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)***

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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

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