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Kohser v. Protective Life Corporation

United States District Court, N.D. Alabama, Southern Division

March 25, 2015

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

MEMORANDUM OPINION

VIRGINIA EMERSON HOPKINS, District Judge.

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 Pay Act (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 randomly reassigned 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 genuine issue 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 with discriminatory 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 that age 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 in part, the findings or recommendations made by the magistrate judge."); Williams v. Wainwright, 681 F.2d 732 (11th Cir. 1982) (quoting Nettles v. Wainwright, 677 F.2d 404, 408 (5th Cir. 1982), [6] overruled on other grounds by Douglass v. United Services Auto. Ass'n, 79 F.3d 1415 (5th Cir. 1996), superceded by statute on other grounds as recognized by ACS Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012)). The district judge may also receive further evidence or recommit the matter to the magistrate judge with instructions. 28 U.S.C. § 636(b)(1).

A district judge "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). This requires that the district judge "give fresh consideration to those issues to which specific objection has been made by a party." Jeffrey S. v. State Bd. of Educ., 896 F.2d 507, 512 (11th Cir. 1990) (citing H.R. Rep. No. 94-1609, 94th Cong., 2nd Sess., reprinted in 1976 U.S. Code Cong. & Admin. News 6162, 6163). In contrast, those portions of the R&R to which no objection is made need only be reviewed for clear error. Macort v. Prem, Inc., 208 F.App'x 781, 784 (11th Cir. 2006).[7]

"Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct." United States v. Woodard, 387 F.3d 1329, 1334 (11th Cir. 2004) (internal quotation marks omitted) (quoting United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003)). It is incumbent upon the parties to timely raise any objections that they may have regarding a magistrate judge's findings contained in a report and recommendation, as the failure to do so subsequently waives or abandons the issue, even if such matter was presented at the magistrate judge level. See, e.g., United States v. Pilati, 627 F.3d 1360 at 1365 (11th Cir. 2010) ("While Pilati raised the issue of not being convicted of a qualifying offense before the magistrate judge, he did not raise this issue in his appeal to the district court. Thus, this argument has been waived or abandoned by his failure to raise it on appeal to the district court."). However, the district judge has discretion to consider or to decline to consider arguments that were not raised before the magistrate judge. Stephens v. Tolbert, 471 F.3d 1173, 1176 (11th Cir. 2006); see also Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) ("Thus, we answer the question left open in Stephens and hold that a district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge.").

"Parties filing objections must specifically identify those findings objected to. Frivolous, conclusive or general objections need not be considered by the district court." Nettles, 677 F.2d at 410 n.8. "This rule facilitates the opportunity for district judges to spend more time on matters actually contested and produces a result compatible with the purposes of the Magistrates Act." Id. at 410. Indeed, a contrary rule "would effectively nullify the magistrate judge's consideration of the matter and would not help to relieve the workload of the district court." Williams, 557 F.3d at 1292 (internal quotation marks omitted) (quoting United States v. Howell, 231 F.3d 615, 622 (9th Cir. 2000)).

III. Analysis

A. Threshold Considerations

1. Ms. Kohser's Introductory Section of Her Objections

The R&R recommends that summary judgment be granted in favor of Protective on all counts of Ms. Kohser's complaint. In the introductory section of her objections, Ms. Kohser only plainly challenges the dismissal of her claims for age and sex discrimination:

While Plaintiff objects to the Magistrate Judge's Report and Recommendation in its entirety, she particularly objects to the conclusion that she has not presented sufficient evidence to withstand summary judgment as to her claims that she was demoted and later terminated because of her age and/or her sex. Plaintiff contends that, when the proper summary judgment standard is applied to the evidence, she has established genuine issues of material fact as to each of her claims, but particularly as to her claims of discrimination based upon her age and/or her sex.

(Doc. 60 at 2-3).

Further, the substance of Ms. Kohser's specific objections are largely limited to the magistrate judge's disposition of her age and gender discrimination claims. First, Ms. Kohser contends that the magistrate judge ignored Protective's failure to follow its established procedures before demoting her and terminating her employment. (Doc. 60 at 11-16). Second, Ms. Kohser complains that the magistrate judge ignored her own testimony when he found that there was no evidence to show that she was unaware of any performance issues before Protective demoted her. (Doc. 60 at 17-18).

Third, Ms. Kohser maintains that the magistrate judge improperly used the so-called "same actor" and "same group" inferences when recommending that summary judgment be granted on Ms. Kohser's age discrimination claim. (Doc. 60 at 18-22). Fourth, Ms. Kohser argues that the magistrate judge erred in concluding that Protective's decisionmaker had an honest and good faith belief for his employment-related actions that adversely affected her. (Doc. 60 at 22-28). Fifth, Ms. Kohser urges that the magistrate judge's R&R is wrong as a convincing mosaic of facts establish the existence of gender and/or age discrimination. (Doc. 60 at 28-29).

Finally, Ms. Kohser resists the dismissal of her derivative common-law negligent training count premised upon the AADEA and concludes her objections as follows:

The Magistrate Judge's Report and Recommendation should be rejected in its entirety because it is based upon an erroneous application of the law. The Magistrate Judge ignored relevant and admissible evidence presented by the Plaintiff to prove her claims; made credibility assessments; weighed the evidence; relied upon inferences favorable to the Defendant and adverse to the Plaintiff; and imposed a heightened burden of proof on Plaintiff which is not justified under the law. Plaintiff has presented sufficient evidence to defeat summary judgment on her claims that she was demoted and terminated because of her age and/or her sex. Because Plaintiff can establish that she was demoted and/or terminated because of her age, the Magistrate Judge erred in recommending that her claim for Negligent/Wanton Hiring, Training, Supervision, and Retention Claim be dismissed. See King v. CVS Caremark Corp., No. 1:12-CV-1715-VEH, 2014 WL 868079 (N.D. Ala. Mar. 5, 2014) (AADEA claim can satisfy the underlying tort requirement of a negligent/wanton hiring, training, supervision and retention claim).
For all of the reasons set forth above, and all of the reasons articulated in Plaintiff's Response Brief In Opposition To Defendant's Motion For Summary Judgment (Doc. 44), Plaintiff prays that the Report and Recommendation of the Magistrate Judge be rejected in its entirety and Defendant's motion for summary judgment be denied.

(Doc. 60 at 29-30).

The court has studied Ms. Kohser's objections (Doc. 60) and nothing contained in them specifically contests or otherwise brings into question the analysis conducted by the magistrate judge in recommending a dismissal of Counts Three, Five and Seven. Instead, in contesting the R&R "in its entirety, " Ms. Kohser has, at best, raised merely a generalized objection concerning these counts. As a result, this means that the magistrate judge's treatment of them is subject to only clear error scrutiny by this court.

Further, the court agrees with the contents of the R&R as to these three counts and concludes that a dismissal of them on summary judgment is appropriate. Accordingly, Ms. Kohser's general objection is OVERRULED, those portions of the R&R dealing with Counts Three, Five, and Seven are ACCEPTED, and ...


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