Opposition Brief — Whitson v. City of Gulf Shores

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17 2003

No. 03-716 DEC 17

OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

JONATHAN SHERMAN WHITSON,

Petitioner,

V.

THE CITY OF GULF SHORES,

Respondent.

On PETITION FOR A WRIT OF CERTIORARI TO THE

Unitep States Court OF APPEALS FOR THE ELEVENTH CIRCUIT

BRIEF IN OPPOSITION

WiLuiAM F. Patty

Beers, ANDERSON, JACKSON, PATTY

& VAN Heest, P.C.

250 Commerce Street

Montgomery, AL 36104

(334) 834-5311

Attorneys for Respondent

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COUNSEL PRESS

(800) 274-3321 * (800) 359-6859

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PARTIES TO THE PROCEEDINGS AND

STATEMENT PURSUANT TO RULE 29.6

There are no additional parties to the above-styled action

other than Petitioner Whitson and the Respondent City of

Gulf Shores.

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The City of Gulf Shores is a municipality organized under

the laws of the State of Alabama.

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TABLE OF CONTENTS

Parties To The Proceedings And Statement Pursuant

TORIES ooo cc Vite eee

‘Table OF COnmeee ...4.6o 530 03 See eee

Table Of Cited Authorities ....................

Correction Of Factual Statement Of Petitioner’s

Brief 6a Sh erwin ah Pr ea ae eee

1. Areas of Misstatement of Facts ......

2. Summary of Corrected Facts ........

3. Complete Factual Background .......

Reasons For Denying The Petition ..............

1. Petitioner failed to establish a prima facie case

of discrimination under ADA and ADEA and

failed to establish pretext sufficient to

defeat Respondent’s Motion for Summary

ETT eee re eee

A. Whitson failed to establish a prima facie

case of discrimination under ADA. ...

B. Plaintiff failed to establish a prima facie

case of discrimination under ADEA. ..

C. Whitson failed to demonstrate that the

reasons given for the restructuring of his

job were a pretext for age or disability

GT. gon 5 4

21

22

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Contents

Page

D. Whitson does not demonstrate a pretext

for discrimination on the basis of age or

disability for his termination. ........ 23

2. Petitioner failed to present sufficient evidence

that he was qualified under ADA and Petitioner

failed to establish an actionable claim for

failure to accommodate his disability ..... fa

3. Petitioner failed to present sufficient evidence

of a causal link between his complaint with

the EEOC and the decision to terminate him.

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TABLE OF CITED AUTHORITIES

Page

Cases

Cleveland v. Policy Management Systems Corp.,

$26 U.S. 795, 119 S.Ct. 1597 (1999) .......5. 20

Damron v. Yellow Freight System, Inc., 188 F.3d 506

ie SE | irs ae emp ees 28, 29

Duda v. Board of Education of Franklin Park School

District No. 84, 133 F.3d 1054 (7" Cir. 1998) .. 17

Gaul v. Lucent Technologies, 134 F.3d 576 (34 Cir. i

3 ) eh ekee ts Reon ete eee 18

Gonzagowski v. Widnall, 115 F.3d 744 (10" Cir. 1997)

POET ee Ce Ge in eT re 18

Greenburg v. New York State Department of

Correctional Services, 919 F. Supp. 637 (E.D. N.Y.

SN oa Gate Loa Oh ek eee eee Cee 17

Gross v. Culbro Corporation, 1987 WL 46324,

wei, bs ee rere 28

Hartog v. Wasatch Academy, 129 F.3d 1078 (10 Cir.

gf ee ee ana are er oe serra 18

Hilburn v. Murata Electronics North America, Inc.,

381 F356 1220 CI" Cie, 1998) wn cccvvess 17, 18, 25

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249 (11% Cir.

\ | rer ey errr ser ere eas 25, 26, 27

Cited Authorities

Page

McDonnell-Douglas Corp. v. Green, 411 U.S. 792,

WO Bs OL. URE EIST SD os oa ohne dc kcnnc ce, a6; 20

Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340

ERE i osx ckdsecees eee 21

Nesser v. Trans World Airlines, Inc., 160 F.3d 442

ere, BOO. 6 iin he eee 18

Reeves v. Sanderson Plumbing Products, Inc.,

120 S. Ct. 2097 (2000) .................... 23, 24

U.S. Airways, Inc. v. Barnett, 122 S. Ct. 1516 (2002)

STE WNW ES & My OWN RD ce ee ee 18

Waggoner v. Olin Corporation, 169 F.3d 481 (7" Cir.

i) ee RM AF Teale ine cd i 18

Watson v. City of Miami, 177 F.3d 932 (11" Cir. 1999)

405) SN Rain peeve aoe 9a aE wl Gee eae 17

Statutes

EBA OGED ok x5 cider eee 20

RE USA | UZIOU) os ov vg diva chee wewnsc ly 17

Te A. ETSI oo i aisicdeee 17, 18, 25

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Cited Authorities

Page

Other Authorities

ro gen | Pere e ee Teer Te Tere Tee 19

OF Ee Pe POOL TUI 6 Kk 5 ko 0 6 064955 0ke rene 18

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CORRECTION OF FACTUAL STATEMENT OF

PETITIONER’S BRIEF

Briefly below Respondent City of Gulf Shores addresses

misstatements of facts contained in Petitioner’s Factual

Statement. Petitioner Sherman Whitson distorts and

minimizes the failure of Whitson to perform his job, the

reasons for the City’s employment actions, the extensive

efforts to rehabilitate him by the City and the City’s attempts

to accommodate his various complaints.

1. Areas of Misstatement of Facts

These misstatements are contained in page 2,

last paragraph of his brief referring to his ability to perform

his job since 1981. There are also misstatements contained

in page 3, second paragraph regarding his qualifications and

supervisory abilities as well as page 3, paragraph 3. There is

incomplete testimony and misstatements regarding

accommodations and requested attempts to accommodate

Whitson contained in page 3, first paragraph of his brief.

Whitson’s statements made on page 4, paragraph 2 in his

brief about how he refuted the reasons for the employment

actions of the City are not true.

2. Summary of Corrected Facts

In summary, Whitson’s performance with the City has

been poor, and this poor performance has been well

documented. The City has made numerous attempts at

progressive discipline to attempt to avoid termination, but

when left with no alternative, fired Whitson. From 1989 until

he was terminated, Whitson had three different supervisors

who sought his termination. He had four different supervisors

over the years who had given him negative evaluations.

He had a series of negative evaluations (outlined in more

detail below), was placed on probation, given warnings and

given reprimands. These problem areas involved poor

2

judgment in permitting, refusal to carry out directives or

projects if he did not like them, excessive absenteeism,

misrepresentations of his whereabouts during work hours,

a general resistance to being managed and poor work attitude.

Eventually the City sought to restructure his job in order

to retain him and let him work in areas that he did well and

take away items that he was not doing well. Whitson admitted

the job restructuring was because City management wanted

a manager it could control. Whitson immediately then

claimed he was totally disabled from being able to work at

all, left work on three-months medical leave (filing a

document stating he was unable to work), and applied for

long-term disability insurance benefits with a private

insurance carrier. In this insurance claim, he and his doctors

asserted that he was 100% disabled from work.

For reasons, that he admitted were unrelated to any

improvement in health, he sought to return to his job after

being absent on medical leave for several months. He was

allowed to return to the restructured job and shortly thereafter

knowingly refused to carry out certain instructions — failure

to perform inspections as directed. His then supervisor moved

to terminate him by requesting the termination from the City

Mayor. After this termination request had been made, the

City then received noticed that he had filed an EEOC claim.

He was given a full administrative hearing (with legal counsel

present) and was terminated as described in detail below by

the Mayor. He admits the Mayor has no discriminating

animus against him. In fact, the Mayor on a previous occasion

had put him back to work after a prior supervisor in 1990

wanted him terminated, because the Mayor wanted to try to

correct the problems rather than fire him. His termination

was affirmed by the City Council. He is not aware of any

discriminating animus on the part of the Council. There is

no evidence that the Mayor or Council simply rubber-stamped

3

the recommendation of the supervisor recommending

termination.

When Whitson was questioned in his deposition about

why the job was restructured, he stated that the person who

was given his supervisory duties, had been given this position

because he was liked better by Whitson’s supervisor and

would do what management wanted him to do. Whitson also

claims that the City did not like him because of testimony

Whitson had given in a lawsuit in prior years. That litigation

had nothing to do with an employment discrimination claim

or an EEOC claim. Whitson never put forth anything to try

to demonstrate that the actions in restructuring his job or in

his termination were the result of discrimination based on

age or disability. He did submit some evidence of falsity

(his subjective opinions) of a few of the items underlying

his negative evaluations. Most of management’s reasons for

the different reprimands and negative evaluations over the

years went unchallenged by Whitson. But more importantly

he admits the reason for the job restructuring — desire by

City management for a supervisor it can control better — and

for the termination — failure to carry out two inspections after

being directed in writing to do so. There is no evidence of

falsity of these reasons, and each one are legitimate non-

discriminatory reasons.

3. Complete Factual Background

The City of Gulf Shores has a population of

approximately 5,000 people. It is located on the coast of

Alabama and proper real estate development for the City is

very important. The City is governed by a Mayor and City

Council. The present Mayor, David Bodenhamer, has been

the Mayor of Gulf Shores since 1988. Prior to being the

Mayor of Gulf Shores, he served as a City Councilman for

two, four-year terms. The Mayor has known Petitioner

Sherman Whitson since 1981, and was generally familiar with

4

his work record of his entire tenure with the City. Whitson

admits that he knows of no discriminatory animus of the

Mayor or any Council members towards him.

Whitson began working with the City of Gulf Shores in

1981, and initially reported directly to the Mayor and City

Administrator without any intervening supervision. At the

time Whitson started with the City, he was a Building Official.

There was not a zoning department set up at that time.

He had responsibility for the overall planning for zoning and

development within the City.

By 1990, the City had grown so that Whitson served as

Building Official and was directly supervised by an individual

named Steve Griffin, Director of the Community

Development Department. Whitson, in turn, supervised two

Building Inspectors, until Spring 2000. Once the position of

Director of the Community Development Department was

established, that individual not only supervised Whitson, but

also the Zoning Administrator, secretary for the department,

and a permit clerk.

In November of 1995, Steve Foote replaced Steve Griffin

as the Director of Community Development Department.

Foote would directly supervise Whitson until Whitson’s

position was restructured so that Whitson was directly

supervised by the Chief of Code Enforcement. The Chief of

Code Enforcement was, in turn, directly supervised by the

Director of Community Development Department.

Before the spring of 2000, in addition to supervising two

building inspectors, Whitson was responsible for receiving,

reviewing and rejecting or accepting applications for building

permits. He had the final decision on interpretation of

building code compliance and whether the building permit

should be issued. After restructuring Whitson’s position,

Whitson was directly supervised by the Chief of Code

Enforcement, Josh Harris. He also no longer had the final

5

say on code interpretations. On November 13, 2000,

Josh Harris requested that the Mayor terminate Whitson.

Mayor Bodenhamer, Foote, Harris, and Mitch Ferguson

(Personnel Director) were unaware that Whitson had filed -

an EEOC charge until November 20, 2000.

Generally, Whitson received favorable evaluations prior

to Steve Griffin becoming his supervisor. There were two

exceptions. In 1987, his supervisor, George Phillips, rated

him negatively on problems on sign code enforcement, and

in 1988 rated him negatively on demonstrating competence

in providing guidance to the general public on code and

zoning matters. Whitson concurred with this assessment.

Prior to Steve Griffin becoming Whitson’s supervisor,

Whitson was not closely managed and pretty much ran this

area of the City government as he liked.

In 1989, Steve Griffin took over as Whitson’s supervisor.

During Griffin’s evaluation of Whitson for the period of

December 3t, 1989 to March 31, 1990 Griffin noted problems

had risen in Whitson’s interpretations of codes and ordinances

for construction within the City jurisdiction. Whitson

concurred with this assessment.

On his next evaluation, Steve Griffin rated Whitson

negatively again on providing interpretation of codes and

ordinances related to construction within the City

jurisdiction. This evaluation was done in December of 1990

for the period of April 1, 1990 to October 1990. Griffin rated

Whitson negatively on making on-site inspections to insure

compliance with approved site subdivision plans. He rated

Whitson negatively on assisting the Director of Community

and Economic Affairs, and review of site and subdivision

plans, and on the issuance of all trade permits and certificates

of occupancy. Griffin noted that Whitson’s site inspections

for zoning uniformity were poor. Several other areas were

rated negatively, but more importantly, Griffin rated Whitson,

very negatively on job interest and attitude. Steve Griffin

6

attempted to terminate Whitson in 1991, and Whitson

responded with unspecified claims of harassment against

Griffin at that time. Whitson admits that he has no specific

facts that Griffin’s actions were the result of discrimination.

At the time of the evaluation, Whitson was between

44 and 45 years old. He testified that he did have some

hearing problems in 1989, but that his hearing did not

interfere with his job between 1990-1999.

In 1995, Steve Foote began working for the City and in

November 1995, Foote replaced Griffin as Director of

Community Development Department and as supervisor of

Whitson. Whitson claims that Foote did not know much about

the job when he began working at the City and during the

first year of Foote’s administration as Director, he let Whitson

do what Whitson wanted to do. Therefore, the two had no

problems even though Whitson still had hearing problems

during this period. Whitson claims that he was not

discriminated against between March 30, 1995 and

March 30, 1996 even though he had a hearing problem.

The following are illustrations of problems with

Whitson. On May 16, 1996, by way of a written memo,

Whitson was asked by Foote to review filing procedures to -

determine what was necessary to modify paper files from a

name-based system to an address system. By Whitson’s own

admission, he never got around to implementing this index

system after four years of being given the assignment.

This incident illustrates the overall problem with Whitson.

He disagreed with the way Foote wanted to index the system

so he never did it. In August of 1996, Foote had a discussion

with Whitson in which he communicated to Whitson that he

needed and expected more from Whitson and instructed

Whitson that he needed to know what Whitson was working

on and needed to be told of any reason that Whitson left the

office. This directive was due to Whitson’s disappearance

from work for extended periods of time. Shortly after that

7

meeting, Foote had to reprimand Whitson for publicly

criticizing Whitson’s subordinate. Whitson admits that he

criticized Harris, his subordinate, in front of Harris’ co-

employees.

On October 15, 1996, Whitson indicated that he would

be out of work on jury duty in the Circuit Court of Baldwin

County. He was supposed to out of work October 15, 16,

17 & 18. Like most Alabama counties, Baldwin County tells

jurors to call in each day to find out if they will be needed

for jury duty. Whitson learned on October 17, 1996 that he

would not have to be present for jury duty that day. Rather

than return to work or contact the City and ask for leave,

Whitson simply stayed at home. The following week,

Whitson turned in his time sheet and represented

affirmatively, as well as falsely, to the City that he was absent

on October 17 for jury duty. Foote contacted the Circuit

Clerk’s office in Baldwin County and learned that Whitson

had not been on jury duty on October 17, 1996. He confronted

Whitson with this fact and Whitson tried to say that he was

sick that day. Whitson admitted in his deposition that he knew

he was making a false misrepresentation when he turned in

this time sheet. Whitson was well aware that he must obtain

permission before being out on leave and must let his

supervisor know where he was going. A series of reprimands

continued in 1997 regarding these problems.

On September 12, 1997, the Mayor received a letter from

the State of Alabama Emergency Management Agency that

indicated that the City was not in compliance with its

regulations regarding a piece of property known as the

Walacavage property. This matter was an urgent matter

because the Agency indicated to the City that the City might

lose participation in the national insurance program if the

matter was not resolved. Whitson approved the permit for

the Walacavage property after Mr. Walacavage had gone to

Josh Harris, Whitson’s subordinate and been told that the

8

permit was not proper. Whitson was instructed in writing to

remedy the situation by his supervisors. Follow ups for

Whitson to take action on the situation occurred verbally and

in writing on several different dates. Whitson did not actively

and timely pursue remedying this matter and his lack of action

potentially jeopardized the City’s participation in the Flood

Program. Whitson’s argument was that the City and the

governmental agency were wrong in their interpretation;

however, this argument misses the point. Whitson was

undisputedly instructed to take certain action and refused

because he disagreed with the City’s and the Emergency

Management Agency’s interpretation.

In October 1997, Foote counseled Whitson again about

Whitson’s not following the appropriate procedure for

providing travel request forms, detailing travel expenses,

acting consistently with approved travel request forms, and

having any modifications preapproved. This travel problem

basically involved Whitson’s attempt to make a little extra

money by having air travel approved on a travel request form

and then using his own personal vehicle to travel in order to

receive mileage money. The extra time to travel by vehicle

would involve additional leave time for Whitson and time

away from work. Whitson had missed many, many days by

this point and was behind in his job.

In December 1997, Whitson was counseled because he

spent two days sitting at the Courthouse needlessly. Whitson

was there to provide documents to the Court for a subpoena

from lawyers involved in a lawsuit in which the City was

not a party. Foote had communicated to Whitson that Foote

had spoken with different lawyers involved in the case in

which the documents were requested, and that those lawyers

indicated that he did not need to be at the Courthouse.

Whitson stayed at the Courthouse anyway sitting in the

hallway. That same month, Foote had sent a written memo

requesting Whitson take certain actions in December 1997

on a matter. Documentation was also submitted to the trial

——

9

court that showed Whitson had never responded to this

request. In fact, there are numerous memos and written

documentation that was submitted to the Court demonstrating

Whitson’s failure to timely respond to different tasks

requested.

Whitson, in his capacity as Building Official, was

responsible for checking code compliance as well as zoning

compliance before issuing permits. However, before

rendering interpretations of matters involving zoning issues,

Whitson was to consult with the Zoning Department. Whitson

was counseled in writing on two occasions for not following

those instructions. Again in 1998, documentation was

submitted to the Court where Whitson was requested to take

certain actions on a project and failed to follow the

instructions of his supervisor, Foote. The documentation also

showed misinterpretations or poor enforcement of code and

zoning regulations.

Also, that year, Foote documented his conversations with

Whitson in which Whitson basically misrepresented his

whereabouts in order to fish when he was supposed to be

attending a seminar. There is additional documentation that

was submitted to the trial court of the failure of Whitson to

carry out his duties regarding a flood management plan,

absenteeism, building permits for single family residences,

and modifications of flood damage prevention ordinance

(to which Whitson was slow to respond and that Foote

ultimately had to do the work). There were other actions that

Whitson was supposed to carry out and never did.

This behavior continued through 1999 and is all documented.

None of the activities deal with Whitson’s hearing, and

according to Whitson’s testimony, his hearing through 1999

with the use of a hearing aid was fine and did not impair his

ability to perform his job.

Also, during this period, Whitson received a detailed

negative evaluation from Steve Foote. This evaluation

10

criticizes Whitson for a number of areas including that he

should spend less time socializing and more time in

productive pursuits, his not accepting responsibility for

building code functions nor acting to improve them, that he

had not set a proper example for work ethic, that he had been

negligent in performing plan, permit, and review

responsibilities, that he had not updated forms for hand-outs

to the public, and referred to reprimands discussed earlier.

The evaluation lists different specific instances for poor

judgment and errors in permitting properties.

Again, for a period covering September 30, 1997 until

June 30, 1999, Foote did an evaluation for Whitson.

This evaluation criticized Whitson in a number of areas,

particularly about his poor judgment and negligence in

issuing permits and plan reviews. He was criticized for not

taking initiative in updating the Flood Damage Prevention

Ordinances without the supervisor’s insistence and that he

periodically left the office without informing his supervisor

of where he was going and without obtaining permission.

Foote notes that Whitson had a higher than normal

absenteeism. The evaluation lists a number of areas that were

interpretation errors by Whitson. It lists a number of actions

that were to be taken to improve his job performance. These

actions had either not been timely improved or there had

been no improvement at all.

Another evaluation was completed for Whitson from

June 30, 1999 to September 15, 2000: This evaluation is also ~

a generally negative evaluation of Whitson’s performance.

It lists in detail continued problems with his inability or

unwillingness to follow supervisor’s clear instructions,

~ absenteeism, failure to follow communication directives

regarding his whereabouts, inability to improve or update

building processes and procedures, and poor judgement in

decision making. It lists a number of specific examples of

cases where he used poor judgement in issuing permits and

noted that Whitson failed to follow through on code

enforcement complaints unless prompted by the department

head.

In 2000, Whitson used 485 hours of sick leave. This was

used in addition to his attending numerous conferences and

working only partial days. During that period, Foote

counseled Whitson about misusing his City vehicle. Also, in

May 2000, Whitson was given certain assignments as shown

in a memo that was submitted to the District Court.

Those assignments were not timely performed. In December

2000, Steve Foote left a voicemail for Whitson to attend a

Staff meeting and Whitson failed to show up because he had

left early without any explanation to Foote or without

receiving permission to leave early from Foote.

In the Spring 2000, after trying to use warnings,

counseling, specific written directives, probation and other

methods to correct Whitson’s behavior, Foote believed the

change in Whitson’s position was necessary. Foote did not

want Whitson to continue direct supervision of employees

when he was so resistant to Foote’s supervision and direction.

He did not want Whitson making final decisions on code

interpretations and permit issuances. He also wanted to make

sure a supervisor under his direction could be trusted and

would use good judgment. He recognized that Whitson was

a long-time employee, but also that Whitson had a number

of problems discussed above, and that Whitson had failed to

correct those problems after repeated attempts to remedy the

problems short of termination by the City.

The decision was made to create a position called Chief

of Code Enforcement and that Josh Harris would fill the

position. Whitson would report to Josh Harris and the

building inspectors who had reported to Whitson would

instead report to Josh Harris. Whitson would no longer have

final authority for permit issuances, code interpretations and

compliance.

12

Foote believed that Josh Harris would be a good Chief

of Code Enforcement because he had observed Harris’ work

since Harris had been with the City since 1995. He also knew

Harris had grown up in the building industry. Whitson really

does not dispute the motives for this change. Whitson claims

that his work load was too heavy and it inhibited his job

performance. Whitson also states that Harris was someone

that Foote felt he could control and that this was the “real”

reason Foote wanted Harris to supervise Whitson and the

other building inspectors. Whitson also claims that

restructuring may be related to him being a whistle-blower

regarding a case that had nothing to do with age or disability

discrimination or any Title VIII discrimination. Whitson had

no factual basis to contend that Josh Harris was encouraged

by Foote to do anything to Whitson. Whitson did say that he

felt Josh Harris had a personal relationship with Foote and

that Foote personally liked him over all the other employees

in the department, including those who were young and non-

disabled. Whitson believes that these reasons for restructuring

the job were also reasons behind his termination.

He knows of no discriminatory animus by Foote.

Whitson claims that Foote once said in a staff meeting

“out with old and in with the new”, but on further

examination, Whitson admitted this comment was made

about the failure to follow procedures that Foote was just

implementing and had nothing to do with the age of the

employees. Whitson has no evidence of any type of slur or

derogatory remark regarding age or disability. In short, other

than Whitson giving his opinion that some of his criticized

code interpretations were correct, Whitson does not refute

the other voluminous negative reprimands, evaluations, and

other negative documentation in his employment file.

Whitson admits that he was given his job description

after restructuring in June 2000. After the job restructuring

was complete, Whitson immediately was absent from work

ty a tt”

13

for almost all of June 2000. He claimed to be on sick leave

at that time. On July 19, 2000, one month after the job was

restructured, Whitson requested F amily and Medical Leave

and submitted a doctor’s statement stating that he cannot

perform the essential functions of his job. It was during this

period, that Whitson applied for long-term disability benefits

through the City’s long-term disability carrier. Whitson

represented to this carrier that he was totally disabled from

work. Whitson admits that he had previously told Mitch

Ferguson, the Personnel Director, in October 1999, that he

was going to be unable to work any further if his hearing got

much worse. Whitson claims that between 1990 and 1999,

his hearing problem did not affect his job. Whitson also stated

that his disability has never affected his judgement or his

ability to read and understand numerous memos and

directives he received. Whitson did testify that his hearing

‘after October 1999 gradually deteriorated, which is consistent

with his various applications for disability benefits.

In September 2000, Whitson returned to work with the

City, not because of improved health, but because he had

run out of sick leave and had not received any long-term

disability at the time and needed the money. Shortly after

Whitson’s return to work, Harris, as his supervisor, had an

immediate problem with Whitson’s job performance.

On September 14, 2000, Harris requested that Whitson

perform a specific inspection. The inspection was placed in

Whitson’s basket that was identified solely with Whitson.

This was the same system that Whitson had used to make

assignments to building inspectors when he supervised them.

Whitson received this assignment at noon. Whitson claims

that he did not learn of the assignment until 3:00 p.m.

although he was supposedly in the office the entire time.

Whitson claimed in his deposition, that he had a lady coming

into the office for an appointment and he could not do the

inspection. However, he was aware that a contractor and

subcontractors were waiting on him to arrive at the inspection

14

site at 3:00 p.m. Whitson did not attempt to contact these

individuals or make alternative arrangements for the

inspection. He had not performed the inspection when he

was contacted by Harris the following day. Harris found the

inspection in Whitson’s basket and completed the inspection

himself. The problem Harris had with Whitson’s performance

was not only this missed, urgent inspection for which an

appointment had been set, leaving the customer, so to speak,

i.e. contractors, waiting and wasting their time, but that

Whitson did not contact the contractors, did not try to get

word to them to make any alternative arrangements to handle

the matter, and did not perform the inspection the first thing

the following morning. What was particularly troubling about

this situation, was that Harris came into work and performed

the inspection the following day and that Whitson did not

take any action toward the situation which he was fully aware

was an urgent matter in which contractors and subcontractors

were going to be mad.

On the heels of this incident, Whitson was told, by a

written note, to perform a particular inspection on October

18, 2000. Whitson claimed that he did not understand the

note. It is undisputed he failed to carry out the inspection in

a timely manner and that Harris undertook the task himself.

On November 13, 2000, before receiving any notice of

the EEOC complaint filed by Whitson, Josh Harris asked

the Mayor for Whitson’s termination. Whitson testified that

the EEOC charge was the first notice he had given to anyone

at the City that he was being discriminated against on the

basis of age or disability.

On December 5, 2000, the Mayor requested Harris to

provide him with a more detailed statement of the reasons

Harris requested Whitson’s termination. Harris complied.

A hearing was conducted in February 2001 by the Mayor at

which Whitson had legal counsel present. The Mayor stated

15

in a written opinion that the termination was appropriate for

the incidents in September and October 2000 in light of

Whitson’s work performance in the past ten years.

Since leaving the City’s employment, Whitson filed in

October 2001, an application for Social Security disability

benefits, claiming he was totally and permanently disabled.

Whitson admits that he is totally disabled currently from

performing his former job. The Social Security regulations

do not allow an individual to obtain Social Security Benefits

until he has been out of work as least five months. All of

Whitson’s applications for disability along with his own

testimony about his health, indicate that Whitson was unable

to physically perform the essential functions of his job from

1999 until his termination in 2001.

Whitson asked for and received the right to tape staff

meetings and to have the City pay for a certain number of

cassette tapes. He claims that on certain occasions he asked

for help with problems regarding humidity. These requests

were years prior to his termination and certain actions were

taken to determine if there was poor air quality and to rectify

possible problems. He was asked twice to have his hearing

evaluated. On one occasion in which an evaluation was

requested in 1998, Whitson had a lawyer write and say that

the City was harassing him by requesting he have his hearing

evaluated. Whitson claims that he asked the Personnel

Director for assistance in October 1999, but it was a

generalized request for help without any specific items

requested. Nevertheless, the Personnel Director, Ferguson,

requested Whitson have his hearing tested and Whitson did

in February 2000. Ferguson received this report. The report

did not specify any particular equipment that Whitson had>

to have in order to perform the essential functions of the job.

One of the items mentioned in the report as possibly being

helpful to Whitson, Whitson already had — hands-free phone

- 16

capability. The report mentioned that Whitson might hear

better, but his hearing certainly would not be cured by a digital

hearing aid. Whitson already had a hearing aid. This new

digital hearing aid would cost the City approximately $4,200.

This hearing aid would not be something strictly for a unique

business purpose. Finally the document mentions that if

Whitson had trouble using a phone a TTY phone might be

helpful. This item would cost $775. Ferguson began the

process of pricing this information. Whitson had never

claimed to not understand people from phone difficulties and

his problems in his job performance were unrelated to phone

conversations. Shortly after Ferguson began the process of

pricing the TTY phone and analyzing its need for Whitson,

Whitson left to go on Family and Medical leave described

above. The events of the alleged request for accommodations

all would have occurred over 180 days from the filing of his

EEOC charge.

REASONS FOR DENYING THE PETITION

There is no conflict between the Court of Appeals’

decision in this case and any decision of this Court or prior

Eleventh Circuit’s decisions. This petition, if Certiorar: is

granted, would amount in substance to an argument by the

petitioner that the trial court and the Eleventh Circuit Court

of Appeals misapplied properly stated rules of law. There

exists no novel issue of law involving this case. Petitioner

attempts to massage the undisputed facts and omit certain

facts in his Petition for Writ of Certiorari to fashion a conflict

between the Eleventh Circuit and the District Court’s decision

in this case with this Court’s prior precedent. However, a

review of the material, undisputed facts demonstrate that no

such conflict or novel legal issues exists.

17

1. Petitioner failed to establish a prima facie case of

discrimination under ADA and ADEA and failed to

establish pretext sufficient to defeat Respondent’s

Motion for Summary Judgement

A. Whitson failed to establish a prima facie case of

discrimination under ADA.

The ADA mandates that employers shall not discriminate

against, ‘‘a qualified individual with a disability because of

the disability of such individual in regards to job application

procedures, the hiring, advancement or discharge of

employees, employee compensation, job training and other

terms, conditions and privileges of employment”. 42 U.S.C.

§ 12112(a). A prima facie case of disability discrimination

is made when, by preponderance of the evidence, the plaintiff

demonstrates that he 1) has a disability; 2) is a qualified

individual with a disability; and 3) was subjected to unlawful

discrimination because of a disability. 42 U.S.C. § 12112(a);

Hilburn v. Murata Electronics North America, Inc., 181 F.3d

1220 (11" Cir. 1999).

ADA defines a disability as either a physical or mental

impairment that substantially limits one or more of the major

life activities of an individual, having record of impairment,

or being regarded as having such an impairment. 42 U.S.C.

§ 12101(2). Whether the person has a physical or mental

impairment has been defined rather broadly by this Court.

Hearing loss is commonly recognized as a physical

impairment. Personality traits such as poor judgment or

quick-temper are not generally protected impairments under

the ADA. Greenburg v. New York State Department of

Correctional Services, 919 F. Supp. 637 (E.D.N.Y. 1996) (bad

judgment not a disability); Duda v. Board of Education of

Franklin Park School District No. 84, 133 F.3d 1054

(7" Cir. 1998) (irritability not a disability); Watson v. City of

Miami, 177 F. 3d 932 (11" Cir. 1999) (difficulty interacting

18

with others and distrustful behavior not sufficient to show

impairment under ADA).

Whitson must do more than merely show he has a

disability in order to seek the protection of ADA. He must

first establish that he is a “qualified individual with a

disability.” 42 U.S.C. § 12112(a). The ADA defines

a “qualified individual with a disability” as an individual

with a disability who, with or without a reasonable

accommodation, can perform the essential functions of the

employment position that such individual holds or desires.

42 U.S.C. § 12112(a); see also U.S. Airways, Inc. v. Barnett,

122 S. Ct. 1516, 1520 (2000). The essential functions of a

job are those fundamental job duties of an employment

position that the individual holds or desires. The term does

not include marginal functions of the position. 29 C.F.R.

§ 1630. The essential functions of the job can include

attendance, Hilburn v. Murata, 181 F.3d 1220 (11" Cir. 1999);

Hartog v. Wasatach Academy, 129 F.3d 1078 (10" Cir. 1997);

Waggoner v. Olin Corporation, 169 F.3d 481 (7 Cir. 1999);

Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8" Cir.

1998), the ability to work with others and receive criticism,

Gonzagowski v. Widnall, 115 F.3d 744 (10" Cir. 1997); Gaul

v. Lucent Technologies, 134 F.3d 576 (3° Cir. 1998). The Code

of Federal Regulations contains extensive guidance as to how

to determine whether an individual with a disability is

“qualified”. In its Appendix to Title 29, Part 1630, the C.F.R.

provides:

The determination of whether an individual with

a disability is ‘qualified’ should be made in two

steps. The first step is to determine if the

individual satisfies the prerequisites for the

position, such as possessing the appropriate

educational background, employment experience,

skills, licenses, etc. The second step is to

determine whether or not the individual can

19

perform the essential functions of the position

held or desired, with or without reasonable

accommodation. . . [W]hether an individual with

a disability is qualified is to be made at the time

of the employment decision.

29 C.F.R. Pt. 1630, App. The City submits that, though

Whitson has a disability, at the time decision was made to

terminate Whitson’s employment on November 13, 2000, as

well as his job restructuring in Spring of 2000, Whitson was

not a “qualified individual with a disability.”

As is reflected by the legitimate, non-discriminatory

reasons for Whitson’s termination and job restructuring

recited above in the Statement of Facts, it was not Whitson’s

disability that rendered him unqualified to carry out his

employment responsibilities, but rather it was his job

performance and his refusal to follow management’s

directions and rules. The City submits that it based its

employment decisions on these unprotected and deficient

work habits of Whitson rather than on any disability he may

have had. Because Whitson has not demonstrated that he

was a “qualified individual with a disability” at the time the

decision-was made to terminate him and restructure his job,

he has failed to satisfy the elements of a prima facie ADA

discrimination case, and summary judgment in the City’s

favor is, therefore, appropriate on this issue. All the

evaluations, reprimands, probations and other employment

documentation show a consistent pattern of resistance to

supervision.

However, there is undisputed evidence that Whitson,

himself, believed that he was not a “qualified individual with

a disability.” This evidence comes, first, in the form of

Whitson’s filing for private long-term disability insurance

in July of 2000. At that time, Whitson filed a claim seeking

long-term disability insurance claiming that he was not

capable of performing any work at all. The second indication

20

that Whitson was not a “qualified individual with a disability”

was his submittal on July 19, 2000 of a FMCA claim asserting

affirmatively that he could no longer perform the essential

function of his job. These documents were submitted one

month after the restructuring of his job and four months

before his termination was proposed. The third indication

that Whitson was not a “qualified individual with a disability”

arises from the fact that Whitson began receiving social

security disability insurance payments approximately eight

months after his termination. Whitson was terminated on

February of 2001 and applied for SSDI benefits in October

of 2001. Title 42 U.S.C. § 423 imposes a five-month

minimum waiting period before an individual may

begin collecting social security disability insurance benefits.

This means that, under the requirements of § 423, Whitson

must have been unable “to engage in any substantial gainful

activity by reason of any medically determinable physical or

mental impairment” less than three months after his

termination. Whitson’s application for and receipt of SSDI

~—~senefits such a short period of time after his termination,

combined with his application for private disability insurance

benefits before his termination, indicates that Whitson

believed himself to be totally disabled during the time in

which he claims that he was a qualified individual with a

disability. Pursuant to Cleveland v. Policy Management

Systems Corp., 526 U.S. 795 (1999), summary judgment was

proper in that he was not a qualified individual with a

disability.

Furthermore, Whitson admits that in October of 1999

he told Mitch Ferguson that he would not be able to work

much longer if his hearing deteriorated. He admits since that

time his hearing has deteriorated. He cannot climb, cannot

stoop, walks with a cane, and has bouts of dizziness and

vertigo that can cause him to fall. He now has back problems.

Even though he tried to avoid the answer in his deposition,

he admits he is totally disabled from work. He cannot

21

physically perform inspections, his health caused him to miss

four times the amount of work as other employees in his

department.

B. Plaintiff failed to establish a prima facie case of

discrimination under ADEA.

Two of the elements for establishing a prima facie case

of age discrimination are that the plaintiff is substantially

younger than the person who filled the position from which

he was discharged (demoted) and that the plaintiff

was qualified to do the job he was discharged (demoted).

Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11" Cir.

2000). The City contends that Whitson cannot establish these

two elements of a prima facie case of age discrimination.

With respect to his termination, Whitson’s former position

as Building Official was eliminated after his termination and

has not been filled by anyone. Whitson was not replaced by

a substantially younger person therefore he could not

demonstrate to the trial court that he satisfied the third

element of a termination claim under ADEA. In regards to

Whitson’s failure to promote claim, the evidence before the

District Court and the Eleventh Circuit Court of Appeals

shows that Whitson did not seek, and was not considered for

any promotions that were denied him. The job restructuring

in the Spring 2000 is not a promotion issue as claimed by

the Plaintiff. There was no job open that Whitson applied

for or did not receive. Instead, assignments and supervisory

authority were removed from Whitson and placed in a

different position, solely to address the poor job performance

problems of Whitson. Therefore, he was not qualified to hold

the “new position” since the restructuring was done for the

very reason of addressing his performance problems and to

put in a supervisor who management could control.

~

22

C. Whitson failed to demonstrate that the reasons

given for the restructuring of his job were a

pretext for age or disability discrimination.

Plaintiff’s argument is essentially that since he challenges

certain opinions of his supervisors in their evaluations and

reprimands of him that this challenge creates a material issue

of fact for trial on the basis of pretext even though Whitson

has admitted in his deposition that the reason for the job

restructuring was because the person the City management

wanted in the role of a supervisor was someone management

could control and who would follow management’s

directions — the very reason put forth by the City for

restructuring the job. Whitson also wishes for the Court to

completely ignore his other claim that the restructuring is

due to his participation in a lawsuit as a witness where the

City was a defendant. The case was not a Title VII case.

There is no direct evidence of discrimination in this case.

This Court established in the case of McDonnell-Douglas

Corp. v. Green, 411 U.S. 792 (1973), a structure for analyzing

cases where there is no direct evidence of discrimination.

In the burden shifting analyses of McDonnell-Douglas once

the Plaintiff establishes a prima facie case the burden of

production shifts to the employers to articulate some

legitimate reason for the employer’s decision. /d. at 802. Once

the justification is proffered by the employer for its actions,

then the Plaintiff by either, direct or circumstantial evidence,

must demonstrate by a preponderance of the evidence that

the employer had a discriminatory intent. The evidence of

the proffered reason by the City that it restructured Whitson’s

job because of his resistance to its management’s direction,

policies, and orders coupled with Whitson’s admission that

in fact the City wanted someone to hold the duties he held

who would be controlled by management and would follow

what they want, close the door for Whitson to claim that he

has established pretext sufficient to allow him to go forward

pO rw Se ee ade

23

to a jury on his age or disability claim of discrimination for

the job restructure. Respondent has outlined above in great

detail the evidence of the long-standing problems that led to

Whitson’s job being restructured.

Whitson claims in effect that this Court’s decision in

Reeves v. Sanderson Plumbing Products, Inc., 120 S. Ct. 2097

(2000) is in conflict with the Eleventh Circuit’s decision in

this case. Whitson’s reliance on Reeves is misplaced.

Whitson’s ability to submit some evidence of falsity to a few

( f the evaluations contained in his foot-and-a-half personnel

file does not create a material issue of fact to withstand

summary judgement. In Reeves, the Plaintiff contradicted and

showed the falsity of the reason given for the employnient

action against him and also was able to demonstrate that it

was a pretext for discriminatory animus. In Reeves, the Court

Stated “whether a prima facie case plus an employer’s

pretexual reason for firing is sufficient to overcome a Motion

for Summary Judgement depends on the strength of the

Plaintiff’s prima facie case, the probative value of the proof

that the employer’s explanation is false, any other evidence

that supports the employer’s case.” Reeves, 120S. Ct. at 2109.

Whitson did not offer proof of pretext, but instead admitted,

that the reason for the restructuring was for management to

gain better control over whoever was going to supervise

employees and control the permits issued by the office.

The fact that he submits some opinion evidence as to some,

and definitely not any where close to all, of the negative

evaluations does not create an issue of fact for summary

judgement.

D. Whitson does not demonstrate a pretext for

discrimination on the basis of age or disability

for his termination.

Defendant will not recite the law again with regard to

the McDonnell-Douglas burden shifting analysis. Whitson

was terminated by the Mayor and that decision was affirmed

24

by the Council after a hearing. The reasons given were

insubordination. Whitson had no evidence of any

discriminatory animus on the part of the Mayor or the

Council. The Mayor met with Whitson, allowed him to

present evidence and be represented through the hearing. The

Mayor, after listening to both sides, felt the evidence showed

that Whitson was insubordinate. In Whitson’s deposition, he

does not contradict the claims of insubordination, but simply

offers some weak excuses to why his behavior should be

tolerated. Whitson not only failed to carry out an inspection

when told, but failed to take any action to reschedule the

inspection or to pacify the “customer” — contractors and

builders, waiting on the inspection. He simply left them

waiting, knowing that the “customer” was expecting him to

meet with them. On the heels of this incident was another

incident that is described in the statement of facts, that

demonstrates insubordination. Whitson does not provide

evidence of falsity of these reasons for his firing. Therefore,

this case is clearly distinguishable from Reeves v. Sanderson

Plumbing Products, Inc., 120 S. Ct. 2097 (2000) and the

District Court w&s justified in granting summary judgement

and the Eleventh Circuit Court of Appeals appropriately

affirm that judgement. Whitson failed to make even a

minimum showing that the City of Gulf Shores’ articulated

reasons for termination were untrue. The District Court and

the Eleventh Circuit Court of Appeals properly did not

substitute their business judgement for that of the City.

Whitson did not provide any reason or evidence to show that

the reasons proffered by the City should not be believed.

The proffered reasons by the City are not weak, implausible,

inconsistent, incoherent or contradictory such as a reasonable

factfinder could find them unworthy of credence.

25

2. Petitioner failed to present sufficient evidence that

he was qualified under ADA and Petitioner failed to

establish an actionable claim for failure to

accommodate his disability

The ADA mandates that employers shall not discriminate

against, “a qualified individual with a disability because of

the disability of such individual in regards to job application

procedures, the hiring, advancement or discharge of

employees, employee compensation, job training and other

terms, conditions and privileges of employment”. 42 U.S.C.

§ 12112(a). A prima facie case of disability discrimination

is made when, by preponderance of the evidence, the plaintiff

demonstrates that he 1) has a disability; 2) is a qualified

individual with a disability; and 3) was subjected to unlawful

discrimination because ofa disability. 42 U.S.C. § 12112(a);

Hilburn vy. Murata Electronics North America, Inc., 181 F.3d

1220 (11" Cir. 1999). As stated above in Section 1, Whitson

cannot demonstrate he is a qualified individual with a

disability. For purposes of brevity, the City incorporates that

argument by reference from the previous section.

Assuming for purposes of argument that Whitson was a

qualified individual with a disability, the City did not fail to

make reasonable accommodations for him in violation of the

ADA. The Court has recognized that unlawful discrimination

can consist of failure by the employer to provide reasonable

accommodations for the employee’s disability. Lucas v.

W.W. Grainger, Inc., 257 F.3d 1249, 1255 (11" Cir. 2001).

In addressing ADA discrimination claims, the Eleventh

Circuit addressed reasonable accommodations as follows:

An accommodation can qualify as ‘reasonable,’

and thus be required by the ADA, only if it enables

the employee to perform the essential functions

of the job. See LaChance v. Duffy's Draft House,

Inc., 146 F.3d 832, 835 (11" Cir. 1998). The

plaintiff bears the burden of identifying an

26 .

accommodation, and of demonstrating that the

accommodation allows him to perform the job’s

essential functions. See Stewart v. Happy

Harmon’ Cheshire Bridge, Inc., 117 F.3d 1278,

1286 (11" Cir. 1997) [sic] Willis v. Conopco, Inc.,

108 F.3d 282, 283 (11" Cir. 1997).

Lucas v. W.W. Grainger, Inc., 257 F.3d 1249, 1255-1256

(11" Cir. 2001).

Whitson asked Foote to allow him to tape meetings even

though the purpose of the taping was to “build a record” and

did not effectively assist his disability. Foote agreed to the

taping. No other accommodations were requested of Foote.

When Foote got an evaluation of Whitson’s hearing and tried

later to have a follow-up evaluation, Whitson had a lawyer

write the City objecting to the testing. Mitch Ferguson, the

personnel director, was allegedly approached by Whitson in

October of 1999 and asked generally for “help” because

Whitson said he would not be able to work much longer with

his hearing problem. Whitson also testified that his hearing

never prevented him from carrying out his duties. Ferguson

asked Whitson to have his hearing evaluated again in

February of 2000. General requests for “help” with working

conditions are not sufficient to trigger the duty to make

reasonable accommodations; Whitson must be able to

identify an accommodation that would enable him to perform

the essentia! functions of his job. Lucas v. W.W. Grainger,

Inc., 257 F.3d at 1255-1256. Whitson’s generalized request

is insufficient. He never made a specific request for assistance

to anyone who had decision-making authority at the City that

was not granted. The report received by Ferguson suggests

some possible equipment that could help some individuals

with hearing loss but never says that the equipment is needed

for Whitson to perform the essential functions of his job.

One piece of equipment, a hearing aid, would not be a

reasonable accommodation since, it is primarily for personal

Se

27

use and because of its expense and minimal benefit. Likewise,

neither Whitson nor his doctors said he needed a TTY phone

to perform the essential functions of his job and Whitson

had available the other telephone equipment suggested by

the report, such as a hands-free phone. Ferguson priced the

TTY equipment in April of 2000 and continued looking at

these options up to the time that Whitson left work under

FMLA stating he was unable to perform the essential

functions of his job because of depression and seeking long-

term disability benefits.

Finally, Whitson claimed that a humidity problem existed

at the office. This alleged problem was first complained about

years before his EEOC Complaint. It was investigated by

the City and the City could not verify that a problem existed.

The City did provide de-humidifiers for a time. This

Complaint is outside the 180 days of the EEOC filing and

does not rise to an accommodation under ADA and is

speculative at best.

The City submits that Whitson’s request for help with

his work conditions are not sufficient to trigger a duty to

provide any reasonable accommodation to Whitson. Lucas

v. W.W. Grainger, 257 F.3d at 1255-1256 Moreover, as we

have argued above, Whitson’s inability to carry out the

essential functions of his job was not related to his disability,

but rather to personality traits not protected by the ADA.

There was, therefore, no reasonable accommodation that the

City could have made that would have rendered Whitson

capable of fulfilling the essential requirements of his job.

Each accommodation request would be over 180 days from

the EEOC Complaint being filed, and therefore would be

barred.

28

3. Petitioner failed to present sufficient evidence of a

causal link between his complaint with the EEOC and

the decision to terminate him.

Whitson alleges that the City terminated him in

retaliation for his filing of a Complaint with the EEOC. It is

an uncontested fact that the City initiated termination

proceedings for Whitson on November 13, 2000. Likewise,

it is an uncontested fact that the City did not receive notice

of Whitson’s EEOC Complaint until November 20, 2000.

Whitson told no one with the City prior to filing a complaint

with the EEOC that he was discriminated against on the basis

of disability or age. It is, therefore, uncontested that the City

was not aware of the existence of Whitson’s EEOC claim at

the time that it began termination proceedings. The elements

of a prima facie case of retaliatory discharge are set out below.

Gross v. Culbro Corporation, 1987 WL 46324,* 8 (N.D. Fla.

1987); Damron v. Yellow Freight System, Inc., 18 F. Supp.

812, 831 (E.D. Tenn. 1998). These elements are as follows:

1. That the employee engaged in a protective

activity;

2. That the employee suffered an adverse

employment action; and

3. That the employee’s participation in the

protected activity was causally connected to

the adverse employment action.

See Id.

For the purposes of this proceeding, the City will concede

that Whitson is able to meet the first two elements of the

retaliatory termination claim. However, the City submits that

the uncontested facts of this case dictate that Whitson has

not, and indeed cannot, demonstrated that his claim meets

29

the third element of a prima facie case of retaliatory

termination under the ADEA or ADA. It is an uncontested

fact that the City did not know that Whitson had filed an

EEOC Complaint. It therefore follows that the decision to

seek the termination of Whitson, which was made before the

City had any way of knowing about the EEOC Complaint,

cannot be causally connected to the filing of the EEOC

Complaint. A causal connection between an employer’s

decision to terminate an employee and the employee’s filing

of an EEOC Complaint simply cannot exist, independent of

_ knowledge on the employer’s part that the employee has

actually filed a complaint. Indeed, in its discussion of prima

facie retaliation under the ADEA, the District Court for the

Eastern District of Tennessee has gone so far as to include,

as an element of a prima facie case, that the employer must

know that the employee has engaged in a protected activity.

Damron vy. Yellow Freight System, Inc., 18 F. Supp.2d 812,

835 (E.D. Tenn. 1998).

In addition to the lack of knowledge, the City contends

that no causal connection exists because it had legitimate

non-retaliatory reasons to terminate. These reasons are set

out in more detail in the Section One of the Reasons for

Denying the Petition.

30

CONCLUSION

Based on the foregoing, Respondent the City of Gulf

Shores respectfully requests this Honorable Court to deny

the Petition for Writ of Certiorari of Plaintiff.

Respectfully submitted,

WILLIAM F. Patty

BEERS, ANDERSON, JACKSON, PATTY

& Van HEEsT, P.C.

250 Commerce Street

Montgomery, AL 36104

(334) 834-5311

Attorneys for Respondent