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Crenshaw v. City of Wetumpka

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

September 29, 2017

ANTHONY CRENSHAW, Plaintiff,
v.
CITY OF WETUMPKA, AL, Defendant. CECELIA DIXON, Plaintiff,
v.
CITY OF WETUMPKA, AL, Defendant.

          MEMORANDUM OPINION AND ORDER

          W. KEITH WATKINS CHIEF UNITED STATES DISTRICT JUDGE

         In this 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).

         After 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.

         I. STANDARD OF REVIEW

         A 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).

         II. BACKGROUND

         Dixon 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.

         Crenshaw 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.

         Because 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.

         III. DISCUSSION

         A. Defendant's Motion for Summary Judgment on Dixon's Claims

         The 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.

         Dixon 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.”[1] 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.

         “[A] 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.

         Defendant 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.)

         In the 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 is correct.

         Whether 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 judgment briefing.

         1. Burden of Proof

         Title 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 service laws.

         a. Employee

         Dixon 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.[2]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 “employee” ...


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