Opinion
No. 00-D-400-E
December 11, 2000
MEMORANDUM OPINION AND ORDER
Before the court is Defendant's Motion For Summary Judgment, which was filed October 30, 2000. Plaintiff filed a Response on November 15, and Defendant issued a Reply on November 21. After careful consideration of the arguments of counsel, the relevant law, and the record as a whole, the court finds that Defendant's Motion is due to be denied.
I. JURISDICTION AND VENUE
The court has subject matter jurisdiction over this civil action under 28 U.S.C. § 1331 (federal question jurisdiction), 29 U.S.C. § 794 (Rehabilitation Act of 1973) and 42 U.S.C. § 12203, 12213 (Americans with Disabilities Act) ("ADA"). The parties do not contest personal jurisdiction or venue.
II. SUMMARY JUDGMENT STANDARD
The court construes the evidence and makes factual inferences in the light most favorable to the nonmoving party. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Adickes v. S.H. Kress Co., 398 U.S. 144, 157 (1970). Summary judgment is entered only if it is shown "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c).
At this juncture, the court does not "weigh the evidence and determine the truth of the matter" but solely "determine(s) whether there is a genuine issue for trial." Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 249-50 (1986) (citations omitted). This determination involves applying substantive law to the substantive facts that have been developed. A dispute about a material fact is genuine if a reasonable jury could return a verdict for the nonmoving party, based on the applicable law in relation to the evidence developed. See id. at 248; Barfield v. Brierton, 883 F.2d 923, 933 (11th Cir. 1989). The moving party bears the initial burden of establishing the absence of a genuine issue of material fact. See Celotex, 477 U.S. at 323. The burden then shifts to the non-moving party, which "must do more than simply show that there is some metaphysical doubt as to the material facts" that it has specifically designated for trial. Matsushita Elec. Indus. Corp. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). An action will be dismissed when the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party. See id. at 587.
III. FACTUAL BACKGROUND
Terry Daniel has been employed by the City of Lanett Fire Department since 1981, and he presently serves as an apparatus operator and fire cause investigator. Daniel claims to have suffered an on-the-job injury to his right wrist in 1992. He spent some time on disability, then returned to the force prior to 1996. (Mot. at 6.) He subsequently filed an EEOC complaint in September 1996, alleging that the City failed to accommodate his disability, but in February 1997 he withdrew the claim and signed a release form related to the same. (Def. Ex. E.)
"Plaintiff" or "Daniel."
"Defendant" or "City."
In August 1997, after this series of events, Ralph Cobb became the City's fire chief. Pursuant to city policy, the fire chief selects the top three candidates for vacant positions within the department, then forwards a list of the candidates to the city manager for final selection. (Resp. at 6.) After Cobb became fire chief, Daniel applied for a promotion to fire captain on three separate occasions. He was rejected each time. Daniel informed the city manager that he felt victimized. (Daniel's Dep. at 179.) Daniel then filed another EEOC complaint in December 1998. In this civil action, Daniel alleges that the City retaliated against him between 1997 and 1998 because of his various complaints of discrimination against the fire department. (Resp. at 11-17.)
IV. DISCUSSION A. Substantive Law
Plaintiff alleges that Defendant violated the Rehabilitation Act of 1973, 29 U.S.C. § 794, and Title II and Title V of the ADA, 42 U.S.C. § 12203, 12133. The court considers all of Daniel's claims together, as the ADA and the Rehabilitation Act are nearly identical in substance. See Sutton v. Lader, 185 F.3d 1203, 1208 n. 5 (11th Cir. 1999); Edwards v. Alabama Dep't of Corr., 81 F. Supp.2d 1242, 1248-49 (M.D. Ala. 2000). The method of analysis in retaliation claims is the same under the ADA, the ADEA, the Rehabilitation Act, or Title VII. See Brungart v. Bellsouth Telecomm., Inc., 2000 WL 1584555 (11th Cir. 2000). In analyzing Plaintiff's claims, "[t]he court can thus appropriately properly rely upon case law interpreting any of these statutes." Bennett v. Henderson, 15 F. Supp.2d 1097, 1112 (D. Kan. 1998).
In this Circuit, public employees can maintain a Title II suit under the ADA. See Bledsoe v. Palm Beach County Soil Water Conserv. Dist., 133 F.3d 816, 820 (11th Cir. 1998). But see Zimmerman v. Oregon Dep't of Justice, 170 F.3d 1169, 1176 (9th Cir. 1999)
Plaintiff may seek to prove discrimination by relying on either direct, circumstantial, or statistical evidence. See Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). In this case, Plaintiff argues that he has produced direct evidence and circumstantial evidence for all three claims to survive summary judgment.
Direct evidence is hard to find. Direct evidence is that which, if believed, proves the existence of discriminatory motive "without inference or presumption." Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998). Such evidence must truly be focused on the employment action at issue. As previously explained:
Not only must it be evidence of discriminatory `actions or statements of an employer' but the actions or statements at issue must `correlat[e] to the discrimination or retaliation complained of by the employee.' Further, the statements `must be made by a person involved in the challenged decision' and must not be subject to varying reasonable interpretations.Lane v. Ogden Entertainment, Inc., 13 F. Supp.2d 1261, 1274 (M.D. Ala. 1998) (internal citations omitted). "If an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence." Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999)
When a plaintiff relies on circumstantial evidence of discrimination, the familiar McDonnell-Douglas burden-shifting analysis applies. See Texas Dep't of Community Affairs v. Burdine, 450 U.S. 428 (1981);McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under theMcDonnell-Douglas framework, a plaintiff must first raise an inference of discrimination by establishing a prima facie case. For retaliation claims, this means offering proof: (1) that the plaintiff engaged in statutorily protected activities; (2) suffered adverse employment action; and (3) that there is some causal connection between the two events. See Brook v. City of Montgomery, 916 F. Supp. 1193, 1208 (M.D. Ala. 1996). The third prong of the test should be interpreted broadly; all things equal, the test tends to favor the plaintiff. See id. at 1209.
Plaintiff does not have to demonstrate that retaliatory animus is the "sole cause" of the adverse employment action; a "but for" showing is sufficient. See id. Moreover, Plaintiff does not need to prove the underlying claim of discrimination that lead to his protest, so long as he "had a reasonable good faith belief that the discrimination existed." Meeks v. Computer Assoc. Int'l, 15 F.3d 1013, 1021 (11th Cir. 1994).
A prima facie case causes the burden to shift to the defendant, who must "proffer a legitimate, non-discriminatory reason for the adverse employment action. The employer's burden is exceedingly light." Id. The burden then shifts back to the plaintiff, who must show that the employer's proffered reasons are a pretextual cover for discrimination.Combs v. Plantation Patterns, 106 F.3d 1519, 1539 (11th Cir. 1997) (citations omitted).
If the employee does not offer sufficient evidence showing that each and every proffered reason is pretextual, then summary judgment is mandatory. See Chapman v. Ai Transp., 229 F.3d 1012, 1024, 1030 (11th Cir. 2000) (en banc). If the employee meets this heavy burden, however, then summary judgment is sometimes inappropriate, see id. at 1024 n. 11, and the trier of fact may then infer the ultimate fact of discrimination from the falsity of the employer's explanation. See Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 120 S.Ct. 2097, 2108 (2000).
B. McDonnell-Douglas Burden-Shifting Analysis
The court finds that Plaintiff has shown a prima facie case of retaliation. Thus, the burden shifts to the City to produce legitimate, non-retaliatory reasons for its actions. Plaintiff contends that Defendant has proffered that Daniel: (1) did not work well with others; (2) refused to provide patients with emergency medical treatment; and (3) left his written interview substantially blank when he applied for one position. (Resp. at 37.) Defendant does not seriously dispute Plaintiff's characterization of the evidence, and the court proceeds accordingly. See Chapman, 229 F.3d at 1030 n. 19. The court finds that all three proffered reasons are legitimate. See Meeks, 15 F.3d at 1021. Thus, the burden shifts back to Plaintiff to show that each reason is pretextual.
There is also a fourth reason: Daniel was not the best qualified candidate for the position. This reason simply doubles back upon the rest, given that there is no dispute that Plaintiff was qualified for the job. (Pl. Ex. 16 ¶ 12.) In determining whether Plaintiff was denied promotion because of retaliation, the fact finder must weigh Defendant's statements about Plaintiff's qualifications against any competing evidence suggesting the use of forbidden criteria. If the fact finder believes that Cobb relied upon forbidden criteria in making personnel recommendations, then it may also find that Cobb's perception of Daniel's abilities was impermissibly tainted. In other words, the fourth reason rises and falls in conjunction with an analysis of the other three. See Reeves, 120 S.Ct. at 2108.
1. Lack of Direct Evidence
The court rejects Plaintiff's suggestion that the record contains direct evidence of retaliation. After Cobb selected the top three candidates for the September 1997 captain vacancy, Daniel approached Cobb and asked why he was not chosen. Cobb remarked that he had "a problem" with Daniel's prior complaint or complaints against the City. (Daniel's Dep. at 161-62, 242.) Cobb said that "[n]inety percent of it wasn't worth a hill of beans." (Id. at 163.) Daniel states that he said to Cobb, "You just discriminated against me," and Cobb "looked back at me and looked at me just as plain as day, and he said, `well, that will be hard to prove.'" (Id.) Plaintiff argues that these facts constitute direct evidence. The court disagrees.
The court notes, first, that Cobb gave Daniel an evasive answer in response to an accusatory statement. Cobb did not, however, directly affirm that he acted on the basis of forbidden criteria. For that reason alone, Daniel has failed to produce direct evidence. See Shook v. St. Bede Sch., 74 F. Supp.2d 1172, 1177-78 (M.D. Ala. 1999)
Second, Daniel is the only person who heard Cobb's statements. Daniel, however, was not sure whether Cobb said that he had a problem with Daniel's "complaint" or his "complaints." Dep. at 161-62, 242.) It is undisputed that Daniel had filed only one singular complaint prior to this occasion. Thus, the court would have to reject certain parts of Daniel's deposition testimony in order to conclude that Cobb made reference to Daniel's prior EEOC "complaint." In choosing what testimony to accept and reject, the court would necessarily be presuming that Daniel's contradictory statements were merely a slip of the tongue. This the court cannot do. Because Daniel is not sure what Cobb said, the court cannot find that Cobb's statements are direct evidence.
Finally, it is clear that Cobb also mentioned during this same conversation that nobody at all met the city's promotion guidelines in any respect. Some of the city's guidelines were undoubtedly legitimate. (Id. at 161-62.) Thus, in the context of a conversation that mixed in the good with, possibly, the bad, Daniel himself stated that he had to infer that Cobb was referring to Daniel's EEOC complaint as a basis for his non-promotion. (Id. at 162.) The court takes Daniel at his word and finds that Cobb's statements, which are susceptible to competing inferences, do not constitute direct evidence. See Hamilton v. Montgomery County Bd. of Educ., 2000 WL 1784995 at *7-8 (M.D. Ala. 2000); Gullatte v. Westpoint Stevens. Inc., 100 F. Supp.2d 1315, 1318 (M.D. Ala. 2000);Lane, 13 F. Supp.2d at 1274.
Likewise, the court finds that the other evidence presented by Daniel is not direct evidence of retaliation. (Daniel's Dep. at 163-65; Hester's Dep. at 13-15.) This evidence, some of which almost certainly is inadmissible, allows for competing inferences and is not specifically focused on the employment decisions in this case. See Carter, 132 F.3d 641-42; Hamilton, 2000 WL 1784995 at *7-8; Lane, 13 F. Supp.2d at 1274.
2. Sufficient Circumstantial Evidence
The issue, then, becomes whether Plaintiff has produced sufficient circumstantial evidence to support his case. As explained below, the court finds sufficient circumstantial evidence of retaliation for Plaintiff to avoid summary judgment.
Throughout this analysis, the court is mindful that Cobb's earlier statements to Daniel constitute circumstantial evidence that undermines Cobb's explanations for his behavior. (Daniel's Dep. at 161-62, 164-67, 242.) These statements are relevant to Daniel's showing of pretext.
The court did not rely upon any evidence of events prior to February 5, 1997. If this case proceeds to trial, these materials may be the subject of an appropriately briefed and argued motion to exclude.
First, the court finds several inconsistencies and implausibilities with the City's assertion that Plaintiff had problems with his peers. Cobb named three employees who allegedly complained about Daniel. (Cobb's Dep. at 58-59.) In response, Daniel produced the testimony of one of these employees, who expressly denied making such complaints. (Brown's Dep. at 25-26.) Thus, Daniel has sufficiently cast doubt upon Cobb's explanation that City employees complained about his work behavior or attitude.
Second, the court finds problems with the City's assertion that Plaintiff refused to treat patients. If Daniel failed to perform his duties, then it is reasonable to infer that Cobb should have taken some type of disciplinary action against Daniel. (Cobb's Dep. at 55, 120.) Yet Cobb never referred Daniel's alleged refusal to do his job to the city manager, as appears to be required by city policy. (Id.; Williams's Dep. at 21-22.) Cobb's failure to do so suggests that his explanation is pretextual.
Third, the court finds weaknesses with the City's assertion that Daniel was not promoted because he left his written application substantially blank. The city's personnel handbook requires that promotions be based on ability, seniority, and the quality of past job performance. (Pl. Ex. 11 at iii.) Although one's performance on a written interview is relevant to evaluating one's ability, Cobb stated that "[t]he only thing [he] required was more or less a written interview, with interview-type questions." (Cobb's Dep. at 42.) Thus, a jury could conclude that Cobb totally and improperly neglected to consider the City's two other criteria — seniority and quality of past job performance — in making his decisions. Such a finding would cast doubt upon this proffered, non-discriminatory reason. Thus, the court finds that Daniel has produced sufficient circumstantial evidence to avoid summary judgment.
At this juncture, the court acknowledges that Cobb also claims to have relied upon other subjective factors. (Cobb's Dep. at 50.) Despite Plaintiff's assertions, an employer can, of course, rely on subjective criteria — even exclusively so. "It is inconceivable that Congress intended anti-discrimination statutes to deprive an employer of the ability to rely on important criteria in its employment decisions merely because those criteria are only capable of subjective evaluation."Chapman, 229 F.3d at 1034. See also id. at 1025 (expressly abrogatingDelgado v. Lockheed-Georga Co., 815 F.2d 641, 644 (11th Cir. 1987), and implicitly abrogating Hairston v. Gainesville Sun Publ'g Co., 9 F.3d 913, 919 (11th Cir. 1994); Harris v. Delchamps, 5 F. Supp.2d 1316, 1331 (M.D. Ala. 1998)). In this case, however, the subjective criteria have been delineated in such an amorphous manner that they fail to "afford [ ] a full and fair opportunity to demonstrate pretext." Id. (quoting Burdine, 450 U.S. at 258). Thus, summary judgment is inappropriate.