KELLY v. DOUGHERTY COUNTY SCHOOL SYSTEM
ORDER granting 11 Motion for Summary Judgment Ordered by US DISTRICT JUDGE LESLIE ABRAMS GARDNER on 9/30/21 (ckz)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
DOUGHERTY COUNTY SCHOOL
CASE NO.: 1:19-CV-49
Before the Court is Defendant’s Motion for Summary Judgment (Motion) (Doc. 11).
Therein, Defendant moves for summary judgment as to the remaining counts of Plaintiff’s
Complaint on the basis that there exists no genuine issue of material fact and Defendant is
entitled to judgment as a matter of law. For the reasons stated below, Defendant’s Motion
Plaintiff Sheldon Kelly, an African American male, initiated this action on March
29, 2019, against Defendant Dougherty County School System. (Doc. 1 ¶ 3). Plaintiff’s
Complaint contains five numbered counts, including: (1) sex discrimination in violation of
Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq.; (2)
retaliation in violation of Title VII; (3) creating a hostile work environment in violation of
Title VII; (4) violation of O.C.G.A. § 34-7-2; and (5) violation of the Georgia
Whistleblower Act, O.C.G.A. § 45-1-4. (Id. ¶¶ 22–26). The Court previously dismissed
Count III. (Doc. 4 at 7, 9).
In July 2016, Plaintiff was hired by Defendant as a School Nutrition District
Manager. (Doc. 1 ¶ 6; Doc. 11-1 ¶ 1). On May 30, 2018, Plaintiff’s immediate supervisor,
Blaine Allen, directed Plaintiff and his co-worker Ronald Bell to notify him if they were
interested in attending a leadership conference on June 14–15, 2018 in Dalton, Georgia.
(Doc. 16 at 2; Doc. 17-3 at 28). Despite failing to notify Allen of his interest in attending
the conference, Plaintiff attended the conference and submitted an “employee expense
statement” to Allen on June 20, 2018. (Doc. 11-1 ¶ 5; Doc. 12-1 at 6–8). On June 8, 2018,
Allen directed Plaintiff to review five school sites and submit a report to him by June 15,
2018, but Plaintiff failed to do so. (Doc. 11-1 ¶¶ 6, 7; Doc. 17-3 at 32). On June 13, 2018,
Allen directed Plaintiff to deliver all production records for his cluster of schools to Ms.
Thomas1 by June 15, 2018, but Plaintiff also failed to do this. (Doc. 12-1 at 3; Doc. 16 at
1). On June 21, 2018, Allen directed Plaintiff to provide a written explanation by noon for
his failure to complete the site reviews and production records, but Plaintiff again failed to
comply. (Doc. 11-1 ¶¶ 10, 11; Doc. 16 at 2, 3;). Allen also requested a meeting with
Plaintiff by the end of the day, but Plaintiff did not meet with Allen as requested. (Doc. 121 at 11; Doc. 16 at 3, 4). On June 25, 2018, Allen instructed Plaintiff to report to a meeting
in the human resources office the next day, but Plaintiff failed to attend that meeting as
well. (Doc. 16 at 4; Doc. 17-3 at 46). Thereafter, Plaintiff continued to make no effort to
meet with Allen. (Doc. 12 at 4; Doc. 17-3 at 49).
On July 2, 2018, Superintendent Kenneth Dyer suspended Plaintiff without pay for
five days for insubordination and failure to obtain Allen’s approval for professional leave.
(Doc. 13-1 at 1). Dyer’s suspension letter to Plaintiff warned him that any further incidents
could result in his termination. (Id.). After Plaintiff returned to work following the
suspension, Allen directed Plaintiff to attend a meeting with himself and Assistant Human
Resources Director Kelli Hand on July 26, 2018. (Doc. 12 ¶ 18). Plaintiff showed up for
the meeting at the appointed time but refused to stay to meet with Allen and Hand. (Id.;
Doc. 16 at 4). Human Resources Director Jill Addison notified Plaintiff in writing not to
“Ms. Thomas” is not identified in the record.
return to work until he met with Dyer on August 1, 2018. (Doc. 13-1 at 2). That same day,
Plaintiff filed a complaint with the Equal Employment Opportunity Commission (EEOC)
claiming his five-day suspension was discriminatory. (Doc. 1 ¶ 12; Doc. 1-1). Prior to the
August 1, 2018 meeting, Addison contacted Plaintiff and cancelled the meeting. (Doc. 15
at 4). Dyer informed Plaintiff that he would be on administrative leave with pay while Dyer
considered whether to terminate Plaintiff. (Doc. 11 ¶ 26; Doc. 13 ¶ 9). On February 11,
2019, Dyer recommended to the Dougherty County Board of Education that Plaintiff be
terminated, and the Board voted to uphold his recommendation. (Doc. 13 ¶ 10; Doc. 13-1
at 3). On February 13, 2019, Dyer notified Plaintiff by letter that his employment with the
Dougherty County School System was terminated. (Doc. 2-1 at 1).
Federal Rule of Civil Procedure 56 allows a party to move for summary judgment
when the party contends that no genuine issue of material fact remains, and the party is
entitled to judgment as a matter of law. “Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the affidavits,
if any, show there is no genuine issue as to any material fact and that the moving party is
entitled to judgment as a matter of law.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th
Cir. 2013). “A genuine issue of material fact does not exist unless there is sufficient
evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.”
Grimes v. Miami Dade Cnty., 552 F. App’x 902, 904 (11th Cir. 2014) (per curiam) (citing
Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc)).
“An issue of fact is ‘material’ if it is a legal element of the claim under the applicable
substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc.,
121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986)). “It is ‘genuine’ if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998
(11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
587 (1986)). On a motion for summary judgment, the Court must view all evidence and
factual inferences drawn therefrom in the light most favorable to the nonmoving party and
determine whether that evidence could reasonably sustain a jury verdict in its favor. See
Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986); Allen, 121 F.3d at 646. The Court
shall, however, “grant summary judgment 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.”
Fed. R. Civ. P. 56(a).
The movant bears the initial burden of showing, by reference to the record, that there
is no genuine issue of material fact. See Celotex, 477 U.S. at 323; Barreto v. Davie
Marketplace, LLC, 331 F. App’x 672, 673 (11th Cir. 2009) (per curiam). The movant can
meet this burden by presenting evidence showing that there is no genuine dispute of
material fact or by demonstrating that the nonmoving party has failed to present evidence
in support of some element of its case on which it bears the ultimate burden of proof. See
Celotex, 477 U.S. at 322–24; Barreto, 331 F. App’x at 673; see also Jones v. UPS Ground
Freight, 683 F.3d 1283, 1294 (11th Cir. 2012) (noting that hearsay may be considered on
a motion for summary judgment only if it “could be reduced to admissible evidence at trial
or reduced to admissible form”) (quoting Macuba v. Deboer, 193 F.3d 1316, 1322 (11th
Cir. 1999)). “When that burden has been met, the burden shifts to the nonmovant . . . to go
beyond the pleadings and to present competent evidence in the form of affidavits, answers
to interrogatories, depositions, admissions and the like, designating specific facts showing
a genuine issue for trial.” Lamar v. Wells Fargo Bank, 597 F. App’x 555, 556–57 (11th
Cir. 2014) (per curiam) (citations omitted). “All material facts contained in the movant’s
statement which are not specifically controverted by specific citation to particular parts of
materials in the record shall be deemed to have been admitted, unless otherwise
inappropriate.” M.D. Ga. L.R. 56; see also Mason v. George, 24 F. Supp. 3d 1254, 1260
(M.D. Ga. 2014). Plaintiff did not respond to the Motion, and thus did not specifically
controvert any material facts set forth in Defendant’s Statement of Material Facts.
(Doc. 11-1). Accordingly, the facts set forth in Defendant’s Statement of Material Facts
are deemed admitted where appropriate.
Although Plaintiff did not respond to Defendant’s Motion, “the [C]ourt will not
grant [Defendant’s] motion simply by default.” Reese v. United States, 2:18-CV-010594
KOB, 2020 WL 6063747, at *1 (N.D. Ala. Oct. 14, 2020). “[T]he district court cannot base
the entry of summary judgment on the mere fact that the motion was unopposed, but, rather,
must consider the merits of the motion.” United States v. 5800 SW 74th Avenue, 363 F.3d
1099, 1101 (11th Cir. 2004). “Instead, the court may grant an unopposed motion for
summary judgment if its entry of summary judgment would be otherwise appropriate
under Rule 56, Fed. R. Civ. P.” Reese, 2020 WL 6063747, at *1. The Court does not need
to “sua sponte review all of the evidentiary materials on file at the time the motion is
granted, but must ensure that the motion itself is supported by evidentiary materials” and,
at the very least, “must review all of the evidentiary materials submitted in support of the
motion for summary judgment.” 5800 SW 74th Avenue, 363 F.3d at 1101–02. Therefore,
the Court will review the evidence in the record and consider the merits of Defendant’s
Motion. Id. at 1102.
Title VII Claims
Because Plaintiff alleges unlawful discrimination based on circumstantial evidence,
his claims are analyzed under the McDonnell Douglas burden-shifting framework.
Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 793 (1973). Under the McDonnell Douglas
framework, a plaintiff must first establish a prima facie case of discrimination. Alvarez v.
Royal Atl. Devs., Inc., 610 F.3d 1253, 1264 (11th Cir. 2010). “Once the plaintiff has made
a prima facie case, a rebuttable presumption arises that the employer has acted illegally,”
which the employer may rebut “by articulating one or more legitimate non-discriminatory
reasons for its action.” Id. (citation omitted). If the employer successfully rebuts the
presumption, “the burden then shifts back to the plaintiff to produce evidence that the
employer’s proffered reasons are a pretext for discrimination.” Id. (citation omitted). “At
all times, the plaintiff retains ‘the ultimate burden of persuading the court that [he] has been
the victim of intentional discrimination.’” Flowers v. Troup Cnty. Sch. Dist., 803 F.3d
1327, 1336 (11th Cir. 2015) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
256 (1981)). “Showing only that the employer’s proffered reason is false does not
necessarily entitle a plaintiff to get past summary judgment.” Alvarez, 610 F.3d at 1264.
A. Sex Discrimination Claim
In Count I of his Complaint, Plaintiff alleges Defendant discriminated against him
because of his sex, in violation of Title VII. (Doc. 1 ¶ 22). To make out a prima facie case
of discrimination, Plaintiff must show: “(1) that [he] belongs to a protected class, (2) that
[he] was subjected to an adverse employment action, (3) that [he] was qualified to perform
the job in question, and (4) that [his] employer treated ‘similarly situated’ employees
outside [his] class more favorably.” Lewis v. City of Union City, 918 F.3d 1213, 1220–21
(11th Cir. 2019) (en banc). Defendant concedes that “[Plaintiff] meets the first three
elements of the prima facie standard.” (Doc. 11-2 at 7). Defendant argues, however, that
Plaintiff has not established that he was treated differently than other similarly situated
employees outside his protected class. (Id. at 7–8).
Plaintiff has not identified, and the Court has not seen in its review of the record
before it, any evidence Defendant treated similarly situated employees outside of his class
more favorably. Plaintiff, therefore, has failed to establish that similarly situated persons
outside of Plaintiff’s class were treated differently. As such, Plaintiff has failed to make
out a prima facie case of discrimination.
B. Retaliation Claim
In Count II of his Complaint, Plaintiff alleges Defendant unlawfully terminated him
in retaliation for complaining to the EEOC about the five-day suspension, in violation of
Title VII. (Doc. 1 ¶ 23). To establish a prima facie case of retaliation, Plaintiff must show
that (1) he engaged in statutorily protected expressions, (2) he suffered an adverse
employment action, and (3) the adverse action was causally related to the protected
expression. Evans v. Books-A-Million, 762 F.3d 1288, 1298 (11th Cir. 2014). Retaliation
claims require proof that the desire to retaliate was the but-for cause of the challenged
employment action. Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 352 (2013).
The Court previously determined that Plaintiff engaged in protected activity when
he filed the charge of discrimination with the EEOC on July 26, 2018 (Doc. 4 at 6), and
Defendant concedes that Plaintiff suffered adverse employment action(s) when he was
placed on administrative leave and later terminated. (Doc. 11-2 at 14). Further, Defendant
acknowledges that “Dyer does not recall if he was aware of the EEOC filing before he
directed Addison to write the letter notifying Kelly not to return until the August 1
meeting.” (Doc. 11-2 at 14). Dyer states, however, that the “reason I notified Kelly not to
return until we meet on August 1 was his insubordinate refusal to attend [the July 26, 2018
meeting], not his filing with the EEOC.” (Doc. 13 ¶ 8).
As explained by the Eleventh Circuit, courts “resolve factual controversies in favor
of the nonmoving party, but only when there is an actual controversy, that is, when both
parties have submitted evidence of contradictory facts. We do not, however, in the absence
of any proof, assume that the nonmoving party could or would prove the necessary facts.”
Legg v. Wyeth, 428 F.3d 1317, 1323 (11th Cir. 2005) (quoting Badon v. RJR Nabisco, Inc.
224 F.3d 382, 393–94 (5th Cir. 2000)). “When the Defendants’ affidavits are undisputed
by the Plaintiffs, the court cannot then resolve the facts in the Plaintiffs’ favor based solely
on the unsupported allegations in the Plaintiffs’ complaint.” Id. Thus, while Plaintiff has
alleged retaliation, the only evidence in the record is that Plaintiff was suspended for five
days for insubordination and failure to obtain Allen’s approval for professional leave.
(Doc. 13-1). The only evidence in the record about Plaintiff’s ultimate termination is that
Plaintiff was fired for his “insubordinate refusal to attend [the July 26, 2018] meeting, not
his filing with the EEOC.” (Doc. 2-1 at 1; Doc. 13 ¶¶ 8-10). Therefore, Plaintiff has failed
to establish a prima facie case of retaliation.
State Law Claims
Plaintiff’s remaining claims are for violations of Georgia law. Federal district courts
have supplemental jurisdiction to entertain state law claims so related to claims within the
Court’s original jurisdiction as to form part of the same case or controversy. 28 U.S.C.
§ 1367(a). Once a plaintiff’s federal claims are dismissed, however, “there remains no
independent original federal jurisdiction to support the Court’s exercise of supplemental
jurisdiction over the state claims against Defendant[s].” Baggett v. First Nat’l Bank of
Gainesville, 117 F.3d 1342, 1352 (11th Cir. 1997). A court may decline to exercise
supplemental jurisdiction over claims after it has dismissed all claims over which it has
original jurisdiction. 28 U.S.C. § 1367(c)(3). While the “decision to exercise supplemental
jurisdiction over pendant state claims rests within the discretion of the district court,” the
Eleventh Circuit has “encouraged district courts to dismiss any remaining state claims
when, as here, the federal claims have been dismissed prior to trial.” Raney v. Allstate Ins.
Co., 370 F.3d 1086, 1088–89 (11th Cir. 2004) (per curiam) (citation omitted). In addition,
a plaintiff has “at least 30 days to re-file in state court after a federal court declines to
exercise supplemental jurisdiction,” thereby removing “the principal reason for retaining a
case in federal court when the federal claim belatedly disappears.” Personalized Media
Commc’ns, LLC v. Sci.–Atlanta, Inc., 493 F. App’x 78, 82 n.1 (11th Cir. 2012) (citations
omitted); see also 28 U.S.C. § 1367(d) (providing that state law claims brought in federal
court with “related” federal claims “shall be tolled while the claim is pending and for a
period of 30 days after it is dismissed”). Because Plaintiff’s federal claims have been
dismissed, the Court declines to exercise supplemental jurisdiction over the remaining state
For the reasons stated above, Defendant’s Motion (Doc. 11) is GRANTED. It is
hereby ORDERED and ADJUDGED that Plaintiff Kelly shall take nothing and
JUDGMENT shall be entered in favor of Defendant.
SO ORDERED, this 30th day of September, 2021.
/s/ Leslie A. Gardner
LESLIE A. GARDNER, JUDGE
UNITED STATES DISTRICT COURT
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