United States District Court, M.D. Alabama, Northern Division
MEMORANDUM OPINION AND ORDER
KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE
consolidated action against the City of Wetumpka, Plaintiff
Cecelia Dixon, the former chief of police for the Wetumpka
Police Department, asserts gender and age discrimination
claims pursuant to Title VII of the Civil Rights Act of 1964
(“Title VII”), as amended, 42 U.S.C. §§
2000e to 2000e-17, and the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. §§ 621 to 634.
Plaintiff Anthony Crenshaw, the former deputy chief for the
police department, brings a Title VII retaliation claim.
See 42 U.S.C. § 2000e-3. After discovery,
Defendant filed a motion for summary judgment on all claims
(Doc. # 21), and the parties briefed the motion. In the
Report and Recommendation, filed pursuant to 28 U.S.C. §
636(b), the Magistrate Judge recommends the denial of
Defendant's summary judgment motion. (Doc. # 38.)
Defendant filed an objection to the Recommendation (Doc. #
39) to which Plaintiffs replied (Doc. # 41).
an independent and de novo review of those portions
of the Recommendation to which Defendant objects,
see § 636(b), the court adopts the Magistrate
Judge's Recommendation as to Dixon's claims, but with
additional discussion on the issue of Dixon's status as
an “employee” under Title VII and the ADEA.
Furthermore, the Recommendation is due to be adopted as to
the recommended decision on Crenshaw's claims, with the
exception that the court finds that Crenshaw abandoned his
Title VII claim that he suffered retaliation when he was
placed on administrative leave. The motion for summary
judgment will be granted on this claim only and otherwise
will be denied.
STANDARD OF REVIEW
party's timely written objections to a magistrate
judge's report and recommendation require this
court's de novo review of those portions of the
report to which the party objects. See 28 U.S.C.
§ 636(b); see also Marsden v. Moore, 847 F.2d
1536, 1548 (11th Cir. 1988) (“Frivolous, conclusive, or
general objections need not be considered by the district
court.”). After completing its review, applying the
same standard as the magistrate judge, the court may accept,
reject, or modify the report, in whole or in part.
See 28 U.S.C. § 636(b).
served as the chief of police for the City of Wetumpka from
February 2009 until October 2014. The Council of the City of
Wetumpka (“city council”), whose members are
elected and include the mayor, voted unanimously to appoint
Dixon as chief of police for the City of Wetumpka on February
20, 2009, and again on January 22, 2013. (Doc. # 21-1 (Feb.
20, 2009 city council minutes); Doc. # 21-4 (Jan. 22, 2013
city council minutes).) The next year, on September 11, 2014,
the city council convened a special meeting to consider
Dixon's termination for alleged improprieties uncovered
in an outside investigation of internal complaints lodged
against her and her deputy chief (Crenshaw). At that meeting,
the city council voted to provide notice to Dixon of proposed
discipline up to and including termination as chief of
police. The minutes from the September 11, 2014 meeting
indicate that, after receipt of notice, Dixon would have ten
days to request a hearing before the city council. (Doc. #
21-6 (Sept. 11, 2014 city council minutes).) After a publicly
held pre-disciplinary hearing, the city council voted to
terminate Dixon as chief of police, effective immediately.
(Doc. # 21-16 (Oct. 2, 2014 city council minutes).) Dixon
contends that her termination was a pretext and that the
council members, at the mayor's direction, actually
dismissed her because she is female and over the age of
forty, in violation of Title VII and the ADEA.
began serving as Dixon's deputy chief in April 2009. In
July 2014, he was placed on paid administrative leave,
pending the results of the outside investigation. The adverse
findings of the investigation resulted in Crenshaw's
demotion to a lieutenant within the police department in
November 2014. Crenshaw contends that his demotion was in
retaliation for his refusal to assist the mayor in his plan
to get rid of Dixon because the mayor did not want a female,
especially an older female, to serve as the chief of police.
He brings his claim under Title VII.
the factual background is set forth in detail in the
Recommendation, it is not necessary to recite all of the
facts here. Other relevant facts are discussed in the
analysis of the objections and the Recommendation.
Defendant's Motion for Summary Judgment on
Recommendation concludes that “summary judgment would
be improper on the issue of Dixon's status as an
‘employee' and whether her position comes within
the policy maker exception to Title VII and the ADEA.”
(Doc. # 38, at 14.) Defendant objects to this conclusion, but
the objections are due to be overruled.
alleges that Defendant terminated her employment as chief of
police because of her age and gender in violation of Title
VII and the ADEA. Only an “employee” can bring an
action under Title VII and the ADEA. These statutes define an
“employee” as “an individual employed by
the employer.” 42 U.S.C. § 2000e(f) (Title VII); 29
U.S.C. § 630(f) (ADEA). There are four express
exemptions to the “employee” definition,
including an exemption for an elected official's
“appointee on the policy making level.” 42 U.S.C.
§ 2000e(f); 29 U.S.C. § 630(f). But this exemption
does not apply if the appointee is “subject to the
civil service laws of a State government, governmental agency
or political subdivision.” 42 U.S.C. § 2000e(f);
29 U.S.C. § 630(f). In other words, an
“employee” under Title VII and the ADEA includes
an appointee on the policy making level who is subject to
state or local governmental civil service laws, but it does
not include an appointee on the policy making level who is
not subject to the civil service laws.
plaintiff's status as an employee under Title VII is a
question of federal, rather than of state, law . . . .”
Calderon v. Martin County, 639 F.2d 271, 272-73 (5th
Cir. Mar. Unit B 1981). However, “[s]tate law is
relevant insofar as it describes the plaintiff's
position, including his duties and the way he is hired,
supervised and fired.” Id. at 273.
urged the Magistrate Judge to find that the Wetumpka chief of
police fits within the policy making appointee exception to
“employee” status under Title VII and the ADEA.
Dixon countered that, as chief of police, she was subject to
the civil service laws of the State of Alabama, at least
insofar as concerns disciplinary actions, and, thus, was an
employee under Title VII and the ADEA. Alternatively, Dixon
argued that a policy making appointee must “advise an
elected official in the exercise of Constitutional powers,
” which Dixon says she did not do as chief of police.
(Doc. # 23, at 16.)
Recommendation, the Magistrate Judge observed that there
appeared to be no dispute that Dixon was an
“appointee.” (Doc. # 38, at 13.) He found,
however, that there was a genuine dispute of material fact
“as to the nature of Dixon's position and her
actual role” and that, therefore, summary judgment was
inappropriate. (Doc. # 38, at 14.) Furthermore, the
Magistrate Judge also concluded that the evidence was too
barebones to discern whether the position of chief of police
was subject to the civil service laws, referencing the
one-page excerpt from the City of Wetumpka's Personnel
Rules (Doc. # 23-10) and given the absence of clear and
controlling law on the issue. (Doc. # 38, at 10-12.)
Defendant objects to these findings, but the Recommendation
Dixon falls within the Title VII/ADEA “employee”
exemption for policy making appointees raises two questions.
The first is whether Dixon occupied an appointed position on
the policy making level, and, if so, the second is whether
Dixon's position of chief of police is subject to the
City of Wetumpka's civil service laws. However, to
understand fully why the Recommendation did not err in
concluding that summary judgment should be denied on the
issues of whether Dixon was an appointee on the policy making
level and whether she was subject to the civil service laws
of the City of Wetumpka, it is helpful to discern the
parties' burdens under Title VII and the ADEA to
demonstrate Dixon's status as an “employee.”
The burden of proof is an issue untouched in the summary
Burden of Proof
VII and the ADEA define an “employee” as
“an individual employed by an employer, ” but
then lists four exemptions to that definition and ends with a
“civil service” exception to the four exemptions.
42 U.S.C. § 2000e(f) (Title VII); 29 U.S.C. §
630(f) (ADEA). Three things are subject to proof: (1) whether
Dixon was an “employee”; (2) whether she was
exempt from employee status as an appointee on the policy
making level; and (3) whether Dixon was subject to the civil
bears the burden of demonstrating that she meets the general
definition of an “employee” under Title VII and
the ADEA. In other words, whether Dixon was an
“individual employed by an employer” is an
element of her prima facie case.This finding is consonant
with the U.S. Supreme Court's decision in Arbaugh v.
Y&H Corp., 546 U.S. 500 (2006). There, the Court
held that Title VII's definition of an “employer,
” which includes only those entities with fifteen or
more employees, “is an element of a plaintiff's
claim for relief, not a jurisdictional issue.”
Id. at 516. Title VII defines “employee”
in the same section, § 2000e, that it defines
“employer, ” which was addressed in
Arbaugh. Consequently, the term
“employee” would seem to serve a similar function
to that of “employer” for purposes of a
plaintiff's prima facie case. For this reason, it seems
unlikely that the Court would treat the term