Culver v. Birmingham Board of Education

646 F. Supp. 2d 1272 (2009)

Billy CULVER, Plaintiff,
v.
BIRMINGHAM BOARD OF EDUCATION, et al., Defendants.

Civil Action No. 08-AR-0031-S.

United States District Court, N.D. Alabama, Southern Division.

August 6, 2009.

Richard J. Ebbinghouse, Wiggins Childs Quinn & Pantazis LLC, Birmingham, AL, for Plaintiff.

Afrika C. Parchman, Thomas Means Gillis & Seay PC, Carl E. Johnson, Jr., Claire Hyndman Puckett, Bishop Colvin Johnson & Kent LLP, Birmingham, AL, Kenneth L. Thomas, Thomas Means Gillis & Seay, PC, Montgomery, AL, for Defendants.

ORDER

WILLIAM M. ACKER, Jr., District Judge.

Gross v. FBL Financial Services, Inc., ___ U.S. ___, 129 S. Ct. 2343, 174 L. Ed. 2d 119, was decided by the Supreme Court on June 18, 2009. Gross holds for the first time that a plaintiff who invokes the Age Discrimination in Employment Act ("ADEA") has the burden of proving that plaintiff's being over 40 years of age was the only or the "but for" reason for the adverse employment action being complained of. Because plaintiff, Billy Culver, complains alternatively of race discrimination under Title VII, and age discrimination under the ADEA, and because the dispositive motion deadline is August 14, 2009, Culver, on or before August 14, 2009, shall either abandon his claim of age discrimination, or abandon his claim of race discrimination. Prior to Gross, it was permissible to allege alternative proscribed employer motives, one of which is plaintiff's age. That permission has now been withdrawn by the Supreme Court.