Wiggins v. City of Montgomery

          MEMORANDUM OPINION AND ORDER

          STEPHEN M. DOYLE, UNITED STATES MAGISTRATE JUDGE.

         On July 5, 2017, Mary Wiggins (“Plaintiff”) filed a Complaint against the City of Montgomery, Alabama, (“Defendant”) alleging claims of unlawful discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title VII”); the Age Discrimination in Employment Act, as amended, 29 U.S.C. § 621, et seq. (“ADEA”); and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”). See (Doc. 1). This Court’s jurisdiction is proper under 28 U.S.C. § 1331.

         Pending before the Court is Defendant’s Motion for Summary Judgment (Doc. 39), Plaintiff’s opposition thereto (Doc. 43), and Defendant’s reply (Doc. 44). Upon consideration of Defendant’s Motion for Summary Judgment, the evidentiary materials filed in support thereof, and the pleadings of the parties, for the reasons set forth below, Defendant’s Motion for Summary Judgment (Doc. 39) is due to be granted in part and denied in part.

         I. STANDARD OF REVIEW

         Under Rule 56(a) of the Federal Rules of Civil Procedure, a reviewing court shall grant a motion for “summary judgment if the movant shows that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute “is ‘genuine’ if the record as a whole could lead a reasonable trier of fact to find for the nonmoving party. A[] [dispute] is ‘material’ if it might affect the outcome of the case under the governing law.” Redwing Carriers, Inc. v. Saraland Apartments, 94 F.3d 1489, 1496 (11th Cir. 1996) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         The party asking for summary judgment “always bears the initial responsibility of informing the district court of the basis for its motion[, ]” and alerting the court to portions of the record which support the motion. Celotex Corp. v. Cartrett, 477 U.S. 317, 323 (1986). However, once the movant has satisfied this burden, the nonmovant is then similarly required to cite to portions of the record which show the existence of a material factual dispute. Id. at 324. In doing so, and to avoid summary judgment, the nonmovant “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

         In determining whether a genuine dispute for trial exists, the court must view all the evidence in the light most favorable to the nonmovant and draw all justifiable inferences from the evidence in the nonmoving party’s favor. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1243 (11th Cir. 2003); see Fed. R. Civ. P. 56(a).

         II. STATEMENT OF FACTS

         Plaintiff began working for Defendant in 1970 as a typist with the Police Department. In 1993, Defendant promoted Plaintiff to the position of Clerk III. In 1995, Defendant promoted Plaintiff to a position with Defendant’s Finance Department. From 1996 to the time of her retirement in December 2015, Plaintiff worked as an Account Clerk II with the License and Revenue Division of Defendant’s Finance Department. As an Account Clerk II, Plaintiff worked at the front desk in the License and Revenue office and was responsible for handling the daily activities of assisting customers, gathering information, and making determinations on what type of licenses customers needed. In 2007, Plaintiff applied for a promotion to the position of Revenue Examiner and was subsequently denied. In 2013, Plaintiff applied again for the position of Revenue Examiner and was denied again. She met the minimum qualifications to hold the position-i.e., she had a high school diploma or the equivalent thereof, and two years of delinquent account collection work.

         On April 15, 2015, Plaintiff applied for one of two open Revenue Examiner positions. The Revenue Examiner job posting for the 2015 opening states that the “fundamental reason this classification exists is to enforce revenue and/or license laws and regulations.” The posting notes that “[w]ork involves inspecting business premises in an assigned geographical location for violations and verifications.” Under a section titled “WORKING CONDITIONS, ” the posting advises that “[w]ork is performed primarily in the field involving travel to and visits to local business locations, which may require working in inclement weather, visiting construction sites, climbing stairs, walking over rough terrain, minimal lifting of boxed documents and/or laptop and printer, etc.”

         Similarly, the Revenue Examiner job description (which is a separate document from the Revenue Examiner job posting discussed above) states the following “essential function” of the position:

ESSENTIAL FUNCTION: Collects revenues and enforces revenue ordinances using a computer, telephone, receipt book, collection’s envelope and automobile to travel to work locations following departmental guidelines, state revenue law in order to collect delinquent revenue and ensure compliance of revenue law requirements.

         Under this heading, the job description further notes that the employee will be required to “visit[ ] business establishments for collection of delinquent revenues.” The job description lists another “essential function” as follows:

ESSENTIAL FUNCTION: Visits business activities of permanent and transient businesses for enforcement of business license ordinances using a computer, calculator, citations and an automobile to travel to work locations following departmental guidelines and city ordinances relative to revenue collection in order to ensure proper business licenses have been obtained and are properly displayed and the required conditions to possess such licenses are met.

         Under this heading, the job description further notes that the employee will be required to “[c]heck[ ] the computer for new businesses in the community for business licenses” and, if the business is not licensed, “make[ ] a personal visit.” Finally, at the end of the job description document and outside of the section listing essential functions, the job description identifies the same working conditions listed within the job posting-i.e., that “[w]ork is performed primarily in the field involving travel to and visits to local business locations which may require working in inclement weather, visiting construction sites, climbing stairs, walking over rough terrain, minimal lifting of boxed documents and/or laptop and printer, etc.”

         Plaintiff submitted her application for the 2015 Revenue Examiner positions on April 15, 2015. In her application, Plaintiff stated that, due to a right knee injury, she “use[d] a walker when walking long distances and for knee support, ” and that she “cannot walk out in rough terrain, as the recent job announcement goes.”^[1] Plaintiff sustained her knee injury in 2000 when she fell down the stairs in the parking deck after work. Since that time, Plaintiff has used a walker on a daily basis for ambulatory support. Due to the injury, Plaintiff claims that she is “limited in the major life activities of walking and breathing.” Along with noting her physical limitations, Plaintiff also stated in her application that the “Finance Director advised that we could use one or two inside Revenue Examiner[s]” and that she “could benefit in working a[n] inside position.” She complained within her application that she had been passed over for the position in the past due to her age and echoed the Finance Director’s position that “this division needed one or two inside revenue examiners to work on sales tax, ” noting that her supervisor “chooses not to fill that position until years down the line.” Finally, Plaintiff reiterates in the application: “And as this recent job notification states, you must be able to walk on rough terrain which I cannot do – I feel like no one[ ] cares about me and my situation.”

         On May 28, 2015, Plaintiff, along with four other applicants, interviewed for the two open Revenue Examiner positions with Faye Comer (“Comer”). Comer, who is the Revenue Supervisor for the License and Revenue Division of Defendant’s Finance Department, was Plaintiff’s direct supervisor, and had supervisory and decision making authority with regard to interviewing, hiring, promotion, and discipline. According to Comer, Plaintiff told her during the interview that she was “limited on climbing a lot of stairs”; visiting construction sites”; “walking on rough terrain”; “walking on terrain that was not safe”; and “working in inclement weather.” Comer also acknowledged that Plaintiff complained during the interview that she felt she had been discriminated against in the past due to her age. Comer was unable to recall if Plaintiff complained about disability discrimination during the interview.

         On June 2, 2015, Comer recommended that Patrick Vines (“Vines”) and J.C. Jones (“Jones”) be promoted to fill the two vacant Revenue Examiner positions. At that time, Vines was thirty-one years old and Jones was twenty-eight. Jones had been working for Defendant for one year as an Account Clerk when he was promoted; Vines had been working for Defendant for eleven years as an Account Clerk. Neither Jones nor Vines had a visible disability. Plaintiff filed an EEOC charge on June 17, 2015, claiming discrimination based upon age, disability, and retaliation. Plaintiff also sent a letter to Defendant on June 22, 2015, which complained that she was being overlooked based upon her age and disability.

         A third Revenue Examiner position became available shortly thereafter, and Comer recommended that Cheryl Urquhart (“Urquhart”) fill the position on July 9, 2015. At that time, Urquhart was fifty years old, and had no visible disability. Comer filled the third vacant position from the candidates who interviewed for the original two openings. Comer’s recommendations were approved by Defendant’s Finance Director, Barry Crabb (“Crabb”).

         On June 22, 2015, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”) alleging that she was denied promotion to the position of Revenue Examiner due to her age, disability, and in retaliation for filing previous EEOC complaints. After concluding its investigation, the EEOC found that “there were accommodations that were available to allow [Plaintiff] to perform the functions of the Revenue Examiner.” The EEOC based this determination upon evidence that “two persons hired into the Revenue Examiner position . . . have not performed duties in the field environment; one of whom is still employed.” Accordingly, the EEOC determined that there was “reasonable cause to conclude that [Plaintiff] was discriminated against on the basis of retaliation, in violation of Title VII, age, 73, in violation of the ADEA and disability in violation of the ADA.”

         Plaintiff retired from her employment with Defendant on April 15, 2015.

         IV. DISCUSSION

         Plaintiff’s Complaint alleges that Defendant discriminated against her based upon her age and upon her alleged disability and retaliated against her based upon her complaints of age and disability discrimination. See generally (Doc. 1). Plaintiff attempts to prove her claims via direct and circumstantial evidence. See generally (Doc. 43).

         In the context of employment discrimination and retaliation cases, direct evidence is “evidence which reflects ‘a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee.’” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004). Direct evidence is “evidence, that, if believed, proves [the] existence of [a] fact without inference or presumption.” Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393 (11th Cir. 1997). Eleventh Circuit precedent illustrates that “only the most blatant remarks, whose intent could mean nothing other than to discriminate on the basis of” some impermissible factor constitutes direct evidence of discrimination. Rojas v. Florida, 285 F.3d 1339, 1342 n. 2 (11th Cir. 2002). To qualify as direct evidence, the evidence must reflect “‘a discriminatory . . . attitude correlating to the discrimination . . . complained of by the employee, ’ and must indicate that the adverse employment decision was motivated by the decision-maker’s intent to discriminate.” Lawson v. Plantation Gen’l Hosp., 704 F.Supp.2d 1254, 1267, n. 9 (S.D. Fla. 2010) (internal citations and quotations omitted); see also Jones v. Bessemer, 151 F.3d 1321, 1323 n. 11 (11th Cir. 1998) (noting that the 11th Circuit has severely limited what statements constitute direct evidence) (citing Evans v. McClain of Ga., Inc., 131 F.3d 957, 962 (11th Cir. 1997)). If the alleged statement suggests, but does not prove, a discriminatory motive, then it is circumstantial evidence. See Burrell, 125 F.3d at 1393.

         Absent direct evidence, claims for illegal discrimination and/or retaliation may be proved via circumstantial evidence, which are analyzed pursuant to the burden-shifting framework described in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973). See Cleveland v. Home Shopping Network, Inc., 369 F.3d 1189, 1193 (11th Cir. 2004) (applying McDonnell Douglas to ADA case); Chapman v. AI Transport, 229 F.3d 1012 (11th Cir. 2000) (applying McDonnell Douglas to ADEA case); Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999) (applying McDonnell Douglas to Title VII retaliation claim). Under the McDonnell Douglas framework, a plaintiff must first create a presumption of discrimination by establishing a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802. If a plaintiff establishes a prima facie case of discrimination, the burden shifts to the defendant to produce a legitimate, non-discriminatory reason for its employment action. E.E.O.C. v. Joe’s Stone Crab, Inc., 220 F.3d 1263, 1286 (11th Cir. 2000). Although this burden is not “onerous, ” Tex. Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 253 (1981), neither is it a mere formality. A defendant may not satisfy its burden by presenting a hypothetical reason for the employment decision in question; instead, it must raise “a genuine issue of fact as to whether it discriminated against the plaintiff” by making that decision. Id. at 255. In other words, “the defendant must clearly set forth, through the introduction of admissible evidence, ” the reason for its adverse employment decision, and that reason “must be legally sufficient to justify a judgment for the defendant.” Id.; see also Trotter v. Bd. of Trustees of the Univ. of Ala., 91 F.3d 1449, 1455 (11th Cir. 1996).

         If the defendant produces a legitimate, non-discriminatory reason for its employment action, the burden shifts back to the plaintiff to “prove that the reason provided by [the employer] is a pretext for unlawful discrimination.” Holmes v. Ala. Bd. of Pardons & Paroles, 591 Fed.Appx. 737, 742 (11th Cir. 2014). The plaintiff may demonstrate pretext by “revealing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in [the employer’s] proffered legitimate reasons for its actions that a reasonable factfinder could find them unworthy of credence.” Springer v. Convergys Customer Mgmt. Group, Inc., 509 F.3d 1344, 1348 (11th Cir. 2007) (per curiam) (internal quotation marks omitted). To establish that an employer’s asserted reason was pretextual, a plaintiff must show both that the stated reason was false and that discrimination was the real reason. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 (1993). If the proffered reason is one that might motivate a reasonable employer to make an employment decision, the plaintiff must “meet [the reason] head on and rebut it” instead of merely quarreling with it. Wilson, 376 F.3d at 1088. The inquiry into pretext centers on the employer’s beliefs, not the employee’s beliefs or “reality as it exists outside of the decision maker’s head.” Alvarez v. Royal Atl. Developers, 610 F.3d 1253, 1266 (11th Cir. 2010). Further, a plaintiff bringing a disparate treatment claim under the ADA or the ADEA must also prove that age or disability was the “but-for” cause of the adverse employment action, not merely one motivating factor. See Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176 (2009) (ADEA); McNely v. Ocala Star-Banner Corp., 99 F.3d 1068, 1073 (11th Cir. 1996) (ADA).

         A. Plaintiff’s ADEA Discrimination Claim (Count II)

         The ADEA prohibits employers from discriminating against an employee who is at least forty years of age because of that employee’s age. 29 U.S.C. §§ 623(a)(1), 631(a). As noted above, “[a] plaintiff can establish age discrimination through either direct or circumstantial evidence.” Sims v. MVM, Inc., 704 F.3d 1327, 1332 (11th Cir. 2013). Here, Plaintiff has not presented the Court with direct evidence of age discrimination. Therefore, Plaintiff must proceed under the burden-shifting framework provided in McDonnell Douglas. Giraldo v. Miami Dade Coll., 739 Fed.Appx. 572, 572 (11th Cir. 2018) (unpublished) (“We evaluate ADEA claims based on circumstantial evidence of discrimination under the burden-shifting framework established in McDonnell Douglas[.]”).

         To establish a prima facie case of age discrimination, a plaintiff must show four things: “(1) that she was a member of the protected group of persons between the ages of forty and seventy; (2) that she was subject to adverse employment action; (3) that a substantially younger person filled the position that she sought or from which she was discharged; and (4) that she was qualified to do the job for which she was rejected.” Damon v. Fleming Supermarkets of Fla. Inc., 196 F.3d 1354, 1359 (11th Cir. 1999). For purposes of summary judgment, Defendant concedes that Plaintiff is able to establish a prima facie case of age discrimination. See (Doc. 39) at 15.

         Thus, the burden shifts to Defendant to produce a legitimate, non-discriminatory reason for its employment decision to not promote Plaintiff to the Revenue Examiner position. Here, Defendant provides the following reasons for its decision: (1) Plaintiff’s supervisors, Comer and Wilson, were “very familiar with [Plaintiff’s] qualifications and work history, and were able to consider their daily observations of her” to determine that “Plaintiff was not among the most qualified applicants for the position”; and (2) Plaintiff’s admissions on her written application and during her interview that “she could not perform certain requirements of the position, including climbing a lot of stairs, visiting construction sites, and walking on rough or unsafe terrain, ” made her less qualified than the candidates who received promotions. (Doc. 39) at 16-17.

         Plaintiff disputes the legitimacy of Defendant’s proffered reasons and, therefore, argues that Defendant has failed to meet its intermediate burden of production. (Doc. 43) at 35-37. Specifically, Plaintiff asserts that Defendant’s reliance upon Wilson’s testimony as justification for the employment decision is “speculative and not based on first-hand knowledge” because Wilson was not the decision-maker for the Revenue Examiner position. Id. at 37. Similarly, Plaintiff asserts that Defendant’s reliance upon Comer’s testimony as justification for the employment decision is insufficient because Defendant offers no evidence that Comer actually made her decision based upon that reasoning. Id.

         The undersigned finds Plaintiff’s arguments unpersuasive and concludes that Defendant has met its burden to produce a legitimate, non-discriminatory reason for its employment decision. Assuming that Wilson’s reasoning should not be considered because he was not a decision-maker, Comer’s reasoning provides Defendant with a legitimate, non-discriminatory reason for its employment decision. As a basis for her decision to hire individuals other than Plaintiff, Comer testified that she had, on occasion, observed Plaintiff requiring assistance in her previous role as Account Clerk II. (Doc. 39-4) at 19. Specifically, Comer testified that Plaintiff had difficulties remembering some of the information required to perform certain tasks in her previous role and that she would need assistance performing some of her job responsibilities. Id. Comer further testified that Plaintiff reported during the interview and on her employment application that she was unable to perform certain functions of the job as listed. Id. at 17-19.

         In contrast, Comer testified that she promoted Vines because he was “well-prepared”; “a competent applicant”; “was well-versed in the ordinance[s] and statutes”; “had a great rapport with the customers”; and “was able to physically perform the job as written.” (Doc. 39-4) at 24. As for Jones, Comer testified that she promoted him because she “felt that he was more qualified at that time under the circumstances and as the current job was written, especially under the working conditions.” Id. at 17. Comer continued that she believed Jones “could better perform [the Revenue Examiner] position with the requirements” because “[h]e was able to physically perform the job in terms of the working conditions.” Id. As to Urquhart, Comer testified that she promoted her because “she would be able to perform the duties and responsibilities of that position” and that she had observed her work at the front counter and with dealing with customers, and was confident that Urquhart was able to “retain[ ] the information and would be able to not need as much assistance” as Plaintiff. Id. at 30-31.

         Comer’s testimony supports Defendant’s assertion that Plaintiff was not promoted because her supervisor had previously observed her work and found it lacking, and because Plaintiff was unable to perform some of the physical requirements of the position. Accordingly, the undersigned finds that Defendant, based upon Comer’s statements regarding Plaintiff’s previous work performance and her inability to perform the job requirements as listed, has produced a legitimate, non-discriminatory reason for its employment decision to not promote Plaintiff to the Revenue Examiner position. See e.g. Anderson v. Coors Brewing, 181 F.3d 1171, 1180 (10th Cir. 1999) (finding that inability to perform an essential job function is a legitimate, nondiscriminatory reason for an employee’s termination).

         Because Defendant has produced a legitimate, non-discriminatory reason for its employment decision, Plaintiff must now meet her burden of persuasion that Defendant’s proffered reason for its failure to promote Plaintiff is pretext for discrimination. Importantly, because the ADEA does not authorize a “mixed-motives” age discrimination claim, this Court must apply a “but-for” causation standard to determine whether Plaintiff has produced sufficient evidence that Defendant’s employment decision would not have occurred but-for Defendant’s consideration of Plaintiff’s age. Archie v. Home-Towne Suites, LLC, 749 F.Supp.2d 1308, 1315 (M.D. Ala. 2010) (citing Gross, 557 U.S. at 177-78). In other words, the ADEA requires that “age [be] the ‘reason’ that [Defendant] decided to act.” Gross, 557 U.S. at 176. Thus, even if Plaintiff establishes a prima facie case of age discrimination and offers sufficient evidence of pretext as to ...