Bolivar v. University of Georgia Survey and Research Department et al

Filing 38

ORDER granting 29 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 10/16/2012.(aaf)***

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
CAROLYN BOLIVAR,

*

Plaintiff,

*

vs.

*
CASE NO. 3:11-CV-24 (CDL)

UNIVERSITY OF
AND RESEARCH,

GEORGIA

SURVEY *
*

Defendant.
*
O R D E R
Plaintiff Carolyn Bolivar (“Bolivar”), a former employee of
the University of Georgia Survey & Research Center, claims that
she was denied a promotion based on her age and race.

She also

contends that when she complained about the discrimination, she
was fired because of her complaints, her age, and her race.
Liberally
proceeding

construing
pro

se,

Bolivar’s
has

Complaint,

alleged

a

claim

Bolivar,
under

who
the

is
Age

Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621 et
seq., for age discrimination and claims under Title VII of the
Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq.,

for

race

discrimination

and

retaliation.

Her

present

Complaint asserts these claims against the Board of Regents of
the

1

University

System

of

Georgia

(“the

Board”).1

For

the

Bolivar’s original Complaint named “University of Georgia Survey &
Research” as the Defendant, but it is not a legal entity capable of

following

reasons,

the

Court

grants

Defendant’s

Motion

for

Summary Judgment (ECF No. 29).
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ. P. 56(a).

In determining whether a

genuine

Fed. R.

dispute of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party=s favor.
U.S. 242, 255 (1986).

Anderson v. Liberty Lobby, Inc., 477

A fact is material if it is relevant or

necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

being sued.
Bolivar subsequently filed a Motion to Amend the
Complaint to add the Board of Regents of the University System of
Georgia as the defendant.
Mot. to Amend. the Compl. Against James
Bason, ECF No. 19. The Court granted that motion and directed Bolivar
to file an amended complaint within fourteen days of the Order.
7/12/2011 Text Order.
Although Bolivar never filed an amended
complaint, the Court nevertheless interprets Plaintiff’s Motion to
Amend her Complaint to now allege her claims against the proper
Defendant, the Board of Regents, and therefore, the Court addresses
whether the Board of Regents is entitled to summary judgment on the
merits on those claims. See McCafferty v. Med. Coll. of Ga., 249 Ga.
62, 63-66, 287 S.E.2d 171, 173-74 (1982), overruled on other grounds
by Self v. City of Atlanta, 259 Ga. 78, 377 S.E.2d 674 (1989) (stating
that the Board of Regents of the University System of Georgia is the
entity capable of being sued).

2

FACTUAL BACKGROUND
The facts, viewed in the light most favorable to Bolivar,
are as follows.
I.

Id. at 255.

Bolivar’s Employment
Bolivar, an African-American female born in 1955, worked as

an interviewer for the University of Georgia’s Survey Research
Center (“Research Center”) from 2008 until April 22, 2010, when
her employment was terminated.

Def.’s Statement of Material

Facts [hereinafter Def.’s SMF] App. Ex. 12, Bolivar Dep. 10:1112, 15:23-16:23, 18:8-12, 56:2-9, 94:8-15, ECF No. 29-15.

Dr.

Mary

the

Ann

Mauney

(“Mauney”),

the

Assistant

Director

of

Research Center from 1997 through August 2010, was Bolivar’s
direct supervisor.

Def.’s SMF App. Ex. 14, Mauney Decl. ¶¶ 2,

4, ECF No. 29-17.

Dr. James Bason (“Bason”), Director of the

Research

Center,

supervises

all

employees

of

Center, including Bolivar during her employment.

the

Research

Def.’s SMF

App. Ex. 13, Bason Aff. ¶¶ 2, 4, ECF No. 29-16.
On June 4, 2009, Bolivar wrote a letter to Mauney informing
her of an ongoing issue with supervisor Thomas Duncan: he was
“making fun of [Bolivar’s] age and calling [her] old” in front
of other employees.

Def.’s SMF App. Ex. 7, Letter from C.

Bolivar to M. Mauney (June 4, 2009), ECF No. 29-10; Br. in Opp’n
to Mot. for Summ. J., ECF No. 35 at 5 [hereinafter Bolivar

3

Aff.].2

A few days later, Bolivar wrote a letter to Mauney

explaining

that

the

coworkers differently.

Research

Center

treats

white

and

black

Def.’s SMF App. Ex. 8, Letter from C.

Bolivar to M. Mauney (June 8, 2009), ECF No. 29-11.

In that

letter Bolivar states that Gina Bodia (“Bodia”), a white female
coworker, was treated differently than other employees and gets
away with things that “[a] black person would/could never get
away with.”

Id.

As examples, Bolivar enumerated the following:

(1) Bodia was frequently late and never written up; (2) she
avoided weekend shifts; (3) she avoided participating in surveys
that she did not want to do; and (4) she secured a day shift
instead of a night shift after all the day workers, including
Bolivar, were changed to the night shift.

Id.

Bolivar wrote a third letter to Mauney on June 12, 2009
stating that she had complained to the University of Georgia
Human

Resources

department

Opportunity Office (“EOO”).

(“UGA

HR”)

and

the

Employment

Def.’s SMF App. Ex. 9, Letter from

C. Bolivar to M. Mauney (June 12, 2009), ECF No. 29-12 at 2.
Her complaints included employees’ discriminatory commentary and
Mauney’s failure to deal with Bolivar’s complaints about issues
2

Even though this document was submitted after the Court’s deadline
set forth in its July 30, 2012 Text Order, the Court will consider
Bolivar’s sworn statements included in her Brief in Opposition to
Motion for Summary Judgment, ECF No. 35, which was signed and sworn to
by Bolivar before a notary public. The Court, however, will not take
into consideration Bolivar’s unsworn factual statements contained in
her initial Brief in Opposition to Motion for Summary Judgment, ECF
No. 31, and the Addendum thereto, ECF No. 33.

4

in the Research Center, including complaints of age and race
discrimination.

Id.

In July 2009, Bolivar wrote a letter to

Janyce Dawkins asserting similar complaints.
No. 35 at 4-5.

Bolivar Aff., ECF

She enumerated the following concerns in that

letter: she had not been promoted to supervisor; Mauney had
discussed making her a supervisor, but Mauney altered schedules
so

that

no

new

supervisors

were

needed;

the

majority

of

supervisors were white; her supervisors seem bothered by her age
and her willingness to speak out; the newest supervisor was a
young black student; and Mauney had taken no action regarding
Bolivar’s complaints.

Def.’s SMF App. Ex. 6, Letter from C.

Bolivar to J. Dawkins (July 9, 2009), ECF No. 29-9.
II.

April 2010 Supervisor Promotions
During the week of April 14, 2010, Mauney appointed two

supervisors in the Research Center lab, but she did not appoint
Bolivar.

Mauney Decl. ¶¶ 11-12; Def.’s SMF App. Ex. 1, Letter

from C. Bolivar to S. Burden (Apr. 21, 2010), ECF No. 29-4.
Mauney explained her decision not to promote Bolivar:
Ms. Bolivar was not selected for a supervisor position
because she violated the rules on a regular basis, so
I did not believe that she was someone who should be a
role model for other telephone interviewers.
This
included
her
negative
interactions
with
other
employees, bringing food into the lab, sometimes
cheating on her dialings, and not letting the phone
ring the required number of times.

5

Mauney Decl. ¶ 12.

The two appointed supervisors were white.

Bolivar Aff., ECF No. 35 at 2.

Most of the employees in the

Research Center were black.

No announcement or job posting

Id.

occurred before the supervisors were chosen.

Id.

Bolivar asked

other supervisors why all employees were not notified of the job
openings and why the positions were filled with white employees.
Id.

She received no response and “was told that [she] was

trying to start trouble.”
the

practice

of

Mauney

Id.

and

Bolivar maintains that it was

other

employees

to

“only

either young or Caucasian students to be supervisors.”

hir[e]

Id., ECF

No. 35 at 3.
Bolivar submitted a complaint, dated April 21, 2010, to the
UGA

HR

Director

appointment

of

and

the

EOO,

two

alleging

recent

discrimination

supervisor

positions.

in

the

Mauney

Decl. ¶¶ 11-12; Letter from C. Bolivar to S. Burden (Apr. 21,
2010).

Neither Mauney nor Bason were aware that Bolivar filed

this complaint until after her termination.
23-24

(stating

that

Bason

learned

of

See Bason Aff. ¶¶
Bolivar’s

complaint

approximately a week after her termination); Mauney Decl. ¶ 18
(stating that Mauney learned about Bolivar’s complaint after she
terminated her).
III. Bolivar’s Termination
On or before April 21, 2010, Mauney conferred with Bason
about terminating Bolivar’s employment.

6

Bason Aff. ¶¶ 20-22.

Mauney

stated

her

reasons

for

recommending

termination

as

follows:
[Bolivar’s] behavior had gotten to the point where it
was disruptive to the other employees, to the
supervisors, and to myself. My overall assessment was
that Ms. Bolivar would not follow instructions, rules,
and regulations, and her behavior was disruptive in a
work environment that required close contact with
others.
In sum, her repeated misbehavior had become
so intolerable and detrimental to the work of the
Survey
Research
Center
that
I
determined
that
termination was appropriate.
Mauney Decl. ¶ 13.
problematic

and

“Due to Ms. Bolivar’s continued pattern of

disruptive

behavior,

[Bason]

approved

of

Ms.

Mauney’s decision and told her to proceed with the termination.”
Bason

Aff.

¶

21.

Bolivar

claims

that

she

never

received

communications or warnings about issues or incidents with her
job performance at the Research Center.

Bolivar Aff., ECF No.

35 at 4.
On April 22, 2010, Mauney terminated Bolivar’s employment.
Id., ECF No. 35 at 2; Mauney Decl. ¶ 16.

Afterwards, Bolivar

“stopped in [Mauney’s] office and told [Mauney] that [she] was
filing

with

supervisor

the

EEO

positions

[sic]
and

regarding

putting

[Mauney] didn’t say anything.”

in

the
two

not

posting

Caucasian

the

workers.

Bolivar Aff., ECF No. 35 at 2.

Bolivar went to Mauney’s office to pick up a letter of
termination on April 27, 2010.
because

she

had

been

Id.

terminated

7

Mauney told Bolivar that
she

would

not

receive

a

separation letter stating she was laid off.
2-3.

Id., ECF No. 35 at

Mauney then gave Bolivar a termination letter.

Mauney

Decl. Attach. A, Letter from M. Mauney to C. Bolivar (Apr. 28,
2010), ECF No. 29-17 at 8.
IV.

Bolivar’s Charge of Discrimination
Bolivar filed a Charge of Discrimination with the United

States

Equal

Employment

October 15, 2010.
29-14.

Opportunity

Commission

(“EEOC”)

on

Def.’s SMF App. Ex. 11, EEOC Charge, ECF No.

On the Charge, Bolivar stated the name of her employer

as “University of Georgia” and marked that her discrimination
was based on “age.”

Id.

She stated as the particulars:

I.

I was hired by the above-named company on October
1, 20008 [sic], as a Clerk III. I was discharged
on April 22, 2010.

II.

My separation notice states “Ms. Bolivar has been
an ever-growing and conflicting influence on
other interviewers in the telephone lab of the
SRC.
Her interaction with other employees has
become unacceptable and her fit into the SRC
organization is questionable.”

III. I believe that I have been discriminated against
because of my age, (55), in violation of the Age
Discrimination in Employment Act of 1967, as
amended.
Id.

She included no other particulars or facts on or with her

Charge.
November

The
22,

EEOC
2010.

issued

Bolivar

Compl.

a

Attach.

Rights, ECF No. 1-1.

8

right
1,

to

EEOC

sue

letter

Notice

of

on

Suit

Bolivar

filed

Compl., ECF. No. 1.

the

present

action

on

February

18,

2011.

In her Complaint, Bolivar’s claims rest on

her termination and inability to get promoted “because [she is]
African American” and “because of Age.”

Compl. ¶ 4, ECF No. 1.

The Complaint further states that “[she] filed a complaint with
UGA’s EEO [sic] and was fired a day or so later.”

Id. ¶ 9.

Given Bolivar’s pro se status, the Court liberally construes the
Complaint

as

stating

claims

for

age

discrimination,

race

discrimination in promotion and termination, and retaliation.
DISCUSSION
I.

ADEA Claim
Bolivar asserts a claim for age discrimination under the

ADEA.

The Board contends that Bolivar’s ADEA claim is barred by

Eleventh
actions

Amendment
against

a

immunity.
state

or

The
its

Eleventh
agencies,

Amendment
departments,

bars
or

officials, absent a waiver by the state or Congress, when the
state is the real party in interest or when state officials are
sued in their official capacities.
159, 169 (1985).

Kentucky v. Graham, 473 U.S.

The Board of Regents, the proper defendant, is

an arm of the state of Georgia for the purposes of Eleventh
Amendment immunity.

Fouche v. Jekyll Island-State Park Auth.,

713 F.2d 1518, 1522 (11th Cir. 1983).

“[T]he ADEA does not

validly abrogate the States’ sovereign immunity.”
Bd. of Regents, 528 U.S. 62, 92 (2000).

9

Kimel v. Fla.

Thus, the Board is

protected by Eleventh Amendment immunity, and the Court must
grant summary judgment on Bolivar’s ADEA claim.
II.

Title VII Claims
The

Board

contends

that

Bolivar’s

Title

VII

race

discrimination and retaliation claims should also be dismissed.
The Board argues that the claims are procedurally barred because
Bolivar failed to exhaust her administrative remedies by failing
to

raise

or

Alternatively,

mention
the

these

Board

claims

contends

in

that

her

the

merits cannot survive summary judgment.

EEOC

claims

Charge.
on

their

The Court addresses

each argument in turn.
A.

Administrative Exhaustion

Before

filing

suit

under

Title

VII,

a

plaintiff

must

exhaust the available administrative remedies by filing a charge
with the EEOC.

42 U.S.C. § 2000e–5(e)(1); Gregory v. Ga. Dep't

of Human Res., 355 F.3d 1277, 1279-80 (11th Cir. 2004) (per
curiam).

“[A] plaintiff's judicial complaint is limited by the

scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination.”
(internal

quotation

marks

omitted).

In

Id. at 1280

general,

“judicial

claims are allowed if they amplify, clarify, or more clearly
focus

the

allegations

in

the

EEOC

complaint,

but

.

.

.

allegations of new acts of discrimination are inappropriate.”
Id. at 1279–80 (internal quotation marks omitted).

10

However,

courts

are

“extremely

reluctant

to

allow

procedural

technicalities to bar claims brought under [Title VII].”
1280

(alteration

in

original)

(internal

Id. at

quotation

marks

omitted).
In Bolivar’s EEOC Charge of discrimination, filed without
aid of counsel,
alleged

age

Bolivar

alleged that she was

discrimination.

Specifically,

terminated and

in

that

charge,

Bolivar: (1) only marked the space for “age” discrimination in
the “discrimination based on” portion of the form, leaving the
“race” and “retaliation” spaces blank; (2) indicated that she
was hired on October 1, 2008 as a Clerk III and discharged on
April 22, 2010; (3) stated the terms of her separation notice as
“Ms. Bolivar has been an ever-growing and conflicting influence
on other interviewers in the telephone lab of the SRC.

Her

interaction with other employees has become unacceptable and her
fit

into

the

SRC

organization

contended

that

she

believed

because

of

[her]

Charge

made

no

age,

mention

she

(55).”
of

is

questionable”;

was

EEOC

any

and

“discriminated

Charge.

promotion

against

Bolivar’s

she

was

(4)

EEOC

denied,

no

mention of race discrimination, and no mention of retaliation—
the allegations that now form the crux of her Complaint.
Bolivar
retaliation

clearly
in

her

fails
EEOC

to

mention

charge.

race

discrimination

Moreover,

it

is

or

likely

implausible that the EEOC investigation of her termination would

11

have reasonably uncovered any evidence of race discrimination or
retaliation leading to her termination.
Title

VII

claims

should

procedurally barred.

be

Consequently, Bolivar’s

dismissed

because

they

are

Notwithstanding this finding, the Court

undertakes an analysis of the merits of Bolivar’s claims and
finds that the Board would be entitled to summary judgment even
if her Title VII claims were not procedurally barred.
B.

Bolivar’s Race Discrimination Claims

The

Court

construes

Bolivar’s

Complaint

to

state

claims

that she was not promoted and was later terminated because of
her race in violation of Title VII.
Title

VII

prohibits

an

employer

from

discriminating

“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).

Where, as here, a plaintiff relies

on circumstantial evidence to prove discrimination, the Court
utilizes the burden-shifting framework established in McDonnell
Douglas

Corp.

v.

Green,

411

U.S.

792

(1973),

and

Texas

Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Springer v. Convergys Customer Mgmt. Grp. Inc., 509 F.3d 1344,
1347

(11th

Cir.

2007)

(per

curiam).

First,

establish a prima facie case of discrimination.

Bolivar

Id.

must

If Bolivar

meets her burden of demonstrating a prima facie case, the Board

12

must articulate a legitimate, nondiscriminatory reason for the
action.

Wilson v. Bellsouth Telecomms. Inc., 386 F. App'x 971,

972 (11th Cir. 2010) (per curiam).

Once the Board articulates a

legitimate, nondiscriminatory reason, Bolivar

must then prove

that the Board’s reason is pretext for unlawful discrimination.
Id.
1.

Failure to Promote Claim

Bolivar’s Complaint alleges, “I was not promoted because I
am African American.”

Compl. ¶ 9.

She further alleges, “Two

supervisor positions were filled without being posted.
were filled by two white persons.”

They

Id.

For Bolivar’s failure to promote claim, she must show that:
(1) she belonged to a protected class; (2) she was qualified for
and applied for a position that the employer was seeking to
fill; (3) despite her qualifications, she was rejected; and (4)
the position was filled with an individual outside the protected
class.

Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 768

(11th Cir. 2005).

“However, where an employer does not formally

announce a position, but rather uses informal and subjective
procedures to identify a candidate, a plaintiff need not show
under the second prong that [s]he applied for the position—only
that the employer had some reason to consider [her] for the
post.”
Judgment,

Id.
the

For
Board

the

purposes

does

not

13

of

its

contest

Motion

Bolivar’s

for

Summary

ability

to

establish a prima facie case for her failure to promote claim.
Mot. for Summ. J. Attach. 1, Br. in Supp. of Def.’s Mot. for
Summ. J. 11 n.6, ECF No. 29-1.
The Board articulated legitimate, nondiscriminatory reasons
for selecting the other supervisor candidates over Bolivar:
Ms. Bolivar was not selected for a supervisor position
because she violated the rules on a regular basis, so
I did not believe that she was someone who should be a
role model for other telephone interviewers.
This
included
her
negative
interactions
with
other
employees, bringing food into the lab, sometimes
cheating on her dialings, and not letting the phone
ring the required number of times.
Mauney Decl. ¶ 12.
“legally

The Court finds that this constitutes a

sufficient,

legitimate,

nondiscriminatory

reason”

because it is “a clear and reasonably specific factual basis
upon

which

[Mauney]

based

[her]

subjective

opinion”

not

to

promote Bolivar.

Chapman v. AI Transp., 229 F.3d 1012, 1034

(11th Cir. 2000).

A reasonable employer could be motivated to

not promote an employee based on the proffered reason.
1030-31.

Id. at

The remaining question is whether Bolivar has pointed

to sufficient evidence to create a genuine fact dispute as to
pretext.
For a failure to promote claim, a “plaintiff cannot prove
pretext by simply arguing or even by showing that [s]he was
better qualified than the [employee] who received the position
[s]he

coveted.

A

plaintiff

must

14

show

not

merely

that

the

defendant's

employment

decisions

were

were in fact motivated by race.”
Educ.,

342

F.

App'x

434,

436

mistaken

but

that

they

Harrell v. Ala. Dep't of

(11th

Cir.

2009)

(per

curiam)

(second and third alterations in original) (quoting Alexander v.
Fulton Cnty., 207 F.3d 1303, 1339 (11th Cir. 2000)).
the

Research

Center’s

proffered

reason

for

To rebut

promoting

two

employees to supervisor instead of her, Bolivar “must show that
the disparities between the successful applicant[s'] and her own
qualifications

were

of

such

weight

and

significance

that

no

reasonable person, in the exercise of impartial judgment, could
have chosen the candidate selected over the plaintiff[.]”
(internal quotation marks omitted).

Id.

Bolivar does not proffer

any evidence of pretext that meets this standard.

Therefore,

the Board is entitled to summary judgment on this claim.
2.
The
Bolivar

Termination Claim

Board
may

likewise

have

seeks

asserted

because of her race.

summary

alleging

judgment

that

she

on
was

any

claim

terminated

The Board argues that Bolivar failed to

establish a prima facie case of discriminatory termination.

To

establish a prima facie case, Bolivar must show that (1) she was
a member of a protected class, (2) she was qualified for the job
at issue, (3) she was subject to an adverse employment action,
and

(4)

her

employer

treated

similarly

situated

outside of her protected class more favorably.

15

employees

Anderson v.

Embarq/Sprint,

379

F.

App'x

924,

928

(11th

Cir.

2010)

(per

curiam).
Pretermitting

whether

she

satisfies

the

first

three

elements of her prima facie case, it is clear that Bolivar does
not satisfy the fourth element.

A plaintiff must identify a

comparator employee who is “nearly identical to the plaintiff to
prevent courts from second-guessing a reasonable decision by the
employer.”
(11th

Cir.

Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091
2004).

Further,

the

Eleventh

Circuit

has

“consistently held that a plaintiff fired for misconduct makes
out a prima facie case of discriminatory discharge if he shows
that . . . the misconduct for which [he] was discharged was
nearly identical to that engaged in by [an employee outside the
protected class] whom [the employer] retained.”
Radio/Rahall

Commc’ns,

738

F.2d

1181,

1185

Nix v. WLCY

(11th

Cir.

1984)

(alterations in original) (internal quotation marks omitted).
Bolivar was fired because of her failure to follow rules
and regulations and her disruptive behavior in the workplace.
See

Mauney

Decl.

¶

13;

Bason

Aff.

¶

21;

EEOC

Charge.

Accordingly, Bolivar must show that a similarly situated white
employee who engaged in the same misbehavior as Bolivar was not
terminated.

The

only

evidence

the

Court

can

construe

as

touching upon the fourth element is a letter sent from Bolivar
to Mauney discussing a white employee, Gina Bodia, who was late

16

to

work

without

being

disciplined

select her work and shift times.
Mauney

(June

Bolivar

has

2009).

identical.”

who

was

permitted

to

Letter from C. Bolivar to M.

This

evidence

failed

to

show

that

situated

“similarly

omitted).

8,

and

she

in

all

relevant

is

not

and

sufficient.

Gina

respects”

Bodia
or

are

“nearly

Wilson, 376 F.3d at 1091 (internal quotation marks
Bolivar has also failed to show that the conduct her

supervisors claimed she engaged in was “nearly identical” to
that engaged in by Gina Bodia.

Nix, 738 F.2d at 1185.

Bolivar’s conduct was quite different.

In fact,

Therefore, Bolivar has

failed to show that a white employee in similar circumstances
engaged

in

nearly

identical

conduct

and

was

retained

while

Bolivar was fired.
Nonetheless, a “plaintiff’s failure to produce a comparator
does not necessarily doom [her] case.”
Gate

Gourmet,

(alteration

in

Inc.,

683

original)

F.3d

1249,

(internal

Chapter 7 Trustee v.
1255

(11th

quotation

Cir.

marks

2012)

omitted).

“[A] plaintiff may use non-comparison circumstantial evidence to
raise a reasonable inference of intentional discrimination and
thereby create a triable issue.”
omitted).
evidence
Mauney

Bolivar
of

or

does

not

discrimination
Bason

terminated

Id. (internal quotation marks

put

forth

other
an

circumstantial

that

leads

to

inference

her

with

discriminatory

that

intent.

Contra id. at 1256 (finding that “the record contain[ed] enough

17

non-comparator

evidence

for

a

jury

to

reasonably

infer

that

[defendant] discriminated against [plaintiff] because she was
pregnant”

when

the

record

was

replete

with

discussions

of

altering plaintiff’s job because of her pregnancy and the human
resource director admitted that plaintiff’s pregnancy motivated
the decision to fire her).

Bolivar therefore fails to make out

a prima facie case or create an inference of discrimination
motivating her termination, and the Board is entitled to summary
judgment as to this claim.
Moreover, even if Bolivar could establish a prima facie
case of discrimination, the Board would still be entitled to
summary

judgment.

The

Board

asserted

legitimate,

non-

discriminatory reasons for Bolivar’s termination: her failure to
follow

rules

and

“continued

disruptive behavior.”

pattern

of

problematic

and

Bason Aff. ¶ 21; Mauney Decl. ¶ 13.

In

response, Bolivar merely asserts that she did not have knowledge
of the problems with her behavior and that no documentation of
her behavior exists.

See generally Bolivar Aff., ECF No. 35.

Bolivar’s response consists solely of conclusory allegations.
To

produce

sufficient

evidence

of

pretext,

a

plaintiff

must

present “significant probative evidence” of pretext, not mere
conclusory allegations.
F.3d

1371,

omitted).

1376

(11th

Mayfield v. Patterson Pump Co., 101
Cir.

1996)

(internal

quotation

marks

Thus, Bolivar fails to present sufficient evidence

18

from which a reasonable fact finder could conclude

that the

Board’s articulated legitimate, non-discriminatory reasons were
pretext

for

discrimination.

In

sum,

even

if

Bolivar

had

established a prima facie case of discriminatory termination,
the Board is entitled to summary judgment on this claim.
C.

Bolivar’s Retaliation Claim

Bolivar also asserts that she was terminated in retaliation
for complaining about the alleged discrimination by employees of
the Research Center.

The Board seeks dismissal of this claim.

Title VII prohibits retaliation against an employee because
she has opposed an unlawful employment practice, made a charge,
or

participated

under

Title

in

VII.

an
42

investigation,
U.S.C.

§

proceeding,

2000e-3(a).

To

or

hearing

recover

for

retaliation, Bolivar “need not prove the underlying claim of
discrimination which led to her protest, so long as she had a
reasonable good faith belief that the discrimination existed.”
Meeks v. Computer Assocs. Int’l, 15 F.3d 1013, 1021 (11th Cir.
1994) (internal quotation marks omitted).
out

her

prima

facie

case

of

Bolivar must make

retaliation

under

Title

VII

by

showing the following: “(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

Carroll,

529

F.3d

adverse
961,

970

employment
(11th

19

action.”

Cir.

2008).

Crawford
Once

v.

Bolivar

establishes a prima facie case of retaliation, the Board must
proffer

a

action.
may

legitimate,

non-retaliatory

Meeks, 15 F.3d at 1021.

rebut

that

retaliation.

reason

by

reason

for

the

adverse

If the Board does so, Bolivar

showing

it

is

a

mere

pretext

for

Id.

For the purposes of this motion, the Board assumes that
Bolivar meets the first two elements of her prima facie case:
(1) her complaint constituted a statutorily protected activity,
and

(2)

she

employment

was

terminated,

action.

The

which

Board

constitutes

challenges

an

adverse

whether

Bolivar

satisfies the causation element of her prima facie case because
Bolivar points to no evidence of a causal connection between her
complaint and her termination.
To

establish

a

causal

connection,

Bolivar

must

merely

establish that the protected activity and the adverse action
“are not completely unrelated.”

Wideman v. Wal-Mart Stores,

Inc., 141 F.3d 1453, 1457 (11th Cir. 1998) (internal quotation
marks

omitted).

“[A]

plaintiff

satisfies

[the

causation]

element if he provides sufficient evidence that the decisionmaker became aware of the protected conduct, and that there was
close temporal proximity between this awareness and the adverse
employment action.”

Farley v. Nationwide Mut. Ins. Co., 197

F.3d 1322, 1337 (11th Cir. 1999); accord Higdon v. Jackson, 393
F.3d 1211, 1220 (11th Cir. 2004).

20

Bolivar’s

Complaint

alleges,

“I

filed

a

complaint

UGA’s EEO [sic] and was fired a day or so later.”

with

Compl. ¶ 9.

On April 21, 2010, Bolivar complained to UGA HR and EOO about
the

allegedly

discriminatory

promotion

of

white

employees

to

supervisor positions and that she was discriminated against in
the process for hiring supervisors because of her age and race.
Letter from C. Bolivar to S. Burden (Apr. 21, 2010).
day, April 22, 2010, Mauney fired Bolivar.
Bolivar

claims

that

she

was

fired

The next

Mauney Decl. ¶ 16.
in

retaliation

for

complaining.3
Although Bolivar was terminated the day after she filed her
complaint with UGA HR and the EOO, temporal proximity is not
enough to establish a causal connection in this case.
The general rule is that close temporal proximity
between the employee's protected conduct and the
adverse employment action is sufficient circumstantial
evidence to create a genuine issue of material fact of
a
causal
connection.
However,
there
is
this
exception: temporal proximity alone is insufficient to
create a genuine issue of fact as to causal connection
where there is unrebutted evidence that the decision
maker did not have knowledge that the employee engaged
in protected conduct.
3

Bolivar’s retaliation claim does not seem to rely on the letters she
sent in June and July 2009 to Research Center and UGA HR employees as
protected actions ultimately leading to retaliation.
For good
measure, the Court notes that even if she did rely on those letters,
Bolivar cannot establish the requisite causal connection between those
letters and her termination.
Bolivar was terminated more than nine
months after she sent the June and July 2009 letters, and she put
forth no other evidence of a causal connection.
The temporal
proximity of the letters to Bolivar’s termination is insufficient to
create a jury issue on causation. See Nichols v. CSG Sys., Inc., 245
F. App’x 937, 941 (11th Cir. 2007) (per curiam).

21

Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th
Cir. 2000) (internal citations omitted).

Bolivar points to no

evidence that Mauney or Bason, the decision makers, were aware
that Bolivar had filed her complaint when they terminated her.
Mauney and Bason both stated under oath that they were not aware
of Bolivar’s complaint until after they terminated her.
Aff. ¶¶ 23-24; Mauney Decl. ¶ 18.

Bason

Because she failed to put

forth any evidence that Mauney or Bason knew about her complaint
before they terminated her, Bolivar failed to establish a causal
connection

between

her

complaint

and

her

termination.

And,

because she did not establish a causal connection, she failed to
establish a prima facie case of retaliation under Title VII.
See, e.g., Jackson v. B&L Disposal, Inc., 425 F. App’x 819, 821
(11th

Cir.

entitled

2011)

to

(per

summary

curiam).
judgment

Accordingly,
as

to

the

Bolivar’s

Board
Title

is
VII

retaliation claim.
Furthermore, even if Bolivar could establish a prima facie
case of retaliation, she still would not prevail.
above,

the

Board

has

provided

legitimate,

As explained

non-retaliatory

reasons for the termination of Bolivar’s employment, and Bolivar
has produced insufficient evidence of pretext.

Thus, even if

Bolivar could establish a prima facie case of retaliation, the
Board

is

entitled

to

summary

retaliation claim.

22

judgment

on

her

Title

VII

CONCLUSION
For

the

aforementioned

reasons,

the

Court

grants

Defendant’s Motion for Summary Judgment (ECF No. 29).

IT IS SO ORDERED, this 16th day of October, 2012.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

23