McCampbell v. Bishop State Cmty. Coll., CIVIL ACTION 12-0415-WS-N

JOHN McCAMPBELL, Plaintiff, v. BISHOP STATE COMMUNITY COLLEGE, et al., Defendants.

CIVIL ACTION 12-0415-WS-N

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE and ORDERED: November 12, 2013

ORDER

This matter comes before the Court on Defendants' Motion for Summary Judgment (doc. 21). The Motion has been briefed and is ripe for disposition.

I. Background Facts.¹

Plaintiff, John McCampbell, is over the age 40.² It is undisputed that McCampbell had previously been employed by defendant Bishop State Community College ("Bishop State") as a part-time adjunct barbering instructor from 2000 to 2005, and as a full-time barbering instructorfrom 2005 to 2007, at which time his employment was terminated. (Sims Aff. (Doc. 22, Exh. 1), at 2.) The reasons for this termination do not appear in the record and are not relevant to the pending Rule 56 Motion.³

On July 13, 2011, Bishop State published a written "Position Announcement" for the job of Barbering Instructor. (Sims Aff., at 1, Exh. A.) The Announcement specified that the minimum qualifications for the position included an associate's degree; six years of job experience in the barbering trade or three years of barbering instructional experience; excellent planning, recordkeeping and report-writing skills; and an Instructor License and Master Barber License. (Id.) The Announcement directed interested applicants to submit a completed application to Bishop State's Human Resources Office by no later than August 12, 2011. (Id.)

Bishop State received four applications for the position, including one from McCampbell. (Sims Aff., at 1.) In its initial screening process, a Bishop State committee determined that two applicants failed to meet the minimum qualifications for the Barbering Instructor job, inasmuch as one of them lacked an associate's degree and another did not have an Instructor License. (Id.) The screening committee found that the other two candidates, McCampbell and Wade Dickerson, satisfied the position's minimum qualifications. (Id.) On that basis, the committee submitted the names of McCampbell and Dickerson, in unranked alphabetical order, to Bishop State's President, defendant Dr. James Lowe, for his consideration via letter dated August 16, 2011. (Sims Aff., at 2 & Exh. B.)⁴

The decision of whether to hire McCampbell or Dickerson as Barbering Instructor was vested exclusively in Dr. Lowe. (Sims Aff., at 2; Lowe Aff. (doc. 22, Exh. 2), at 1.) As Dr. Lowe testified, "My role was to select a barber instructor for the Carver campus." (Lowe Dep., at 8.) Upon receipt of the August 16 letter, Dr. Lowe reviewed the applications and resumes of both candidates. (Sims Aff., at 2; Lowe Aff., at 1.) He interviewed McCampbell and Dickerson on August 18, 2011. (Lowe Dep., at 8; Lowe Aff., at 1.) Based on those interviews, Dr. Lowe selected Dickerson for the position. (Lowe Dep., at 9; Lowe Aff., at 2.) The record reflects that Dickerson was 38 years old, had been working at Bishop State for approximately 1.5 years in a temporary position of barbering lab assistant, and had held a Master Barber License for 14 years. (Sims Aff., at 2.)

Dr. Lowe testified that he chose Dickerson over McCampbell for three specific reasons. First, Dr. Lowe explained, Dickerson "exhibited enthusiasm" and appeared "eager for the job" during his interview; meanwhile, McCampbell's demeanor was "very bland," with plaintiff failing to "show any enthusiasm at all" for the position. (Lowe Dep., at 9-10.) Second, according to Dr. Lowe, Dickerson demonstrated "good oral communication skills," "expressed himself well," and was "to the point," whereas McCampbell's answers were "very short, very bland, and did not express himself well." (Id. at 10.) In his observations, Dr. Lowe perceived that McCampbell "lacked the oral communication skills" displayed by Dickerson. (Lowe Aff., at 1.)⁵ Third, Dickerson offered suggestions during his interview of potential improvements to Bishop State's barbering program through "the use of computers in the instructional process as an innovation for the program." (Id. at 2.)⁶ By contrast, McCampbell "did not make any suggestions on how to improve the program." (Lowe Dep., at 10.) Dr. Lowe testified that based on these observations and determinations, he "was impressed with what Mr. Dickerson brought to the table and believed he was the best candidate." (Lowe Aff., at 2.)

Upon learning of his non-selection, McCampbell filed an age-discrimination suit against Bishop State and Dr. Lowe in federal court. In his only remaining cause of action (Count Three), plaintiff purports to bring a claim against Dr. Lowe under 42 U.S.C. § 1983, alleging that his decision to deny employment to McCampbell was made "on the basis of Plaintiff's age, causing the Plaintiff to be deprived of his right to equal protection from age discrimination pursuant to the Fourteenth Amendment of the United States Constitution, as well as his federally protected rights to be free from age discrimination pursuant to 42 U.S.C. Section 1981." (Doc. 1, ¶ 15.) Count Three does not specify whether Dr. Lowe is being sued in his individual or his official capacity. Be that as it may, plaintiff requests an award of compensatory damages, punitive damages, declaratory relief, injunctive relief (in the form of hiring him into the Barbering Instructor position), and attorney's fees. Defendants now move for summary judgment with respect to the § 1983 claim on several grounds.⁷

II. Summary Judgment Standard.

Summary judgment should be granted only "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." Rule 56(a), Fed.R.Civ.P. The party seeking summary judgment bears "the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11^th Cir. 1991). Once the moving party has satisfied its responsibility, the burden shifts to the non-movant to show the existence of a genuine issue of material fact. Id. "If the nonmoving party fails to make 'a sufficient showing on an essential element of her case with respect to which she has the burden of proof,' the moving party is entitled to summary judgment." Id. (quoting Celotex Corp. v. Catrett, 477 U.S. 317 (1986)) (footnote omitted). "In reviewing whether the nonmoving party has met its burden, the court must stop short of weighing the evidence and making credibility determinations of the truth of the matter. Instead, the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 999 (11^th Cir. 1992) (internal citations and quotations omitted). "Summary judgment is justified only for those cases devoid of any need for factual determinations." Offshore Aviation v. Transcon Lines, Inc., 831 F.2d 1013, 1016 (11^th Cir. 1987) (citation omitted).

The Eleventh Circuit has expressly rejected the notion that summary judgment should seldom be used in employment discrimination cases because they involve issues of motivation and intent. See Wilson v. B/E Aerospace, Inc., 376 F.3d 1079 (11^th Cir. 2004). Rather, "the summary judgment rule applies in job discrimination cases just as in other cases. No thumb is to be placed on either side of the scale." Id. at 1086 (citation omitted); see also Williamson v. Clarke County Dep't of Human Resources, 834 F.Supp.2d 1310, 1318 (S.D. Ala. 2011) (recognizing and applying rule that summary judgment standard is applied equally in employment discrimination cases as in other kinds of federal actions).

III. Analysis.

Plaintiff's sole remaining cause of action is a § 1983 age discrimination claim against defendant Dr. Lowe in an unspecified capacity.⁸ As a threshold matter, defendants challenge whether a § 1983 age discrimination claim is legally cognizable. Substantial federal appellate authority holds that it is not. See, e.g., Ahlmeyer v. Nevada System of Higher Educ., 555 F.3d 1051, 1057 (9^th Cir. 2009) ("the ADEA precludes the assertion of age discrimination in employment claims, even those seeking to vindicate constitutional rights, under § 1983").⁹ But this line of precedents is not unanimous, as the Seventh Circuit recently staked out a contrary position. See Levin v. Madigan, 692 F.3d 607, 621-22 (7^th Cir. 2012) ("In light of our analysis of the ADEA and the relevant case law, ... we conclude that the ADEA is not the exclusive remedy for age discrimination in employment claims."). The Eleventh Circuit does not appear to have weighed in on this question. What's more, the Supreme Court has granted a writ of certiorari in Levin to resolve the emergent circuit split. See Madigan v. Levin, --- U.S. ----, 133 S.Ct. 1600, 185 L.Ed.2d 575 (2013). Given this uncertainty, the Eleventh Circuit's silence on the question, and the likelihood of impending, definitive resolution by the Supreme Court, the undersigneddeclines defendants' invitation to forecast whether the Madigan Court will hold that the ADEA is the exclusive federal remedy for age discrimination in employment, such that McCampbell's § 1983 claim would be preempted. The Court assumes (without deciding) that a claim for age discrimination in employment may be brought under § 1983.

Next, defendants maintain that McCampbell's § 1983 claim against Dr. Lowe in his official capacity is barred by Eleventh Amendment immunity. Of course, "[a]bsent waiver by the State or valid congressional override, the Eleventh Amendment bars a damages action against a State in federal court." Odebrecht Const., Inc. v. Secretary, Florida Dep't of Transp., 715 F.3d 1268, 1289 (11^th Cir. 2013) (citation omitted). "This includes damages claims against State officials in their official capacity." Id. "It is also clear that there has been no waiver or congressional override;...