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Porter v. Gregory

United States District Court, S.D. Georgia, Brunswick Division

September 5, 2014

Sheriff TOMMY J. GREGORY, in his official capacity, Defendant.


J. RANDAL HALL, District Judge.

Presently before the Court is Defendant Sheriff Tommy Gregory's ("Sheriff") motion for summary judgment and Plaintiffs Roger Dyals and Dee Grant Porter's (collectively, "Plaintiffs") motion to amend. (Doc. nos. 31, 52.) The Sheriff seeks summary judgment on all of Plaintiffs' claims, and Plaintiffs seek to attach two exhibits to their response in opposition to summary judgment. Plaintiffs, former deputies in the Camden County Sheriff's Office ("Sheriff's Office"), were terminated on June 29, 2011, as part of a reduction in force purportedly because of a limited budget. However, they allege that they were discriminated against on the basis of their age and retaliated against in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. ("ADEA"). Additionally, Dyals claims that he is entitled to unpaid overtime and was retaliated against in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq. ("FLSA"). As discussed below, the Sheriff's motion for summary judgment is GRANTED IN PART AND DENIED IN PART and Plaintiffs' motion to amend is GRANTED.


A. Factual Background

1. Plaintiffs' Employment History and Terminations

This case arises out of Plaintiffs' employment as deputy sheriffs with the Sheriff's Office. Dyals was hired in November 2002 by former Sheriff Bill Smith as a Lieutenant Operations Officer. (Dyals Dep. at 11.) Dyals remained in that position until 2009 at which time he was promoted to Captain. (Id. at 14.) When Sheriff Gregory was elected in 2009 and assumed office, there was a period of reorganization that saw Dyals reassigned and demoted to a deputy fleet manager. (Id. at 16-18.) This also resulted in a decrease in pay. (Id. at 18.) Dyals testified that the Sheriff told him, "Well, you either accept it or you can go home." (Id.) In January 2010, he was again reassigned, this time as a courtroom deputy. (Id. at 20.) This transfer resulted in another reduction in pay. (Id.) Dyals remained in this position until his termination. (See Doc. no. 31-1 ¶ 4.)

Porter, likewise, was hired by Sheriff Smith in March 2005. (Porter Dep. at 11.) He was originally hired as a paramedic in the Jail/Corrections Division. (Id.) Porter remained in this position until September 2009 when Sheriff Gregory made the decision to contract out the medical care to a private company in order to save money. (Id. at 17.) At that time, Porter was reassigned as a deputy to the special operations unit. (Id. at 21.) Porter excelled at this position, drawing high praise and excellent performance evaluations from his supervisor, Kevin Chaney. (See Doc. no. 37-1 at 63.) Porter remained in this position until he was terminated. (See Doc. no. 31-1 ¶ 5.)

On June 29, 2011, Plaintiffs, along with seven other employees, were laid off. (See Doc. no. 37-1 at 54.) At the time of their termination, Dyals was 66 and Porter was 50 years old. (See Doc. no. 41-1 at 15.) Sheriff Gregory contends that the lay-offs were necessary due to "budgetary constraints." (Doc. no. 37-1 at 54.) Apparently, the Sheriff requested a budget for the 2012 fiscal year of approximately $8 million, but the Camden County Board of Commissioners approved a budget for the Sheriff's Office (including the Jail/Corrections division) of only $5.5 million. (Fender Dep. at 12.) Michael Fender, the Director of Finance for Camden County, testified that this represented a decrease of approximately $600, 000 from the 2011 budget. (Id.) Plaintiffs argue the decrease was far less, only $164, 170. (See Doc. no. 41-1 at 29.)

Sheriff Gregory explains that once he determined that lay-offs were necessary, he asked each division leader to rank his or her employees. (Gregory Dep. at 62.) Purportedly, the employees at the bottom of each list were those at risk of being terminated. (Id.) Lori Whitlow, the Executive Administrative Assistant to Sheriff Gregory, supervised the courthouse security division. (Whitlow Aff. ¶¶ 2, 4.) She testified that in making her list, she considered an employee's work history, attendance, and any disciplinary actions. (Id. ¶ 9.) Applying these criteria, Dyals ranked at the bottom of his division. (Id. ¶ 10.) Unlike Whitlow, however, Kevin Chaney, special operations commander, ranked his employees solely on one factor: seniority. (Chaney Dep. at 13.) Consequently, because Porter was the last individual to join the special operations division, he was ranked last. (Id.)

2. 2012 Hirings

Despite laying off nine employees aged 70, 66, 56, 54, 50, 43, 41, and 38 because of allegedly limited funds, [1] Sheriff Gregory continued to advertise for and hire new employees throughout 2011 and 2012. In fact, the Sheriff hired three employees - one corrections officer and two deputies - on June 27, 2011, two days prior to the lay-offs. (See Doc. no. 41-1 at 15.) The ages of the new hires were 25, 39, and 51. (Id.)

As early as September 30, 2011, the Sheriff placed advertisements requesting applications for open Correctional Officer positions in the newspaper. (See Doc. no. 36-2 at 45.) And over the next several months, the Sheriff hired an additional eighteen employees, including four deputies, twelve corrections officers, one finance officer, and one administrative clerk. (Id.) The ages of the new hires ranged from 19 to 51, and only three of the hires were over the age of 40. (Id.) Dyals alleges that he was replaced by a deputy with less training and experience who was significantly younger than him. (Dyals Decl. ¶¶ 16-17.) And although an employee was not hired to replace Porter, Brittany Barnes was transferred into the special operations division upon Chaney's request. (Chaney Dep. at 25.)

Despite being aware of the advertisements, Plaintiffs did not reapply for employment with the Sheriff's Office. Plaintiffs did not believe that they needed to reapply because when they were terminated they were told that they were "subject to recall." (Porter Decl. ¶ 10; Dyals Decl. ¶ 13.) They were not informed that if they wanted to return to service, they would have to reapply. (Porter Decl. ¶ 9; Dyals Decl. ¶ 12.) They allege that they were not rehired because they filed claims of age discrimination with the EEOC shortly after their terminations. (See Doc. no. 50-1 at 2.)

3. Dyals' Unpaid Overtime

Dyals also claims that Sheriff Gregory refused to pay him for overtime hours he worked. Dyals testified that due to the strained budget, Sheriff's Office employees were instructed not to record overtime hours on their timesheets. (Dyals Dep. at 68.) Instead, they were told to record any hours beyond forty that they worked during a given week in a personal notebook and that they would receive "cornp time" in lieu of compensation. (Id. at 68, 71-72, 87.) Employees were then supposed to take off any "comp time" at the end of the week. (Dyals Dep. at 87.) However, as a result of being understaffed, Dyals was unable to use his "comp time." (Id.) By January 2010, Dyals had accumulated approximately 50.5 hours of "comp time." (Id. at 99.) When he approached the Sheriff about taking some of this time, the Sheriff stated that he would "have to eat those overtime hours." (Id.)

B. Procedural Background

On December 12, 2012, Plaintiffs filed suit in this Court. (Doc. no. 1.) On September 20, 2013, Sheriff Gregory filed his motion for summary judgment on all of Plaintiffs' claims. (Doc. no. 31.) Plaintiffs filed their response in opposition to summary judgment on October 11, 2013. (Doc. nos. 40-45.) And the Sheriff replied on October 25, 2013. (Doc. no. 48.) Plaintiffs filed a sur-reply brief on November 7, 2013, and a motion to amend their response in opposition to summary judgment on November 27, 2013. (Doc. nos. 50, 52.) The time for any further responses has expired, and the motions are ready and ripe for adjudication.


Plaintiffs seek to amend their response in opposition to summary judgment by attaching an exhibit and affidavit in support of their brief. Sheriff Gregory has not opposed Plaintiffs' motion to amend. Consequently, Plaintiffs' motion (doc. no. 52) is GRANTED.


Summary judgment is appropriate only if "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Facts are "material" if they could affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248 (1986). The Court must view the facts in the light most favorable to the non-moving party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587 (1986), and must draw "all justifiable inferences in [its] favor." U.S. v. Four Parcels of Real Prop. , 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted).

The moving party has the initial burden of showing the Court, by reference to materials on file, the basis for the motion. Celotex Corp. v. Catrett , 477 U.S. 317, 323 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta , 2 F.3d 1112, 1115 (11th Cir. 1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways - by negating an essential element of the non-movant's case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & Clark, Inc. , 929 F.2d 604, 606-08 (11th Cir. 1991) (explaining Adickes v. S.H. Kress & Co. , 398 U.S. 144 (1970) and Celotex Corp. v. Catrett , 477 U.S. 317 (1986)). Before the Court can evaluate the non-movant's response in opposition, it must first consider whether the movant has met its initial burden of showing that there are no genuine issues of material fact and ...

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