[4] Library Board chairman Bishop testified that on August 7, 1979, he met with Oaks regarding the budget and stated that the bottom-line figure was excessive and that the Library Board would be unable to obtain City Council approval for such a large increase. See EEOC Compliance Manual 496.1; Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1005-07 (5th Cir. The admonition of the Fifth Circuit in Orr v. Frank R. MacNeill & Son, Inc., 511 F.2d 166, 171 (5th Cir. Browning v. Birmingham News,348 So. Great American Savings & Loan Assn. The three Library Board members did not necessarily subscribe to all of the cited reasons and the three members differed somewhat on the relative importance of the specified reasons. At the time Oaks was employed by the Library (and thereafter), the Library never had fifteen or more employees (Hanson Affidavit; Bishop Affidavit). The Library bylaws (Complaint Appendix A) provide that the librarian, under the direction and review of the Library Board, has "sole charge of the administration of the library." The use of a boutique hotel does not currently exist in downtown and it provides a use not currently being filled. The same item was on the May 27 agenda, but the council tabled it, citing a flood of emails from concerned residents. The Atlanta Constitution article ("Librarian to Renew `Dirty Book' Fight") was carried on the Associated Press wire service and reprinted in several newspapers throughout the South (Oaks at 141-142; Complaint 46). Oaks' interpretation that the commitments were other than a pledge not to interfere is impermissible. United States District Court, S. D. Alabama, S. D. *1005 *1006 *1007 *1008 *1009 J. U. Blacksher, Gregory B. Stein, Suzanne Paulson, C. Mike Smith, Mobile, Ala., for plaintiff. 2d 239, 243 (Ala.1979). Oaks is the former librarian at the Fairhope Public Library ("the Library"). The duties of the city department heads, however, are wholly dissimilar from the duties performed by the librarian. Stipes further testified that Mayor Nix made a statement to the effect that Nix had helped draft the letter (Stipes at 34). Accepting as true Oaks' contention that she did nothing to foster the disruption, under the Settlement Agreement the Library Board was free to conclude that her mere presence precipitated the disruption: (Shepherd at 47-48; see also Bishop at 65-66). Oaks subsequently responded to the motion for summary judgment as required by Local Rule 8 of this court. On a second level, Oaks maintains that she was subjected to sex discrimination because her salary was "substantially less" than that of "similarly situated department heads in the City of Fairhope." 13. Since the members of the City Council enjoyed absolute immunity with respect to their votes on budgetary matters, Oaks' contentions regarding the council's actions are without merit. 70. Separate personnel files on each Library employee are maintained at the Library. Exh. American Ben. Consequently, the court granted the motion to strike all factual allegations predating May 25, 1979. Oaks' employment was not continued after September 30, 1979; Oaks was terminated effective September 30, 1979, as permitted by the express terms of the Settlement Agreement. Absent opposition to practices made unlawful under Title VII, Oaks "opposition clause" claim is fatally defective. Exh. The language of a settlement agreement must be construed in a straightforward manner. As the newspaper article reflects, Oaks once again asserted that her termination was the result of the so called "dirty books" issue (Oaks at 174). Although the Library Board admittedly acted on advice of legal counsel, Oaks also condemns the Library Board's refusal to discuss the contents of the letter which offered Oaks the opportunity to resign (Oaks Response 22g). [14] It is sharply disputed whether Oaks intentionally fostered disruption of Library Board meetings and betrayed the trust of her Library Board (Bishop at 17-20, 57-61); see Finding of Fact 14 n.4. 2d 207 (1981); Flower v. Crouch-Walker Corp., 552 F.2d 1277 (7th Cir. 1977). Oaks would offer as evidence of a conspiracy that Mayor Nix obtained "commitments" from two new City Council appointees (Trisha Nelson and C. O. McCawley) in connection with Oaks' dismissal. The court need not decide whether submission of the letter to the Councilman and the Mayor (both of whom were defendants in Oaks' first lawsuit) was insufficient publication as a matter of law. 44. 3). 1314, 1335 (W.D.Pa.1974); Alexander v. Lancaster,330 F. Supp. (John Sharp/jsharp@al.com). Oaks initially alleged that her termination infringed upon her first amendment rights of freedom of speech and freedom of the press. 1980), the Fifth Circuit cited the four factors and addressed the joint-employer question: 612 F.2d at 980 n.9. Southard v. Forbes, Inc., 588 F.2d 140, 146 (5th Cir. [28] The court notes that Oaks did in fact engage in public expressions. Nonetheless, Oaks at least initially contended that the Library Board letter (Complaint Appendix C) supported a defamation claim and the court has fully considered that assertion. 1981); Floyd v. Alabama Historical Comm'n,388 So. Absent the essential causal connection, Oaks' claim necessarily must fail. Bishop's statement does not, however, support a finding that Bishop objected to Oaks' "promotion" of as high a budget as the Fairhope City Council would approve (Bishop at 57-59); rather, his statement refers exclusively to the relationship among the Library Board, its employee (librarian Oaks) and the public, and the effect that the public disruption had on Library Board business. 2d 396 (1977) (emphasis supplied). See, e. g., Turner v. Texas Instruments, Inc., 555 F.2d 1251, 1256 (5th Cir. If the Settlement Agreement meant anything at all, it meant that whether or not Oaks did anything that constituted "cause" for termination, she could be terminated effective September 30, 1979. Rule 56(e), Federal Rules of Civil Procedure. 2d 450 (1979); Hutchinson v. Proxmire,443 U.S. 111, 99 S. Ct. 2675, 61 L. Ed. See Gatling v. Atlantic Richfield Co., 577 F.2d 185, 188 (2d Cir. 2d 617, 619-20 (Ala.1976); Tyler v. Insurance Co. of North America, 539 F.2d 1072, 1074 (5th Cir. To establish a claim under Title VII, Oaks must establish that she was subjected to discrimination by an "employer" as defined in 42 U.S.C. Accord, Gertz v. Robert Welch, Inc.,418 U.S. 323, 94 S. Ct. 2997, 41 L. Ed. Accordingly, the court lacks jurisdiction over the subject matter of Oaks' claims under Title VII of the Civil Rights Act of 1964. 1983 is utilized as a parallel remedy with Title VII, the elements are the same). 24. Mayor Nix also testified that the only portion of the Eastern Shore Courier article that was inaccurate was the assertion that Oaks was fired originally "and again last week," because of financial irresponsibility over a long period of time. 23. Oaks' claim is thus factually and legally insufficient. Oaks does not question that the facts are undisputed in connection with her so-called "comparable worth" theory, but suggests that summary judgment is "premature" because the Supreme Court has granted certiorari in Gunther v. County of Washington, 623 F.2d 1303 (9th Cir. [8] Oaks repeatedly refers to being characterized as an "uppity woman" and a "bitch." An initial determination is whether Oaks is a "public figure" insofar as her "struggle" with the City of Fairhope is concerned (Oaks at 171). Exh. Although Oaks would characterize the Library Board as a "city department," no facts support such a finding. (Bishop at 17-20, 55-59; Gaston at 44-45; Bemis 36-42), 15. Whether or not Oaks assisted, "associated" or even opposed the "clique" causing the admitted disruption of Library Board meetings, the disruption and division in the community continued unabated after the Settlement *1044 Agreement. "[I]f legislators of any political subdivision of a state function in a legislative capacity, they are absolutely immune from being sued under the provisions of 1983." 1980). 1980). The First and Second Federal Causes of Action are based upon Title VII and are therefore not cognizable under 42 U.S.C. The City of Fairhope is authorized to establish and maintain, or aid in establishing and maintaining, a free public library for the use of the citizens of the City of Fairhope. But when the site plan was introduced, Councilman Jay Robinson focused on a PowerPoint slide outlining the overall benefit to the community. The slide included a statement requested as part of follow-up correspondence with staff: Our vision is to design a building that is timeless in nature in hopes that it is viewed by visitors and locals as a building that could be decades old and just may have been the old Fairhope Hotel located on what we acknowledge is the most important corner of town. denied, 444 U.S. 832, 100 S. Ct. 62, 62 L. Ed. The exclusive authority over expenditure of appropriated funds remains with the Library Board. 2d 216 (1978); Whiting v. Jackson State Univ., 616 F.2d 116, 121 (5th Cir. 66. N.D.Tex.1978); EEOC v. Upjohn Corp.,445 F. Supp. N.D.Ga. Oaks may, of course, adduce either direct or circumstantial evidence that her termination was because she was a woman. Deposition testimony is cited by the deponent's last name and by the page number. The Oaks dispute was apparently so heated that Minder wrote a *1027 letter to Oaks' replacement at the Library (like Oaks, a former Minder student) chastising her for taking the position, challenging both her competence and the ethics of her behavior, and suggesting she resign (Minder at 57-70, Exh. 9. Oaks adduced no admissible evidence that her termination by the Library Board effective September 30, 1979, was in retaliation for her first federal lawsuit. Such an agreement may only be opened for fraud, accident, or mistake." This court cannot conclude that the librarian's position is comparable to that of city department heads who oversee the provision of essential services to the populace of Fairhope. [17] Oaks was profiled in the national periodical Library Journal in both June and July of 1979, and received national exposure in Calvin Trillin's New Yorker (July 11, 1979) magazine article entitled "U.S. Journal: Fairhope, Ala. Oaks admitted, however, that after May 25, 1979, she made no attempt to oppose unlawful employment practices and that her retaliation claim was based exclusively upon her having filed a previous lawsuit (Oaks at 91). 33. Oaks admitted that she granted interviews upon request (Oaks at 168-169). [29] Oaks' reliance upon Branti v. Finkel,445 U.S. 507, 100 S. Ct. 1287, 63 L. Ed. Mayor Nix further explained the reasons why the City of Fairhope took the position at the time of the first termination that Oaks was terminated for financial "irresponsibility" (Nix at 75-79). 2d 668 (1973). [33] No facts *1048 contradict the testimony that the statement of reasons was prepared in "fairness" to Oaks. Given the Court's constitutional reluctance to issue advisory opinions, Gunther may well be less than dispositive in connection with the "comparable worth" theory. Oaks could hardly be characterized as a private individual who was unwillingly dragged into a public controversy. Once again, the statement is inadmissible hearsay. Healthy City School Dist. It is undisputed that a majority of the Library Board (Mason, Shepherd and Bishop) considered Oaks' termination in late July, visited attorney Arendall to that end and, with the assistance of Arendall, prepared a letter to Oaks. Browning v. Birmingham News,348 So. 2d 411 (1979). 2d 722, 723-24 (Ala.1976); *1033 O'Rear v. Sutton, 215 Ala. 630, 112 So. 46. 11. See Rules 802 and 805, Federal Rules of Evidence; Cedeck v. Hamiltonian Federal Sav. The court previously dismissed Oaks' alleged deprivation of a liberty interest under the fourteenth amendment (Complaint 40); the record fully supports the court's decision on that claim. See Finding of Fact 13. Based upon the foregoing Findings of Fact and Conclusions of Law, the court concludes that there is no genuine issue of a material fact and that the defendants are entitled to judgment on each claim as a matter of law. Oaks did indeed offer to continue as librarian at a salary of $12,000 three weeks after she was notified of her termination (Blacksher Affidavit Exhibit D). The following Conclusions of Law afford independent and alternative grounds for rejecting such claims. v. Doyle,429 U.S. 274, 97 S. Ct. 568, 50 L. Ed. 1976) ("the fact that the [party opposing summary judgment] vigorously disputed the legal conclusions to be drawn from the facts presented by the [movant] was no bar to the grant of summary judgment"); Anderson v. Viking Pump Div., Houdaille Industries, 545 F.2d 1127 (8th Cir. See Codd v. Velger,429 U.S. 624, 97 S. Ct. 882, 51 L. Ed. Corp.,396 F. Supp. After the qualified privilege of fair comment has been established, just as after public figure status is determined, a person claiming defamation "must allege and prove actual or express malice in order to recover." Indeed, Alabama law vests "full power and authority" over such matters in the Library Board. The Library Board decision to terminate Oaks commanded a front-page headline and photograph in the Eastern Shore Courier (September 3, 1979), and Oaks offered her own reaction to a number of newspaper reporters: "Librarian to Renew `Dirty Book' Fight," Atlanta Constitution (September 30, 1979); "Librarian Eyes Court Aid," Independent (September 5, 1979). Whether Oaks' mere presence, or her association with an identifiable clique, "consciously or unconsciously" caused the disruption of the Library Board meetings, it is undisputed that the "efficient operation" of the Library Board was adversely affected which in turn undermined the essential, harmonious working relationship between Oaks and the Library Board. This court cannot, however, conclude that a municipality must fund a library (including the librarian's salary) on equal footing with municipal departments that provide essential municipal services. Willis C. Darby, Jr., Paul D. Myrick, John D. Richardson, Mobile, Ala., for defendants. 2d 619 (1979). Life Ins.