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