Argo et al v. Gregory et al, No. 2:2012cv00213 - Document 51 (S.D. Ga. 2014)
Court Description: ORDER granting in part and denying in part Defendant's 27 Motion for Summary Judgment. This case shall proceed to trial on Plaintiffs' age discrimination claims. Signed by Judge J. Randal Hall on 09/10/2014. (jah)
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Argo et al v. Gregory et al Doc. 51 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION WILLIAM ARGO, MICHAEL G. JOHNSON and JOHN M. SPANGLER, * * Plaintiffs, * v. * Sheriff TOMMY J. GREGORY, * in his official capacity, CV 212-213 * * Defendant. * ORDER Presently Gregory's 27.) before ("Sheriff") Plaintiffs, Office the Court motion is for Defendant summary Sheriff judgment. Tommy (Doc. no. former deputies in the Camden County Sheriff's ("Sheriff's Office"), were terminated on June 29, 2011, as part of a reduction in force purportedly because of a limited budget. However, against on the they basis of allege their that age they and were discriminated retaliated against violation of the Age Discrimination in Employment Act, § 621, et seq. and Michael in violation U.S.C. § ("ADEA"). Johnson of the 12102(1)(A). Additionally, claim that American As 29 U.S.C. Plaintiffs William Argo they were with in discriminated Disabilities discussed below, the Act against ("ADA"), 42 Sheriff's motion for summary judgment is GRANTED IN PART AND DENIED IN PART. Dockets.Justia.com I. A. BACKGROUND Factual Background 1. This Sheriff's Plaintiffs' Employment History and Terminations case arises Office. out of William Argo former Sheriff Bill Smith as at 8.) Argo obtained his deputy in that position security. (Argo (Id. Decl. SI position until his termination. Johnson, likewise, Decl. SISI employment was hired was 4.) the 2001 by (Argo Dep. 2005 when he transferred to work as at 10; Argo but was Argo Decl. SI a 4.) reassigned to remained in this (Id. SI 5.) hired 1-2.) until with in a corrections officer. he worked at the front desk, courtroom. (Johnson ("Argo") certification and was in courthouse Originally, the remained POST Plaintiffs' He by was Sheriff Smith originally in 1996. hired as a corrections officer and received a promotion to Sergeant within six months. was (Id. transferred to SI 4.) transferred 5.) (Id. After to In this civil warrants, the SI 2. ) In 1999, work as he became POST certified and a patrol deputy shortly thereafter. approximately six months on civil and division. position, service his courts responsibilities patrol, included he was (Id. SI serving transporting prisoners, and occasionally working as a courtroom deputy. (Id. SI position until he was terminated. 7.) Johnson remained in this (See Doc. no. 31-1 SI 5.) John Spangler (Spangler Dep. position 8.) Spangler transport Decl. at was officer SI 3.) hired by Sheriff Smith in 2002. Although the record does not reflect the worked when at point one he He was transferred, was hired, during his however, he served tenure. as a (Spangler several weeks prior to his termination and was working as a corrections officer when he was laid off. On (IcL_ SISI 2-3.) June employees, 29, 2011, were laid off. of their termination, was 43. Plaintiffs, (Id.) along (See Doc. no. 31 at 8.) Argo was 70, Board year of Office million. Finance the Sheriff requested of approximately $8 million, Commissioners (including the approved Camden a and Johnson County, (Gregory Dep. a budget but budget Jail/Corrections (Fender Dep. at 12.) for other Sheriff Gregory contends that the lay-offs were Apparently, fiscal six At the time Spangler was 56, necessary due to an "underfunded budget." 8.) with for the division) that for the of Sheriff's only this represented Plaintiffs argue the decrease was far less, only $164,170. no. $5.5 the Director of decrease of approximately $600,000 from the 2011 budget. Doc. 2012 the Camden County Michael Fender, testified at 6, a (Id. ) (See 31-1 at 7.) Sheriff Gregory explains that once he determined that lay offs were necessary, or her employees. he asked each division leader to rank his (Gregory Dep. at 7.) Purportedly, the employees at the bottom of each list were those at risk of being terminated. (Id.) Lori Whitlow, Assistant to Sheriff Gregory, and warrants 4.) She and civil employee's actions. work (Id. divisions. in making supervisors' she considered an and any disciplinary supervisor, no. 31 at 25.) he not the Similarly, (Id. at 26.) considered employee. ranked at Spangler was 25-26, officer, rank Rather, disciplinary actions, of not (Id. at Argo and Johnson SI 10.) the April bottom Palmer, his ranked Spangler 22nd out of 35 employees. out of 34. list did lists. 31.) was Sheriff made one And more the Charles the his direct (See Doc. Byerly ranked Spangler 24th employee's job performance, any and his own personal knowledge and opinion bottom of of Byerly testified that in making his (Byerly Dep. the 2, list, Applying these criteria, however, SISI her ranked at the bottom of their divisions. Spangler, (Whitlow Aff. attendance, history, SI 9.) Executive Administrative supervised the courthouse security service testified that the two of at the full-time because Jessica essential, decision full-time transport officer. 17.) Although Spangler was list, Byerly transport Miller, Spangler that he was officers. the other terminated only had (Id. at 25-26, explained the 31.) funds that (Id. at transport when the for one 2. 2012 Hirings Despite laying off nine employees aged 70, 43, 66, 41, funds,1 and Gregory 38 because continued throughout 2011 to and of allegedly limited advertise 2012. hire the Sheriff employees - one 27, 2011, two days prior to the lay-offs. 8.) corrections and fact, In for early as advertisements September requesting 30, (See Doc. over additional the next eighteen corrections applications several administrative clerk. for the including one finance (See Doc. no. the three - on June 31-1 at Sheriff placed correctional no. 27-3 at 71.) hired deputies, officer, 31 at 8.) Sheriff employees no. Sheriff four 50, (Id.) open (See Doc. months, employees, officers, 2011, 54, hired officer and two deputies officer positions in the newspaper. And new The ages of the new hires were 25, 39, and 51. As 56, and an twelve one The ages of the new hires ranged from 19 to 51, and only three of the hires were over the age of 40. (Id.) Argo and Spangler testify that they were replaced by deputies with less training and experience who were significantly younger Spangler Decl. SISI 14-15.) than them. (Argo Decl. SISI 21-22; And Johnson claims that he was senior to and more qualified than his co-worker who was not terminated, Brenda Nason. 1 The record Nelson. (See Doc. (Johnson Decl. does no. not reflect 31-1 at 8.) SISI 14-15.) the age of the ninth employee, Brandi Despite not being reapply Plaintiffs aware for of the employment did not advertisements, with the Plaintiffs Sheriff's believe that they needed to did Office. reapply because when they were terminated they were not informed that they would have to reapply Decl. SI 17; argue that age if they wanted Johnson Decl. they were terminations. SISI 12-13; not discrimination return the no. to service. Spangler Decl. rehired because with (See Doc. to EEOC they SI 10.) filed shortly (Argo They claims after of their 31-1 at 29.) 3. Argo and Johnson's ADA Claims Argo and Johnson also claim that discriminated against them on the basis (See Am. Compl. hearing loss. SISI 44-61.) Gregory of their disabilities. Specifically, Johnson suffered from However, Johnson did not file ADA discrimination charges with the EEOC. the other hand, Sheriff (See Doc. no. 27-4 at 115.) Argo, on did file discrimination EEOC charges based upon his disability - colon cancer, which he was diagnosed with in 2010. Following surgery to remove the (See Argo Decl. SI 9.) cancer, Argo was out of work for approximately six weeks. (Id.) Despite undergoing chemotherapy treatments when he returned to work, Dep. his doctor did at 27-28.) initially, after not place any limitations on him. (Argo And while he did not suffer any side effects the third or experience nausea and diarrhea. fourth treatment (Id. at 28-29.) he began to His condition, however, did not have any effect on his ability to carry out his duties other than the need to be breaks. (Id. at 30, able to take frequent restroom 32.) B. Procedural Background On December 27, (Doc. no. 1.) individual 2012, The capacity Plaintiffs Sheriff claims filed on filed suit in this Court. motion 25, June a to 2013. dismiss (Doc. the no. 14.) Plaintiffs subsequently filed an Amended Complaint dropping the individual capacity claims, on July 30, 2013. which were dismissed by Court Order (Doc. nos. 17, 19.) On September 25, 2013, Sheriff Gregory filed his motion for summary judgment on all of Plaintiffs' claims. (Doc. responses has expired, no. 27.) The time for any further and the motions are ready and ripe for adjudication. II. Summary genuine 56(a). the judgment dispute entitled to SUMMARY JUDGMENT as judgment is appropriate to any material STANDARD only fact if is no and the movant is as a matter of law." "there Fed. R. Civ. P. Facts are "material" if they could affect the outcome of suit under the Liberty Lobby, Inc., governing 477 U.S. substantive 242, law. 248 (1986). Anderson v. The Court must view the facts in the light most favorable to the non-moving party, U.S. Matsushita Elec. 574, Indus. Co. v. Zenith Radio Corp., 475 587 (1986), and must draw "all justifiable inferences in [its] 1428, favor." 1437 U.S. (11th Cir. v. Four Parcels of Real 1991) (en banc) Prop., 941 F.2d (internal punctuation and citations omitted). The Court, moving by motion. How 1115 reference Celotex to proof party carry Corp. this at trial. (11th to has the initial materials v. Catrett, burden depends Fitzpatrick v. Cir. 1993) . on When burden file, 477 on of the U.S. who showing basis 317, bears City of Atlanta, the non-movant has for 323 the the the (1986). burden 2 F.3d the of 1112, burden of proof at trial, the movant may carry the initial burden in one of by two ways — negating an essential element of the non- movant' s case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. 929 F.2d 604, 1991) Clark, Inc., Adickes Corp. v. v. S.H. Kress Catrett, 606-08 & Co., 477 U.S. 398 317 (11th Cir. U.S. 144 (1986)). (1970) whether the movant has met (explaining and Celotex Before the Court can evaluate the non-movant's response in opposition, consider Coats & its it must first initial burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. City of Columbus, 120 F.3d 248, 254 (11th Cir. Jones 1997) v. (per curiam). A mere conclusory statement that the non-movant cannot meet burden at 608. the trial is insufficient. Clark, 929 F.2d at If — the and only if — non-movant may "demonstrat[ing] that bears its that precludes the initial avoid there summary burden response the movant of to burden. negating a evidence at material fact, to F.3d at 1116. material fact, by When the which the the fact tailor carried its affirmatively "must directed of by non-movant must movant non-movant a issue evidence burden, only non-movant presents the respond verdict sought to be negated." If the movant the initial judgment Id. trial, withstand trial on the material fact its indeed a material the movant sufficient 2 is method If summary judgment." proof the carries with motion at Fitzpatrick, shows an absence of evidence on a non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come withstand forward a with directed additional verdict motion alleged evidentiary deficiency." cannot carry repeating See burden conclusory Morris Rather, its v. the Ross, by non-movant F.2d must at Id. trial on the contained 1032, sufficient at 1117. relying allegations 663 evidence 1033-34 respond with based on to the The non-movant pleadings in the (11th or by complaint. Cir. affidavits 1981). or as otherwise provided by Federal Rule of Civil Procedure 56. In this action, the Clerk gave Plaintiffs appropriate notice of the motion for summary judgment and informed them of the summary judgment rules, the right to file affidavits or other materials in opposition, (Doc. no. v. are 28.) Therefore, Wainwright, and the consequences of default. the notice 772 F.2d 822, 825 requirements of Griffith (11th Cir. 1985) (per curiam), satisfied. III. Plaintiffs allege claims retaliation under the ADEA. discrimination claims address the for age In addition, under summary judgment on all first DISCUSSION the Sheriff's contention and Argo and Johnson bring ADA. of Plaintiffs' discrimination Sheriff claims. that Gregory The seeks Court will Plaintiffs' are procedurally barred before turning to Plaintiffs' claims ADEA and ADA claims. A. Administrative Exhaustion Before reaching the merits of Plaintiffs' claims, the Court must first address Sheriff Gregory's contention that Plaintiffs' claims should be dismissed because they failed to exhaust their administrative remedies.2 "In order to sue in court for violations of Title VII,3 a plaintiff must exhaust administrative remedies, which means from the EEOC." [he] must receive Wilkerson v. H & S, Inc., (11th Cir. 2010); Forehand v. Court does not address right-to-sue letter 366 Fed. Appx. 49, 50 Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1567 (11th Cir. 1996) 2 The a ("Before instituting a Title Plaintiff Johnson's ADA claim in this section. 3 The Sheriff appears to argue that the Title VII exhaustion requirements apply equally under the ADEA. Because Plaintiffs do not contest this argument, the Court applies the Title VII requirements. 10 VII action file an in EEOC federal district complaint court, against the receive statutory notice from the sue the respondent in the the expiration and no other of named 180 action days, has discriminating EEOC of his charge."). the been a private plaintiff must charge taken by or party her and right to Further, if, has not dismissed the EEOC, been the after EEOC is required to notify the claimant and that claimant may bring suit in district court within 90 days thereafter. 42 U.S.C. § 2000e- 5(f)(1). In the Eleventh Circuit, "the receipt of a right-to-sue letter is not a jurisdictional prerequisite to suit in district court, but rather, modification." is a condition precedent subject to equitable Forehand, 89 F.3d Jekyll Island-State Park Auth., 1983) ("[A]11 Title henceforth to be than VII at 1567; see 713 F.2d 1518, procedural also requirements requirements."). Here, v. 1525 (11th Cir. to viewed as conditions precedent to jurisdictional Fouche suit suit rather Plaintiffs suit before receiving their right-to-sue letters. are filed Consequently, they must rely upon equitable modification. In this case, (Doc. no. notices 1.) of Plaintiffs' approximately Plaintiffs filed suit on December 27, 2012. Less than one month later they received their right charges to sue. had (See been eighteen months Doc. pending and 11 there no. 17 before is the at 16-18.) EEOC no evidence for that Plaintiffs interfered investigate with or their charges. Accordingly, is proper, and as a result, exhausted their "the 678 1219 F.2d of a satisfies 1211, notice of (5th right-to-sue the right See Cir. letter Pinkard 1982) plaintiffs in any way v. (holding subsequent to that sue a to plaintiff before filing action under Title VII" where there was nothing to the to the but while the action remains precondition the efforts equitable modification remedies. receipt statutory EEOCs the Court finds that Plaintiffs have commencement of a Title VII action, pending, the administrative Pullman-Standard, that frustrated frustrated the obtain a civil suggest that EEOCs effort to investigate the charges); Cross v. State of Ala., State Dep't of Mental Cir. filed Health 1995) suit & Mental Retardation, 49 F.3d (equitable modification was proper more discrimination than two charge weeks with before the EEOC filing but 1490, 1504 (11th where plaintiffs their employment ultimately received their notices of right to sue approximately 60 days later); Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1063 (11th Cir. 1994) (stating that an individual's right to sue is not conditioned upon the Plaintiffs' EEOCs claims performance are not of barred for administrative remedies. B. its Age Discrimination Claims 12 administrative failure to duties). exhaust their Plaintiffs primarily assert age discrimination claims under the ADEA. fail Under the ADEA, or refuse otherwise his to hire discriminate compensation, employment, U.S.C. § illegal 229 of F.3d plaintiff relies any 1024 plaintiff employ the McDonnell-Douglas Chapman, 229 must F.3d at the ADEA, 1024. as is respect to age." Chapman v. AI (citing 29 2000) a of evidence direct claim or Hillsborough Cnty. 2008). evidence the case Bd. When a to prove here, courts burden-shifting Under this or of (11th Cir. circumstantial under with "establish Van Voorhis v. discrimination individual privileges either 1300 employer to or Cir. may through F.3d 1296, on (11th an any individual individual's A 512 for discharge 1012, discrimination Comm'rs, to conditions, such circumstantial evidence." of Cnty. is "unlawful against 623(a)(1)). age or terms, because Transport, it framework. framework, a plaintiff first establish a prima facie case of discrimination. Id. A plaintiff may do so by showing that he was (1) a member of the protected action, age (3) group, qualified (2) subjected to do the to job, an and adverse (4) employment replaced otherwise lost a position to a younger individual. In situations involving a reduction in force, by or Id. however, the employer seldom seeks a replacement for the discharged employee. Accordingly, the fourth prong of the prima facie case is altered to require that the plaintiff "produce evidence, circumstantial 13 or direct, that from which the factfinder might the employer intended decision at issue." (11th Cir. 120, 1987) 129 (citing Williams v. Gen. (5th lead a discriminate Mauter v. Hardy Corp., Cir. 1981)). discriminatory intent, could to reasonably conclude To defendant consciously relocating plaintiff factfinder refused because to his the 146 Fed. Appx. 356, 359 1557 656 F.2d requisite present evidence that conclude age, or (2) (1) the retaining consider that or the regarded age as a negative factor in its actions. Eng'g Co., the F.2d 1554, establish to of 825 reaching Motors Corp., the plaintiff must reasonable in (11th Cir. defendant Jones v. BE&K 2005). If a plaintiff successfully establishes a prima facie case, the burden of production shifts to the employer to articulate some legitimate non-discriminatory reason for its action. v. Coats This & Clark, intermediate Inc., 990 burden is F.2d 1217, 1227 "exceedingly (11th Cir. light," and Clark 1993). once the employer offers a justification, the plaintiff must prove by a preponderance of the evidence that the employer's proffered reason for its actions is pretextual and that the employer did in fact Corp., intend to discriminate. 894 F. Supp. 1573, Stone, 24 F.3d 1330, 1334 1. Prima Ward 1578 (S.D. Ga. v. 1995) (11th Cir. 1994)). Facie Case 14 Gulfstream Aerospace (citing Batey v. Plaintiffs have presented sufficient evidence a prima facie case of age discrimination. to establish Sheriff Gregory does not challenge that Plaintiffs are members of the protected class and that Rather, they were subject to an the Sheriff contends that adverse employment action. Plaintiffs were not qualified for their positions and have not produced evidence showing that he intended to discriminate. First, Peace Plaintiffs Officer extensive attended Training (See Argo Decl. The Court disagrees. and Council graduated School and from were the POST-certified. SI 3; Johnson Decl. SI 3; Spangler SI 4. ) experience with the Sheriff's Office Georgia prior Each had to their termination. Argo had been employed by the Sheriff's Office for approximately ten six. year years (Argo Decl. SISI 1, veteran with the and 5.) served as a courtroom deputy Johnson, similarly, was a fourteen- Sheriff's office and had served over ten years in his post as a civil service deputy. 1, 5.) In addition, for Spangler had been (Johnson Decl. employed with SISI the Sheriff's Office for approximately nine years and was certified as a jailer. in accident intolizer conclusory (Spangler Decl. reconstruction, 5000, and basic assertions to SISI 1, lidar, first the aid. 4.) He was also certified radar, (Id. contrary, produced or cited to any evidence that were unqualified for their positions. 15 field SI 5.) Defendants shows that sobriety, Other have than not Plaintiffs Second, evidence to Plaintiffs satisfy discriminatory Sheriff hiring have their intent. engaged in produced sufficient burden to Plaintiffs a pattern substantially younger of produce have circumstantial some evidence demonstrated firing older employees. For that employees example, of the while the ages of individuals terminated due to purported budgetary constraints were 70, 8.) At 66, 56, 54, 50, the same time, 43, the 41, ages the 2012 fiscal year were 19, 28, 34, 34, 30, 33, addition to 33, this 37, pattern, and 38. of the 19, 38, 22, 39, (See Plaintiffs no. 31 at employees hired during 23, 43, Doc. 24, 47, 25, 25, and 51. testified 26, 26, (IdJ In regarding a conversation Roger Dyals had with Kevin Barber in which Barber told Dyals that "he did not understand why Sheriff Gregory was making comments about doing something about the "old people' at the courthouse." Decl. SI 6.) bound and (Argo Decl. SI 13; Johnson Decl. SI 8; Spangler Barber said, determined to "I don't know why the Sheriff is so get rid 'greybeard, '" pointing to Argo. SI 8; Spangler Decl. SI 6.) specifically named, of you and that other (Argo Decl. SI 13; Johnson Decl. Although Johnson and Spangler are not this testimony along with the pattern of discriminatory terminations is sufficient to satisfy Plaintiffs' burden to produce some evidence of the Sheriff's discriminatory intent.4 4 Although Argo, Johnson, and Spangler testify to these remarks, Sheriff 16 2. Legitimate Nondiscriminatory Reason Because Plaintiffs Sheriff Gregory must reason for asserts the that Office year. budget is established termination was cut on of were by Because spent he terminated the majority that he facie Sheriff the $600,000 of salaries, the he case, nondiscriminatory because approximately employees' testified prima Plaintiffs. forced to lay off several employees. cuts, a articulate a legitimate, Plaintiffs budget fiscal have for Gregory Sheriff's the Sheriff's claims that 2012 Office he was In order to carry out the instructed each division chief to rank their subordinates and that the employees at the bottom of the list may lose their job. Sheriff has met his (Gregory Dep. burden of at 7.) articulating Thus, the a legitimate nondiscriminatory reason for the termination of Plaintiffs. See Chavez v. URS 821 (11th Cir. Fed. 2013) Tech. Servs., Inc., 504 Fed. Appx. 819, (finding that a budget cut was a legitimate, nondiscriminatory reason for termination). 3. Pretext Accordingly, in order to avoid summary judgment, Plaintiffs must introduce significantly probative evidence showing that the asserted Gregory challenges hearsay. the reason Court for their termination only Argo's testimony is merely regarding these pretext for statements as Thus, without resolving whether Argo's statements are admissible, finds that Johnson and statements (along with the pattern successfully prove a prima facie case. Spangler's testimony regarding these of younger hires) is sufficient (See Doc. no. 35 at 19.) 17 to discrimination. plaintiff's ultimate determining showing "The burden of proving pretext merges with the factor that a burden in his of discharge, discriminatory motivated the employer's employer's proffered proving and reason decision, explanation." that it more or was a be met by can likely than not discrediting by Clark, age the 990 F.2d at 1228. Plaintiffs must "meet the proffered reason head on and rebut it, and the employee wisdom of that Cnty., Ala., cannot reason." 446 F.3d Plaintiffs must reasonable finder articulated showing Brooks 1160, v. simply quarreling Comm'n (11th 1163 Cnty. Cir. produce sufficient of to reason fact is not "weaknesses, incoherencies, Id. succeed by of believable. that implausibilities, to may Thus, allow Sheriff They the Jefferson 2006). evidence conclude with a Gregory's do this by inconsistencies, or contradictions" in the proffered explanation. "A reason is not pretext for discrimination 'unless it is shown both that the reason was was the real reason.'" Sheriff appropriate legitimate, Gregory because false, and that discrimination Id. contends that summary Plaintiffs have not nondiscriminatory reason judgment shown his is unworthy of credence. Plaintiffs, however, present the following evidence: the budget shortfall, that is (1) despite the Sheriff hired three individuals two days prior to terminating Plaintiffs; (2) the Sheriff also hired 18 eighteen additional employees during the 2012 fiscal year; (3) the on two Sheriff from occasions; separate deviated and discriminatory The Court comments concludes his (4) that that ranking system the Sheriff evidence a Plaintiffs' at least made several discriminatory evidence is intent. significantly probative and demonstrates weaknesses and inconsistencies in the Sheriff's proffered explanation. Therefore, Plaintiffs have met their burden in demonstrating pretext. First, despite necessitated the the apparent termination of budgetary nine constraints trained and which experienced employees, the Sheriff approved the hire of three individuals on June 27, at 8.) 2011, two days prior to the layoffs. (See Doc. no. 31 The ages of the three individuals hired were 25, 39, and 51, which stands in stark contrast to the ages of the terminated employees: 70, 66, 56, 54, 50, 43, 41, and 38.5 Second, in addition (Id.) to the pre-termination hires, Sheriff Gregory continued to hire employees throughout the 2012 fiscal year despite hired six the reduced individuals deputy sheriffs part time. in (ages 26, budget. the 30, Specifically, Sheriff's 33, Office, and 37), (See Doc. no. 31 at 8.) the Sheriff including four two of which were The Sheriff also hired a finance officer, an administrative clerk, and twelve individuals in the Jails/Corrections division. (Id.) The ages 5 The record does not indicate the age of Brandi Nelson, individuals terminated on June 29, 2011. 19 (See Doc. no. 31 at 8.) of these one of the individuals were 19, 43, and 47. Third, deviated 19, 22, 23, 24, 25, 26, 28, 33, 34, 34, 38, (Id.) Plaintiffs from his presented purported different occasions. evidence ranking that system on the at Sheriff least two Sheriff Gregory testified: I asked my division chiefs, captains, supervisors not all of them were the ranking captain, but most of them are - to "rank your people, one being your best employee, one being the ones" - the bottom of the list being the ones that could potentially be let go. (Gregory Dep. at 7.) The Sheriff, however, did not follow this procedure in determining to terminate Spangler and at least one other employee for the June 29, 2011 deputy in the corrections division, layoffs. Spangler, a was ranked 22nd out of 35 and 24th out of 34 employees on separate lists made by Charles Byerly and April Palmer. not being terminated. terminated time ranked at the Although because transport (See Doc. no. bottom by either Sheriff explains the there deputies, were created any separate time. Similarly, was of any ranking list. insufficient there Gregory division chief, Captain is list Jeremy no Despite supervisor, that funds evidence he was Spangler was for two that full- Sheriff for that position at that Rogers, the investigative terminated despite not being at the bottom Indeed, the record indicates that he was responsible for creating a ranking list. When questioned, 31 at 25-26.) (Gregory Dep. at 51.) Sheriff Gregory testified that Rogers was "a 20 division chief so I probably put him on the list .... I put Jeremy Rogers Rogers was division on one of chief decision." favorable a - to the so (Id. I didn't I at ones I make laid solely off list .... would have When read in these deviations but because had 51-52.) Plaintiffs, a written to he's a make that light the from Jeremy most the Sheriff's purported ranking system can create a genuine issue of material fact of pretext. Inc., 439 judgment, F.3d See Hurlbert v. St. Mary's Health Care System, 1286, 1299 (11th Cir. 2006) (reversing summary in part because "an employer's deviation from its own standard procedures may serve as evidence of pretext"). Fourth, the discriminatory Spangler Decl. Sheriff intent. SI 6.) made multiple (Argo Decl. In sum, SI comments 13; suggesting Johnson Decl. SI a 8; Plaintiffs marshal significant circumstantial evidence that the Sheriff's budgetary explanation for the terminations proffered was legitimate terminations "head implausibilities, that discrimination. See Sheriff's for nondiscriminatory on," by would Brooks, summary 446 21 met for findings F.3d at on 1163. of the their "weaknesses, incoherencies, judgment ADEA Retaliation Claims have reason demonstrating permit discrimination claims is DENIED. C. Plaintiffs inconsistencies, contradictions" motion pretextual. pretext Therefore, Plaintiffs' ADEA or and the age Plaintiffs ADEA, alleging action against also that claims for retaliation Sheriff Gregory took an To plaintiff must statutorily employment facie case present protected action; and rehiring of conduct; that: (2) the 506 F.3d 1361, 1363 (11th Cir. under (1) he he suffered adverse related to the protected activity. Inc., in retaliation evidence (3) them employment their filing complaints of age discrimination with the EEOC. prima not adverse the for a by under retaliation establish them bring action Thomas v. the ADEA, engaged an was a in adverse causally Cooper Lighting, 2007). To satisfy the adverse employment action requirements, "the plaintiff must show that a reasonable employee would have found the challenged action materially adverse." Burlington Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006). adverse action is one that "might have N. & A materially dissuaded a reasonable worker from making or supporting a charge of discrimination." Id. "An employer's failure to recall or rehire an employee is "undoubtedly an adverse employment action' where the employee reapplied for the position after termination." Power Co., employer 282 Fed. uses Appx. formal 780, 785 (11th Cir. procedures to announce Jones v. 2008). Ala. "If the positions and identify candidates, the plaintiff cannot make out a prima facie case unless he shows that he applied for the position." Id. (citing Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768 22 (11th Cir. general 2005)). interest application is requirement." F.3d 1342, in being under to circumstances, submitting satisfy (citing Smith v. (11th Cir. such without rehired insufficient Id. 1345 Here, J. the a an application Smith Lanier & Co., 352 2003)). the parties do not dispute that Plaintiffs engaged in statutorily age "Furthermore, protected conduct discrimination. when Rather, they Sheriff filed EEOC Gregory charges contends of that Plaintiffs did not suffer any adverse employment action because they did not reapply for any positions with the Sheriff's Office after their termination despite knowing about the openings. Plaintiffs argue that they did not reapply because they were not told by the Sheriff that they needed to reapply. Decl. SI 17; Johnson Decl. SI 12; Spangler Decl. SI 10.) (See Argo Yet, when asked whether he expected to be contacted by the sheriff when a position came open, Argo testified, "No." Johnson testified told him that that he was when he was "put down (Argo Dep. at 21-22.) terminated, for rehire." Sheriff Gregory (Johnson Dep. at 21, 37.) But he didn't reapply because he "was sure they wasn't hiring." (Id. at 37.) Similarly, Spangler was told that he was eligible for rehire and that he would be "one of the first to be rehired." (Spangler Dep. others were being hired, because he was never at 14.) Despite being aware that he testified that he never reapplied contacted. 23 (Id.) Plaintiffs testified that it was their understanding that after an employee is laid off, he will later be recalled to return when the reason for the layoff no longer exists.6 Spangler Decl. SI 11.) Plaintiffs occasion, received also an a (Argo Decl. SI 18; Johnson Decl. SI 14; introduce employee telephone (Chancey Dep. at that call 8-9.) evidence had asking that been her Plaintiffs on at previously to come argue that least one terminated back taken to work. together, these facts permit a reasonable jury to find that they were not rehired in retaliation for their EEOC age discrimination charges. The Court, Sheriff's positions however, Office and used disagrees. formal identify It is undisputed that procedures candidates by to announce advertising the the open in the newspaper and requesting applications for those interested. It is also undisputed that Plaintiffs were aware that the Sheriff's Office had hired several individuals and yet they did not submit applications. Moreover, Plaintiffs have not cited to any case or provided sufficient facts that excuse their failure to apply. Ms. Chancey's testimony - that one terminated employee received a call back - is insufficient by itself to create a genuine factual dispute that Sheriff Gregory had a standard practice of 6 Plaintiffs assert without citation that it is a "consistent practice with most workplaces when individuals are laid off" for employers to call them on the telephone and not require them to reapply. (Doc. no. 31-1 at 29.) 24 recalling previously terminated employees without having them reapply. Although Plaintiffs were not told that they needed to reapply,7 "[i]t is not unfair or unduly burdensome to expect a plaintiff to prerequisite submit for Janssen Ortho, absence of an application stating LLC, 467 evidence standard practice of a for that failure-to-hire F.3d 802, either 808 that claim." (1st Cir. the vacancy recalling previously In Office terminated a Velez 2006). Sheriff's as v. the had a employees without having them reapply or they were told that they need not reapply, Plaintiffs have not shown that they suffered any adverse employment action and thus cannot make out a prima facie case of retaliation. Consequently, See Jones, 282 Fed. Appx. at 785. summary judgment in favor of Sheriff Gregory is appropriate on Plaintiffs' ADEA retaliation claims. D. ADA Claims Argo and Johnson also allege claims under the ADA. The Court addresses each of these below. 1. Johnson's ADA Claims Johnson alleges that he was laid off because of his age, but also 11.) because of his hearing impairment. (See Johnson Dep. at Thus, be believes he is entitled to recover under the ADA. 7 The Court notes that Sheriff Gregory Plaintiffs were told that they could reapply. testified that each (Gregory Dep. at 27.) of the While this testimony is not necessarily inconsistent with Plaintiffs' declarations, the Court, nevertheless, accepts Plaintiffs' testimony as true and construes all reasonable inferences in their favor. 25 (See Am. Compl. ADA claims are administrative (Doc. no. SISI 44-61.) barred remedies 31-1 However, at because by 30.) filing Johnson he an did ADA Accordingly, concedes not charge exhaust with Johnson's that ADA the his his EEOC. claims are DISMISSED. 2. Argo cancer Argo's ADA Claims also in alleges violation of that Sheriff Gregory. stated that he going to get was the ADA. cites to three statements, by he terminated In support of First, Argo of to his his colon claim, Argo two made by Amanda Crosby and one made Crosby told Argo did not care what Argo was rid due no matter what. that the Sheriff going through, (Argo Decl. he was SI 12.) Second, Crosby testified in her deposition that: [Sheriff Gregory said] if he couldn't come work and do a hundred percent of his job back then to he needed to be gone from here, and I said, "Well, you know, he's going to get treatments; he's coming to work." I said, "We were trying to help him out at the front desk and give him light duty, you know, so that way he can work," and that was unacceptable. I was told if he couldn't go [sic] his job a [sic] one hundred percent, then he needed to go to the house. (Crosby Dep. at 93.)8 "was not 100% And third, the Sheriff testified that Argo of the Argo that I knew him before the treatments or after the treatments. I mean, it did take its toll on him." (Gregory Dep. at 27-28.) Argo, without explanation or citation, 8 Crosby's deposition was not on record in this case. Although the Sheriff argues that it is therefore outside of the Court's consideration, the Court need not decide this issue as it finds that Argo's claim fails. 26 concludes that this "ultimate inquiry" considered Argo's evidence - creates whether disability in a jury Sheriff his question Gregory determination on the improperly to terminate him. The Court finds Argo's response to Sheriff Gregory's summary judgment motion deficient. brief, Argo alone never explain, claims, the as to the proper any provide contention that argument makes In his response slightest legal citations brief attempt standards to cases to this testimony provide, in satisfies apathetically claims that this scattered ADA of his formulate his burden, record let his support respond to the arguments presented by Sheriff Gregory. Argo sur-reply governing summary judgment is inappropriate, how and any or Rather, evidence answers the "ultimate inquiry." There is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment. Blue Cross Weitz, 913 F.2d 1544, 1550 (11th Cir. 1990). upon the parties to formulate arguments. & Blue Shield v. Rather, the onus is Road Sprinkler Fitters Local Union No. 669 v. Indep. Sprinkler Corp., 10 F.3d 1563, 1568 (11th Cir. 1994). "[T]he court is under no duty to exercise imagination and conjure what a plaintiff might have alleged, but did not, and do counsel's work him or her." Pinto v. Universidad De Puerto Rico, 895 F.2d 18, 19 (1st Cir. 1990). 27 "It is not for the court Bowden 1228, ex manufacture rel. 1236 arguments its to Bowden (M.D. Ala. propounded peril, v. inasmuch arguments Wal-Mart 2000). by as its this A on Stores, Inc., litigant adversary Court Plaintiff's who "adopts will not 124 fails this behalf." F.Supp.2d to rebut strategy formulate a at party's arguments for it." Morgan v. N. Miss. Med. Ctr., Inc., 403 F.Supp. 2d 1115, 2005). 1120 (S.D. Ala. Simply put, material claims fact fail Argo has failed to establish a genuine issue of for and jury the resolution. Sheriff's Consequently, motion for summary Argo's judgment ADA is GRANTED. IV. For the reasons set CONCLUSION forth above, for summary judgment (doc. no. 27) IN PART. This case shall Sheriff Gregory's motion is GRANTED IN PART AND DENIED proceed to trial on Plaintiffs' age discrimination claims. ORDER ENTERED at Augusta, Georgia, this / O*^ day of September, 2014. STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 28
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