Opinion
Civil Action No. 00-0025-BH-C, 00-0026-BH-C, (Consolidated)
April 19, 2001
JUDGMENT
Pursuant to the Order entered this day granting defendant's motion for summary judgment, it is ORDERED, ADJUDGED and DECREED that JUDGMENT be and is hereby entered in favor of the defendant, the City of Orange Beach, Alabama, and against the plaintiffs, Fredrick l. Rouse and Gerald Poe, the plaintiffs to have and recover nothing of the defendant: Costs are taxed against the plaintiffs.
ORDER
The Court, in preparation for jury selection and trial of these consolidated actions, has reexamined the record, including defendant's motion for summary judgment (Docs. 16 and 17), plaintiffs' response in opposition thereto (Docs. 23 and 24), defendant's motion to strike (Doc. 32), defendant's request for supplemental briefing (Doc. 30), the parties' joint pretrial statement (Doc. 33), plaintiffs' opposition to supplemental briefing (Doc. 34) and plaintiffs' brief (Doc. 35) in response to this Court's inquiry at the pretrial conference conducted on March 14, 2001. The Court now concludes that it erred in denying defendant's motion for summary judgment Consequently, for the following reasons, it is now ORDERED that the Order entered by this Court on January 24, 2001 (Doc. 29) be and is hereby VACATED AND SET ASIDE and that, in lieu thereof, defendant's motion for summary judgment (Docs. 16 and 17) be and is hereby GRANTED. It is FURTHER ORDERED that defendant's motion to strike (Doc. 32) and request for supplemental briefing (Doc. 30) be and are hereby GRANTED for the reasons stated by the defendant in support of the motion and request.
FINDINGS OF UNDISPUTED FACT
1. Gerald Poe was born December 20, 1941. He worked approximately twenty-four years with the City of Gadsden Police Department beginning in November of 1966. He began to work with the City of Orange Beach Department of Public Safety as Dispatcher in 1991 and within a few weeks his job title was changed from dispatcher to investigator.
2. Fredrick Lavell Rouse was born on December 3, 1954. In 1990 he was hired as Public Safety Officer with the City of Orange Beach Department of Public Safety. Prior to working for the City of Orange Beach, Rouse served as a part-time officer for the City of Fairhope where he was also a member of the police reserve and search and rescue unit.
3. In early 1993, the City of Orange Beach reorganized its Department of Public Safety and separated that department into separate police, fire and rescue departments. In March of 1993, Robert Vinson was hired as Chief of Police for the Orange Beach Police Department. Gerald Poe was made chief investigator of the new police department. Fredrick Lavell Rouse was designated a narcotics investigator with the police department from 1993 to 1996. In 1996 Fredrick Rouse became a sergeant.
4. Gregory Duck was born April 6, 1966. In 1987, he became a patrol officer with the Orange Beach Department of Public Safety. Prior to working for the City of Orange Beach, Duck was the Communication Supervisor for the Bay Minette Police Department for three years. In 1991, Greg Duck became a patrol supervisor and DARE officer with the City of Orange Beach. In 1997, Duck was promoted to sergeant in the investigation division.
5. In 1997, the City of Orange Beach requested and received a public safety review of the police and fire departments from the governmental services at Auburn University. The review was conducted by Dr. Keith Ward, the Director for the Center for Governmental Services. Dr. Ward subsequently generated and provided a report which concerned itself with the budget process and expenditures for the police department and the supervision and management structures of both the police and fire departments. The report and its recommendations were presented to the presiding Mayor and City Council for the City of Orange Beach in late 1987. Encompassed in the findings of Dr. Ward is the statement:
[A] specific problem is the distance from the chief of police from the sergeants and the officers. The role of the chief investigator is unclear; the reality of the chief investigator position appears to be assistant police chief. However, the title and qualifications for the job of chief investigator are not consistent with current use of the job. In personal interviews, employees perceive the chief investigator as a barrier to access to the police chief as well as an obstacle in the assignment and completion of duties.
Dr. Ward made the recommendation to "abolish the position of major [and] if the chief believes the command structure would be unwieldy in abolishing this office, the recommendation is that he should ask the council to create an assistant chief position." Dr. Ward then recommended that "[t]he position description for assistant chief would include the proper knowledge, skills and abilities for a person qualified to become chief when a person had the requisite experience." The report further stated: "The complexities of modern policing demand that a chief be capable of working with highly skilled officers as an equal as well as with the community at large." With respect to the organizational structure of the department, the report stated: "Much of the criticism about the investigation's unit was related to management."
6. In 1998, the City of Orange Beach had municipal elections which resulted in the installation of four city council members. The mayoral election as well as one council election were contested pursuant to state law and resulted in the scheduling of a special election. A new mayor and council member were elected in the special election. Only incumbent council members Steve Russo and Iris Etheridge maintained their positions with the city after the 1988 municipal and special elections.
7. In December of 1988, the position of assistant chief of police was created by the City of Orange Beach City Council. The Council adopted a job description that established the requirements for the position. Pursuant to the job description and requirements, identical letters were sent to several members of the City of Orange Beach Police Department, including Gerald Poe, Fredrick Rouse and Greg Duck.
8. Gerald Poe, Fredrick Rouse and Greg Duck each submitted their resume and cover letters to the Mayor's Office. Six individuals applied for the position of Assistant Police Chief. Each of the applicants was interviewed by the Mayor and the City Council on January 12, 1999. Each applicant was provided a half hour block of time for their interview.
9. Prior to the interview process, Mayor Russo asked Chief Vinson who he thought was most qualified to become assistant chief. Chief Vinson indicated that Officers Poe, Duck and Rouse, in that order, were the most qualified.
10. Fredrick Rouse has proffered insufficient evidence that he was qualified for the position of Assistant Chief. Although Chief Vinson did recommend him for consideration, Rouse concedes that the Chief considered him the least qualified of the three candidates at issue in this litigation. Poe and Rouse specifically acknowledge in their opposition brief (Doc. 23 at p. 4) that Chief Vinson was concerned about "Rouse's ability to promote good community relations." In addition, Rouse does not dispute that, during his interview, he conveyed his belief that the Police Department should be run as a paramilitary organization or that the City Council considered such an approach inappropriate with regards to the public relations responsibilities of the Assistant Chiefs position. Rouse has certainly failed to proffer any evidence that the reason given for the City Council's refusal to promote him to Assistant Chief was pretextual.
11. In contrast to Rouse, Poe has presented evidence that Chief Vinson considered him the most qualified of the three candidates at issue with respect to the job duties of Assistant Chief. Poe does not dispute, however, that he indicated in his interview that, if promoted to the position of Assistant Chief, he nonetheless did not wish to assume the Chief of Police position should it thereafter become available. Poe acknowledges that, in his deposition, Mayor Russo stated that he believed Poe was not qualified because, inter alia, "he did not want to be chief of police." Plaintiffs' Brief (Doc. 23) at 6, citing Russo Depo. at 42. In addition, Poe submitted Mayor Russo's deposition testimony that he and the City Council "expressed early on among all of ourselves that we wanted the assistant to be someone who could grow with the department and take over the department in the event that the chief left to keep from having to go outside of the department to fill the position." Russo Depo. at 46. Mayor Russo denied that he and the City Council ever discussed that the person should be "someone younger that you could groom into the position." Id. Cathy Larrimore, the city clerk/personnel director, testified as well that, at the time the Auburn Report was presented to the then sitting council members, the only discussion was "if the chief were to retire, then they wanted someone to step in and fill his position." Larrimore Depo. at 18. Larrimore did not recall any reference to "someone younger." Id. Poe has proffered no evidence that the desire to appoint an Assistant Chief willing to assume the Chiefs position should the present Chief leave the department was a pretext for age discrimination.
According to Larrimore, "[a]t that time there were only four council members: Chuck Stapelton, Mike Shield, Steve Russo and Iris Etheridge." Larrimore Depo. at 18.
12. The only evidence proffered by Poe and Rouse in support of their age discrimination claim is unsupported, inadmissible rank hearsay. For example, Chief Vinson testified that, prior to the interviews, he heard "[t]hird or fourth-hand rumors" that the council was going to select Gina Long "because the council loved her" and that the council "didn't want Gerald Poe because he was too old and didn't want to be chief." Vinson Depo. at 25. Vinson denied, however, that "anybody — the mayor or council [-had] ever specifically made any comment to [Vinson] regarding Gerald Poe's age or being too old for the job." Id. at 26. Although Poe and Rouse also rely upon an alleged note passed from the city administrator, Mike Hilyer, to Cathy Larrimore during Poe's interview that "it must be really hard interviewing for a job when you know you're not going to get it," they have presented no evidence to establish that the statement has any relationship to Poe's age or an intent to discriminate on the basis of age or that Hilyer had anything to do with the City Council's decision regarding the selection of the Assistant Chief other than to witness Poe's interview. Cathy Larrimore herself testified that she did not understand what Hilyer meant by the note. Larrimore Depo. at 17. Neither Poe nor Rouse have contended that they directly heard any statement by either the Mayor or any member of the City Council who made the decision at issue which indicated an age bias. Finally, even if otherwise relevant and admissible, the statements proffered by the plaintiffs all refer to Poe, not Rouse.
Vinson identified John Martin, "the dog catcher," as the last person from whom he heard this "third or fourth-hand rumor." Vinson Depo at 25-26. Contrary to plaintiffs' contention, Vinson did not, in the deposition excerpts presented to the Court, identify John Martin as the "boyfriend to city clerk/personnel director, Cathy Larrimore." Cf., Plaintiffs' Opposition Brief (Doc. 23) at 5 with Vinson Depo. at 25-26.
Poe confirmed in his own testimony that he could not identify the specific source of the statements which he now contends constitute direct evidence of age bias. For example, Poe testified that "I don't know what [Rusty Robert's] said that the mayor told him or the mayor told someone else in his presence." Poe Depo. at 77. According to Rouse, Rusty Roberts only told him that he (Rusty) did not apply for the position because the mayor told him who was going to be promoted, Gina Long and Greg Duck, and age never came up in the conversation. Rouse Depo at 53 and 58. Although Rouse contends that Cathy Larrimore told him she heard a statement "by someone else" that "[t]hey wanted someone younger so they could groom them," he never identifies in the deposition excerpts presented to the Court the source of this hearsay statement nor the time at which it was alleged to have been made. See, inter alia, Rouse Depo. at 48-50.
CONCLUSIONS OF LAW
The Age Discrimination in Employment Act (ADEA) provides that "it shall be unlawful for an employer to fail or refuse to hire . . . or otherwise discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's age." 29 U.S.C. § 623 (a)(1). Plaintiffs contend that they were not promoted to the position of Assistant Chief based upon their age. To establish this cause of action, the plaintiffs must either present direct evidence of discriminatory intent in the employment action or establish a prima facie case as established in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) (shifting burdens of proof with respect to a claim of race discrimination); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) ( McDonnell Douglas framework was fully applicable in an ADEA case). As the Reeves Court emphasized: "When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's decision.' 530 U.S. at 141, 120 S.Ct. at 2105, quoting, Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). The Reeves Court further explained that "the plaintiffs age must have "actually played a role in [the employer's decisionmaking] process and had a determinative influence on the outcome'." Id. Despite plaintiffs' contentions to the contrary, they have presented no direct evidence of discriminatory intent in the promote decision at issue in this litigation. Consequently, plaintiffs must proceed under the shifting framework established in McDonnell Douglas and applied to the ADEA in Reeves.
Plaintiffs argue that "[i]n the case at bar, there are multiple instances of direct evidence of age discrimination in the form of statements attributed to the decision-making council members and mayor." Plaintiffs Opposition Brief (Doc. 23) at II (emphasis added). Plaintiffs have thus essentially acknowledged that the statements on which they rely are not only hearsay but impermissible "double hearsay" pursuant to the principles discussed in Zaben v. Air Products Chemicals, Inc., 129 F.3d 1453, 1456 (11th Cir. 1997) ("[S]tatements made by a supervisory official who plays some role in the decision making process are generally admissible [as party opponent admissions]" only if the statement reflects the employer's policy or intent to discriminate, constituted a direct warning or explanation to the employee of the employer's policy or position on matter, was made within the scope of the supervisor's authority and was " not simply a repetition of what others in management had told him," the latter constituting rank "double hearsay."). Plaintiffs promise to reduce these alleged statements "to admissible evidence at trial" is insufficient in light of plaintiffs' admissions and the deposition testimony of Vinson and Larrimore submitted by the plaintiffs which fails to conform with the alleged statements plaintiffs seek to attribute to these individuals. Thus, plaintiffs' reliance on United States v. Four Parcels of Real Property in Greene and Tuscaloosa Counties, 941 F.2d 1428, 1444 (11th Cir. 1991), is misguided. Cf. Zaben v. Air Products Chemicals, Inc., 129 F.3d 1453, 1456 (11th Cir. 1997). Cf. also, Chapman v. AI Transport, 229 F.3d 1012, 1027 (11th Cir. 2000) ("It would seriously impair the ability of district courts to pare down the issues in multi-claim civil cases if we required them to revisit and re-evaluate a summary judgment previously granted on one claim because of evidence that comes out later at the trial of other claims.").
In order to establish a prima facie case for age discrimination, each of the plaintiffs must show that he: (1) was a member of a protected group between forty and seventy years of age; (2) was subjected to an adverse employment action; (3) he was qualified to do the job for which he was rejected; and (4) the position was filled by a younger individual. Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1432 (11th Cir. 1998); Benson v. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir. 1997). If the plaintiffs meet their burden, the employer must produce or articulate a legitimate non-discriminatory reason for the employment action. Chapman v. Al Transport, 229 F.3d 1012, 1024 (11th Cir. 2000) ( en banc). Once a legitimate reason is articulated, the burden again shifts to the plaintiffs "to proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual." 229 F.3d at 1024-25. "If the plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment on the plaintiffs claim." 229 F.3d at 1015, citing, Combs v. Plantation Patterns, 106 F.3d 1519, 1529 (11th Cir. 1997) (holding that there must be "sufficient evidence to demonstrate the existence of a genuine issue of fact as to the truth of each of the employer's proffered reasons for its challenged action"). See also, Mayfield v. Patterson Pump Co. 101 F.3d 1371 (11th Cir. 1996), in which the court held:
A plaintiff may prove pretext "either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence." [ Texas Dept. of Community Affairs v.] Burdine, 450 U.S. [248,] at 256, 101 S.Ct. [1089,] at 1095[, 67 L.Ed.2d 207 (1981)]. "[B]ecause the plaintiff bears the burden of establishing pretext [for discrimination], he must present `significant probative' evidence on the issue to avoid summary judgment." See Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 443-44 (11th Cir. 1996) ( quoting Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988)) ( quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 2510-11, 91 L.Ed.2d 202 (1986)). "Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [an employer] has offered . . . extensive evidence of legitimate, non-discriminatory reasons for its actions." Isenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 443-44 (11th Cir. 1996) ( quoting Young v. General Foods Corp., 840 F.2d 825, 830 (11th Cir. 1988)) ( quoting Grigsby v. Reynolds Metals Co., 821 F.2d 590, 597 (11th Cir. 1987)).101 F.3d at 1376-77. It is also important to recognize that "[a] plaintiff is not allowed to recast an employer's proffered nondiscriminatory reasons or substitute his business judgment for that of the employer." Chapman, 229 F.3d at 1029. It is now also clear that, "[p]rovided that the proffered reason is one that might motivate a reasonable employer, an employee must meet that reason head on and rebut it, and the employee cannot succeed by simply quarreling with the wisdom of that reason." Id., citing, Alexander v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000) (Title VII case) ("[I]t is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not racially motivated."), and Combs, 106 F.3d at 1541-43.
As applied to the case at bar, the defendant concedes that the plaintiffs were within the protected age group, they did not receive the promotion to Assistant Chief and the position was filled by a younger individual. The defendant denies, however, that the plaintiffs were qualified for the job of Assistant Chief. Poe and Rouse rely solely on Chief Vinson's opinion that each was qualified for the job. Neither effectively disputes, however, that the decision makers, the members of the City Council, did not consider either qualified.
The City articulated two reasons for its decision not to promote Gerald Poe to the position of assistant Chief: (1) that Poe refused to be considered a viable candidate for Chief in the event the present Chief left the department and (2) that Poe did not present himself as an active member of the community outside of the Police Department. The Auburn Report which precipitated the City's decision to create the new Assistant Chief position clearly recommended that the position be filed by an individual who has "the proper knowledge, skills, and abilities for a person qualified to become Chief when a person had the requisite experience." Although plaintiffs obviously question the wisdom of the City's decision to select someone who is not only able but willing to fill the Chiefs shoes on a permanent basis if necessary, such a selection criteria is not objectively unreasonable. According to the City, this commitment would obviate the need to go outside the department to fill the Chiefs position should he ever leave the department. Plaintiffs present no evidence beyond their own opinion that such a commitment is unreasonable or inappropriate. Thus plaintiffs have failed to establish that Poe's refusal to so commit himself was a mere pretext for age discrimination.
In addition, the Auburn Report concluded that "[t]he complexities of modern policing demand that a chief be capable of working with highly skilled officers as an equal as well as with the community at large." Although Poe had a history of working in a supervisory position with the City of Orange Beach Police Department, he did not show or illustrate his ability to work with the community at large. Poe did not dispute his lack of community involvement but instead essentially argues that it is irrelevant. As was true with respect to his unwillingness to assume the Chiefs position should it become available, Poe's opinion regarding the relevance of his community involvement is insufficient to obviate the legitimacy of this selection criteria. Poe has failed to establish that his lack of community involvement was a pretext for age discrimination.
Similarly, Rouse has failed to establish that the reason he was not selected, namely his lack of ability to satisfy the public relations requirements of the Assistant Chiefs position were a mere pretext for age discrimination. Although considered by Chief Vinson as otherwise qualified, the Chief was concerned about his "ability to promote good community relations." Chief Vinson testified in his deposition that he had transferred Rouse from the investigative division "because he was getting to where he couldn't get along with one of the . . . assistant district attorneys and he couldn't seem to get along with members of the drug task force." Vinson Depo. at 12-13. Rouse does not dispute his difficulties relating with other agencies and individuals. Nor does Rouse dispute the City Council's concern with his belief that the Police Department should be run as a paramilitary unit. The City's concern was objectively reasonable, particularly in light of the Auburn Report's emphasis on the need for improved community relations.
The Court further concludes that summary judgment in favor of the defendant is supported by the Eleventh Circuit's analysis in Mason v. Village of El Portal, 240 F.3d 1337 (11th Cir. 2001). In Mason, the court held:
The record supports the trial court's conclusion that there remained a triable issue of fact whether council member Kennedy's reasons were pretextual but that no credible evidence supported the claim that the other two council members' legitimate reasons were unworthy of belief. Without such evidence, we will not presume they shared council member Kennedy's discriminatory motives.240 F.3d at 1339. As applied to the case at bar, the Court agrees that this case is even less severe than Mason inasmuch as the plaintiffs, at best, can only show through inadmissible hearsay evidence that one council member may have had an age bias against one of the plaintiffs. Gerald Poe. Plaintiffs' contention that Mason, a § 1983 action, is inapplicable to an age discrimination action is sophistic at best. There is no logical distinction between the fact that "[a] local government entity can only be held liable under § 1983 if a municipal `policy' or `custom' exists pursuant to which that government violated a plaintiffs constitutional rights" (Plaintiffs' Brief in Opposition to Supplementation: Doc. 34 at 2) and the need to determine in a discrimination case that the "employer" intended to discriminate when the employment decision being challenged was required to be made by more than one individual. The mere fact that the "discriminatory bias of each person who played a role in the challenged decision is highly relevant" (( Id. at 4) does not alter the plaintiffs' burden to establish that the decision making body itself held such animus. Every challenged employment decision must be examined in its proper perspective.
The only other proffered evidence was an alleged statement by someone reporting an alleged statement by an unnamed council member which might have indicated an age bias. In addition to being clearly "double hearsay" evidence, there is no showing that the individual who is purported to be the source of the statement was a member of the City Council that actually made the decision at issue or was in any way part of the decision making process.
CONCLUSION AND ORDER
Plaintiffs have failed to establish either that they were qualified for the position or that the nondiscriminatory reasons articulated by the City are a mere pretext for age discrimination. The Court therefore concludes that the City is entitled to judgment as a matter of law. It is therefore ORDERED that defendant's motion for summary judgment (Docs. 16 and 17) be and is hereby GRANTED and that JUDGMENT be entered in favor of the defendant, the City of Orange Beach, Alabama, and against the plaintiffs, Fredrick 1. Rouse and Gerald Poe, the plaintiffs to have and recover nothing of the defendant. Costs are taxed against the plaintiffs.