigated; (2) Plaintiff's inability to recall a conversation with an investigator about rescheduling a case due to the impending birth of his child; and (3) Plaintiff's request to participate in a capital murder trial when in fact she previously had negotiated a plea agreement that had been accepted by the court. Ms. Stone explained that these and other incidents " as a whole" gave her a " real" concern " about [Plaintiff's] memory loss" in both administrative and substantive matters. The conversation then turned to Plaintiff's voice after Plaintiff asked several times, " What else is there?" (May 2012 Meeting (audio recording) (Ex. 3 to Doc. # 21); see also Robinson's Aff., at 5 (" We relayed to Ms. Booth that her voice was an issue, but that was not the purpose of the [May 2012] meeting." ).)

Ms. Stone said, " [I]f you cannot remember, if you cannot speak where people can understand you on the phone and we've had two complaints . . . about the fact that 'I can't talk to her, I cannot understand her.' A lawyer is an actor; [she] ha[s] to talk and [she] ha[s] to remember . . . ." (May 2012 Meeting (audio recording).) During that conversation, Ms. Stone also said, " It's about your health, which is your memory and your voice." Ms. Stone told Plaintiff that she was not being terminated, but that " there [were] some problems" that " ha[d] to be fixed." Plaintiff responded that she was not certain what else she could do " about her voice." Ms. Stone reiterated that " [a] lawyer has to have a voice to work," and that, if Plaintiff felt that there was nothing she could do, then she " should check into some type of disability." Ms. Stone then relayed to Plaintiff her belief that Plaintiff was " unable to do the job that [Defendant] hired [her] to do ten years ago." The meeting concluded with Ms. Stone stating, " [Y]ou are not willing to try to work with us, alleviate any of our concerns, or even accept the fact that there might be a problem." (May 2012 Meeting (audio recording).) Plaintiff describes Ms. Stone's overall tone as " screaming." (Pl.'s Dep., at 49.)

After the May 2012 meeting, Ms. Stone and Mr. Robinson recommended Plaintiff's termination to Defendant. Defendant refused and said he wanted to give Plaintiff time to " get through this." (Def.'s Dep., at 117.)

I. Plaintiff's Post-May 2012 Job Performance

Mr. Robinson attests that, after the May 2012 meeting, Plaintiff's performance problems continued. It was in January 2013, however, that Mr. Robinson says he witnessed " a level of incompetence leading up to th[e January 2013] grand jury that," in his opinion, " [was] unequaled . . . by any attorney" with whom he has worked. (Robinson's Aff., at 9.) He explains that Plaintiff

neglected her duties, failed to meet communicated deadlines, submitted inadequate

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and incomplete files, and passed-off responsibilities (many of which only attorneys are qualified to make and she passed them off onto support staff and interns), and then failed to correct the problems when she was sent home from the winter conference.

(Robinson's Aff., at 9.) The grand jury coordinator, Micke Arant Evans, had to step in and attempt to rectify these ...

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