Wineman v. Jacksonville, The City of

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

GERALD WINEMAN, )

)

Plaintiff, )

)

v. )

) Case No. 2:19-cv-01436-SGC

THE CITY OF JACKSONVILLE, )

)

Defendant. )

MEMORANDUM OPINION AND ORDER1

This is an employment discrimination case brought by Gerald Wineman

against the City of Jacksonville, claiming it discriminated against him based on his

age in violation of the Age Discrimination Employment Act of 1967, as amended,

29 U.S.C. §§ 621, et seq. (the “ADEA”). (Doc. 1).2 Pending before the court is the

City’s motion for summary judgment. (Docs. 35, 36). Wineman has filed a response

to the motion, and the City has filed a reply in support of the motion. (Docs. 39, 42).

For the reasons discussed below, the City’s motion is due to be denied.

1 The parties have consented to the exercise of dispositive jurisdiction by a magistrate judge

pursuant to 28 U.S.C. § 636(c). (Doc. 8).

2 Citations to the record refer to the document and page numbers assigned by the court’s

CM/ECF electronic document system, and appear in the following format: (Doc. __ at __).

I. Material Facts3

In September 2018, longtime Jacksonville Police Chief Tommy Thompson

announced his retirement. (Doc. 32-1 at 9). The Jacksonville City Council created a

selection committee to evaluate candidates for the police chief position. (Doc. 32-2

at ¶ 2). Five members were selected by the Council to make a recommendation as to

the best candidate: the Mayor, Professor Rick Davis from Jacksonville State

University, Councilman Tony Taylor, Councilman Jimmy Harrell, and City

Administrator Albertha Grant. (Doc. 32-2 at ¶ 3).

Before any candidates were considered by the City, the Civil Service Board

(“CSB”) screened the candidates to ensure they met the basic qualifications for the

position. (Doc. 32-2 at ¶¶ 4-5). The qualifications for the police chief position were:

Graduation from an accredited four-year college or university with a

Bachelor’s Degree in Criminal Justice, Public or Business

Administration, or a closely related field, and ten (10) years experience

in law enforcement work to include five (5) years of progressively

responsible supervisory experience over law enforcement officers.

(Note—qualifying experience beyond the minimum will be allowed to

substitute for required education on a year-for-year basis.)

(Doc. 32-5 at 3). A candidate without a college degree would need four additional

years of experience, for a total of fourteen years’ experience, to be considered

qualified. (Doc. 32-3 at 13; Doc. 40-12 at 4).

3 The following facts are undisputed, unless otherwise noted. They are viewed in the light most

favorable to the plaintiff, as the non-movant, with the plaintiff given the benefit of all reasonable

inferences.

The CSB certified the following candidates as qualified for the police chief

position: Bill Wineman (the plaintiff), Allen George, Scott Hodge, Neil Fetner,

Falon Hurst, and Marcus Wood. (Doc. 32-17 at 20; Doc. 32-4).

The plaintiff was 62 years old when Chief Thompson retired, and he had been

the assistant chief since 2004. (Doc. 32-1 at 4, 8-9). Before the application process,

Wineman met individually with each member of the City Council. (Id. at 10).

• Councilman Tony Taylor asked the plaintiff’s age and when he would

be able to retire under the State Retirement System. (Doc. 32-1 at 12).

Taylor asked how much younger Wineman was than Thompson, and

the plaintiff told him five years younger. (Id.). Taylor told Wineman he

did not want to hire someone who was going to stay in Jacksonville

three years and then leave. (Doc. 32-1 at 12-13). Taylor said, “[W]e

don’t want an old chief. We want somebody new and progressive.”

(Doc. 32-1 at 52).

• The plaintiff had several conversations with Councilman Jimmy

Harrell. (Doc. 40-30). Harrell asked Wineman how old he was, how

much younger than the former chief he was, and about his retirement

and noted Wineman was old enough to retire. (Doc. 32-1 at 15).

• Councilman Cody Galloway also asked about Wineman’s age and how

old he was compared with Thompson and pointed out Wineman could

retire immediately and make more money in benefits than he would

earn in salary. Galloway and told the plaintiff, “We don’t want to hire

somebody then them leave three years later.” (Doc. 32-1 at 15-16).

• Councilwoman Sandra Sudduth and Councilman Jerry Parris both told

Wineman they wanted him to be the next chief of police. (Doc. 32-1 at

17).

While Thompson was still the Police Chief, Taylor, Harrell, and Galloway

told Wineman that Thompson was “too old” and “needs to go.” (Doc. 32-1 at 53).

Under the Civil Service Board Rules, the City is required to hire internally if

there is a qualified applicant. (Doc. 40-3 at 8; Doc. 40-4; Doc. 32-3 at 8-9); Ala.

Code Section 45-8A-71.10. Mayor Smith admitted the City knowingly violated the

rules by hiring an outside candidate instead of Wineman. (Doc. 32-3 at 9).

Wood, the successful outside candidate, was 32 years old and did not meet the

listed qualifications for the position. (Doc. 40-18 at 12; Doc. 40-20; Doc. 40-25).

Wood did not have a college degree (and had a GPA of only 1.16) and had only

twelve years of law enforcement experience. (Doc. 40-20; Doc. 40-25). Wood

agreed that, at most, he would have had twelve years and ten months of law

enforcement experience. (Doc. 40-18 at 15). Wood also had fewer than six years of

supervisory experience. (Doc. 40-20).

Harrell rated Wood higher in the experience category than Wineman, even

though the plaintiff had been the Assistant Chief for many years. (Doc. 40-21 at 2).

Harrell also wrote “longevity?” in the remarks section of his evaluation for the three

oldest candidates: Allen George (age 50), Scott Hodge (age 48), and the plaintiff

(age 62). (Doc. 40-30 at 3; Doc. 32-10 at 11).

The City maintains Wineman was not chosen because Wood gave a better

interview. (Doc. 32-20 at 11; Doc. 32-1 at 25). After Wood was chosen for the police

chief position, the Mayor told Wineman

that [he] was the most knowledgeable, had the most experience, knew

the City inside and out, very familiar with the City and everything, but

did the worst interview he had ever – him or the selection committee

had ever seen and was very disappointed in [him].

(Doc. 32-1 at 25).

II. Standard of Review

Under Rule 56 of the Federal Rules of Civil Procedure, “[t]he [district] court

shall grant summary judgment if the movant shows that 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986);

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The party seeking

summary judgment bears the initial burden of informing the district court of the basis

for its motion and identifying those portions of the record the party believes

demonstrate the absence of a genuine dispute as to a material fact. Celotex Corp.,

477 U.S. at 323. If the moving party carries its initial burden, the non-movant must

go beyond the pleadings and come forward with evidence showing there is a genuine

dispute as to a material fact for trial. Id. at 324.

The substantive law identifies which facts are material and which are

irrelevant. Anderson, 477 U.S. at 248. A dispute is genuine if the evidence is such

that a reasonable jury could return a verdict for the non-movant. Id. at 248. If the

evidence is merely colorable or not significantly probative, summary judgment is

appropriate. Id. at 249-50 (internal citations omitted). All reasonable doubts about

the facts should be resolved in favor of the non-movant, and all justifiable inferences

should be drawn in the non-movant’s favor. Fitzpatrick v. City of Atlanta, 2 F.3d

1112, 1115 (11th Cir. 1993).

“[A]t the summary judgment stage the judge’s function is not [her]self to

weigh the evidence and determine the truth of the matter but to determine whether

there is a genuine issue for trial.” Anderson, 477 U.S. at 249. “Essentially, the inquiry

is ‘whether the evidence presents a sufficient disagreement to require submission to

the jury or whether it is so one-sided that one party must prevail as a matter of law.”

Sawyer v. Sw. Airlines Co., 243 F. Supp. 2d 1257, 1262 (D. Kan. 2003) (quoting

Anderson, 477 U.S. at 251-52).

III. Analysis

A. Wineman’s ADEA Claim

The ADEA prohibits an employer from discriminating against an employee

who is at least forty years old “because of” that person’s age. 29 U.S.C. §§ 623(a)(1),

631(a). There are three theories of discrimination under the ADEA: disparate

treatment discrimination, pattern-and-practice discrimination, and disparate impact

discrimination. See Smith v. City of Jackson, 544 U.S. 228, 240 (2005). Here,

Wineman asserts a disparate treatment claim. (Doc. 1).

A plaintiff can establish a disparate treatment claim under the ADEA with

direct or circumstantial evidence. Mora v. Jackson Mem’l Found., Inc., 597 F.3d

1201, 1204 (11th Cir. 2010). Wineman asserts he has presented direct evidence of

age discrimination, as well as circumstantial evidence. (Doc. 39 at 24). The City

argues the plaintiff has not presented sufficient evidence of either type to withstand

summary judgment. (Doc. 36 at 36; Doc. 42 at 1-6).

1. Direct Evidence of Discrimination

“Direct evidence is evidence, that, if believed, proves the existence of a fact

without inference or presumption.” Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,

1086 (11th Cir. 2004) (internal quotation marks and alterations omitted), abrogated

in part on other grounds by Lewis v. Union City, Georgia, 918 F.3d 1213, 1218 (11th

Cir. 2019). “Only the most blatant remarks, whose intent could mean nothing other

than to discriminate on the basis of age, constitute direct evidence of discrimination.”

Van Voorhis v. Hillsborough Cty. Bd. of Cty. Comm’rs, 512 F.3d 1296, 1300 (11th

Cir. 2008) (internal quotation marks and alterations omitted) (holding manager’s

statement he “didn’t want to hire an old pilot” was direct evidence of age

discrimination); see also Dixon v. The Hallmark Cos., Inc., 627 F.3d 849, 855 (11th

Cir. 2010) (noting Eleventh Circuit has held documents stating “Fire Early – he is

too old” and ‘Fire Rollins – she is too old” were direct evidence of age

discrimination). Evidence that suggests, but does not prove, a discriminatory motive

is circumstantial evidence. Burrell v. Bd. of Trs. of Georgia Military Coll., 125 F.3d

1390, 1393-94 (11th Cir. 1997).

Wineman has presented evidence that, before the application process, when

he discussed the police chief job opening with Councilman Jimmy Harrell, Harrell

told him “we don’t want somebody older that’s followed Chief Thompson’s

footsteps.” (Doc. 32-1 at 53). Council members Tony Taylor and Cody Galloway

also asked the plaintiff’s age and made similar comments. Regarding Thompson’s

retirement, Taylor told Wineman that “we don’t want an old chief.” (Doc. 32-1 at

52). Thus, the plaintiff has presented evidence three of the five decision makers made

these types of comments.

These are not stray remarks or comments unrelated to a hiring decision.

E.E.O.C. v. Alton Packaging Corp., 901 F.2d 920, 924 (11th Cir. 1990); Ritchie v.

Indus. Steel, Inc., 426 F. App’x 867, 871 (11th Cir. 2011); see Post v. Great Fla.

Bank, No. 08-20007-CIV, 2008 WL 11331681, at *5 (S.D. Fla. Sept. 19, 2008)

(holding comments about the plaintiff being too old were not direct discrimination

because it was not “link[ed] … to the employment action). Rather, these comments

were made by City council members (i.e., decisionmakers) in the context of

discussing Wineman’s upcoming candidacy for the police chief position. (Doc. 32-

1 at 52-53).

The City argues this evidence does not constitute direct evidence of

discrimination because the statements are “not statements from which the only

inference to be drawn is that” the defendant was going to “discriminate against

[Wineman] on the basis of his age.” (Doc. 42 at 4). Specifically, the City contends a

reasonable jury could understand statements like “you are ready to retire,” “you

came up in the era of … Thompson,” and “[w]e want someone new and progressive”

to mean the selection committee had concerns that the new police chief remain in

the position for a long time or that the committee wanted someone who will not

“adopt the ways of the prior chief.”

Questions about age and comments about retirement, longevity, “generational

change,” or years of service do not necessarily rise to the level of direct evidence of

age discrimination. Here, an additional inference is required to conclude the City, in

fact, discriminated against Wineman with regard to selection of the new police chief.

See Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989) (“[R]emarks merely

referring to characteristics associated with increasing age, or facially neutral

comments from which a plaintiff has inferred discriminatory intent, are not directly

probative of discrimination.”); see King v. CVS Caremark Corp., 2 F. Supp. 3d 1252,

1259–60 (N.D. Ala. 2014); Mereish v. Walker, 359 F.3d 330, 336–37 (4th Cir.

2004); Gloetzner v. Lynch, 225 F. Supp. 3d 1329, 1350–51 (N.D. Fla. 2016); see

also Scheick v. Tecumseh Pub. Sch., 766 F.3d 523, 531 (6th Cir. 2014). A jury could

reasonably conclude these comments are probative of a discriminatory intent;

however, because the comments were not made as part of the decision-making

process for the police chief position, an inference or presumption is required to get

there. Therefore, this is not a direct evidence case.

2. Wineman Has Presented Sufficient Circumstantial Evidence

Even without direct evidence, there is ample circumstantial evidence from

which a reasonable jury could conclude the City did not award Wineman the police

chief position because of his age. The Eleventh Circuit evaluates ADEA disparate

treatment claims based on circumstantial evidence using the burden-shifting

framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04

(1973). Sims v. MVM, Inc., 704 F.3d 1327, 1332-33 (11th Cir. 2013).4 Under this

framework, a plaintiff establishes a prima facie case of age discrimination by

showing (1) he was a member of the protected group of persons between the ages of

4 Because this is also the framework used to evaluate employment discrimination claims brought

under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq., Title VII

and ADEA case law is interchangeable. Vickery v. Medtronic, Inc., 997 F. Supp. 2d 1244, 1253

n.5 (S.D. Ala. 2014) (citing Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000)).

forty and seventy, (2) he was subjected to an adverse employment action, (3) his

employer treated a substantially younger person otherwise similarly situated to him

(a “comparator”) more favorably, and (4) he was qualified to do the job at issue.

Kragor v. Takeda Pharm. America, Inc., 702 F.3d 1304, 1308 (11th Cir. 2012)

(setting forth elements of prima facie case); Hawthorne v. Baptist Hosp., Inc., 448

F. App’x 965, 968 (11th Cir. 2011) (same); Liebman v. Metropolitan Life Ins. Co.,

808 F.3d 1294, 1298-99 (11th Cir. 2015) (noting with respect to third element that

proper inquiry is whether comparator was substantially younger than the plaintiff,

not whether comparator is outside the plaintiff’s protected class). The burden then

shifts to the defendant to put forth a legitimate, non-discriminatory reason for the

adverse employment action and then back to the plaintiff to show the proffered

reason is a pretext for discrimination. Kragor, 702 F.3d at 1308.

However, use of the McDonnell Douglas burden-shifting framework “is not

the sine qua non for a plaintiff to survive summary judgment in a discrimination

case.” Sims, 704 F.3d at 1333. “Instead, ‘the plaintiff will always survive summary

judgment if he presents circumstantial evidence that creates a triable issue

concerning the employer’s discriminatory intent.’” Id. (quoting Smith v. Lockheed

Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). “A triable issue of fact exists

‘if the record, viewed in the light most favorable to the plaintiff, presents a

convincing mosaic of circumstantial evidence that would allow a jury to infer

intentional discrimination by the decisionmaker.’” Id. (quoting Smith, 644 F.3d at

1328). Whether a plaintiff relies on the McDonnell Douglas burden-shifting

framework or the presentation of a “convincing mosaic” of circumstantial evidence,

the language “because of” in the ADEA means the burden of persuasion always

remains with the plaintiff to prove age discrimination was the “but-for” cause of the

adverse employment action. Id. at 1331-33 (discussing Gross v. FBL Fin. Servs.,

Inc., 557 U.S. 167 (2009)).

Here, there is sufficient circumstantial evidence the City discriminated against

Wineman because of his age for this case to go before a jury. For example, when

discussing the plaintiff’s interest in the position at issue:

• Councilman Taylor asked Wineman’s age, how much younger he was

than Thompson, and when he would be able to retire under the State

Retirement System. (Doc. 32-1 at 12). Taylor told the plaintiff he did

not want to hire someone that was going to stay in Jacksonville three

years and then leave. (Doc. 32-1 at 12-13). Taylor said, “[W]e don’t

want an old chief. We want somebody new and progressive.” (Doc. 32-

1 at 52).

• Councilman Harrell asked Wineman how old he was, how much

younger than the former chief he was, and about his retirement and

noted the plaintiff was old enough to retire. (Doc. 32-1 at 15).

• Councilman Galloway also asked about the plaintiff’s age and how old

he was compared with Thompson and pointed out Wineman could

retire immediately and make more money in benefits than he would

earn in salary. Galloway told Wineman, “We don’t want to hire

somebody then them leave three years later.” (Doc. 32-1 at 15-16).

• While Thompson was still the police chief, Taylor, Harrell, and

Galloway told Wineman that Thompson was “too old” and he “needs

to go.” (Doc. 32-1 at 53).

The court easily concludes Wineman has presented sufficient circumstantial

evidence of age discrimination to support a prima facie case relating to the police

chief position.

3. The City’s Legitimate, Non-Discriminatory Reasons

The City explains Wineman was considered the leading candidate leading into

the interviews, but he bombed his interview. (Doc. 32-1 at 25; Doc. 32-20 at 11).

4. Evidence of Pretext

If an employer “articulates one or more [legitimate, non-discriminatory]

reasons, the presumption of discrimination is eliminated and ‘the plaintiff has the

opportunity to come forward with evidence . . . sufficient to permit a reasonable fact

finder to conclude that the reasons given by the employer were not the real reasons

for the adverse employment decision.’” Chapman v. AI Transport, 229 F.3d 1012,

1024-25 (11th Cir. 2000) (citing Combs v. Plantation Patterns, 106 F.3d 1519, 1527-

28 (11th Cir. 1997) (citations omitted)). A plaintiff may not recast an employer’s

proffered non-discriminatory reasons or substitute his business judgment for that of

the employer. Provided that the proffered reason is one that might motivate a

reasonable employer, an employee must meet the reason head on and rebut it, and

the employee cannot succeed by simply quarreling with the wisdom of that reason.

Hammock v. Nexcel Synthetics, Inc., 201 F. Supp. 2d 1180, 1187 (N.D. Ala. 2002)

(quoting Chapman, 229 F.3d at 1029 (citing Alexander v. Fulton County, 207 F.3d

1303, 1341 (11th Cir. 2000); Combs, 106 F.3d at 1541-43)). “It is not the court’s

role to second-guess the wisdom of an employer’s decisions as long as the decisions

are not [discriminatory].” Alexander, 207 F.3d at 1341; see also Combs, 106 F.3d at

1541-43. A plaintiff may establish pretext in at least two ways, by showing: (1) “a

discriminatory reason more likely motivated” his termination or (2) “the employer’s

proffered reason is unworthy of credence.” Texas Dep’t of Community Affairs v.

Burdine, 450 U.S. 248, 256 (1981).

The comments listed above are also relevant to the pretext inquiry. See Damon

v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1362 (11th Cir. 1999) (citing

Jones v. Bessemer Carraway Medical Ctr., 151 F.3d 1321, 1323 n.11 (11th

Cir.1998) (holding “language not amounting to direct evidence, but showing some

racial animus, may be significant evidence of pretext once a plaintiff has set out a

prima facie case”) (emphasis added)). In addition, Wineman presented unrebutted

evidence that (1) under the Civil Service Board Rules, the City is required to hire

internally if there is a qualified applicant, which he was (Doc. 40-3 at 8; Doc. 40-4;

Doc. 32-3 at 8-9); Ala. Code Section 45-8A-71.10.5 and (2) Wood, the successful

outside candidate, did not meet the listed qualifications for the position because he

does not have a college degree (and had a GPA of only 1.16) and had only twelve,

rather than fourteen, years of law enforcement experience. (Doc. 40-18 at 12, 15;

Doc. 40-20; Doc. 40-25).

The court is also cognizant that the City’s articulated reason focuses on one

snapshot in time – the interview – when the decision makers had far more experience

with Wineman’s actual performance during his tenure as the assistant chief. The

evidence presented by the plaintiff is at least sufficient to raise a genuine issue of

fact with regard to whether the defendant’s articulated reason for hiring Wood over

Wineman was a pretext for age discrimination.

IV. Conclusion

Wineman has presented sufficient evidence in support of his age

discrimination claim to have it submitted to a jury. Therefore, for all of the foregoing

reasons, the City’s motion for summary judgment (Doc. 35) is DENIED.

5 The City’s argument that a failure to follow policy is not enough to show pretext misses the mark

because it is not the only evidence of pretext Wineman has presented. (Doc. 42 at 8).

DONE this 16th day of September, 2021.

STACI G. CORNELIUS

U.S. MAGISTRATE JUDGE

16