throbber
Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 1 of 32
`
`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE SOUTHERN DISTRICT OF GEORGIA
`
`BRUNSWICK DIVISION
`
`CV 212-207
`
`*
`
`* *
`
`*
`
`*
`
`*
`
`*
`
`* *
`
`*
`
`ROGER DYALS and
`DEE GRANT PORTER,
`
`Plaintiffs,
`
`v.
`
`Sheriff TOMMY J. GREGORY,
`in his official capacity,
`
`Defendant.
`
`ORDER
`
`Presently
`
`before
`
`the
`
`Court
`
`is
`
`Defendant
`
`Sheriff
`
`Tommy
`
`Gregory's ("Sheriff") motion for summary judgment and Plaintiffs
`
`Roger Dyals and Dee Grant Porter's (collectively,
`
`"Plaintiffs")
`
`motion to amend.1
`
`(Doc. nos. 31, 52.)
`
`The Sheriff seeks summary
`
`judgment on all of Plaintiffs' claims, and Plaintiffs seek to
`
`attach two exhibits to their response in opposition to summary
`
`judgment.
`
`Plaintiffs,
`
`former deputies
`
`in the Camden County
`
`Sheriff's Office ("Sheriff's Office"), were terminated on June
`
`29, 2011, as part of a reduction in force purportedly because of
`
`a
`
`limited
`
`budget.
`
`However,
`
`they
`
`allege
`
`that
`
`they
`
`were
`
`discriminated against on the basis of their age and retaliated
`
`against in violation of
`
`the Age Discrimination in Employment
`
`Act, 29 U.S.C.
`
`§ 621, et seq.
`
`(WADEA").
`
`Additionally,
`
`Dyals
`
`\
`
`1
`This Order amends the Court's previous Order entered on September 5,
`2014. (Doc. no. 64.)
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 2 of 32
`
`claims that he is entitled to unpaid overtime and was retaliated
`
`against in violation of the Fair Labor Standards Act, 29 U.S.C.
`
`§ 201 et seq.
`
`("FLSA").
`
`As
`
`discussed below,
`
`the Sheriff's
`
`motion for summary judgment is GRANTED IN PART AND DENIED IN
`
`PART and Plaintiffs' motion to amend is GRANTED.
`
`I. BACKGROUND
`
`A. Factual Background
`
`1. Plaintiffs' Employment History and Terminations
`
`This case arises out of Plaintiffs'
`
`employment as deputy
`
`sheriffs with the Sheriff's Office.
`
`Dyals was hired in November
`
`2002 by former Sheriff Bill Smith as a Lieutenant Operations
`
`Officer.
`
`(Dyals Dep. at 11.)
`
`Dyals remained in that position
`
`until 2009 at which time he was promoted to Captain.
`
`(Id. at
`
`14.)
`
`When Sheriff Gregory was elected in 2009 and assumed
`
`office,
`
`there was a period of
`
`reorganization that saw Dyals
`
`reassigned and demoted to a deputy fleet manager.
`
`(Id. at 16-
`
`18.)
`
`This also resulted in a decrease in pay.
`
`(Id. at 18.)
`
`Dyals testified that the Sheriff told him, "Well, you either
`
`accept it or you can go home."
`
`(Id.)
`
`In January 2010, he was
`
`again reassigned, this time as a courtroom deputy.
`
`(Id. at 20.)
`
`This
`
`transfer resulted in another reduction in pay.
`
`(Id.)
`
`Dyals remained in this position until his termination.
`
`(See
`
`Doc. no. 31-1 81 4.)
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 3 of 32
`
`Porter, likewise, was hired by Sheriff Smith in March 2005.
`
`(Porter Dep. at 11.)
`
`He was originally hired as a paramedic in
`
`the Jail/Corrections Division.
`
`(Id.)
`
`Porter remained in this
`
`position until
`
`September 2009 when Sheriff Gregory made
`
`the
`
`decision to contract out the medical care to a private company
`
`in order to save money.
`
`(Id. at 17.)
`
`At that time, Porter was
`
`reassigned as a deputy to the special operations unit.
`
`(Id. at
`
`21.)
`
`Porter excelled at this position, drawing high praise and
`
`excellent
`
`performance
`
`evaluations
`
`from his
`
`supervisor,
`
`Kevin
`
`Chaney.
`
`(See Doc. no.
`
`37-1 at 63.)
`
`Porter remained in this
`
`position until he was terminated.
`
`(See Doc. no. 31-1 SI 5.)
`
`On
`
`June
`
`29,
`
`2011,
`
`Plaintiffs,
`
`along
`
`with
`
`seven
`
`other
`
`employees, were laid off.
`
`(See Doc. no. 37-1 at 54.)
`
`At the
`
`time of their termination, Dyals was 66 and Porter was 50 years
`
`old.
`
`(See Doc. no. 41-1 at 15.)
`
`Sheriff Gregory contends that
`
`the
`
`lay-offs
`
`were necessary due
`
`to
`
`"budgetary
`
`constraints."
`
`(Doc.
`
`no.
`
`37-1 at 54.)
`
`Apparently,
`
`the Sheriff requested a
`
`budget for the 2012 fiscal year of approximately $8 million, but
`
`the Camden County Board of Commissioners approved a budget for
`
`the Sheriff's Office (including the Jail/Corrections division)
`
`of only $5.5 million.
`
`(Fender Dep. at 12.)
`
`Michael Fender, the
`
`Director
`
`of
`
`Finance
`
`for
`
`Camden
`
`County,
`
`testified
`
`that
`
`this
`
`represented a decrease of approximately $600,000 from the 2011
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 4 of 32
`
`budget.
`
`(Id.)
`
`Plaintiffs argue the decrease was far less, only
`
`$164,170.
`
`(See Doc. no. 41-1 at 29.)
`
`Sheriff Gregory explains that once he determined that lay
`
`offs were necessary, he asked each division leader to rank his
`
`or her employees.
`
`(Gregory Dep.
`
`at
`
`62.)
`
`Purportedly,
`
`the
`
`employees at the bottom of each list were those at risk of being
`
`terminated.
`
`(Id.)
`
`Lori Whitlow,
`
`the Executive Administrative
`
`Assistant to Sheriff Gregory, supervised the courthouse security
`
`division.
`
`(Whitlow Aff. g[g[ 2, 4.)
`
`She testified that in making
`
`her list, she considered an employee's work history, attendance,
`
`and any disciplinary actions.
`
`(Id.
`
`31
`
`9.)
`
`Applying these
`
`criteria, Dyals ranked at the bottom of his division.
`
`(Id. St
`
`10.)
`
`Unlike Whitlow, however, Kevin Chaney, special operations
`
`commander, ranked his employees solely on one factor: seniority.
`
`(Chaney Dep. at 13.)
`
`Consequently, because Porter was the last
`
`individual
`
`to
`
`join the
`
`special
`
`operations
`
`division,
`
`he was
`
`ranked last.
`
`(Id.)
`
`2. 2012 Hi rings
`
`Despite laying off nine employees aged 70, 66, 56, 54, 50,
`
`43,
`
`41,
`
`and 38 because of allegedly limited funds,2 Sheriff
`
`Gregory
`
`continued
`
`to advertise
`
`for
`
`and hire new employees
`
`throughout 2011 and 2012.
`
`In fact,
`
`the Sheriff hired three
`
`2 Although Plaintiffs'
`asserts that Brandi Nelson,
`does not reflect her age.
`
`summary judgment
`reply to Sheriff's motion for
`the ninth employee,
`is *age under 40",
`the record
`(See Doc. no. 40-2 at 5 and Doc. no. 41-1 at 15.)
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 5 of 32
`
`employees - one corrections officer and two deputies - on June
`
`27, 2011, two days prior to the lay-offs.
`
`(See Doc. no. 41-1 at
`
`15.)
`
`The ages of the new hires were 25, 39, and 51.
`
`(Id.)
`
`As
`
`early
`
`as
`
`September
`
`30,
`
`2011,
`
`the
`
`Sheriff
`
`placed
`
`advertisements
`
`requesting
`
`applications
`
`for
`
`open
`
`Correctional
`
`Officer positions in the newspaper.
`
`(See Doc. no. 36-2 at 45.)
`
`And
`
`over
`
`the
`
`next
`
`several
`
`months,
`
`the
`
`Sheriff
`
`hired
`
`an
`
`additional eighteen employees,
`
`including four deputies,
`
`twelve
`
`corrections
`
`officers,
`
`one
`
`finance
`
`officer,
`
`and
`
`one
`
`administrative clerk.
`
`(Id.)
`
`The ages of the new hires ranged
`
`from 19 to 51, and only three of the hires were over the age of
`
`40.
`
`(Id.)
`
`Dyals alleges that he was replaced by a deputy with
`
`less training and experience who was significantly younger than
`
`him.
`
`(Dyals Decl. SIS!
`
`16-17.)
`
`And although an employee was not
`
`hired to replace Porter,
`
`Brittany Barnes was transferred into
`
`the special operations division upon Chaney's request.
`
`(Chaney
`
`Dep. at 25.)
`
`Despite being aware of the advertisements,
`
`Plaintiffs did
`
`not
`
`reapply
`
`for
`
`employment
`
`with
`
`the
`
`Sheriff's
`
`Office.
`
`Plaintiffs did not believe that they needed to reapply because
`
`when they were terminated they were told that they were *subject
`
`to recall."
`
`(Porter Decl. SI 10; Dyals Decl. SI 13.)
`
`They were
`
`not informed that if
`
`they wanted to return to
`
`service,
`
`they
`
`would have to reapply.
`
`(Porter Decl. SI 9; Dyals Decl. SI 12.)
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 6 of 32
`
`They allege that they were not rehired because they filed claims
`
`of
`
`age
`
`discrimination
`
`with
`
`the
`
`EEOC
`
`shortly
`
`after
`
`their
`
`terminations.
`
`(See Doc. no. 50-1 at 2.)
`
`3. Dyals' Unpaid Overtime
`
`Dyals also claims that Sheriff Gregory refused to pay him
`
`for overtime hours he worked.
`
`Dyals testified that due to the
`
`strained budget, Sheriff's Office employees were instructed not
`
`to record overtime hours on their timesheets.
`
`(Dyals Dep. at
`
`68.)
`
`Instead, they were told to record any hours beyond forty
`
`that they worked during a given week in a personal notebook and
`
`that they would receive "comp time" in lieu of compensation.
`
`(Id. at 68, 71-72,
`
`87.)
`
`Employees were then supposed to take
`
`off any "cornp time" at the end of the week.
`
`(Dyals Dep. at 87.)
`
`However, as a result of being understaffed, Dyals was unable to
`
`use
`
`his
`
`"comp
`
`time."
`
`(Id.)
`
`By January
`
`2010,
`
`Dyals
`
`had
`
`accumulated approximately 50.5 hours of
`
`"comp time."
`
`(Id. at
`
`99.)
`
`When he approached the Sheriff about taking some of this
`
`time,
`
`the
`
`Sheriff
`
`stated that he would
`
`"have
`
`to
`
`eat
`
`those
`
`overtime hours."
`
`(Id.)
`
`B. Procedural Background
`
`On December 12, 2012, Plaintiffs filed suit in this Court.
`
`(Doc. no. 1.)
`
`On September 20, 2013, Sheriff Gregory filed his
`
`motion for summary judgment on all of Plaintiffs' claims.
`
`(Doc.
`
`no.
`
`31.)
`
`Plaintiffs
`
`filed their response
`
`in
`
`opposition to
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 7 of 32
`
`summary judgment on October 11, 2013.
`
`(Doc. nos. 40-45.)
`
`And
`
`the
`
`Sheriff
`
`replied on October
`
`25,
`
`2013.
`
`(Doc.
`
`no.
`
`48.)
`
`Plaintiffs filed a sur-reply brief on November 7, 2013, and a
`
`motion to amend their response in opposition to summary judgment
`
`on November 27,
`
`2013.
`
`(Doc. nos.
`
`50,
`
`52.)
`
`The time for any
`
`further responses has expired,
`
`and the motions are ready and
`
`ripe for adjudication.
`
`II. MOTION TO AMEND
`
`Plaintiffs seek to amend their response in opposition to
`
`summary
`
`judgment by
`
`attaching
`
`an
`
`exhibit
`
`and
`
`affidavit
`
`in
`
`support
`
`of
`
`their
`
`brief.
`
`Sheriff
`
`Gregory
`
`has
`
`not
`
`opposed
`
`Plaintiffs' motion to amend.
`
`Consequently,
`
`Plaintiffs' motion
`
`(doc. no. 52) is GRANTED.
`
`III. SUMMARY JUDGMENT STANDARD
`
`Summary
`
`judgment
`
`is
`
`appropriate
`
`only
`
`if
`
`"there
`
`is
`
`no
`
`genuine dispute as
`
`to any material
`
`fact
`
`and the movant
`
`is
`
`entitled to judgment as a matter of
`
`law."
`
`Fed.
`
`R.
`
`Civ.
`
`P.
`
`56(a).
`
`Facts are "material" if they could affect the outcome of
`
`the suit under
`
`the governing substantive
`
`law.
`
`Anderson v.
`
`Liberty Lobby,
`
`Inc., 477 U.S. 242, 248 (1986) .
`
`The Court must
`
`view the facts in the light most favorable to the non-moving
`
`party, Matsushita Elec.
`
`Indus. Co. v. Zenith Radio Corp.,
`
`475
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 8 of 32
`
`U.S. 574, 587 (1986), and must draw "all justifiable inferences
`
`in [its] favor."
`
`U.S. v. Four Parcels of Real Prop., 941 F.2d
`
`1428,
`
`1437 (11th Cir. 1991)
`
`(en banc)
`
`(internal punctuation and
`
`citations omitted).
`
`The moving party has the initial burden of showing the Court, by
`
`reference
`
`to
`
`materials
`
`on
`
`file,
`
`the
`
`basis
`
`for
`
`the
`
`motion.
`
`Celotex Corp.
`
`v.
`
`Catrett,
`
`477 U.S.
`
`317,
`
`323
`
`(1986).
`
`How to
`
`carry this burden depends on who bears the burden of proof at
`
`trial.
`
`Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th
`
`Cir.
`
`1993) .
`
`When the non-movant has the burden of proof at
`
`trial,
`
`the movant may carry the initial burden in one of two
`
`ways — by 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. Coats & Clark,
`
`Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickes
`
`v . S.H. Kress & Co., 398 U.S. 144 (1970) and Celotex Corp. v,
`
`Catrett,
`
`477 U.S.
`
`317
`
`(1986)).
`
`Before the Court can evaluate
`
`the non-movant's response in opposition, it must first consider
`
`whether the movant has met its 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.
`
`Jones v. City of
`
`Columbus, 120 F.3d 248, 254 (11th Cir. 1997) (per curiam).
`
`A
`
`mere conclusory statement that the non-movant cannot meet the
`
`burden at trial is insufficient.
`
`Clark, 929 F.2d at 608.
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 9 of 32
`
`If — and only if — the movant carries its initial burden,
`
`the
`
`non-movant
`
`may
`
`avoid
`
`summary
`
`judgment
`
`only
`
`by
`
`"demonstrat[ing] that there is indeed a material issue of fact
`
`that precludes summary judgment."
`
`Id.
`
`When the non-movant
`
`bears the burden of proof at trial, the non-movant must tailor
`
`its
`
`response to
`
`the method by which the movant carried its
`
`initial burden.
`
`If the movant presents evidence affirmatively
`
`negating a material
`
`fact,
`
`the non-movant
`
`"must
`
`respond with
`
`evidence sufficient to withstand a directed verdict motion at
`
`trial on the material fact sought to be negated."
`
`Fitzpatrick,
`
`2 F.3d at 1116.
`
`If the movant shows an absence of evidence on a
`
`material fact, the non-movant must either show that the record
`
`contains evidence that was "overlooked or ignored" by the movant
`
`or
`
`"come
`
`forward
`
`with
`
`additional
`
`evidence
`
`sufficient
`
`to
`
`withstand
`
`a
`
`directed verdict
`
`motion
`
`at
`
`trial
`
`based on the
`
`alleged evidentiary deficiency."
`
`Id. at 1117.
`
`The non-movant
`
`cannot
`
`carry
`
`its
`
`burden by relying on the pleadings
`
`or by
`
`repeating conclusory allegations
`
`contained in
`
`the
`
`complaint.
`
`See Morris v.
`
`Ross,
`
`663 F.2d 1032,
`
`1033-34
`
`(11th Cir.
`
`1981).
`
`Rather,
`
`the
`
`non-movant
`
`must
`
`respond with
`
`affidavits
`
`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
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 10 of 32
`
`other materials in opposition, and the consequences of default.
`
`(Doc. no.
`
`32.)
`
`Therefore, the notice requirements of Griffith
`
`v. Wainwright, 772 F.2d 822,
`
`825 (11th Cir. 1985)
`
`(per curiam),
`
`are satisfied.
`
`IV. DISCUSSION
`
`Plaintiffs
`
`allege
`
`claims
`
`for
`
`age
`
`discrimination
`
`and
`
`retaliation under the ADEA.
`
`In addition,
`
`Dyals brings claims
`
`under the FLSA for unpaid overtime and retaliation.
`
`Sheriff
`
`Gregory seeks summary judgment on all of
`
`Plaintiffs'
`
`claims.
`
`The Court
`
`will
`
`first
`
`address
`
`Plaintiffs'
`
`age
`
`discrimination
`
`claim before turning to Plaintiffs' ADEA retaliation claim and
`
`Dyals' claims under the FLSA.
`
`A. Age Discrimination Claims
`
`Plaintiffs primarily assert age discrimination claims under
`
`the ADEA.
`
`Under the ADEA, it is "unlawful for an employer to
`
`fail
`
`or
`
`refuse
`
`to
`
`hire
`
`or
`
`to
`
`discharge
`
`any
`
`individual
`
`or
`
`otherwise discriminate against any individual with respect to
`
`his
`
`compensation,
`
`terms,
`
`conditions,
`
`or
`
`privileges
`
`of
`
`employment, because of such individual's age."
`
`Chapman v. AI
`
`Transport,
`
`229
`
`F.3d 1012,
`
`1024
`
`(11th Cir.
`
`2000)
`
`(citing 29
`
`U.S.C.
`
`§ 623(a)(1)).
`
`A plaintiff may "establish a claim of
`
`illegal
`
`age discrimination through either direct evidence or
`
`circumstantial evidence."
`
`Van Voorhis v. Hillsborough Cnty. Bd.
`
`10
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 11 of 32
`
`of Cnty. Comm'rs, 512 F.3d 1296, 1300 (11th Cir. 2008).
`
`When a
`
`plaintiff
`
`relies
`
`on
`
`circumstantial
`
`evidence
`
`to
`
`prove
`
`discrimination under
`
`the ADEA,
`
`as
`
`is
`
`the
`
`case here,
`
`courts
`
`employ
`
`the
`
`McDonnell-Douglas
`
`burden-shifting
`
`framework.
`
`Chapman,
`
`229 F.3d at 1024.
`
`Under this framework,
`
`a plaintiff
`
`must 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 age group,
`
`(2)
`
`subjected to an adverse employment
`
`action,
`
`(3) qualified to do the job,
`
`and (4) replaced by or
`
`otherwise lost a position to a younger individual.
`
`Id.
`
`"In situations involving a reduction in force, 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
`
`or direct,
`
`from which the factfinder might reasonably conclude
`
`that
`
`the
`
`employer
`
`intended
`
`to
`
`discriminate
`
`in reaching
`
`the
`
`decision at issue.'"
`
`Mauter v. Hardy Corp., 825 F.2d 1554, 1557
`
`(11th Cir. 1987) (citing Williams v. Gen. Motors Corp., 656 F.2d
`
`120,
`
`129
`
`(5th
`
`Cir.
`
`1981)).
`
`To
`
`establish
`
`the
`
`requisite
`
`discriminatory intent, the plaintiff must present evidence that
`
`could lead a
`
`reasonable factfinder to conclude that
`
`(1)
`
`the
`
`defendant
`
`consciously
`
`refused
`
`to
`
`consider
`
`retaining
`
`or
`
`relocating plaintiff because of his age, or
`
`(2)
`
`the defendant
`
`11
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 12 of 32
`
`regarded age as a negative factor in its actions.
`
`Jones v. BE&K.
`
`Eng'g Co., 146 Fed. Appx. 356, 359 (11th Cir. 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.
`
`Clark
`
`v. Coats & Clark,
`
`Inc.,
`
`990 F.2d 1217,
`
`1227
`
`(11th Cir.
`
`1993).
`
`This intermediate burden is
`
`"exceedingly light," and 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 intend to discriminate.
`
`Ward v.
`
`Gulfstream Aerospace
`
`Corp., 894 F. Supp. 1573, 1578 (S.D. Ga. 1995) (citing Batey v.
`
`Stone, 24 F.3d 1330, 1334 (11th Cir. 1994)).
`
`1. Prima Facie Case
`
`The
`
`Court
`
`determines
`
`that
`
`Plaintiffs
`
`have
`
`presented
`
`sufficient
`
`evidence
`
`to
`
`establish a prima
`
`facie case of
`
`age
`
`discrimination.
`
`Sheriff
`
`Gregory
`
`does
`
`not
`
`challenge
`
`that
`
`Plaintiffs are members of the protected class and that they were
`
`subject to an adverse employment action.
`
`Rather, the Sheriff
`
`contends that Plaintiffs were not qualified for their positions
`
`and have not produced evidence showing that he intended to
`
`discriminate.
`
`The Court disagrees.
`
`First, Plaintiffs received
`
`exemplary evaluations or reviews both prior and subsequent to
`
`12
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 13 of 32
`
`their terminations.
`
`On April 1,
`
`2011, Kevin Chaney wrote the
`
`following regarding Porter:
`
`and mission
`task
`every
`completed
`successfully
`You
`given without flaw.
`Your dedication to drug diversion
`investigations is truly remarkable.
`
`Deputy
`and tenacious
`tireless
`you are a
`[Porter],
`Sheriff who shows a lot of initiative and takes pride
`in
`this
`profession.
`Your
`superb
`performance
`and
`dedication
`to
`excellence have been
`instrumental
`in
`accomplishing the department's mission.
`Your spirit
`of teamwork truly reflects the standard sought by the
`Special Operations Team.
`
`(Doc. no. 37-1 at 63.)
`
`Regarding Dyals, Deborah Young,
`
`his
`
`immediate supervisor,
`
`testified that he was
`
`"a good worker."
`
`(Young Dep. at 30.)
`
`After he was terminated, she called Dyals
`
`and told him that the Sheriff "was messing up" because Dyals was
`
`"her
`
`best
`
`full time worker."
`
`(Dyals
`
`Decl.
`
`SI
`
`4.)
`
`This
`
`is
`
`sufficient to create a genuine dispute of fact that they were
`
`qualified to serve in their positions.
`
`See Ross v.
`
`Rhodes
`
`Furniture, Inc., 146 F.3d 1286, 1290 (11th Cir. 1998)
`
`("Given
`
`the glowing evaluations [the plaintiff] received prior to being
`
`discharged,
`
`he
`
`was
`
`certainly qualified
`
`to
`
`serve
`
`as
`
`[the
`
`defendant's] delivery manager.").
`
`Second, Plaintiffs have produced sufficient circumstantial
`
`evidence to satisfy their burden to produce some evidence of
`
`discriminatory intent.
`
`Dyals testified that it was relayed to
`
`him that in a meeting Sheriff Gregory stated, "Why would I get
`
`rid of a younger deputy when I can get rid of a Bill Argo or
`
`13
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 14 of 32
`
`Roger Dyals?"3
`
`(Dyals Dep.
`
`at
`
`47.)
`
`Dyals
`
`also testified
`
`regarding a
`
`conversation he 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."
`
`(Dyals Decl.
`
`f 8.) Barber said, "I
`
`don't know why the Sheriff is so bound and determined to get rid
`
`of you and that other
`
`'greybeard,'" pointing to Argo.
`
`(Id.)
`
`Although Porter
`
`is not specifically named,
`
`this testimony is
`
`sufficient
`
`to
`
`satisfy Plaintiffs'
`
`burden
`
`to
`
`produce
`
`some
`
`evidence of the Sheriff's discriminatory intent.4
`
`2. Legitimate Nondiscriminatory Reason
`
`Because Plaintiffs have established a
`
`prima
`
`facie case,
`
`Sheriff Gregory must articulate a
`
`legitimate nondiscriminatory
`
`reason for the termination of Dyals and Porter.
`
`Sheriff Gregory
`
`asserts
`
`that Plaintiffs were terminated because the Sheriff's
`
`Office budget was cut by approximately $600,000 for
`
`the 2012
`
`fiscal year.
`
`Because
`
`the majority of
`
`the Sheriff's Office
`
`budget
`
`is spent on employees' salaries, he claims
`
`that he was
`
`forced to lay off several employees.
`
`In order to carry out
`
`the
`
`cuts, he testified that he instructed each division chief
`
`to
`
`3 At the time of their terminations, Argo was 70 years old and Dyals was
`66 years old.
`(Doc. no. 41-1 at 15.)
`testify to these remarks, Sheriff
`4 Although both Dyals
`and Porter
`Gregory challenges only Porter's
`testimony regarding these statements as
`hearsay.
`Thus, without resolving whether Porter's statements are admissible,
`the Court
`finds
`that Dyals'
`testimony
`regarding
`these
`statements
`is
`sufficient
`to successfully prove a prima facie case.
`(See Doc. no. 31-2 at
`12; Doc. no. 48 at 11.)
`
`14
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 15 of 32
`
`rank their subordinates and that the employees at the bottom of
`
`the list may lose their job.
`
`(Gregory Dep. at 62.)
`
`Thus, the
`
`Sheriff
`
`has
`
`met
`
`his
`
`burden
`
`of
`
`articulating
`
`a
`
`legitimate
`
`nondiscriminatory reason for the termination of Plaintiffs.
`
`See
`
`Chavez v. URS Fed. Tech. Servs.,
`
`Inc., 504 Fed. Appx. 819, 821
`
`(11th Cir.
`
`2013)
`
`(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 reason for
`
`their
`
`termination is merely pretext
`
`for
`
`discrimination.
`
`"The burden of proving pretext merges with the
`
`plaintiff's
`
`ultimate
`
`burden
`
`of
`
`proving
`
`that
`
`age
`
`was
`
`a
`
`determining
`
`factor
`
`in
`
`his
`
`discharge,
`
`and it
`
`can be met by
`
`showing
`
`that
`
`a
`
`discriminatory
`
`reason
`
`more
`
`likely
`
`than
`
`not
`
`motivated
`
`the
`
`employer's
`
`decision,
`
`or
`
`by
`
`discrediting
`
`the
`
`employer's proffered explanation."
`
`Clark,
`
`990 F.2d at 1228.
`
`Plaintiffs must "meet the proffered reason head on and rebut it,
`
`and the employee cannot succeed by simply quarreling with the
`
`wisdom of that reason."
`
`Brooks v.
`
`Cnty. Comm'n of Jefferson
`
`Cnty.,
`
`Ala.,
`
`446 F.3d 1160,
`
`1163
`
`(11th Cir.
`
`2006).
`
`Thus,
`
`Plaintiffs
`
`must
`
`produce
`
`sufficient
`
`evidence
`
`to
`
`allow
`
`a
`
`reasonable finder of
`
`fact to conclude that Sheriff Gregory's
`
`articulated reason is
`
`not believable.
`
`They may do
`
`this by
`
`15
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 16 of 32
`
`showing
`
`"weaknesses,
`
`implausibilities,
`
`inconsistencies,
`
`incoherencies, or contradictions" in the proffered explanation.
`
`Id.
`
`"A reason is not pretext for discrimination unless it is
`
`shown both that the reason was false, and that discrimination
`
`was the real reason."
`
`Id.
`
`Sheriff
`
`Gregory
`
`contends
`
`that
`
`summary
`
`judgment
`
`is
`
`appropriate because Plaintiffs' evidence of pretext is nothing
`
`more than a "weak, amorphous whiff of discrimination."
`
`Bell v.
`
`Crowne Mgmt. , LLC, 844 F. Supp. 2d 1222, 1234 (S.D. Ala. 2012) .
`
`Plaintiffs,
`
`however,
`
`present the
`
`following evidence:
`
`(1)
`
`the
`
`severity of the budgetary shortfall was significantly less than
`
`what
`
`the
`
`Sheriff
`
`represented;
`
`(2)
`
`the
`
`Sheriff
`
`hired
`
`three
`
`individuals two days prior to terminating Plaintiffs;
`
`(3)
`
`the
`
`Sheriff also hired eighteen additional employees during the 2012
`
`fiscal year; (4) the Sheriff deviated from his ranking system on
`
`at
`
`least
`
`three
`
`separate
`
`occasions;
`
`and
`
`(5)
`
`the
`
`Sheriff's
`
`discriminatory comments.
`
`The Court concludes that Plaintiffs'
`
`evidence is significantly probative and demonstrates weaknesses
`
`and
`
`inconsistencies
`
`in
`
`the
`
`Sheriff's
`
`proffered
`
`explanation.
`
`Therefore,
`
`Plaintiffs have met their burden in demonstrating
`
`pretext.
`
`First, the record belies the Sheriff's contention that the
`
`Sheriff's Office budget for 2012 was
`
`$600,000 less
`
`than the
`
`previous year.
`
`Budget documents presented by Plaintiffs and
`
`16
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 17 of 32
`
`Fender
`
`show that
`
`the Sheriff's Office budget was $3,283,220 in
`
`2012.
`
`(See Doc. no. 34-2 at 46; Doc. no. 41-1 at 29.)
`
`This is
`
`a decrease of $164,170 - not $600,000.5
`
`(Doc. no. 34-2 at 46.)
`
`Second, despite the apparent budgetary constraints which
`
`necessitated the termination of nine
`
`trained and experienced
`
`employees,
`
`the Sheriff approved the hire of three individuals on
`
`June 27, 2011,
`
`two days prior to the layoffs.
`
`(See Doc. no. 41-
`
`1 at 15.)
`
`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 38.6
`
`(Id.)
`
`When asked to explain, Sheriff Gregory testified that
`
`the hiring
`
`process for
`
`these three individuals could have begun up to two
`
`weeks in advance, and during that time, he received word that he
`
`would not
`
`receive
`
`the
`
`full
`
`budget
`
`that
`
`he
`
`had
`
`requested.
`
`(Gregory Dep.
`
`at
`
`198-99.)
`
`However,
`
`based
`
`on
`
`the
`
`budget
`
`documents, it should not have come as a surprise to the Sheriff
`
`that
`
`the
`
`adopted
`
`budget
`
`(for
`
`the Sheriff's Office
`
`and
`
`Jail/Corrections) was well
`
`short of his request.
`
`The
`
`record
`
`5 It appears that the Sheriff cites to the adopted budget for 2012 which
`combines
`the budgets
`for both the Sheriff's Office and Jails/Corrections.
`When combined,
`these budgets total $5,502,118.
`(See Doc. no. 34-2 at 46.)
`However, after analyzing the budget documents provided,
`the Court believes
`that
`the relevant budget
`is that allocated only to the Sheriff's Office for
`several
`reasons.
`First, Plaintiffs'
`salaries were
`funded
`through
`the
`Sheriff's Office budget.
`Second,
`the Court is unaware of any testimony that
`the Sheriff can commingle or transfer funds allocated to the Sheriff's Office
`and the Jail/Corrections division.
`Further,
`the records indicate that
`the
`Sheriff expended the allocated budget for each office without
`transferring or
`commingling from 2008 to 2012.
`(See Doc. no. 34-2 at 46.)
`
`record does not
`6 The
`terminated on June 29, 2011.
`
`indicate the age of one of
`(See Doc. no. 41-1 at 15.)
`
`the individuals
`
`17
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 18 of 32
`
`demonstrates that the adopted budget consistently fell short of
`
`the budget requested by the Sheriff.
`
`Dating back to 2008, the
`
`difference between the requested budgets and the adopted budgets
`
`was as follows: $2,026,116 (2008), $2,198,117 (2009), $1,808,093
`
`(2010), $1,247,833 (2011), and $2,472,388 (2012).7
`
`(See Doc. no.
`
`34-2 at 46.)
`
`Third, in addition to the pre-termination hires,
`
`Sheriff
`
`Gregory continued to hire employees throughout the 2012 fiscal
`
`year despite the reduced budget.
`
`Specifically,
`
`the Sheriff
`
`hired six individuals in the Sheriff's Office,
`
`including four
`
`deputy sheriffs (ages 26,
`
`30,
`
`33, and 37), two of which were
`
`part time.
`
`(See Doc. no. 41-1 at 15.)
`
`The Sheriff also hired a
`
`finance officer, an administrative clerk, and twelve individuals
`
`in the Jails/Corrections division.
`
`(Id.)
`
`The ages of these
`
`individuals were 19, 19, 22, 23, 24, 25, 26, 28, 33, 34, 34, 38,
`
`43, and 47.
`
`(Id.)
`
`Fourth,
`
`Plaintiffs
`
`presented
`
`evidence
`
`that
`
`the
`
`Sheriff
`
`deviated from his purported ranking system on at least three
`
`different occasions.
`
`Sheriff Gregory testified:
`
`"Look,
`captain and said,
`each division
`to
`went
`I
`It
`has
`been
`reduced.
`unfortunately,
`our
`budget
`do
`equates
`to
`dollars.
`We've
`done
`all
`we
`can
`law
`everywhere
`else."
`I
`mean,
`the
`bulk
`of
`most
`enforcement is personnel.
`That's where the big money
`comes from, so if people have to go, I wanted to know
`from each division chief, captain, whoever run[s] that
`
`7 The Sheriff's requested budget in 2012 was approximately $600,000 more
`than his requested budget in 2011.
`(Id.)
`
`18
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 19 of 32
`
`but sometimes
`and mostly it was captains,
`division,
`lower ranks ran them, and we said, "Rank your people,
`you know,
`[n]umber 1 being your best," and if you had
`a five-man division, the one at the bottom of the list
`was the one that could possibly lose their job.
`
`(Gregory Dep. at 62.)
`
`The Sheriff, however, did not follow this
`
`procedure in determining at least two of the employees for the
`
`June
`
`29,
`
`2011
`
`layoffs.
`
`John
`
`Spangler,
`
`a
`
`deputy
`
`in
`
`the
`
`corrections division, was ranked 22 out of 35 and 24 out of 34
`
`on separate lists made by Charles Byerly and April Palmer.
`
`(See
`
`Doc. no. 41-1 at 25-26.)
`
`Despite not being ranked at the bottom
`
`by either supervisor,
`
`he was terminated.
`
`Similarly,
`
`Captain
`
`Jeremy Rogers, the investigative division chief, was terminated
`
`despite not being at the bottom of any ranking list.
`
`Indeed,
`
`the record indicates that he was responsible for creating a
`
`ranking list.
`
`(Gregory Dep. at 172.)
`
`When questioned, Sheriff
`
`Gregory
`
`testified
`
`that
`
`Rogers
`
`was
`
`walready
`
`ranked
`
`[p]robably [by] me.
`
`. . .1 may have on that one.
`
`I'm not sure
`
`how we arrived at that one."
`
`(Id.)
`
`In addition,
`
`Sheriff Gregory previously instructed one of
`
`his deputy supervisors to rank specific employees at the bottom
`
`of her list.
`
`Amanda Crosby testified that she was approached by
`
`the Sheriff in 2009 and whe told me that he wanted
`
`[Holly
`
`Douglas and Charles Moss]
`
`gone and asked me to rank how he
`
`wanted them, and that's how I did it and gave it to him, and
`
`then when he laid people off, Charles Moss and Holly Douglas
`
`19
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 20 of 32
`
`were two of the people that were laid off."
`
`(Crosby Dep. at 90-
`
`92.)
`
`She added, "Them two would not have been my bottom choice.
`
`Charles Moss was a very strong deputy.
`
`. . .
`
`Holly, she could
`
`have did - had some retraining,
`
`she probably would have been
`
`okay."
`
`(Id.)
`
`When
`
`read
`
`in
`
`the
`
`light
`
`most
`
`favorable
`
`to
`
`Plaintiffs,
`
`these
`
`deviations
`
`from
`
`the
`
`Sheriff's
`
`purported
`
`ranking
`
`system create
`
`a
`
`genuine
`
`issue
`
`of
`
`material
`
`fact
`
`of
`
`pretext.
`
`See Hurlbert v. St. Mary's Health Care System, Inc.,
`
`439
`
`F.3d
`
`1286,
`
`1299
`
`(11th
`
`Cir.
`
`2006)
`
`(reversing
`
`summary
`
`judgment, in part because "an employer's deviation from its own
`
`standard procedures may serve as evidence of pretext").
`
`Fifth,
`
`the
`
`Sheriff
`
`made multiple
`
`comments
`
`suggesting a
`
`discriminatory intent.
`
`(Dyals Dep. at 47; Dyals Decl. S[ 8.)
`
`In
`
`sum, Plaintiffs marshal significant circumstantial evidence that
`
`the Sheriff's budgetary explanation for the terminations was
`
`pretextual.
`
`Plaintiffs
`
`have
`
`met
`
`the
`
`proffered
`
`legitimate
`
`nondiscriminatory reason for their terminations "head on, " by
`
`demonstrating
`
`"weaknesses,
`
`implausibilities,
`
`inconsistencies,
`
`incoherencies, or contradictions" that would permit findings of
`
`pretext and discrimination.
`
`See
`
`Brooks,
`
`446 F.3d at
`
`1163.
`
`Therefore,
`
`the
`
`Sheriff's
`
`motion
`
`for
`
`summary
`
`judgment
`
`on
`
`Plaintiffs' ADEA age discrimination claims is DENIED.
`
`B. ADEA Retaliation Claims
`
`20
`
`

`
`Case 2:12-cv-00207-JRH-JEG Document 65 Filed 09/15/14 Page 21 of 32
`
`Plaintiffs
`
`also
`
`bring claims
`
`for
`
`retaliation under
`
`the
`
`ADEA, alleging that Sheriff Gregory took an adverse employment
`
`action against them by not rehiring them in retaliation for
`
`their filing complaints of age discrimination with the EEOC.
`
`To
`
`establish a prima facie case of retaliation under the ADEA,
`
`a
`
`plaintiff
`
`must
`
`present
`
`evidence
`
`that:
`
`(1)
`
`he
`
`engaged
`
`in
`
`statutorily
`
`protected
`
`conduct;
`
`(2)
`
`he
`
`suffered
`
`an
`
`adverse
`
`employment
`
`action;
`
`and
`
`(3)
`
`the
`
`adverse
`
`action was
`
`causally
`
`related to the protected activity.
`
`Thomas v. Cooper Lighting,
`
`Inc. , 506 F.3d 1361,
`
`1363
`
`(11th Cir.
`
`2007).
`
`To satisfy the
`
`adverse employment action requirements,
`
`"a plaintiff must show
`
`that
`
`a
`
`reasonable
`
`employee would have
`
`found
`
`the
`
`challenged
`
`action materially adverse."
`
`Burlington N. & Santa Fe Ry. Co. v.
`
`White, 548 U.S.
`
`53, 68 (2006).
`
`A materially adverse action is
`
`one that "might have 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."
`
`Jones v. Ala.
`
`Power Co. , 282 Fed. Appx.
`
`780, 785 (11th Cir. 2008).
`
`"If the
`
`employer
`
`uses
`
`formal
`
`procedures
`
`to
`
`announce
`
`positions
`
`and
`
`identify candidates, the plaintiff cannot make out a prima fa

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