
    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.
    Aug. 17, 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.

In accordance with the accompanying memorandum opinion, and because plaintiff, Billy Culver, has been forced to abandon his claim under the Age Discrimination in Employment Act pursuant to this court’s order entered on August 6, 2009 646 F.Supp.2d 1272 (N.D.Ala.2009), the above-entitled action, insofar as it presents a claim pursuant to the Age Discrimination in Employment Act, is hereby DISMISSED WITH PREJUDICE. Culver’s other claims are unaffected. The court hereby expressly finds and determines that there is no just reason for delay in the entry of final judgment, and the Clerk is DIRECTED to enter final judgment in favor of all defendants and against plaintiff as to his claim brought pursuant to the Age Discrimination in Employment Act.

MEMORANDUM OPINION

This court ordered plaintiff, Billy Culver (“Culver”), either to abandon his claim of age discrimination brought pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (“ADEA”), or his claim of race discrimination brought pursuant to Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., (“Title VII”). Culver had alleged alternative or intersectional motives for the adverse employment action complained of. Plaintiff is admittedly over the age of 40, thus a member of a group protected by the ADEA, and is admittedly white, thus a member of a group protected by Title VII. He claims that his employer, defendant, Birmingham Board of Education, either discriminated against him because of his age or because of his race, or for both reasons.

On June 18, 2009, before the deadline for the filing of dispositive motions in this case, the Supreme Court of the United States decided Gross v. FBL Financial Services, Inc., — U.S. —, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Gross holds for the first time that a plaintiff who invokes the ADEA has the burden of proving that the fact he is over 40 years old was the only or the “but for” reason for the alleged adverse employment action. The only logical inference to be drawn from Gross is that an employee cannot claim that age is a motive for the employer’s adverse conduct and simultaneously claim that there was any other proscribed motive involved. For this reason, the court required Culver to choose between his ADEA alternative, which would require him to prove age as the only reason for the adverse employment action, and his Title VII claim. On August 14, 2009, plaintiff made his choice, abandoning his claim of age discrimination, while purporting to preserve his objection to this court’s order requiring an election.

Because this case presents an important question that, to this court’s knowledge, has not been addressed by any court, the court will by separate order enter final judgment against plaintiff and in favor of defendants as to Culver’s ADEA claim and will include the requisite finding pursuant to Rule 54(b), F.R.Civ.P., to allow an immediate appeal. If a notice of appeal is timely filed, the scheduling order will be appropriately amended.  