Jones v. Water Works Board of the City of Birmingham, The

Filing 52

MEMORANDUM OPINION AND ORDER. 32 , Motion for Summary Judgment, is GRANTED IN PART AND DENIED IN PART. 50 , Motion for Leave to File a Sur-reply, is DENIED. As set in order, Plaintiff may proceed to trial by jury on her Title VII discriminatory discharge and retaliation claims. All other claims are hereby DISMISSED with prejudice. Signed by Judge Abdul K Kallon on 07/05/12. (CVA)

FILED
2012 Jul-05 PM 01:41
U.S. DISTRICT COURT
N.D. OF ALABAMA

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAROLYN JONES,
Plaintiff,
v.
THE WATER WORKS BOARD
OF THE CITY OF
BIRMINGHAM,
Defendant.

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Civil Action Number
2:10-cv-1323-AKK

MEMORANDUM OPINION AND ORDER
Before the court is Defendant the Water Works Board of the City of
Birmingham’s (“WWB”) motion for summary judgment, doc. 32, and Plaintiff
Carolyn Jones’ (“Plaintiff”) motion for leave to file a sur-reply, doc. 50. For the
reasons stated more fully herein, the WWB’s summary judgment motion is
GRANTED as it relates to Plaintiff’s Title VII sex discrimination and racial
harassment claims, 42 U.S.C. § 1981 claims, and state law claims for intentional
infliction of emotional distress and negligent hiring, supervision, training, and
retention, but DENIED as it relates to Plaintiff’s Title VII discriminatory
discharge and retaliation claims. Plaintiff’s motion for leave to file a sur-reply is
DENIED.
A Pretrial Conference will be held on September 6, 2012 at 8:00 A.M. in
the Chambers of the Undersigned at the Hugo L. Black United States
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Courthouse in Birmingham, Alabama. This case is set for jury trial on October
15, 2012 at 9:00 A.M. at the Hugo L. Black Courthouse in Birmingham,
Alabama.
I.

STANDARD OF REVIEW

Under Rule 56(a) of the Federal Rules of Civil Procedure, summary
judgment is proper “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” To
support a summary judgment motion, the parties must cite to “particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations, admissions, interrogatory
answers, or other materials.” Fed. R. Civ. P. 56(c). Moreover, “Rule 56(c)
mandates the entry of summary judgment, after adequate time for discovery and
upon motion, against a party who fails to make a showing sufficient to establish
the existence of an element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). The moving party bears the initial burden of proving the absence of a
genuine issue of material fact. Id. at 323. The burden then shifts to the
nonmoving party, who is required to “go beyond the pleadings” to establish that
there is a “genuine issue for trial.” Id. at 324 (citation and internal quotation
marks omitted). A dispute about a material fact is genuine “if the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson

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v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The court must construe the
evidence and all reasonable inferences arising from it in the light most favorable to
the non-moving party. Adickes v. S. H. Kress & Co., 398 U.S. 144, 157 (1970);
see also Anderson, 477 U.S. at 255 (all justifiable inferences must be drawn in the
non-moving party’s favor). However, “mere conclusions and unsupported factual
allegations are legally insufficient to defeat a summary judgment motion.” Ellis v.
England, 432 F.3d 1321, 1326 (11th Cir. 2005) (per curiam) (citing Bald
Mountain Park, Ltd. v. Oliver, 863 F.2d 1560, 1563 (11th Cir. 1989)). Moreover,
“[a] mere ‘scintilla’ of evidence supporting the opposing party’s position will not
suffice; there must be enough of a showing that the jury could reasonably find for
that party.” Walker v. Darby, 911 F.2d 1573, 1577 (11th Cir. 1990) (citing
Anderson, 477 U.S. at 252).
II.

FACTUAL AND PROCEDURAL BACKGROUND

This action arises from Plaintiff’s former employment with the WWB,
which is an Alabama public corporation pursuant to Ala. Code § 11-50-231
(1975). Doc. 33-1, at 2. Plaintiff, an African American female, began working for
the WWB in September 2006 as an Administrative Assistant II for the Engineering
Department’s chief engineer, Howard Richards (“Richards”). Doc. 35-1, at 4.
Mac Underwood (“Underwood”), the WWB’s General Manager, discharged
Plaintiff on July 11, 2008 due to “unsatisfactory job performance.” Doc. 35-2, at
111. More specifically, in Plaintiff’s termination letter, Underwood provided: “it
has been determined that [1] you have acted rudely and unprofessional[ly] towards
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customers, co-workers and management which has caused morale problems and a
disruption in the Engineering Department, and [2] have been late to work on
numerous occasions. In addition, [3] you ordered flowers from the wife of the
Board’s Chief Engineer, Howard Richards, for the EPA Awards Luncheon which
was a violation of the Board’s Conflict of Interest Policy (Section 6.5 in the
Employee Handbook) and [4] purchased shirts for Engineering outside of the
Purchasing Department, without reimbursing the Board, all of which is a violation
of the Purchasing Guidelines and Uniform Policy.” Id.
A.

Termination Justifications
i.

Complaints of Rude and Unprofessional Conduct

On June 6, 2008, Stacy Finch (“Finch”), a Caucasian female, and the then
acting-Manager for the WWB’s System Development Department, emailed T.M.
“Sonny” Jones (“Sonny Jones”), the Assistant General Manager for Engineering,
regarding Plaintiff’s conduct. Doc. 35-2, at 112. In the email, Finch described an
incident that occurred that morning where she asked Plaintiff to take a message
because the employee Finch wanted to check with about office space was
unavailable. Apparently prompted for more information, Finch described a
possible office-space move that Sonny Jones approved. Allegedly, Plaintiff
“sarcastically responded with ‘Ooh well that’s typical - HE supersedes everything
without checking with anyone anyway.’” Id. When Finch suggested that Plaintiff
could speak to Sonny Jones directly, Plaintiff purportedly stated “‘NO, I’m not
dealing with him.’” Id. Furthermore, Finch reported in the email that “I know for
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a fact that [Plaintiff] has been very rude and disrespectful to as many as five other
employees on this floor alone, as well as with one consultant.” Id.
Sonny Jones took Finch’s email to the WWB’s Human Resources
Department (“HR”), which, in turn, conducted an investigation. See doc. 36-7, at
11.1 When Plaintiff received notice of Finch’s complaint on June 9, 2008,
Plaintiff submitted a letter to the WWB’s HR manager Paul Lloyd (“Lloyd”)
complaining of discrimination and retaliation by Finch and Sonny Jones. Doc. 352, at 109. Plaintiff provided that: “In the past, I have had negative experiences
with Mr. Jones. Mr. Jones is very disrespectful and unprofessional towards me as
a black female. He has shown blatant prejudice by consistently using racist terms
such as ‘you people’ to describe minorities.” Id.
As a result, HR also investigated Plaintiff’s allegations. See doc. 37-1, at 28
(Underwood testifying that the WWB investigated Finch and Plaintiff’s
complaints at the same time). HR initially tapped Sonny Jones to lead the
investigation regarding Finch’s complaints against Plaintiff. However, after
Plaintiff’s letter accusing Jones of discrimination, Underwood took charge of the
investigation. Doc. 37-1, 15. As it relates to the substance of this investigation,
Lloyd testified that “we only want to extend the investigation and interview those

1

Section 6.7 of the WWB’s Employee Handbook provides: “Employees are expected to
perform their jobs efficiently, effectively, and in accordance with established procedures.
Examples of unacceptable performance include: . . . Insubordination, willful disobedience or
failing to follow management directions; unprofessional conduct or rudeness to customers . . . .”
Doc. 35-1, at 133.
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who we believe would have some insight into the investigation. We don’t want to
stretch it out to people that don’t - - may not have any insight into it, because
you’ve got a potential for rumors and things like that to get started.” Doc. 37-6, at
77. As such, HR and Underwood interviewed various WWB managers and
employees. See doc. 33-1, at 2-5.
The interview notes of Vanessa Washington, an eye witness to the June 6,
2008 interaction between Finch and Plaintiff, provide that Washington described
the nature of Finch and Plaintiff’s conversation as “joking[,] did not think
anything about it,” doc. 33-3, at 2, and that Washington had no recollection of
Plaintiff’s purported derogatory statements regarding Sonny Jones, id.
Washington also denied hearing Sonny Jones use the phrase “you people” in a
derogatory manner; however, Washington reported that Sonny Jones occasionally
failed to respectfully acknowledge certain African American WWB employees.
Id. at 2-3. Similarly, the interview notes from Kelsey Baugh, an intern who was
also present for the June 6, 2008 interaction between Finch and Plaintiff, provide
that Baugh found nothing rude or disrespectful about the conversation, doc. 33-4,
at 2, and that Baugh had no recollection of Plaintiff stating that Sonny Jones
“supersedes everything,” but that Plaintiff may have stated that she refused to deal
with Sonny Jones, id. Baugh also had no recollection of Sonny Jones using the
phrase “you people” in a derogatory manner or any other disrespectful behavior by
Sonny Jones. Id. at 2-3.
Perhaps because the eye witnesses did not corroborate Finch’s contentions,
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HR decided to interview other individuals to inquire about Plaintiff’s general
conduct. Unlike the investigation into Finch’s allegations, this investigation
revealed complaints regarding Plaintiff’s behavior. Specifically, the June 26, 2008
interview notes for Jennifer King provide that Plaintiff treated her rudely
including an abrasive attitude and tone. Doc. 33-7, at 2. Similarly, the June 27,
2008 interview notes for Derrick Murphy state that Murphy found Plaintiff’s
strong and straightforward temperament disrespectful and unprofessional. Doc.
33-9, at 2. Project coordinator Reginald Miller asserted in his June 27, 2008
interview that he heard Plaintiff talk to a customer in an unprofessional manner.
Doc. 33-10, at 2. On June 30, 2008, principal engineer Patty Barron described
Plaintiff as “wicked” and, although sometimes Plaintiff “can be nice as she can
be,” Barron also stated that Plaintiff caused tension in the engineering department.
Doc. 34-3, at 2. Jeff Cochran, another engineer, provided on June 30, 2008, that
“early on,” Plaintiff treated him unprofessionally and disrespectfully, but that “she
has gotten better over the last three or four months.” Doc. 34-4, at 2. Finally,
Jonathan Wilson, an engineer, maintained in his July 1, 2008 interview that
Plaintiff can cause a more stressful working environment, but that “she has her
days - very helpful and goes beyond.” Doc. 34-5, at 2-3. The HR interviewer
never asked these employees about Sonny Jones’ purported disrespectful and
discriminatory actions. See docs. 33-7, 33-9, 33-10, 34-1, 34-3, 34-4, 34-5.
Conversely, Richards stated in his June 20, 2008 interview that he never
witnessed any rude or disrespectful behavior by Plaintiff—although, Richards also
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admitted that he received complaints about Plaintiff’s conduct from Walter
Garner, Jennifer King, and Derrick Murphy. Doc. 33-5, at 2-3. As it relates to
Sonny Jones, Richards provided that he never witnessed Sonny Jones make an
offensive statement to Plaintiff or anyone else “with words, but with behavior. As
a black male, if you are talking to someone and they turn their face away from you
or they joke about the way you said something.” Id. at 2. However, HR reported
that when it asked, Richards could not provide an example. Id. On the other hand,
later in the interview notes when asked for any additional information, Richards
provided that he “[h]as been in a conversation and Sonny walked right in and
start[ed] talking to the person he was talking to without saying excuse me.
Howard found it rude and disrespectful. Examples: when talking to Patrick and
Darryl.” Id. at 4.
Three other employees also reported no problems with Plaintiff. Peter
Gioka, an engineer, never received any rude treatment from Plaintiff and had no
knowledge of any such disrespectful behavior. Doc. 33-6. Similarly, Richard
Jacobs, a principal engineer, provided in his June 27, 2008 interview that he
appreciated Plaintiff’s candor and joking, and as such, reported no rude,
unprofessional, or disrespectful treatment by Plaintiff. Doc. 34-1. Cary Prather,
the environmental service manager, also reported no rude treatment by Plaintiff
and stated that Plaintiff’s tone with customers is condescending but that she “tries
to help them and will give them her number for them to call back if they still have
problems.” Doc. 34-2. The interviewer apparently never asked Gioka, Jacobs, or
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Prather about Sonny Jones’ alleged discriminatory behavior. See docs. 33-6, 34-1,
34-2.2
ii.

Tardiness

In addition to Plaintiff’s purported rude behavior, the WWB contends also
that it discharged Plaintiff for excessive tardiness. This conduct is not in dispute.
Indeed, Plaintiff admitted to occasions of tardiness. Doc. 35-1, at 44. The
WWB’s records indicate that Plaintiff arrived late for work seventeen (17) days in
April 2008 and fourteen (14) days in May 2008. Doc. 36-8, at 32. However,
Richards testified that he had a discussion with Underwood regarding Plaintiff’s
tardiness where Richards stated that “Carolyn [Jones] is a good employee, she’s
very productive, she works late, she works during her lunchtime. And there are
times she would ask to come in late and I would allow it.” Doc. 35-3, at 70.
Underwood purportedly consented to this arrangement even though, some time
prior to terminating Plaintiff, he issued a general communication that managers

2

As it relates to rude and unprofessional behavior as a justification for Plaintiff’s
termination, the court agrees with Plaintiff that the McCarroll, doc. 37-8, Miller, doc. 37-9,
Murphy, 37-10, and White, 37-11, affidavits submitted by the WWB are irrelevant for summary
judgment purposes. See doc. 41, at 5-8; see also doc. 48. Put simply, while these affidavits
provide additional evidence regarding Plaintiff’s behavior, the affidavits offer no indication that
the WWB’s decision-makers possessed knowledge of this additional evidence when discharging
Plaintiff. In other words, the WWB cannot claim that it depended upon these affidavits to
discharge Plaintiff when the affiants gave this testimony over three years after Plaintiff’s
termination (October 2011). See McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 359-60
(1995) (establishing that an employer cannot rely on evidence of misconduct it discovered after
an employee’s termination, termed “after acquired evidence,” because the “employer could not
have been motivated by knowledge it did not have”); see also Conroy v. Abraham ChevroletTampa, Inc., 375 F.3d 1228, 1232 (11th Cir. 2004); Chapman v. AI Transport, 229 F.3d 1012,
1068 n.101 (11th Cir. 2000).
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and supervisors should not tolerate tardiness. Id. at 58-59, 70. Consistent with the
arrangement Plaintiff had with Richards, Plaintiff received no reprimand or other
discipline for tardiness prior to her discharge. Doc. 37-1, at 36.
Moreover, Plaintiff submits evidence that Tammy Wilson (“Wilson”),
Sonny Jones’ Caucasian Administrative Assistant, committed similar infractions
and was not discharged. Specifically, Wilson’s employee file reveals that she
received a “written warning” on June 22, 2007 for arriving “to work
approximately 10 to 15 minutes late . . . on Thursday, June 21 and Friday, June
22.” Doc. 40-34, at 4. Wilson also received a “final warning or suspension” on
February 29, 2008 because “[d]uring the month of January 2008, [Wilson was]
tardy (late for work) at least 6 times based on the time you entered the main gate . .
. . We discussed this with you on numerous occasions during 2007. We also
discussed this with you the first week of January 2008. You were requested to
correct this problem by arriving to work on time. Since you have continued to be
tardy during January 2008, I am suspending you for four (4) business days, March
3, 4, 5, and 6, 2008.” Id. at 5. Despite these and subsequent tardiness infractions,
Lloyd, the HR manager, testified that, as of September 29, 2011, the WWB still
employed Wilson. Doc. 37-6, at 49-50.
iii.

EPA Awards Luncheon Flower Arrangements Purchase

The third justification for Plaintiff’s discharge involved an alleged breach of
the conflict of interest policy. On April 28, 2008, the WWB held a luncheon at the
Harbert Center in Birmingham, Alabama to honor the Board for receiving an
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Environmental Protection Agency (“EPA”) outstanding achievement award. Doc.
37-1, at 40, 44. Plaintiff ordered the flowers for this luncheon from “Floral
Designs by Maureen Richards.” Doc. 35-2, at 105. Maureen Richards is the wife
of Plaintiff’s supervisor, Howard Richards. Doc. 35-1, at 25. While the parties
agree that Richards knew about the flower purchase from his wife, see doc. 35-3,
at 52; doc. 35-1, at 25, the parties disagree whether Underwood approved the
purchase. Plaintiff testified that she told Underwood about the flowers prior to the
luncheon, and Underwood informed her that such purchase conformed with the
WWB’s conflict of interest policy because third-party sources funded the
luncheon. Doc. 35-1, at 25. Conversely, Underwood testified that he only became
aware that Richards’ wife supplied the flower arrangements after the luncheon.
Doc. 37-1, at 43. Underwood also testified that “I told Howard [Richards] that
there was a conflict with him or Carolyn [Jones] ordering flowers from his wife for
benefit for her,” and accordingly, Underwood recommended that Richards contact
Mary Thompson, an attorney for the WWB. Id. at 43-44. Moreover, Richards
similarly provided that, following the luncheon, Underwood asked him to speak
with Mary Thompson about the potential conflict of interest, and Thompson stated
that the transaction “would be okay because it was private money that was going
to pay for [the flowers], not public money.” Doc. 35-3, at 53.3
3

The WWB attempts to utilize the attorney-client privilege as it relates to these
statements by Mary Thompson. See doc. 47, at 8 (“[S]ince [Richards] contacted the Board’s
attorney at the direction of the Board’s General Manager to seek legal advice for the Board and
not [Richards] personally, any subsequent conversation between the [Richards] and the Board’s
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On May 7, 2008, Plaintiff sent Underwood an email regarding payment for
the flower arrangement purchase. See doc. 40-4. In this email, Plaintiff stated:
“Mac, our attorney declared no conflict of interest because [Maureen Richards]
would be paid with private funds as was the Harbert Center. Please tell me what I
can tell her if she is not getting paid or would you please arrange for someone to
pay for decorating the Harbert Center for the EPA Award Luncheon.” Id.
Underwood responded on May 8, 2008: “Elements [a private public relations firm]
has committed to taking care of this as soon as they can. They have talked to the
provider (Flowers by Maureen) and everything is ok.” Id. Ultimately, Malcolm
Pirnie, a private engineering firm, paid Maureen Richards for the flower
arrangements. Doc. 37-1, at 41; doc. 35-3, at 53.
The WWB’s conflict of interest policy prohibits participation “in activities
that conflict or appear to conflict with the business interests” of the Board, and
include “[d]eveloping a relationship with a customer or other business contact that
may jeopardize an employee’s independent judgment.” Doc. 35-1, at 131. In May

attorney is subject to the attorney-client privilege.”). The court disagrees because “‘litigants
cannot hide behind the privilege if they are relying upon privileged communications to make
their case. “The attorney-client privilege cannot at once be used as a shield and a sword.”’” New
Phoenix Sunrise Corp. v. C.I.R., 408 F. App’x 908, 919 (6th Cir. 2010) (quoting In re Lott, 424
F.3d 446, 454 (6th Cir. 2005) (quoting United States v. Bilzerian, 926 F.2d 1285, 1292 (2d Cir.
1991))). As such, “the privilege may implicitly be waived when defendant asserts a claim that in
fairness requires examination of protected communications.” Bilzerian, 926 F.2d at 1292. Here,
the WWB maintains that it discharged Plaintiff because she clearly violated the Board’s conflict
of interest policy. See doc. 47, at 14-15. However, Plaintiff submits evidence that the WWB’s
attorney may have opined just the opposite—that Plaintiff’s conduct comported with this policy.
As such, the court will consider this evidence over the WWB’s attorney-client privilege
objections.
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2008, at the direction of Underwood, Sonny Jones allegedly began an
investigation into a potential conflict of interest policy violation as it relates to the
flower arrangements purchase. Doc. 36-7, at 28. Sonny Jones requested that
Lloyd and HR handle the investigation, id., and Lloyd testified that—even though
a third party vendor paid for the flower arrangements—Plaintiff still violated the
WWB’s conflict of interest policy because she failed to notify management about
the personal relationship involved. Doc. 37-6, at 16.
iv.

Engineering Department T-Shirt Purchase

The final rationale for Plaintiff’s discharge involved an alleged violation of
the purchasing guidelines that occurred a year earlier. In May 2007, Plaintiff
facilitated the purchase of departmental t-shirts from “The Greek Shop.” Doc. 351, at 13. Richards approved the check request for this t-shirt order, doc. 35-2, at
91, but Plaintiff failed to utilize the Purchasing Department for this check
requisition, doc. 35-1, at 13. Rather, Plaintiff took the check requisition form to
the Accounting Department, which, in turn, issued a check to The Greek Shop. Id.
at 15. Plaintiff testified that she never reviewed the purchasing guidelines to
ascertain compliance, id., but Plaintiff attended a training class on the purchasing
guidelines on October 19, 2006 and possessed a copy of these guidelines, id. at 12.
Richards stated that he initiated the t-shirt purchase by instituting a departmental
logo design competition to improve morale and productivity within the
Engineering Department. Doc. 35-3, at 54. Richards further provided that Darrell
Jones and Sonny Jones approved the competition, agreed to serve as judges, and
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received, along with Underwood, see doc. 37-1, at 65, the finished t-shirt from The
Greek Shop, doc. 35-3, at 54. However, Richards never met with the Purchasing
Department to discuss the t-shirt purchase. Id. at 54-55. In addition, Sonny Jones
testified that these departmental t-shirts violated the “written uniform policy.”
Doc. 36-7, at 23. Underwood corroborated this testimony by providing that the
WWB issues employee uniforms, “[s]o to purchase a shirt that has a different logo,
that was different than the uniform policy violated that uniform policy.” Doc. 371, at 116.
Moreover, Underwood testified that, in May or June 2008, a year after the
purchase, an employee in the Purchasing Department raised the issue that the
Engineering Department had failed to properly go through the Purchasing
Department. Doc. 37-1, at 65. Sonny Jones began investigating this matter and
eventually Underwood investigated the possible violation of the purchasing
guidelines. Doc. 36-7, at 10. Underwood testified that “[t]he Board’s purchasing
guidelines require that all purchases need to go through the purchasing department
. . . [and] purchasing is [also] suppose to . . . verify and approve vendors that we
can purchase from.” Doc. 37-1, at 116. It is undisputed that The Greek Shop is
not an approved vendor. Id. The WWB also offers a June 4, 2008 email from
Greta K. Threadgill, a “Senior Buyer” for the Purchasing Department, to Lloyd
stating that “I told Carolyn Jones when she asked about the design for an
Engineering Dept. Shirt and I told her then that the Water Works will not pay for
those shirts. She told me that Howard was giving them for Christmas presents . . .
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.” Doc. 36-9, at 171. However, in forwarding this email to Sonny Jones and
Underwood on June 10, 2008, Lloyd asserted that he failed to include “the shirt
issue” in his proposed warnings to Richards and Plaintiff, see infra, “due to this
being a gray area to me.” Id. Plaintiff, on the other hand, denies ever discussing
the departmental t-shirt purchase with Threadgill. Doc. 35-1, at 13.
B.

The Corrective Action Form
On June 6, 2008, Lloyd emailed Sonny Jones and Underwood a proposed

“Corrective Action Form” for Richards regarding the flower arrangement
purchase. See doc. 40-7. Lloyd proposed a “Final Warning” for Richards based
on the conflict of interest and appearance of improper personal benefits. Id. at 3.
As it relates to Plaintiff, the proposed Corrective Action Form provided “Howard
[Richards] needs to ensure that his assistant Carolyn Jones is aware of all company
policies and state ethics laws related to these types of activities and Howard
should issue the appropriate corrective action to Carolyn for violation of company
policy as stated above as she ordered the flowers for the EPA luncheon from
Howard’s wife.” Id. Furthermore, as previously noted, Lloyd’s email stated “I did
not include the issue about the shirts as this was a gray area to me.” Id. at 2.
Underwood disagreed with Lloyd and decided to discharge Plaintiff instead for
“unsatisfactory job performance.” Doc. 35-2, at 111. Moreover, on July 22, 2008,
eleven days after discharging Plaintiff, the WWB terminated Richards for virtually
the same reasons. Doc. 35-10, at 43.
Section 5.2 of the WWB’s Employee Handbook provides that “[w]hile the
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Organization supports the use of progressive discipline, it may, at any time,
institute any form of corrective action it solely deems appropriate based upon the
situation, up to and including immediate termination.” Doc. 35-1, 115. The
“Corrective Action” subsection maintains that “[i]n general, these steps may be
followed in cases of violation of one or more rules/policies within a twelve-month
period. (1) Verbal Warning, (2) Written Warning, (3) Final Warning or
Suspension, (4) Termination.” Id. Prior to her termination, Underwood testified
that Plaintiff’s employee file contained no complaints for being rude, tardy,
disrespectful, or violating any other WWB policies. Doc. 37-1, at 36. And
indeed, there is no evidence that Plaintiff received a Corrective Action form prior
to her termination. See id. at 36-37. However, given the purported justifications
for termination taken as a whole, Underwood decided to discharge Plaintiff on
July 11, 2008. Id. at 125.
C.

The EEOC Charge and Complaint
On July 23, 2008, Plaintiff filed her Charge of Discrimination with the

Equal Employment Opportunity Commission (“EEOC”), alleging race and sex
discrimination and retaliation. See doc. 35-2, at 106. On September 30, 2009, the
EEOC issued a Letter of Determination finding that “there is reasonable cause to
believe that the Charging Party was terminated based on her race and in retaliation
for making an internal complaint of race and sex discrimination, in violation of
Title VII.” Doc. 40-2, at 3. After conciliation failed, Plaintiff filed her Complaint
in this court on May 24, 2010, alleging (1) racial discrimination under Title VII
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and 42 U.S.C. § 1981; (2) retaliation under Title VII and 42 U.S.C. § 1981; (3)
gender discrimination and harassment under Title VII; (4) intentional infliction of
emotional distress under state law; and (5) negligent hiring, supervision, training,
and retention under state law. Doc. 1. The WWB moved for summary judgment
on October 21, 2011, doc. 32, which is fully briefed, docs. 41, 47, and ripe for
review.
III.
A.

ANALYSIS

Gender Discrimination, Racial Harassment or Hostile Work Environment,
State Law, and § 1981 Discrimination Claims
Although Plaintiff asserts claims against the WWB for gender

discrimination and racial harassment/hostile work environment under Title VII,
intentional infliction of emotional distress, and negligent hiring, supervision,
training, and retention, see doc. 1, at 7-16 (Complaint), she abandons these claims
in opposition to summary judgment. See generally doc. 41 (addressing only
discriminatory discharge and retaliation claims). Plaintiff never addresses the
WWB’s arguments as it relates to these claims, see doc. 32-1, at 44-49, and in fact,
tacitly admits to abandoning these claims. See doc. 41, at 4 n.1 (“Plaintiff is
pursuing only a claim of racial discrimination and retaliation relating to her
termination.”); id. at 22 (“The affidavits submitted by Defendant do not provide
evidence relevant to the inquiry of whether Plaintiff was terminated based on her
race or in retaliation for her complaints.”). Moreover, the court finds the Board’s
arguments persuasive and that, based on the record evidence before it, no
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reasonable jury could find in favor of Plaintiff as it relates to these claims. See
United States v. One Piece of Real Property Located at 5800 SW 74th Avenue,
Miami, Fla., 363 F.3d 1099, 1101 (11th Cir. 2004); Walker, 911 F.2d at 1577.
Therefore, the court GRANTS the WWB’s motion for summary judgment as it
relates to the gender discrimination, hostile work environment, and state law
claims.
In addition, the Board is due summary judgment on Plaintiff’s § 1981 race
discrimination and retaliation claims. The Eleventh Circuit provided in Butts v.
Cnty. of Volusia, 222 F.3d 891, 893 (11th Cir. 2000), that Ҥ 1983 constitutes the
exclusive remedy against state actors for violations of the rights contained in §
1981.” Id. Put differently, the court “refused to find in § 1981 an implied cause of
action against state actors because Congress had clearly established § 1983 as the
remedial scheme against state actors.” Id. at 894. See also Brown v. Sch. Bd. of
Orange Cnty., Fla., 459 F. App’x 817, 818-19 (11th Cir. 2012) (“Claims against
state actors under § 1981 must be brought pursuant to 42 U.S.C. § 1983.”). The
WWB constitutes a “state actor” for purposes of § 1983, see Newton v. Southeast
Ala. Gas Dist., 708 F. Supp. 1254, 1259 (M.D. Ala. 1989); and accordingly,
Plaintiff failed to properly assert her § 1981 claims pursuant to § 1983. See
generally doc. 1. Therefore, the court GRANTS the WWB’s summary judgment
motion on the § 1981 discrimination and retaliation claims—however, in doing so,
the court notes that Title VII and § 1981 claims “have the same requirements of
proof and use the same analytical framework.” Standard v. A.B.E.L. Servs., Inc.,
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161 F.3d 1318, 1330 (11th Cir. 1998). The court makes this notation because, as
shown below, summary judgment on the Title VII claims is due to be denied. The
court is however granting the motion on the § 1981 claims since Plaintiff can only
bring those pursuant to 42 U.S.C. § 1983.
B.

Discriminatory Discharge
In support of its motion for summary judgment on the Title VII discharge

claim, the WWB relies on the burden-shifting framework announced in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Doc. 32-1, at 35.
Generally, under the McDonnell Douglas framework, the plaintiff must first create
an inference of discrimination by establishing a prima facie case. Burke-Fowler v.
Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th Cir. 2006) (citation omitted). “To
establish a prima facie case for disparate treatment in a race discrimination case,
the plaintiff must show that: (1) she is a member of a protected class; (2) she was
subjected to an adverse employment action; (3) her employer treated similarly
situated employees outside of her protected class more favorably than she was
treated; and (4) she was qualified to do the job.” Id. If the plaintiff satisfies her
initial burden, “then the defendant must show a legitimate, non-discriminatory
reason for its employment action.” Id. (citation omitted). “If it does so, then the
plaintiff must prove that the reason provided by the defendant is a pretext for
unlawful discrimination.” Id. (citation omitted). In other words, assuming the
plaintiff establishes a prima facie case, and the defendant provides a legitimate,
non-discriminatory reason for the adverse employment action, to show pretext, the
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plaintiff must “cast sufficient doubt on the defendant’s proffered
nondiscriminatory reasons to permit a reasonable factfinder to conclude that the
employer’s proffered ‘legitimate reasons were not what actually motivated its
conduct.’” Combs v. Plantation Patterns, 106 F.3d 1519, 1538 (11th Cir. 1997)
(quoting Cooper-Houston v. S. Ry. Co., 37 F.3d 603, 605 (11th Cir. 1994)).
Based on this standard, the WWB argues that, “[a]lthough the Plaintiff is a
member of a protected class and was qualified for her former position, she has
utterly failed to establish that she suffered from differential application of work
rules and discipline. Specifically, the Plaintiff has failed to show that she engaged
in misconduct nearly identical to that of a person outside the protected class, and
the discipline enforced against her was more severe than was enforced against
others who engaged in the conduct outside the class.” Doc. 32-1, at 37; doc. 47, at
12-15. Critically, however, the Eleventh Circuit recently instructed that
“establishing the elements of the McDonnell Douglas framework is not, and never
was intended to be, the sine qua non for a plaintiff to survive a summary judgment
motion in an employment discrimination case. Accordingly, the plaintiff’s failure
to produce a comparator does not necessarily doom the plaintiff’s case.” Smith v.
Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011) (emphasis added).
See also doc. 41, at 65 (Plaintiff’s opposition brief providing that no “strictlyanalyzed comparator” exists).
Instead, where the plaintiff “presents circumstantial evidence that creates a
triable issue concerning the employer’s discriminatory intent”—the essential
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element of a claim for discrimination—“the plaintiff will always survive summary
judgment.” Lockheed-Martin, 644 F.3d at 1328. And indeed, “a triable issue of
fact exists if the record, viewed in the light most favorable to the plaintiff, presents
‘a convincing mosaic of circumstantial evidence that would allow a jury to infer
intentional discrimination by the decisionmaker.’” Id. (quoting Silverman v. Bd. of
Educ., 637 F.3d 729, 733 (7th Cir. 2011)). For purposes of summary judgment,
the court finds that a jury could reasonably infer a discriminatory animus from the
pretexual nature of the WWB’s proffered termination justifications. Put simply,
“‘it is permissible for the trier of fact to infer the ultimate fact of discrimination
from the falsity of the employer’s explanation.’” Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1091 (11th Cir. 2004) (quoting Reeves v. Sanderson Plumbing
Products, Inc., 530 U.S. 133, 147 (2000)). See doc. 41, at 53-69.
A genuine issue of material fact exists as to the prextextual nature—i.e.
potential falsity—of each proffered justification for Plaintiff’s discharge. See
Evans v. McClain of Ga., Inc., 131 F.3d 957, 963 (11th Cir. 1997) (“[A] plaintiff
can survive a motion for summary judgment . . . simply by presenting evidence
sufficient to demonstrate a genuine issue of material fact as to the truth or falsity
of the employer’s legitimate, nondiscriminatory reasons.”). First, Underwood’s
discharge letter maintains that “it has been determined that [Plaintiff] acted rudely
and unprofessional[ly] towards customers, co-workers and management which has
caused morale problems and a disruption in the Engineering Department.” Doc.
35-2, at 111. Generally, “‘[f]or an employer to prevail the jury need not determine
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that the employer was correct in its assessment of the employee’s performance; it
need only determine that the defendant in good faith believed plaintiff’s
performance to be unsatisfactory.’” Elrod v. Sears, Roebuck and Co., 939 F.2d
1466, 1470 (11th Cir. 1991) (quoting Moore v. Sears, Roebuck & Co., 683 F.2d
1321, 1323 n.4 (11th Cir. 1982) (emphasis in original)). Here, though, the HR
interview notes regarding Plaintiff paint two distinct pictures. As it relates to
Plaintiff’s purported abrasive and unprofessional interaction with Stacy Finch on
June 6, 2008, the two eye witnesses—Washington and Baugh—reported no
disrespectful or rude behavior. See docs. 33-3, 33-4. Additionally, the coemployee interviews reveal both unfavorable and favorable statements pertaining
to Plaintiff’s conduct and behavior toward customers, co-workers, and
management. See docs. 33-5, 33-6, 33-7, 33-9, 33-10, 34-1, 34-2, 34-3, 34-4, 345. Taking the evidence in the light most favorable to Plaintiff, there is a genuine
issue of material fact as to why Underwood—who relied on the HR interview
statements as justification for discharging Plaintiff—disregarded the favorable
statements, see doc. 37-1, at 59-63, including the two eyewitnesses who
disavowed the conduct that led to the investigation concerning Plaintiff. While
the jury may ultimately conclude that Underwood, in good faith, properly
determined that the unfavorable interview statements outweighed the favorable
statements, a reasonable jury could also find that Underwood improperly or
unjustifiably disregarded these favorable statements—thereby raising an inference
of pretext as to this reason for discharge.
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Additionally, the court notes the apparent disparity in the WWB’s
investigation of internal complaints. In responding to Finch’s complaint against
Plaintiff, HR interviewed the witnesses to the actual incident and seemingly every
other WWB employee that interacted with Plaintiff. See docs. 33-5, 33-6, 33-7,
33-9, 33-10, 34-1, 34-2, 34-3, 34-4, 34-5. Simultaneously, HR investigated
Plaintiff’s discrimination and retaliation complaints against Sonny Jones—a
Caucasian male. See doc. 37-1, at 28.4 However, the interview notes reveal that
HR only inquired into Sonny Jones’ alleged discrimination with Richards,
Plaintiff, Washington, and Baugh. See docs. 33-5, 33-6, 33-7, 33-9, 33-10, 34-1,
34-2, 34-3, 34-4, 34-5. Again, a jury may deem proper the WWB’s different
treatment of Finch and Plaintiff’s complaints, but, at the summary judgment phase,
this disparity in treatment of a general complaint against an African American
employee versus the treatment of an arguably more serious complaint against a
Caucasian employee involving an allegation of racial discrimination constitutes
additional circumstantial evidence of a discriminatory animus.
Second, the discharge letter cites Plaintiff’s tardiness “on numerous

4

As discussed previously, the substance of Plaintiff’s allegations against Sonny Jones
pertains to his use of the phrase “you people” in a discriminatory manner. See doc. 35-2, at 109110. The WWB moved to strike any reference to this allegation against Sonny Jones as time
barred. Doc. 32-1, at 28-29. More specifically, the WWB maintains that Plaintiff failed to file
an EEOC charge regarding this “discrete discriminatory act” within the mandatory 180 days. Id.
at 28 (citing Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 104-05 (2002)). The court
disagrees. As it relates to the remaining claims (discriminatory discharge and retaliation), the
relevance behind Sonny Jones’ purported conduct is that Plaintiff complained about this conduct
and the ensuing HR investigation into Sonny Jones—not the substance of the comment itself.
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occasions” as additional justification. Doc. 35-2, at 111. However, the court finds
that Richards’ allowance of this tardiness and the WWB’s treatment of Tammy
Wilson’s tardiness raise a genuine issue of material fact as to the falsity of this
proffered justification. Moreover, prior to Plaintiff’s termination, she received no
reprimand or other discipline for tardiness. Doc. 37-1, at 36. According to
Richards, Plaintiff’s immediate supervisor, Underwood consented to a work
arrangement whereby Richards allowed Plaintiff to arrive for work late because
Plaintiff worked later in the evening and through lunch. See doc. 35-3, at 58-59,
70. Given this testimony, the court finds a genuine issue of material fact as it
relates to the pretextual nature of Plaintiff’s discharge. Put simply, Underwood
cites tardiness as a reason for discharging Plaintiff even though he purportedly
allowed Plaintiff to arrive late for work. Moreover, the WWB apparently treated
Wilson, Sonny Jones’ Caucasian Administrative Assistant, differently. Despite
habitual tardiness, Wilson received a “written warning” and a “final warning or
suspension,” pursuant to the Board’s progressive discipline “steps,” and is still
employed. Doc. 40-34, at 4-5; doc. 37-6, at 49-50. Thus, while Wilson may not
constitute a “substantially similar” comparator under McDonnell Douglas, the
disparate treatment regarding tardiness discipline for an individual outside of
Plaintiff’s protected class provides additional circumstantial evidence, consistent
with Lockheed-Martin, for the discriminatory discharge claim.
Third, Underwood maintains that the WWB discharged Plaintiff because
she “ordered flowers from the wife of the Board’s Chief Engineer, Howard
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Richards, for the EPA Awards Luncheon which was a violation of the Board’s
Conflict of Interest Policy.” Doc. 35-2, at 111. Although Underwood denies such,
Plaintiff testified that Underwood approved the purchase of flowers from
Richards’ wife prior to the EPA Awards Luncheon. Doc. 35-1, at 25. This is the
quintessential issue of fact for a jury. Assuming the veracity of Plaintiff’s
testimony—an assumption the court is required to make at summary
judgment—Underwood approved a purchase and then subsequently discharged
Plaintiff for finalizing that very purchase. A reasonable jury could certainly find
evidence of pretext in this alleged conduct by Underwood. Furthermore,
regardless of Underwood’s prior approval, the WWB claims that this purchase
violated the Board’s conflict of interest policy. The record evidence, taken in the
light most favorable to Plaintiff, however, demonstrates that the WWB’s counsel
determined otherwise. See doc. 35-3, at 53. These seemingly contradictory
conclusions offer additional support to the “mosaic of circumstantial evidence that
would allow a jury to infer intentional discrimination by the decisionmaker.”
Lockheed-Martin, 644 F.3d at 1328 (citations omitted).
Fourth, and finally, the discharge letter stated that Plaintiff “purchased shirts
for Engineering outside of the Purchasing Department, without reimbursing the
Board, all of which is a violation of the Purchasing Guidelines and Uniform
Policy.” Doc. 35-2, at 111. Again however, this discharge justification arises
from conduct that Plaintiff’s superiors approved. Richards approved the check
requisition form to The Greek Shop on May 30, 2007, doc. 35-2, at 91, and the
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WWB’s Accounting Department authorized the check to The Greek Shop, doc.
35-1, at 15. Given this tacit approval, there is no evidence that Plaintiff knowingly
violated the WWB’s purchasing guidelines. Furthermore, while Underwood
determined the purchase actually violated the WWB’s policy, HR manager Lloyd
found that the t-shirt purchase constituted a “gray area.” Doc. 40-7, at 2.
Additionally, the Engineering Department t-shirt purchase occurred in May 2007,
over a year before Plaintiff’s termination. However, there is no evidence that the
WWB ever reprimanded Plaintiff (or Richards) for this transaction prior to
termination. Similar to the other termination justifications proffered by the WWB,
Plaintiff casts sufficient doubt on the veracity of the claim that the t-shirt purchase
actually motivated the WWB to discharge Plaintiff.
As to the WWB’s alternative argument that the court should limit LockheedMartin to its specific facts, see doc. 47, at 17-18, the court disagrees. The WWB
asserts four specific justifications for terminating Plaintiff, and accordingly,
Plaintiff faces an uphill battle to name a substantially similar comparator. See,
e.g., Burke-Fowler, 447 F.3d at 1323. In such a case, Lockheed-Martin provides
a mechanism for plaintiffs to offer circumstantial evidence of racial discrimination
outside the strict McDonnell Douglas comparator analysis. 644 F.3d at 1328.
Here, the WWB’s use of the progressive discipline “steps,” rather than discharge,
for Wilson’s habitual tardiness and the seemingly minor investigation into
Plaintiff’s complaints of discrimination against Sonny Jones, as opposed to the
extensive investigation into Finch’s allegations of rude behavior by Plaintiff,
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produce a reasonable inference of a discriminatory animus. In addition, the
proffered justifications for Plaintiff’s discharge appear highly pretextual at the
summary judgment phase. Put simply, taken in the light most favorable to the
nonmovant, the WWB approved the conduct for which it subsequently terminated
Plaintiff and disregarded, with no explanation, contradictory accounts of
Plaintiff’s behavior.5 Under Lockheed-Martin, Plaintiff “presents circumstantial
evidence that creates a triable issue concerning the employer’s discriminatory
intent.” 644 F.3d at 1328. Therefore, the court DENIES the WWB’s motion for
summary judgment on the discriminatory discharge claim.
C.

Retaliation
Moreover, Plaintiff sufficiently satisfies the McDonnell Douglas burden-

shifting framework for her Title VII retaliation claim—thereby precluding
summary judgment on this claim as well. “A prima facie case of retaliation under
Title VII requires the plaintiff to show that: (1) she engaged in an activity
protected under Title VII; (2) she suffered an adverse employment action; and (3)
there was a causal connection between the protected activity and the adverse

5

In response to summary judgment, Plaintiff also submits “Other Complaints of
Discrimination and/or Retaliation” made by various WWB employees. Doc. 41, at 48. Plaintiff
argues that this “me too” evidence contributes to her allegation of a discriminatory animus. Id. at
68. Conversely, the WWB contends that, under Goldsmith v. Bagby Elevator Co., Inc., 513 F.3d
1261, 1286 (11th Cir. 2008), “me too” evidence is only relevant for “pattern or practice”
discrimination claims, and, additionally, this evidence should be excluded under Fed. R. Evid.
404(b). Doc. 47, at 20-21. The court finds it unnecessary to address this issue because Plaintiff
offers sufficient circumstantial evidence to survive summary judgment outside of the “me too”
evidence. The court will consider the admissibility of this evidence for trial if the need arises.
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employment action.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
“‘These three elements create a presumption that the adverse action was the
product of an intent to retaliate . . . . [T]he burden of production [then] shifts to the
defendant to rebut the presumption by articulating a legitimate, non-discriminatory
reason for the adverse employment action . . . . After the defendant makes this
showing, the plaintiff has a full and fair opportunity to demonstrate that the
defendant’s proffered reason was merely a pretext to mask discriminatory
actions.’” Brown v. Ala. Dep’t of Transp., 597 F.3d 1160, 1181-82 (11th Cir.
2010) (quoting Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009)).
There is no dispute that Plaintiff satisfies the first two prima facie elements
for her retaliation claim—rather, the WWB contends that Plaintiff “cannot show a
causal connection.” Doc. 32-1, at 42. The court disagrees. As the case law states,
“the causal link requirement under Title VII must be construed broadly; ‘a plaintiff
merely has to prove that the protected activity and the negative employment action
are not completely unrelated.’” Olmstead v. Taco Bell Corp., 141 F.3d 1457, 1460
(11th Cir. 1998) (quoting E.E.O.C. v. Reichhold Chem., Inc., 988 F.2d 1564, 157172 (11th Cir. 1993)). Moreover, “[t]he burden of causation can be met by showing
close temporal proximity between the statutorily protected activity and the adverse
employment action.” Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007). Here, Plaintiff complained of discrimination and retaliation on June 9,
2008 in a letter to HR. See doc. 35-2, at 109-110. Approximately one month later,
on July 11, 2008, the WWB discharged Plaintiff. Id. at 111. Additionally, on June
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6, 2008, three days prior to Plaintiff’s protected activity, HR recommended that
Howard Richards receive a “Final Warning,” for the purported conflict of interest
violation, and that, in turn, “Howard should issue the appropriate corrective action
to Carolyn [Jones].” Doc. 40-7 (emphasis added). Rather than follow HR’s
recommendation for Richards to issue a corrective action to Plaintiff, the WWB
decided to bypass Richards and discharged Plaintiff instead. The close temporal
proximity combined with the variation from HR’s recommendation—occurring
after Plaintiff complained about discrimination— satisfies the prima facie causal
connection requirement.
Conversely, the WWB argues that Plaintiff sent her letter to HR, see doc.
35-2, at 109-110, after the Board “had already begun investigating and
contemplating discipline for violations of the conflict of interest policy.” Doc. 321, at 43 (citing Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)). As
stated in Breeden, “Employers need not suspend previously planned transfers upon
discovering that a Title VII suit has been filed, and their proceeding along lines
previously contemplated, though not yet definitively determined, is no evidence
whatever of causality.” 532 U.S. at 272. See also Drago v. Jenne, 453 F.3d 1301,
1308 (11th Cir. 2006) (“[I]n a retaliation case, when an employer contemplates an
adverse employment action before an employee engages in protected activity,
temporal proximity between the protected activity and the subsequent adverse
employment action does not suffice to show causation.”). However, in both
Breeden and Drago, the precise adverse employment action contemplated by the
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defendant before the plaintiff’s statutorily protected activity actually occurred.
The defendant in Breeden contemplated transferring plaintiff before the statutorily
protected activity, and the plaintiff asserted that the transfer constituted an adverse
employment action. 532 U.S. at 271-72. Similarly, in Drago, the defendant
considered demoting plaintiff five months prior to plaintiff’s statutorily protected
activity, and plaintiff alleged that this demotion served as the adverse employment
action. 453 F.3d at 1307-09. Conversely here, the evidence shows that, before
HR received Plaintiff’s complaint letter, the WWB contemplated disciplining
Richards and asking Richards to discipline Plaintiff, doc. 40-7, doc. 37-1, at 69,
doc. 37-6, at 65; however, there is no evidence that the WWB contemplated
discharging Plaintiff prior to her statutorily protected activity. See id. As such,
the court refuses to find Plaintiff’s retaliation claim precluded under Breeden and
Drago.
Having satisfied her prima facie case, the burden shifts to the WWB “to
rebut the presumption by articulating a legitimate, non-discriminatory reason for
the adverse employment action.” Brown, 597 F.3d at 1181-82. The WWB
satisfies this burden as its four termination justifications, see supra, are facially
legitimate and non-discriminatory. See doc. 35-2, at 111. However, as also
discussed above, for purposes of summary judgment, Plaintiff sufficiently
demonstrates that the WWB’s proffered termination reasons are pretextual.
Therefore, the court DENIES the summary judgment motion on Plaintiff’s
retaliation claim.
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D.

Sur-reply Motion
Finally, Plaintiff moves for “leave to file a Sur-Reply and/or [leave] to file a

Supplemental Response to Defendant’s Motion for Summary Judgment and
Evidentiary Submissions.” Doc. 50. As grounds for this motion, Plaintiff argues
that the WWB’s reply brief in support of its motion for summary judgment, doc.
47, presents “new arguments, issues and allegations that must be addressed” such
that Plaintiff needs an opportunity to “provide a meaningful summary judgment
response,” doc. 50, at 1-2. Given that the court denied the WWB’s summary
judgment motion on the issues Plaintiff substantively opposed, the motion to file a
sur-reply is DENIED.
IV.

CONCLUSION

Based on the aforementioned reasons, Plaintiff may proceed to trial by jury
on her Title VII discriminatory discharge and retaliation claims. All other claims
are hereby DISMISSED with prejudice.

DONE this 5th day of July, 2012.
________________________________
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE

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