Thomas v. Wiregrass Construction Co.
MEMORANDUM OPINION AND ORDER that Wiregrass's 32 Motion for Summary Judgment is GRANTED, and Thomas's claims in this action are DISMISSED WITH PREJUDICE. The pretrial hearing and trial in this matter are CANCELLED. A separate judgment wil l be entered in accordance with this Memorandum Opinion and Order. Signed by Honorable Judge Mark E. Fuller on 1/14/2014. Copies furnished to calendar group, WR. (Deadlines terminated: Final Pretrial Conference set for 1/16/2014 at 10:30 AM in chambers, and Jury Trial set for 2/10/2014.)(dmn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
CASE NO. 2:12-cv-1071-MEF
(WO – Do Not Publish)
MEMORANDUM OPINION AND ORDER
Plaintiff Ruby Thomas (“Thomas”) brings claims of sexual harassment and retaliation
in violation of Title VII, disability discrimination and retaliation in violation of the
Americans with Disabilities Act (“ADA”), and intentional infliction of emotional distress
under Alabama law against her former employer, Defendant Wiregrass Construction
Company, Inc. (“Wiregrass”). Before the Court is Wiregrass’s Motion for Summary
Judgment filed on October 4, 2013. (Doc. #32.) Thomas has not filed a response in
opposition, despite being given ample opportunities by the Court to do so. Therefore, having
carefully reviewed the submissions of the parties, the applicable law, and the record as a
whole, the Court finds that Wiregrass’s motion is due to be GRANTED.
I. JURISDICTION AND VENUE
The Court has subject matter jurisdiction over the claims in this action under 28
U.S.C. §§ 1331 (federal question) and 1367 (supplemental jurisdiction). The parties do not
contest personal jurisdiction or venue, and the Court finds adequate allegations in support of
II. STANDARD OF REVIEW
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is
appropriate “if the pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine [dispute] as to any material
fact and that the moving party is entitled to a judgment as a matter of law.” Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). The party asking for summary judgment “always bears
the initial responsibility of informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,’ which it believes demonstrates the
absence of a genuine [dispute] of material fact.” Id. at 323. The movant can meet this
burden by presenting evidence showing there is no dispute of material fact, or by showing
the non-moving party has failed to present evidence in support of some element of its case
on which it bears the ultimate burden of proof. Id. at 322–23. The burden shifts to the nonmovant “[o]nly after the moving party has satisfied that burden.” Mullins v. Crowell, 228
F.3d 1305, 1313 (11th Cir. 2000).
Once the moving part has met its burden, the non-moving party must “go beyond the
pleadings and by [her] own affidavits, or by the ‘depositions, answers to interrogatories, and
admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
Celotex, 447 U.S. at 324. To avoid summary judgment, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita
Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). On the other hand, a
district court ruling on a motion for summary judgment must believe the evidence of the nonmovant and must draw all justifiable inferences from the evidence in the non-moving party’s
favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The district court must
grant summary judgment if there is no genuine dispute of material fact and the moving party
is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(a).
While it would make the Court’s job considerably easier if it could grant summary
judgment in favor of a movant as a matter of course when a non-movant fails to respond to
a summary judgment motion, the law of this Circuit does not permit such an approach. See,
e.g., Trustees of Cent. Pension Fund of Int’l Union of Operating Eng’rs & Participating
Employers v. Wolf Crane Serv. Inc., 374 F.3d 1034, 1039–40 (11th Cir. 2004); United States
v. One Piece of Real Prop. Located at 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099,
1101–02 (11th Cir. 2004). Indeed, a district court cannot base the entry of summary
judgment on the mere fact that the motion was unopposed. Nor can a district court deem a
claim abandoned by a party absent some affirmative indication that she no longer wishes to
pursue that claim. Rather, a court must conduct an independent review of the record and
consider the merits of an unopposed summary judgment motion. See Trustees, 374 F.3d at
1039–40; One Piece of Real Prop., 363 F.3d at 1101–02. The record as a whole must
establish the absence of a genuine dispute of material fact before the court can enter
judgment as a matter of law. See One Piece of Real Prop., 363 F.3d at 1101–02.
While the district court is not required to “sua sponte review all of the evidentiary
materials on file at the time the motion is granted . . . [it] must ensure that the motion itself
is supported by evidentiary materials.” See id. (citing Dunlap v. Transamerica Occidential
Life Ins. Co., 858 F.2d 629, 632 (11th Cir. 1988)). “At the least, the district court must
review all of the evidentiary materials submitted in support of the motion for summary
judgment.” Id. (citing Jaroma v. Massey, 873 F.2d 17, 20 (1st Cir. 1989)). Additionally, a
district court must “indicate that the merits of the motion were addressed.” Id. at 1102 (citing
Dunlap, 858 F.2d at 532).
Wiregrass is a highway and street paving contractor based out of Dothan, Alabama.
In August 2006, Wiregrass hired Thomas to work at its Montgomery location. Thomas was
initially hired as a “pilot car driver” but was later reassigned as a “laborer.” Thomas’s main
responsibilities as a laborer were traffic control, moving barrels, shoveling asphalt, flagging
intersections, and putting up signs. Gordon Shirley (“Shirley”) was the Superintendent at
Wiregrass during Thomas’s employment. Doug Clark (“Clark”) was Thomas’s foreman and
direct supervisor when she was first hired. After he passed away, Al Blevins (“Blevins”)
As a result of Thomas’s failure to respond to Wiregrass’s motion for summary judgment,
she has presented no evidence disputing Wiregrass’s factual assertions. Under the Federal Rules
of Civil Procedure, “[i]f a party fails to properly . . . address another party’s assertion of fact as
required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion”
and “grant summary judgment if the motion and supporting materials . . . show that the movant is
entitled to it.” Fed. R. Civ. P. 56(e)(2)-(3). Wiregrass has presented the deposition testimony of
Thomas in addition to the declarations of four other witnesses. While the Court must view the facts
in the light most favorable to Thomas, as the non-movant, in the absence of any response from
Thomas, the Court deems Wiregrass’s factual assertions undisputed.
replaced Clark as Thomas’s foreman and direct supervisor. Osbourne Blount (“Blount”) was
unofficially referred to as “Assistant Foreman,” but he did not have the authority to hire, fire,
reprimand, or demote Thomas.
Thomas suffers from diabetes, high blood pressure, high cholesterol, arthritis,
glaucoma, bronchitis, an unspecified blood disorder, anxiety, and insomnia. Thomas admits
that her diabetes limited her ability to perform her job at Wiregrass and that it continues to
limit her ability to work.
Between March 2007 and November 17, 2011, a series of incidents occurred which
form the basis of this suit. First, Thomas alleges that between March 2007 and the summer
of 2011, Blount sexually harassed her on four separate occasions. On the first occasion, in
March of 2007, Thomas alleges that a co-worker informed her that Blount had called her a
“whore.” On the second and third occasions, which both took place sometime in 2010,
Thomas alleges that Blount discussed Thomas’s sex life with co-workers in Thomas’s
presence. Finally, during the summer of 2011, Blount allegedly asked Thomas to meet him
at his hotel room. Thomas further complained that Blount “sometimes” seemed to undress
her with his eyes and would ask her out on coffee dates.
Second, Thomas complained that Wiregrass failed to comply with her request for a
port-a-let attached to a small trailer that would follow her down the road as she moved along
the job site. Thomas claimed the privacy of a port-a-let was necessary for her to change the
tubing of her insulin pump. Wiregrass advised Thomas that she would be given freedom to
leave the job site and drive to a nearby restroom. On October 25, 2011, Thomas provided
Wiregrass with a light duty note restricting her ability to lift over ten pounds. When light
duty work was not available for Thomas, Wiregrass sent her home. In November 2011, after
Thomas was sent home on three or four occasions because no light duty work was available,
Blevins told her to check back the following Tuesday. On November 17, 2011, Thomas
warned Blevins that if she showed up on Tuesday it would mean she would still be working
for Wiregrass, but if not, it would mean she was leaving the company. Thomas did not return
to work the following Tuesday and never attempted to return to work at Wiregrass after
November 17, 2011.2
Third, and finally, Thomas claims that, during the summer of 2011, Blevins and
Shirley warned Wiregrass employees that the next person to “make a complaint or anything”
to the home office would be fired. Both Blevins and Shirley deny making this statement.
Thomas also claims that she was retaliated against because she told Wiregrass of her
intention to contact OSHA and the Labor and Wage Board to report unfair working
On March 22, 2012, Thomas filed a Charge of Discrimination with the EEOC,
alleging that Wiregrass discriminated against her because of her race, gender, and disabilities.
Thomas also claimed that she was retaliated against and sexually harassed by Blount. A
Thomas testified that the incident occurred on November 12, 2011, but Wiregrass’s records
reflect that the last day Thomas worked was November 17, 2011.
Notice of Right to Sue was issued to Thomas on September 7, 2012, and, according to her,
she likely received the notice the next day, September 8, 2012. On December 10, 2012,
Thomas filed her complaint in this action.3
On October 4, 2013, Wiregrass filed its motion for summary judgment. (Doc. #32.)
Thomas did not file a response to this motion within the briefing schedule deadlines
established by the Court. On November 22, 2013, the Court held a status conference to
address Thomas’s failure to respond. At the conclusion of this conference, the Court gave
Thomas permission to file a motion seeking leave to file a response to Wiregrass’s motion
for summary judgment or an extension of time to respond no later than November 25, 2013.
On December 1, 2013, six days after the Court’s deadline, Thomas filed a Motion to File
Motion For Leave to File Out of Time Under Seal (Doc. #39), which the Court granted (Doc.
#40). Despite the Court granting this motion, Thomas did not file a motion for leave to file
a response out of time with the Court. Accordingly, Wiregrass’s motion for summary
judgment is unopposed.
Title VII and ADA Claims
Title VII and the ADA require a plaintiff to file suit within ninety days of receipt of
a Notice of Right to Sue. 42 U.S.C. § 2000e-5(f)(1). The ninety day period begins to run
Thomas testified her attorney prepared the complaint in this case but that she filed it pro
se “because at the time [her attorney] did not know whether he would take the case or not.” (Doc.
#33, Ex. 1.)
upon receipt of the certified letter at the plaintiff’s residence. Norris v. Fla. Dep’t. of Health
and Rehabilitative Servs., 730 F.2d 682 (11th Cir. 1984). The plaintiff bears the burden of
establishing that she filed her complaint within ninety days of a Notice of Right to Sue. See
Green v. Union Foundry Co., 281 F.3d 1229, 1233–34 (11th Cir. 2002).
Wiregrass has presented undisputed evidence showing that the EEOC issued and
mailed to Thomas a Notice of Right to Sue from its Birmingham, Alabama office on Friday,
September 7, 2012. Thomas testified that she did not remember the day she received the
Notice, but admitted that “normally mail takes a day from Birmingham.” (Doc. #33, Ex. 1.)
Thomas filed her complaint in this action on December 10, 2012, ninety-three days later.
Because Thomas failed to file a response to Wiregrass’s motion for summary judgment, she
has presented no evidence demonstrating that her lawsuit was filed within ninety days of
receipt of her Notice of Right To Sue, thus making it timely. In fact, Thomas’s own
testimony supports the fact that she did not file her Title VII and ADA claims in a timely
manner. Therefore, summary judgment is due to be GRANTED in favor of Wiregrass on
Thomas’s Title VII and ADA claims. See, e.g., Martinez v. U.S. Sugar Corp., 880 F. Supp.
773, 777 (M.D. Fla. 1995), aff’d, 77 F.3d 497 (11th Cir. 1996) (finding that plaintiff had not
met his burden of proof where 95 days elapsed between the day the Notice of Right to Sue
was dated and the date his action was filed and the plaintiff could not remember the date on
which he received the notice).4
In a footnote, Wiregrass argues in the alternative that Thomas’s failure to timely file a
Charge of Discrimination also bars a number of her Title VII and the ADA claims. While it may
State Law Claim
Thomas also claims that Wiregrass is liable under state law for intentional infliction
of emotional distress. (Doc. #1.) The Court has supplemental subject matter jurisdiction
over this claim pursuant to 28 U.S.C. § 1367. Section 1367(c)(3) provides that a “district
court may decline to exercise supplemental jurisdiction over a claim if . . . the district court
has dismissed all claims over which it has original jurisdiction.” Because the federal claims
over which this Court had original jurisdiction have been resolved against Thomas, the Court
declines to exercise its supplemental jurisdiction over the state law claim and, instead,
dismisses it without prejudice. See, e.g., 28 U.S.C. § 1367(c)(3); Un. Mine Workers of Am.
v. Gibbs, 383 U.S. 715, 726–27 (1966). This dismissal should not work to Thomas’s
disadvantage if she chooses to bring this claim in state court because the statute of limitations
for this claim is tolled during the pendency of this action. See 28 U.S.C. § 1367(d).
Based on the foregoing, it is hereby ORDERED that Wiregrass’s Motion for Summary
Judgment (Doc. # 32) is GRANTED, and Thomas’s claims in this action are DISMISSED
WITH PREJUDICE. The pretrial hearing and trial in this matter are CANCELLED.
A separate final judgment will be entered in accordance with this Memorandum
Opinion and Order.
have merit, the Court will not address this argument, as Thomas’s failure to file suit within ninety
days of receiving her Notice of Right to Sue is a sufficient basis to grant summary judgment in favor
of Wiregrass on Thomas’s Title VII and ADA claims.
DONE this the 14th day of January, 2014.
/s Mark E. Fuller
UNITED STATES DISTRICT JUDGE
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