White v. CITY OF SYLVESTER GEORGIA

Filing 18

ORDER granting in part and denying in part 13 Motion to Dismiss. Ordered by US DISTRICT JUDGE LESLIE J ABRAMS on 3/31/2016. (bcl)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ALBANY DIVISION
HAZEL WHITE,

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Plaintiff,
v.
CITY OF SYLVESTER, GEORGIA,
Defendant.

CASE NO.: 1:14-CV-00076 (LJA)

ORDER
Before the Court is Defendant City of Sylvester, Georgia’s Motion to Dismiss Plaintiff
Hazel White’s Amended Complaint. (Docs. 13 and 12). For the reasons set forth below,
Defendant’s Motion, (Doc. 13), is granted in part and denied in part.
I. PROCEDURAL BACKGROUND
On or about November 20, 2012, Plaintiff Hazel White, a female police officer, filed a
Charge of Discrimination (“Charge One”) with the Equal Employment Opportunity
Commission (“EEOC”) against her employer, the City of Sylvester, Georgia (“the City of
Sylvester”) alleging discrimination based on race, sex, disability and retaliation. 1 (Doc. 13-1).
On September 25, 2013, the EEOC issued a right-to-sue letter to Plaintiff related to Charge
One and informed Plaintiff that her lawsuit had to be filed within ninety days from the receipt
of that letter. (Doc. 5-2).
On or about August 9, 2013, prior to her receipt of the right-to-sue letter from the
EEOC on Charge One, Plaintiff filed a second Charge of Discrimination with the EEOC
(“Charge Two”). (Doc. 13-2). In Charge Two, Plaintiff alleged that:
In retaliation for [filing Charge One,] and in continuing disparate treatment due
to her race, gender and disability, Defendant has continued to treated [sic]
Plaintiff unfavorably and subjected [sic] her to a hostile work environment[,]
specifically[,] but not limited to[,] unwarranted written and verbal reprimands
While Plaintiff alleged discrimination based on race, she alleges no facts and puts forth no arguments to support a claim of
race-based discrimination.
1

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and disciplinary actions; sexual comments by staff; contrived allegations of
citizen complaints; accusations of tardiness; [and] GPS tracking of Plaintiff by
Defendant. On May 21, 2013, Plaintiff filed an internal complaint against
Defendant for hostile work environment, retaliation and sexual harassment by
Lt. Ronnie Graddy and failure of Chief Robert Jennings to provide corrective
action. As of July 10, 2013, Plaintiff was released back to full duty by her doctor
and Plaintiff continues her job duties as of the date of this new charge.
(Doc. 13-2). On July 16, 2014, the EEOC issued a right-to-sue letter to Plaintiff related to
Charge Two and informed Plaintiff that her lawsuit had to be filed within ninety days from the
receipt of that letter. (Doc. 7-1).
On May 13, 2014, Plaintiff filed the original complaint in the instant lawsuit based on
Charges One and Two, claiming disability discrimination under the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. (“ADA”); gender discrimination and retaliation
under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”); and
violations of the Family and Medical Leave Act, 29 U.S.C. § 2601, et seq. (“FMLA”). (Doc. 1).
On July 7, 2014, Defendant moved to dismiss Plaintiff’s claims in part because Plaintiff’s
claims were time-barred and because the claims related to Charge Two had been filed
prematurely. (Doc. 5). On August 15, 2014, Plaintiff responded to Defendant’s motion to
dismiss Plaintiff’s original complaint and conceded that her ADA and Title VII claims related
to Charge One were time-barred because Plaintiff failed to file Charge One within 180 days of
the allegedly discriminatory predicate acts, as required by 42 U.S.C. § 2000e–5(e)(1).2 (Doc. 7
at 2). Plaintiff also conceded that she “did not plead sufficient facts to bring [her FMLA]
claims within the three-year statute of limitations for willful FMLA violations,” so “to the
extent that any of her FMLA claims are based on her FMLA leave taken in April[,] 2012 for a
miscarriage, they are subject to dismissal” because they were not filed “within two years of that
date.” (Id. at 2 n. 1).3
On November 7, 2014, the Court issued an Order on the Motion to Dismiss Plaintiff’s
original complaint. (Doc. 11). The Court found that Plaintiff’s claims based on Charge Two
were filed prematurely.4 (Id. at 3). Further, noting Plaintiff’s concession that ADA and Title
A charge under this section shall be filed within one hundred and eighty days after the alleged unlawful employment
practice occurred. See 42 U.S.C. § 2000e-5(e)(1).
3 Absent a claim for a willful violation of the FMLA, 29 U.S.C. § 2617(c)(1) prescribes a two-year statute of limitation for
FMLA claims.
4 Generally, after filing a charge of discrimination with the EEOC, an individual must wait until he or she receives a rightto-sue letter from the EEOC and then must bring suit on the related claims within 90 days of receiving the letter. See 42
2

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VII claims based on Charge One were time-barred, the Court found that because 42 U.S.C.
§ 2000e-5(e) requires that charges of discrimination be brought within 180 days of an
unlawfully discriminatory act, the Court held that, “Charge Two, the only charge of
discrimination upon which [Plaintiff] relies, was filed on August 9, 2013. Therefore, [Plaintiff]
can only bring suit for discriminatory acts that took place between February 9, 2013 and
August 8, 2013.” (Id.) Finding that Plaintiff’s original complaint, “as it now stands[,] does not
specifically state facts regarding any acts allegedly taken by [Defendant] during the referenced
time period[,]” the Court applied the doctrine of equitable modification. (Id.) See Forehand v.
Fla. State Hosp. at Chattahoochee, 89 F.3d 1562, 1569-70 (11th Cir. 1996)(noting that “receipt of a
right-to-sue letter is not a jurisdictional prerequisite to suit, but rather, is a statutory
precondition which is subject to equitable modification.”). Accordingly, the Court granted
Plaintiff leave to amend her original complaint and denied the motion to dismiss as moot.
(Doc. 11 at 3).
On November 21, 2014, Plaintiff filed the Amended Complaint claiming disability
discrimination under the ADA (Count I); gender discrimination and retaliation under Title VII
(Counts II and III); and violations of the FMLA (Count IV). (Doc. 12). On December 5,
2014, Defendant moved to dismiss Plaintiff’s claims on the bases that: (1) some of Plaintiff’s
Title VII and ADA claims are time barred; (2) some of Plaintiff’s Title VII and ADA claims
are beyond the scope of Charge Two; (3) Plaintiff’s FMLA claims are barred by the statute of
limitations; and (4) Plaintiff fails to plead sufficient facts to state a claim for relief under Title
VII, the ADA, or the FMLA. (Doc. 13). On December 29, 2014, Plaintiff responded by
formally withdrawing her ADA claim but opposing Defendant’s remaining bases for dismissal.
(Doc. 14).

On January 29, 2015, Defendant filed its Reply.

(Doc 16).

Accordingly,

Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint is now ripe for review.
II. FACTUAL BACKGROUND5
A. Facts regarding events between 2010 and 2012
On May 10, 2010, Defendant City of Sylvester hired Plaintiff Hazel White as a police
U.S.C. § 2000e-5(f)(1). Plaintiff filed Charge Two with the EEOC on August 9, 2013 and the original complaint with the
Court on May 13, 2014, but the EEOC did not issue its right-to-sue letter on Charge Two until July 16, 2014. As such, the
Title VII claims in Plaintiff’s original complaint based on upon Charge Two were prematurely filed.
5 As discussed in Section I, supra, the Court previously ruled that Plaintiff “can only bring suit for discriminatory acts that
took place between February 9, 2013 and August 8, 2013.”. See (Doc. 11 at 3). Nevertheless, as discussed in Section IV(B),

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officer. (Doc. 12 ¶ 6). Periodically, Plaintiff was assigned to work at Worth County Middle
School (“the Middle School”) and at various athletic events in and proximate to Sylvester,
Georgia. (Id. ¶¶ 12, 33, 44). Throughout the course of Plaintiff’s tenure, Lieutenant Ronnie
Graddy (“Lt. Graddy”) and Chief of Police Robert Jennings (“Chief Jennings”), who both
held a higher rank than Plaintiff, were Plaintiff’s supervisors. (Id. ¶¶ 12, 13, 32, 35, 39, and
43). Plaintiff remains an employee of Defendant. (Id. ¶ 51).
Between January, 2011, and July 18, 2011, Lt. Graddy began touching and speaking to
Plaintiff in ways that made her uncomfortable. Specifically, Lt. Graddy touched Plaintiff on
and near the small of her back, placed his chin on her shoulder and his cheek on the side of
Plaintiff’s face. (Id. ¶ 8). Lieutenant Graddy also called Plaintiff “sweetie” and “hun.” (Id.
¶ 9). On several occasions, Plaintiff told Lt. Graddy that she did not like other people
invading her personal space and that his actions made her uncomfortable, but Lt. Graddy
persisted with his advances. (Id. ¶ 10). On one occasion when she told him to stop, Lt.
Graddy replied, “oh, I’m just friendly” and continued to touch her. (Id. ¶ 8).
On November 2, 2012, Plaintiff filed a written complaint against Lt. Graddy with
Chief Jennings and City Manager Bridges. (Id. ¶ 28). On November 6, 2012, Plaintiff met
with City Manager Bridges and Chief Jennings and recounted all incidents that had occurred
between her and Lt. Graddy, including Lt. Graddy’s initial opposition to a request Plaintiff
made for FMLA leave in April, 2012, which the Court discusses below in Section C. (Id.)
During that meeting, Plaintiff expressed her belief that Lt. Graddy’s actions were in retaliation
for her April, 2012, leave request, her previous rejection of his advances, and her complaints
about his behavior. (Id.) In response, Chief Jennings and City Manager Bridges told Plaintiff
that she needed to pray for, and forgive, Lt. Graddy. (Id. ¶ 29). On or about November 20,
2012, Plaintiff filed Charge One with the EEOC, claiming discrimination on the basis of race,
sex, retaliation, and disability. (Id. ¶ 30).
B. Facts Related to Counts II and III
At some point, Plaintiff began dating an officer with whom she worked, Kenny Eaton
(“Officer Eaton”). (Id. ¶ 27). Neither Party has alleged that this relationship was against
Department policy. On September 14, 2012, Plaintiff was assigned to a football game in
Tifton, Georgia. (Id. ¶ 21). During the assignment, Plaintiff asked Lt. Graddy if she could
infra, the Court will consider these allegations as background or context for Plaintiff’s timely Title VII allegations.

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leave early to spend time with her daughter. (Id.) Lieutenant Graddy told Plaintiff to put her
time on her time card and granted Plaintiff permission to leave early. (Id.) Later that
evening, Lt. Graddy called Plaintiff and asked whether she had arrived at home. (Id. ¶ 22).
After Plaintiff told Lt. Graddy that she had not yet arrived at home but was with her mother,
Lt. Graddy told Plaintiff, “‘you’re a liar’! Two police officers saw Kenny Eaton pick you up
from the Police Department. You told me you were going to spend time with your
daughter[,] so you lied to me!” (Id.) Lt. Graddy screamed and cursed at Plaintiff for several
minutes before hanging up the phone. (Id.) On September 17, 2012, Plaintiff complained to
Chief Jennings about Lt. Graddy’s actions on September 14, 2012.

(Id. ¶ 23).

No

disciplinary action was taken against Lt. Graddy. (Id.)
On March 18, 2013, while Plaintiff was working at the Middle School, Sergeant
Duncan, at the direction of Lt. Graddy, verbally counseled Plaintiff based on documented
instances in which Plaintiff reportedly: (1) arrived to work late on three occasions; (2) left
work early after providing a doctor’s note indicating that she was ill; (3) left work fifteen
minutes early to pick up her child; (4) worked overtime without approval; and (5) drove her
patrol car at speeds recorded as excessive on its GPS tracking device. (Id. ¶ 31). Sergeant
Duncan required Plaintiff to sign a written counseling form for placement in her personnel
file. (Id.) Later that day, Sgt. Duncan informed Plaintiff that Lt. Graddy generally did not
track officers using GPS devices on their patrol cars. (Id. ¶ 32).
Plaintiff also alleges that the sexual harassment continued, citing an incident in which
Lt. Graddy told Plaintiff that her fingernails were “sexy” while Plaintiff was on duty at an
athletic event. (Id. ¶ 33). Plaintiff also alleges that, in addition to tracking her on GPS, Lt.
Graddy also singled her out by instructing her to report to the county Health Department
for a random drug screening on March 29, 2013. (Id. ¶ 34).
In early April, 2013, Plaintiff alleges that Lt. Graddy’s attention was increasingly
focused on the nature of Plaintiff’s personal relationship with Officer Eaton. (Id. ¶ 35).
During that same time, Plaintiff was promoted to the rank of Sergeant. (Id.) In various
employee meetings and direct conversations with Chief Jennings and Lt. Hall, Lt. Graddy
discussed Plaintiff’s relationship with Officer Eaton. (Id.) During one such conversation,
Chief Jennings indicated that Plaintiff “would not be a sergeant for long” if Plaintiff did have
an ongoing personal relationship with Officer Eaton. (Id.) Plaintiff does not allege that she

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was demoted her from the rank of Sergeant. On April 18, 2013, Lt. Graddy forbade Officer
Eaton to attend a meeting in Albany, Georgia because he believed that Officer Eaton was
dating Plaintiff and he did not want both of them at the meeting. (Id. ¶ 36). On April 22,
2013, Lt. Hall upbraided Officer Eaton for “backing up” Plaintiff at work and “hanging
around” with her. (Id. ¶ 37).
On April 23, 2013, Sgt. Duncan warned Plaintiff that Lt. Graddy noticed that Plaintiff
arrived at work late on the two preceding days and was actively looking for reasons to
demote Plaintiff or fire her. (Id. ¶ 38). Later that day, when Lt. Graddy learned that Sgt.
Duncan had only issued Plaintiff an informal warning for her late arrival, Lt. Graddy
counseled Plaintiff verbally and in writing for ten instances of lateness, as determined
through GPS tracking.6 (Id. ¶ 39). On April 29, 2013, Plaintiff filed a written appeal with
Chief Jennings based on her interaction with Lt. Graddy on April 23, 2013. (Id. ¶ 43). The
next day, without meeting with Plaintiff or reviewing any documentation in support of her
appeal, Chief Jennings responded to Plaintiff by letter, requiring that Plaintiff submit a letter
indicating how she would “fix the issue.” (Id.)
On April 27, 2013, Sgt. Duncan told Plaintiff that Lt. Graddy “is driving me crazy
calling to have me write you up all the time.” (Id. ¶ 41). Sergeant Duncan stated that he had
not observed any conduct that warranted such action. (Id.) Sergeant Duncan informed
Plaintiff that Lt. Graddy was only reviewing the GPS tracking records of Plaintiff and
Officer Eaton and was doing so on a daily basis. (Id.) Sergeant Duncan also told Plaintiff
that Lt. Graddy’s behavior was driven by jealousy that Plaintiff was dating Officer Eaton.
(Id.)
In May, 2013, Lt. Graddy began asking other officers in the department about
Plaintiff’s relationship with Officer Eaton on a daily basis. (Id. ¶ 44). Officer Eaton was
ordered to stop training Plaintiff on the use of a laser device in support of Plaintiff’s
certification in speed detection, and Lt. Graddy told Lt. Jones to forbid Officer Eaton from
visiting the Middle School, where Plaintiff was posted, “even if there is a shooting there.”
(Id.) Lieutenant Jones also reprimanded Plaintiff for training on the laser device when she
“should have been inside the school.” (Id.) Plaintiff alleges that Sgt. Duncan, who was also
assigned to the school, was never reprimanded when he was absent from the posting and
6

Plaintiff disputes the accuracy of the GPS system on which Lt. Graddy relied. See (Doc. 12 ¶¶ 39 and 40).

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was actually encouraged to fulfill duties outside the school. (Id.) Additionally, when Plaintiff
met with Lt. Hall to complain about the harassment, Lt. Hall told her that “everyone is
starting to see that” and advised her to take her complaints to City Manager Bridges if Chief
Jennings failed to help her. (Id. ¶ 45).
On or about May 20, 2013, Plaintiff was asked to take a voluntary “VIPER” test
related to a damaged laser device.

(Id. ¶ 46).

Plaintiff, on the advice of her PBA

representative, refused to take the test. (Id.) Lieutenant Jones ordered Plaintiff to take the
test and informed her that any refusal would be construed as insubordination and cause for
termination. (Id.) After Plaintiff requested a copy of the test, Investigator Shiver instructed
Plaintiff to wait ten days before requesting a copy from Chief Jennings in writing. (Id.)
On May 21, 2013, Plaintiff called in sick and visited her doctor, who recommended
that Plaintiff take medical leave for no less than thirty (30) days due to stress. (Id. ¶ 47).
Plaintiff requested and was granted FMLA leave. (Id.) That same day, Plaintiff filed an
internal complaint with City Manager Bridges, four members of the City Council, and the
Mayor of the City of Sylvester (“the Mayor”) against Defendant on the bases of hostile work
environment, retaliation and sexual harassment by Lt. Graddy and Chief Jennings’ failure to
provide corrective action. (Id. ¶ 48). On June 10, 2013, Plaintiff met with Cathy Wise and
Tommy Bozeman, who were assigned to investigate her internal complaint. (Id. ¶ 49). They
indicated that their investigation was proceeding and would involve interviews with other
officers. (Id. ¶ 49). In her Amended Complaint, Plaintiff does not provide any facts
regarding the outcome of this investigation.
C. Facts Related to Count IV
Plaintiff requested FMLA leave on two separate occasions: on or about April 10,
2012, and again on May 21, 2013. (Docs. 12 ¶¶ 12, 47; and 13-3 at 3). On or about April 10,
2012, after being cautioned by her doctor that she was at risk of having a miscarriage, Plaintiff
submitted a request for two to six weeks of FMLA leave to Lt. Graddy. (Docs. 12 ¶ 12; and
13-3 at 3). Lieutenant Grady denied Plaintiff’s request. (Doc. 12 ¶ 12). Under duress,
Plaintiff submitted a letter of resignation to Chief Jennings, telling him that she did not want
to resign but that she felt she had to because of Lt. Graddy’s decision to deny her request for
leave. (Id. ¶ 13). Chief Jennings did not reverse Lt. Graddy’s decision; rather, he accepted
Plaintiff’s resignation. (Id.) Both Lt. Graddy and Chief Jennings were familiar with FMLA

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leave as both previously had approved FMLA leave for other employees. (Id. ¶¶ 12 and13).
Plaintiff ultimately was allowed to take FMLA leave because City Manager Debbie
Bridges (“City Manager Bridges”) overruled Chief Jennings and Lt. Graddy after Chief
Jennings brought the matter to her attention. (Id. ¶ 14). City Manager Bridges told Chief
Jennings that the FMLA entitled Plaintiff to the requested leave and that Plaintiff should never
have been told otherwise. (Id.) Chief Jennings returned Plaintiff’s resignation letter. (Id. ¶ 15).
Plaintiff then filled out the paperwork in support of her leave request, and took two weeks of
FMLA leave. (Id.) Plaintiff alleges that she only took two weeks of leave because her
supervisors pressured her to return to work. (Id.)
On May 3, 2012, Plaintiff learned of an opportunity for a promotion to the position of
Corporal. (Id. ¶ 17). She applied for the position, but was denied. (Id.) Later, Plaintiff “was
told that she did not get the promotion because of sick leave issues.” (Id.)
On May 21, 2013, Plaintiff called in sick and visited her doctor. (Id. ¶ 47). Plaintiff’s
doctor ordered that Plaintiff be placed on medical leave for a period not less than thirty (30)
days, due to the stress of the work environment to which she was being subjected. (Id.) On
this occasion, Plaintiff was granted FMLA leave. (Id.)
III. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) allows a party to assert the defense of failure
to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). To survive a
motion to dismiss under Rule 12(b)(6), the complaint must plead enough facts to state a claim
for relief that is plausible—not just conceivable—on its face. Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Restated, “the factual allegations in the complaint must possess enough
heft to set forth a plausible entitlement to relief.” Edwards v. Prime, Inc., 602 F.3d 1276, 1291
(11th Cir. 2010) (internal citation and punctuation marks omitted).
On a motion to dismiss, the Court “construes the complaint in the light most favorable
to the plaintiff and accepts all well-pled facts alleged [] in the complaint as true.” Sinaltrainal v.
Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009), abrogated on other grounds by Mohamad v.
Palestinian Auth., 132 S. Ct. 1702 (2012). The “tenet that a court must accept as true all of the
allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.”

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While notice pleading is a liberal standard, “it does
not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions.”
Id. at 678-79. A “plaintiff’s obligations to provide the grounds of his entitlement to relief
requires more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Moreover,
when evaluating the sufficiency of a complaint, the Court must “make reasonable inferences in
plaintiff’s favor;” however, the Court is “not required to draw plaintiff’s inference[s].”
Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (quoting Aldana v. Del Monte
Fresh Produce, N.A., Inc., 416 F.3d 1242, 1248 (11th Cir. 2005)), abrogated on other grounds by
Mohamad v. Palestinian Auth., 132 S. Ct. 1702 (2012).
Generally, “[i]f a district court considers matters outside of the pleadings when ruling
on a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), then the motion to
dismiss must be treated as a motion for summary judgment under Federal Rule of Civil
Procedure 56.” Horne v. Potter, 392 F. App’x 800, 802 n. 1 (11th Cir. 2010) (internal citation
omitted).

However, a court may consider documents attached to the complaint and

documents filed in connection with a motion to dismiss without converting the motion to a
motion for summary judgment if those documents are central to the complaint and not in
dispute. See Harris v. Ivax Corp., 182 F.3d 799, 802 n. 2 (11th Cir. 1999); Horne, 392 F. App’x at
802.

Documents are not in dispute when no party challenges the authenticity of the

documents. Maxcess, Inc. v. Lucent Techs., Inc., 433 F.3d 1337, 1340 n. 3 (11th Cir. 2005)
(explaining that “a document outside the four corners of the complaint may still be considered
if it is central to the plaintiff’s claims and is undisputed in terms of authenticity.”).
In support of its motion to dismiss Plaintiff’s original complaint, Defendant attached a
copy of the right-to-sue letter issued by the EEOC on Plaintiff’s EEOC Charge One. (Doc.
5-2). In support of her response in opposition to Defendant’ s motion to dismiss her original
complaint, Plaintiff attached a copy of the right-to-sue letter issued by the EEOC on Plaintiff’s
EEOC Charge Two. (Doc. 7-1). In the instant Motion to Dismiss Plaintiff’s Amended
Complaint, Defendant has attached Plaintiff’s EEOC Charge One, Charge Two, and the
FMLA Certification of Health Care Provider that Plaintiff submitted to Defendant as part of
Plaintiff’s FMLA leave request on or about April 10, 2012. (Doc. 13-1, 13-2, and 13-3).
These documents are central to Plaintiff’s Title VII and FMLA claims, and no Party

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has challenged their authenticity.

Accordingly, the Court will consider these documents

without converting Defendant’s Motion to Dismiss into a motion for summary judgment. See
Harris, 182 F.3d at 802 n. 2, Maxcess, 433 F.3d at 1340 n. 3.
IV. ANALYSIS
A. Count I – Americans with Disabilities Act Claim
In Plaintiff’s Response in Opposition to Defendant’s Motion to Dismiss Plaintiff’s
Amended Complaint, Plaintiff expressly abandoned her claim under the ADA in its entirety.
Specifically, Plaintiff stated, “Plaintiff hereby withdraws her Count I claim for
disability/perceived discrimination. . . .” (Doc. 14 at 1). Accordingly, the Court grants
Defendant’s Motion to Dismiss Count I of Plaintiff’s Amended Complaint.
B. Count II – Title VII Claims
Plaintiff’s hostile work environment and disparate treatment claims under Title VII fall
within scope of the EEOC’s proceedings stemming from Charge Two. As a precondition to
filing a lawsuit under Title VII, Plaintiff first had to exhaust her administrative remedies by
timely filing a charge with the EEOC. See 42 U.S.C. §§ 2000e-5(b), (f)(1), Bradley v. Dekalb
Cnty, Ga., No. 1:2010-CV-218-TWT-GGB, 2010 WL 4639240, at *3 (N.D. Ga. May 17,
2010). This filing “serves two significant functions: (1) notification to the employer that a
discrimination charge has been lodged with the EEOC; and (2) initiation of the agency’s
investigation of the complaint.” Pijnenburg v. West Georgia Health System, Inc., 255 F.3d 1304,
1306 (11th Cir. 2001). As such, actionable claims of discrimination in a subsequent lawsuit
are generally limited to the scope of the charge filed with the EEOC. See Brandon v. Lockheed
Martin Aeronautical Sys. 393 F. Supp. 2d 1341, 1355 (N.D. Ga. 2005).

However,

discrimination claims not explicitly identified in an EEOC charge may still be properly
adjudicated in a lawsuit if they “reasonably relate” to the EEOC charge.
In Ray v. Freeman, the former Fifth Circuit stated:
As long as allegations in the judicial complaint and proof are “reasonably
related” to charges in the administrative filing and “no material differences”
between them exist, the court will entertain them. As we have noted ..., “the
‘scope’ of the judicial complaint is limited to the ‘scope’ of the EEOC
investigation which can reasonably be expected to grow out of the charge of
discrimination.”
Judicial claims which serve to amplify, clarify, or more clearly focus earlier
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EEO complaints are appropriate. Allegations of new acts of discrimination,
offered as the essential basis for the requested judicial review are not
appropriate.
626 F.2d 439, 443 (5th Cir. 1980) (citation omitted), cert. denied, 450 U.S. 997 (1981)
(quoting Sanchez v. Standard Brands, Inc., 431 F.2d 455, 466 (5th Cir. 1970)).
Furthermore, in Wu v. Thomas, the Eleventh Circuit stated, “[o]ne such area in which
we have recognized that strict compliance with Title VII[‘s] [administrative exhaustion
requirements] is unnecessary is where the plaintiff has filed a charge with the EEOC, but in
her judicial action the plaintiff raises related issues to which no [EEOC] filing has been
made.” 863 F.2d 1543, 1547 (11th Cir. 1989). See also Gregory v. Dept. of Human Resources, 355
F.3d 1277, 1280 (11th Cir. 2004) (courts must determine whether, in her EEOC charge, a
plaintiff “stated facts from which a reasonable EEOC investigator could have concluded
that what she complained about is [a discriminatory, harassing, or retaliatory act explicitly
omitted from the EEOC charge].”). A reasonable EEOC investigator certainly could have
concluded that Plaintiff was complaining of Title VII violations in addition to complaining
of unwanted retaliation in Charge Two as Plaintiff stated that she believed that, “[i]n
retaliation for her filing of this charge and in continuing disparate treatment due to her

race, gender and disability, Defendant has continued to treated [sic] Plaintiff
unfavorably and subjected [sic] her to a hostile work environment. . . .” (Doc. 13-2)
(emphasis added). Plaintiff further stated, “[o]n May 21, 2013, Plaintiff filed an internal
complaint against Defendant for hostile work environment, retaliation and sexual
harassment by Lt. Ronnie Graddy and failure of Chief Robert Jennings to provide corrective
action.” (Id.) Plaintiff’s statements in Charge Two gave the EEOC an opportunity to
investigate Plaintiff’s potential hostile work environment and disparate treatment claims and
gave Defendant notice of these claims. As such, Plaintiff’s Title VII claims in the instant
lawsuit “serve to amplify, clarify, [and] more clearly focus” her claims in Charge Two.
Freeman, 626 F.2d at 443, see also Evans v. U.S. Pipe & Foundry Co., 696 F.2d 925, 929 (11th
Cir. 1983), Pijnenburg, 255 F.3d at 1306, Harrison v. International Business Machines (IBM) Corp.
378 F. App’x 950, 953 (11th Cir. 2010) (noting that, as a matter of law, a plaintiff’s
“discrimination claims based on sex, national origin, disparate treatment, and hostile work
environment raised in the second complaint were inextricably intertwined with the retaliation
claims in the third EEOC charge because they all related to events surrounding his poor
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performance review and termination.”).
While the Title VII claims are supported by Charge Two, Plaintiff’s Amended
Complaint contains numerous allegations that are time-barred. In her response to the
motion to dismiss the original complaint, Plaintiff conceded that her Title VII claims based
on Charge One are time-barred. See (Doc. 7). Even without this concession, the law is clear
that Plaintiff had to file Charge One within the 180 days after the unlawfully discriminatory
acts allegedly occurred and was required to initiate the instant action within ninety days of
receiving her right to sue letter. See 42 U.S.C. § 2000e-5(e). Thus, the claims raised in
Charge One are time-barred. Accordingly, applying the 180-day statutory filing requirement
to Charge Two, the Court determined that the relevant period for Plaintiff’s Title VII claims
is February 9, 2013 to August 8, 2013. (Doc. 11 at 3).
The Statement of Ultimate Facts section of Plaintiff’s Amended Complaint includes
time-barred allegations of events that occurred between September 4, 2012 and November
20, 2012 and is pled in a shotgun fashion. See (Doc. 12 ¶¶ 18-30). In Count II (gender
discrimination) and Count III (retaliation) of her Amended Complaint, Plaintiff broadly realleges and incorporates, without limitation, all of the facts cited in the Statement of Ultimate
Facts. See (Doc. 12 ¶¶ 60, 61, 68, 70, and 71). Such shotgun pleading, violates Federal Rule
of Civil Procedure 8(a)’s requirement of “a short and plain statement of the claims” that
“will give the defendant fair notice of what the plaintiff’s claim is and the ground upon it
rests.” Fed. R. Civ. P. 8(a). See also Anderson v. District Bd. of Trustees of Central Florida
Community College, 77 F.3d 364, 366 (11th Cir. 1996) (shotgun pleadings make it “virtually
impossible to know which allegations of fact are intended to support which claims for
relief.”).
While alleged acts occurring prior to February 9, 2013, will not be considered as a basis
for Plaintiff’s hostile work environment and disparate treatment claims, the Court will
exercise its discretion to consider Plaintiff’s untimely allegations as providing background or
context for Plaintiff’s Title VII claims. As noted by the District Court for the Northern
District of Georgia, “time-barred evidence of discriminatory treatment may be used . . . to
illuminate current practices which, viewed in isolation, may not indicate discriminatory
motives.” E.E.O.C. v. Atlanta Gastroenterology Associates, LLC, No. 1:05-CV-2504-TWT, 2007
WL 602212, at *14 (N.D. Ga. Feb. 16, 2007) (internal quotation marks omitted) (citing to

12

Allen v. Montgomery Cnty. Ala., 788 F.2d 1485, 1488 (11th Cir. 1986)). See also United Air Lines,
Inc. v. Evans, 431 U.S. 553, 558 (1977) (noting that a discriminatory act “may constitute
relevant background evidence in a proceeding in which the status of a current practice is at
issue. . . .”).
Thus, in support of her hostile work environment and disparate treatment claims,
Plaintiff alleges that the following incidents occurred during the relevant period: (1) a
comment from Lt. Graddy that Plaintiff’s fingernails were “sexy”; (2) Lt. Graddy’s
discussions with an unspecified number of officers on a “daily basis” about the status of
Plaintiff’s personal relationship with Officer Eaton and Plaintiff’s “personal life generally”;
(3) Lt. Hall’s admonition to Officer Eaton “against both ‘backing up’ Plaintiff at work and
‘hanging around’ with Plaintiff; (4) an order singling out Plaintiff to take a random drug test;
(5) Lt. Graddy’s order to other officers to write Plaintiff up for unwarranted infractions; (6)
denial of an opportunity to train on a laser device because Officer Eaton was providing the
training; (7) Lt. Graddy’s use of GPS tracking in March, 2013 to monitor Plaintiff and
Officer Eaton; (8) verbal and written counselling for “excessive tardiness” and speeding in a
patrol car initiated at the direction of Lt. Graddy; (9) a verbal reprimand for not being inside
the middle school while on duty; (10) failure to take action on Plaintiff’s written appeal to
Chief Jennings related to the verbal counseling administered by Lt. Graddy on April 23,
2013; and (11) a failure to take action after a meeting with Lt. Hall in May, 2013 during
which Plaintiff complained about the harassment. (Docs. 12 ¶¶ 31-46; and 13-2).
1. Hostile Work Environment Title VII Claim
Title VII prohibits an employer from “discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). To
state a claim for hostile work environment gender discrimination under Title VII, a plaintiff
must allege sufficient facts to establish that “(1) she belongs to a protected group; (2) she has
been subjected to unwelcome sexual harassment; (3) the harassment was based on her sex;
(4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of
employment and create a discriminatorily abusive working environment; and (5) a basis for
holding the employer liable exists.” Hulsey v. Pride Rests., LLC, 367 F.3d 1238, 1244 (11th
Cir.2004).

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Construing as true the facts alleged by Plaintiff in support of her hostile work
environment gender discrimination claim, the Court finds that Plaintiff alleges sufficient
facts to meet the elements of the claim. First, membership in a protected group “requires a
simple stipulation that the employee is a man or woman.” Henson v. City of Dundee, 682 F.2d
897, 903 (11th Cir. 1982). Plaintiff alleges that she is female and thus establishes that she is a
member of a protected class. Second, “[i]n order to constitute harassment, [] conduct must
be unwelcome in the sense that the employee did not solicit or incite it, and in the sense that
the employee regarded the conduct as undesirable or offensive.” Id. Plaintiff alleges that,
over the course of six months, Lt. Graddy commented that her fingernails were “sexy,”
constantly tracked her patrol vehicle using GPS, and had discussions with several officers on
a “daily basis” about the status of Plaintiff’s personal relationship with Officer Eaton. (Doc.
¶¶ 33, 41, and 44). Plaintiff also alleges that she submitted verbal and written internal
complaints to Chief Jennings, Lt. Hall and City Manager Bridges. As such, Plaintiff sets
forth sufficient allegations to establish that the sexual harassment was unwelcome.
Third, actionable harassment based on sex “can be of two kinds: (1) a threatening,
bellicose, demeaning, or offensive conduct; or (2) unwelcome sexual advances. . . .” Bell v.
Crackin Good Bakers, Inc., 777 F.2d 1497, 1503 (11th Cir. 1985). To establish that the
harassment she alleges was “based on her sex” a plaintiff “must show that but for the fact of
her sex, she would not have been the object of harassment.” Henson, 682 F.2d at 904.
Plaintiff alleges that Lt. Graddy called her fingernails “sexy,” which may be construed as
unwelcome sexual harassment in the context of Lt. Graddy’s prior touching of and
comments to Plaintiff despite being told by Plaintiff that his actions made her
uncomfortable. See ( Doc. 12 ¶¶ 9, 10 and 33). See Atlanta Gastroenterology Associates, 2007
WL 602212, at *14 (“time-barred evidence of discriminatory treatment may be used . . . to
illuminate current practices which, viewed in isolation, may not indicate discriminatory
motives.”) (internal quotation marks omitted). Plaintiff also alleges that, after Lt. Graddy got
angry with her because he believed Plaintiff left an assignment early to spend time with
Officer Eaton, he screamed and cursed at her and began monitoring the GPS tracking
device on her patrol car, having discussions with other officers on a “daily basis” about the
nature of her relationship with Officer Eaton, and pressuring other supervising officers to
reprimand Plaintiff without cause. Plaintiff adequately alleges that but for her sex, Lt.

14

Graddy would not have inappropriately commented on her appearance, constantly discussed
her love life with others, or singled her out for testing, tracking, or excessive reprimands.
Fourth, the inference of harassment that is sufficiently severe or pervasive to alter the
terms and conditions of employment and create a discriminatorily abusive working
environment is raised “when an employer’s conduct ‘has the purpose or effect of
unreasonably interfering with an individual’s work performance or creating an intimidating,
hostile, or offensive environment.’” Steele v. Offshore Shipbuilding, 867 F.2d 1311, 1315 (11th
Cir. 1989) (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986)). As previously
discussed, Plaintiff alleges that Lt. Graddy had discussions with other officers on a “daily
basis” about the nature of her relationship with Officer Eaton, was actively looking for
reasons to demote or fire her, tracked the GPS on her patrol car and wrote her up and
reprimanded her without cause. (Doc. 12 ¶ 41). Plaintiff also alleges that she was the only
officer ordered to report for a random drug screening and that Lt. Hall admonished Officer
Eaton “against both ‘backing up’ Plaintiff at work and ‘hanging around’ with Plaintiff.” (Id.
¶ 37). Plaintiff’s allegations establish that the harassment to which she was subjected was
sufficiently pervasive to create an intimidating environment.
Fifth, “[a]n employer is subject to vicarious liability to a victimized employee for an
actionable hostile environment created by a supervisor with immediate . . . authority over the
employee.”

Jones v. City of Lakeland, 318 F. App’x 730, 735 (11th Cir. 2008) (quoting

Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 765 (1998)). The facts, as alleged by Plaintiff,
establish that Lt. Graddy exercised supervisory authority over Plaintiff, and that Lt. Graddy
engaged in adverse conduct that created an intimidating environment for Plaintiff. Thus,
Defendant, the City of Sylvester, Georgia, is subject to vicarious liability for Lt. Graddy’s
conduct.
Plaintiff adequately alleges sufficient facts, occurring between February, 9, 2013 and
August 8, 2013, to support a hostile work environment Title VII claim. Accordingly, the
Court denies Defendant’s Motion to Dismiss Plaintiff’s Count II of Plaintiff’s Amended
Complaint based on a hostile work environment claim. To the extent that Plaintiff alleges a
hostile work environment based on acts that occurred prior to February 9, 2013, or after
August 8, 2013, such claims are dismissed.
2. Disparate Treatment Title VII Claim

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Plaintiff also raises a disparate treatment claim under Title VII in Count II of her
Amended Complaint. To state a claim for discrimination under Title VII, a plaintiff must
allege sufficient facts to raise an inference of intentional discrimination. See Surtain v. Hamlin
Terrace Found. 789 F.3d 1239, 1256 (11th Cir. 2005), Hopkins v. St. Lucie Cnty School Bd., 399 F.
App’x 563 (11th Cir. 2010). Specifically, to raise an inference of disparate treatment under
Title VII, a plaintiff’s allegations must show that she (1) is a member of a protected class; (2)
was qualified for the position; (3) suffered an adverse employment action; and (4) was
treated less favorably than a similarly-situated individual outside her protected class. See
Hooks v. Georgia Dept. of Corrections, 311 F. App’x 295, 297 (2009) (citing Crawford v. Carroll,
529 F.3d 961, 970 (11th Cir. 2008)). First, as previously discussed, Plaintiff alleges that she is
female and thus establishes that she is a member of a protected class. Second, Plaintiff
alleges that she has been employed as a police officer since 2010 and that she was promoted
to the position of Sergeant in 2013. Thus, Plaintiff’s allegations arguably establish that she is
qualified for the position. Third, Plaintiff alleges that, during the relevant period, she was
the only officer required to report for a purportedly random drug screening and was
reprimanded for training on a laser device outside the Middle School although another male
officer, who was also assigned to duty inside the Middle School, was never reprimanded
when he was absent. As such, Plaintiff alleges sufficient facts to establish that she was
treated differently than male officers performing similar duties in similar circumstances.
Plaintiff has failed, however, to plead sufficient facts to establish that she suffered an
adverse employment action. “[T]o prove [an] adverse employment action . . . an employee
must show a serious and material change in the terms, condition, or privileges of
employment.”

Howard v. Walgreen Co., 605 F.3d 1239, 1245 (11th Cir. 2010) (internal

quotation marks and citation omitted). Generally, a plaintiff must “establish an ‘ultimate
employment decision’ or make some other showing of substantiality in the employment
context. . . .” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008) (citation omitted). An
“ultimate employment action” is one “such as termination, failure to hire, or demotion.” Id.
For a decision “falling short of an ultimate employment decision” to rise to the level of
actionable adverse employment, however, that decision “must, in some substantial way, alter
the employee’s compensation, terms, conditions, or privileges of employment, deprive him
or her of employment opportunities, or adversely affect his or her status as an employee.”

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Id. (internal quotation marks and citation omitted). However, “not all conduct by an
employer negatively affecting an employee constitutes adverse employment action.” Davis v.
Town of Lake Park, Fla., 245 F.3d 1232, 1244 (11th Cir. 2001). Indeed, Title VII is neither a
general civility code nor a statute making actionable the ordinary tribulations of the work
place. Cotton v. Cracker Barrel Old Country Store, Inc., 434 F.3d 1227, 1234 (11th Cir. 2006)
(internal quotation marks and citation omitted).
Plaintiff alleges that, during the relevant period, she received verbal and written
counseling for “excessive tardiness” on two occasions, a reprimand for being absent from an
assigned location, and that a fellow officer was ordered to stop training Plaintiff on the use
of a laser device in preparation for a certification in speed detection. See (Doc. 12 ¶¶ 31, 38,
39, and 44). Plaintiff fails, however, to allege how the counseling or reprimand had an
adverse impact on her compensation, or the terms, conditions, or privileges of her
employment. See Crawford, 529 F.3d at 970, see also Hawkins v. Potter, 316 F. App’x 957, 960
(11th Cir. 2009) (finding that three letters from plaintiff’s employer citing past performance
problems failed to establish adverse impact upon the terms, conditions, or privileges of
plaintiff’s employment in a “real and demonstrable way.”) (Internal citation omitted); Clark v.
Potter, 232 F. App’x 895, 897 (11th Cir. 2007) (adverse employment action not established
where letter of warning did not cause plaintiff loss of pay, loss of grade, employment
benefits or any other “tangible job effects.”). Arguably, the denial of a training opportunity
could be seen as having an adverse impact on a term or privilege of employment, but
Plaintiff has failed to allege sufficient facts to allow the Court to draw such an inference.
Further, while Plaintiff alleges that most of the adverse actions were committed by, or
ostensibly at the direction of, her supervisor, Lt. Graddy, in an effort to ultimately demote or
fire her, Plaintiff does not allege that she was subsequently demoted or fired. Because
Plaintiff fails to allege sufficient facts to establish that she suffered an adverse employment
action, Plaintiff fails to state a claim for disparate treatment under Title VII. Accordingly,
Plaintiff’s Title VII disparate treatment claim is dismissed.
C. Count III – Retaliation Claim under Title VII
In Count III of her Amended Complaint, Plaintiff claims that Defendant “unlawfully
retaliat[ed] [against her] after Plaintiff reported and/or opposed unlawful employment
practices adversely affecting her.” (Doc. 12 ¶ 71). Even though Plaintiff fails to state a

17

disparate treatment violation of Title VII, she may still establish a violation of the
antiretaliation provision of Title VII. See Sullivan v. Nat’l R.R. Passenger Corp., 170 F.3d 1056,
1059 (11th Cir. 1999). Under the antiretaliation provision, it is “an unlawful employment
practice for an employer to discriminate against any of his employees or applicants for
employment . . . because he has opposed any practice made an unlawful employment
practice by [Title VII], or because he has made a charge, testified, assisted, or participated in
any manner in an investigation, proceeding, or hearing. . . .” 42 U.S.C. § 2000e-3(a). To
establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) she
engaged in statutorily protected expression; (2) she suffered an adverse employment action;
and (3) some causal relation exists between the two events. Goldsmith v. Bagby Elevator Co.,
Inc., 513 F.3d 1261, 1277 (11th Cir. 2008).
A plaintiff satisfies the first element by showing that she “had a ‘reasonable belief’ that
an unlawful employment practice was occurring.” Wu, 863 F.2d at 1549.

Plaintiff filed

Charge One and Charge Two with the EEOC alleging sexual harassment and a hostile work
environment. Plaintiff also alleges that she submitted several internal complaints about Lt.
Graddy’s harassment. Thus, Plaintiff has established the first element, that she engaged in
protected expression.
With regard to the second element, adverse actions that courts deem actionable
“extend[] beyond workplace-related or employment-related retaliatory acts and harm.”
Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 67 (2006). A “plaintiff [need
only] show that a reasonable employee would have found the challenged action materially
adverse, which in this context means it might have well dissuaded a reasonable worker from
making or supporting a charge of discrimination.” Id. at 67 (internal quotation marks and
citation omitted). In this context, the “standard of judging harm must be objective[]” but,
because Title VII “does not set forth a general civility code for the American workplace,”
the material adversity alleged must be a significant, not a trivial harm. Id. at 68 (internal
citation omitted). Plaintiff alleges that, during the relevant period, in retaliation for her
complaints: (1) Lt. Graddy asked other officers to write her up and reprimand her, tracked
her via GPS, and singled her out for drug testing; (2) Officer Eaton, presumably at the
direction of Lt. Graddy, was ordered to stop training Plaintiff on the use of a laser device in
preparation for a certification in speed detection; and (3) Lt. Jones, presumably at the

18

direction of Lt. Graddy, reprimanded Plaintiff for training on a laser device when she should
have been on duty inside the Middle School and threatened Plaintiff with a charge of
insubordination and possible termination if she continued to refuse to take a “VIPER” test
on a laser unit although she was told initially taking the test was voluntary. See (Doc. 12
¶¶ 44 and 46). As such, Plaintiff has alleged sufficient facts to establish that she was
subjected to an adverse action that might have dissuaded a reasonable worker from making
and supporting a charge of discrimination.
The third element, the “‘causal link’ element[,] require[s] merely that the plaintiff
establish that the protected activity and the adverse action were not wholly unrelated.”
Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir. 1985). Plaintiff accused
Lt. Graddy of sexual harassment and creating a hostile work environment. Thereafter,
Plaintiff alleges that Lt. Graddy engaged in a campaign to get her demoted or fired. Plaintiff
further alleges that Lt. Graddy singled her out and attempted to get other supervisors to
reprimand her without cause. These acts cannot be said to be wholly unrelated to her
complaints. See (Doc. 12 ¶¶ 10, 21, 27, 41 and 44); see also Allen, 788 F.2d at 1488; Simmons,
757 F.2d at 1189. As such, the Court finds that Plaintiff alleges sufficient facts to satisfy the
elements of a prima facie retaliation claim. Accordingly, the Court denies Defendant’s
Motion to Dismiss Count III of Plaintiff’s Amended Complaint.
D. Count IV – Family and Medical Leave Act Claim
In Count IV of her Amended Complaint, Plaintiff alleges interference and retaliation
claims against Defendant under the FMLA for “failing to properly advise Plaintiff of her
ability to claim leave permitted by the FMLA, and for harassing Plaintiff due to her using leave
time and for taking time off that was authorized by and protected under the FMLA.” (Doc.
12 ¶ 77). Plaintiff alleges two violations – one in 2012 and the other in 2013.
1. 2012 Incident
“[A]n action may be brought under [the FMLA] not later than 2 years after the date of
the last event constituting the alleged violation. . . .” 29 U.S.C. § 2617(c)(1). However, “an
action for a willful FMLA violation “may be brought within 3 years of the date of the last
event constituting the alleged violation. . . .” Id. § 2617(c)(2). Plaintiff has alleged that
Defendant willfully violated the FMLA. See (Doc. 12 ¶¶ 13-15). The term “willful” is not
defined in the text of the FMLA statute, nor has the Eleventh Circuit defined the term in the

19

FMLA context. However, Federal Rule of Civil Procedure 9(b) provides that “[m]alice, intent,
knowledge, and other conditions of a person’s mind may be alleged generally.” Fed. R. Civ. P.
9(b). As noted by the District Court for the Middle District of Alabama in Maledy v. City of
Enterprise, at this stage of the litigation, “[f]ederal courts do recognize that a general averment
as to willfulness is sufficient to trigger the [FMLA’s] three-year statute of limitations.” No.
1:2010-CV-254-MHT, 2012 WL 1028176, at *5 (M.D. Ala. March 26, 2012) (citation omitted),
see also Perrymond v. Lockheed Martin Corp., No. 1:2009-CV-1936-TWT, 2010 WL 925178, at *1
(N.D. Ga. Mar. 9, 2010) (declining to adopt magistrate judge’s recommendation that Plaintiff’s
general allegation of willfulness was insufficient to trigger the FMLA’s three-year limitation
because “Rule 9 allows state of mind to be alleged generally and the Plaintiff has done that.”).
With regard to Plaintiff’s FMLA leave request on or about April 10, 2012,7 Plaintiff has
alleged that, despite knowing that the FMLA entitled Plaintiff to leave and despite having a
history of granting FMLA leave to other employees, Lt. Graddy and Chief Jennings initially
refused to grant Plaintiff’s FMLA leave request. See (Docs. 12 ¶¶ 12-15, and 13-3). She
further alleges that she was pressured to return to work early after City Manager Bridges
reversed the denial.

Therefore, Plaintiff has pled more than a “general averment” of

Defendant’s willfulness and thus the FMLA’s three-year statute of limitation applies to
Plaintiff’s FMLA claim with regard to the April 2012 incident. Plaintiff filed her original
complaint in the instant action approximately twenty five months later, on May 13, 2014. See
(Doc. 1). As such, Plaintiff’s allegation of a willful violation of the FMLA in 2012 was timely
filed within the three-year limitations period and is properly before the Court.
The Eleventh Circuit has recognized that 29 U.S.C. § 2615(a) “creates two types of
claims: interference claims, in which an employee asserts that [her] employer denied or
otherwise interfered with [her] substantive rights under the Act, and retaliation claims, in
which an employee asserts that [her] employer discriminated against [her] because [she]
engaged in activity protected by the Act.” Hurlbert v. St. Mary’s Health Care System, Inc., 439
F.3d 1286, 1293 (11th Cir. 2006) (internal quotation marks omitted).
Under the FMLA’s anti-interference provision, it is “unlawful for any employer to
interfere with, restrain, or deny the exercise or the attempt to exercise, any right provided
While Plaintiff conceded, in her response to Defendant’s motion to dismiss the original complaint, that she did not allege
sufficient facts in the original complaint to bring her claims within the three-year statute of limitations for willful FMLA
violations, because the Court granted Plaintiff leave to amend her complaint, her concession does not operate to abandon
7

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under the [FMLA].” 29 U.S.C. § 2615(a)(1).

Thus, to state a FMLA interference claim, a

plaintiff must sufficiently allege that “[she] was denied a benefit to which [she] was entitled
under the FMLA.” Evans v. Books-A-Million,762 F.3d 1288, 1295 (11th Cir. 2014). Although
Plaintiff alleges that Lt. Graddy and Chief Jennings initially refused to grant Plaintiff’s request
to take between two and six weeks of FMLA leave in April, 2012, Plaintiff also alleges that
City Manager Bridges quickly overruled them and Plaintiff was allowed to take leave.
Furthermore, although Plaintiff alleges that she only took off two weeks instead of six
“because of the pressure she was under from her supervisors to return to work[,]” (Doc. 12
¶ 15), Plaintiff fails to allege specific facts regarding which supervisor pressured her or the
nature of the pressure. She merely states that she returned early due to pressure from her
supervisors. As such, because Plaintiff fails to plead facts showing that she was ultimately
denied FMLA leave and fails to allege sufficient facts to support the allegation that she was
pressured into taking less leave than she needed, Plaintiff fails to state an interference claim
under the FMLA with regard to the 2012 incident. See Goff v. State Military Dept., No. 2:2013CV-60-MHT, 2013 WL 5352755, at *4 (M.D. Ala. Sept. 24, 2013) (“Because Goff admits that
she took FMLA leave, she cannot demonstrate that she was denied FMLA leave for which she
applied.”).
Under the FMLA’s anti-retaliation provision, it is “unlawful for any employer to
discharge or in any other manner discriminate against any individual for opposing any practice
made unlawful” under the FMLA. 29 U.S.C. § 2615(a)(2). “To establish a prima facie case of
retaliation, the plaintiff must show that: (1) [she] engaged in statutorily protected activity; (2)
[she] experienced an adverse employment action; and (3) there is a causal connection between
the protected activity and the adverse action.” Hurlbert v, 439 F.3d at 1297. Accepting
Plaintiff’s allegations as true, Plaintiff has alleged sufficient facts to support a retaliation claim
under the FMLA.

First, Plaintiff alleges that, in April, 2012, she submitted paperwork

requesting FMLA leave and took that leave. Thus, Plaintiff’s allegation establishes that she
engaged in statutorily protected activity. Second, Plaintiff alleges that, after returning from
FMLA leave in April, 2012, she was denied a promotion. (Doc. 12 ¶ 17). Thus, Plaintiff
establishes that she experienced an adverse employment action. Third, Plaintiff alleges that
she was denied a promotion approximately one month after returning from FMLA leave and
her FMLA claim.

21

was told that the denial was because of “sick leave issues.” (Id.) Thus Plaintiff’s allegations
establish a causal connection between her protected activity and the adverse action to which
she was subjected. As such, the Court finds that Plaintiff has pled sufficient facts to support a
plausible inference of a violation of the antiretaliation provision of the FMLA. Accordingly,
Plaintiff’s FMLA interference claim related to the 2012 incident is dismissed, but she may
proceed on her retaliation claim related to the same.
2. 2013 Incident
Plaintiff alleges that her second request for FMLA leave, in May, 2013, was granted.
As was the case in Goff, “[b]ecause [Plaintiff] admits that she took FMLA leave, she cannot
demonstrate that she was denied FMLA leave for which she applied.” 2013 WL 5352755, at
*4. Thus, Plaintiff cannot state an interference claim related to the 2013 incident. Nor does
Plaintiff allege that she was retaliated against after she took leave in 2013. Accordingly,
Plaintiff’s interference and retaliation claims under the FMLA that relate to the 2013 incident
are dismissed.
V. CONCLUSION
Having considered the pleadings, the arguments of the Parties, and the applicable law,
the Court HEREBY GRANTS in part and DENIES in part Defendant’s Motion to
Dismiss Plaintiff’s Amended Complaint. (Doc. 13). With regard to the above claims, the
Court specifically finds as follows:
1) As to Plaintiff’s ADA claim, (Count I), Defendant’s Motion to Dismiss is
GRANTED.
2) As to Plaintiff’s hostile work environment gender discrimination claim under
Title VII, (Count II), Defendant’s Motion to Dismiss is DENIED.
3) As to Plaintiff’s disparate treatment gender discrimination claim under Title
VII, (Count II), Defendant’s Motion to Dismiss is GRANTED.
4) As to Plaintiff’s retaliation claim under Title VII, (Count III), Defendant’s
Motion to Dismiss is DENIED.
5) As to the FMLA Claims (Count IV) based on the 2012 incident:
a. Defendant’s Motion to Dismiss Plaintiff’s interference claim is
GRANTED

22

b. Defendant’s Motion to Dismiss Plaintiff’s retaliation claim is
DENIED.
6) As to the FMLA Claims (Count IV) based on the 2013 incident, Defendant’s
Motion to Dismiss is GRANTED.

SO ORDERED, this 31st day of March, 2016.
/s/ Leslie J. Abrams
LESLIE J. ABRAMS, JUDGE
UNITED STATES DISTRICT COURT

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