# Opposition Brief — Whitson v. City of Gulf Shores > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2416%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition Brief - **Published:** January 1, 2004 - **Citation:** 540 U.S. 1149 ## Text , at = 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 184814 g COUNSEL PRESS (800) 274-3321 * (800) 359-6859 Ray SRO EE ce cats aig "| “ ots a5 a] ‘ ai S % + La ti ees as 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. \ The City of Gulf Shores is a municipality organized under the laws of the State of Alabama. il 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 il 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. | es ra Wa 8 a Oe es iv 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 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_2416%3A3. Public record. Not legal advice.