HICKS v. BOARD OF REGENTS et al
Filing
28
ORDER granting 23 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 01/14/2013 (jcs)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
ATHENS DIVISION
JEFFREY L. HICKS,
*
Plaintiff,
*
vs.
*
CASE NO. 3:11-cv-94 (CDL)
BOARD
OF
REGENTS
OF
THE *
UNIVERSITY SYSTEM OF GEORGIA
and UNIVERSITY OF GEORGIA,
*
Defendants.
*
O R D E R
Federal
law
generally
prohibits
employers
from
discriminating against their employees based on race.
Plaintiff
Jeffrey
that
Hicks
(“Hicks”)
alleges
in
this
action
his
employer, the University of Georgia, discriminated against him
by
demoting
him
and
subsequently
terminating
his
employment,
thereby violating Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000e et seq.
The Court makes no determination in this
Order as to whether those allegations have merit.
Instead, the
Court focuses on the legal prerequisites for bringing a federal
claim for unlawful discrimination.
the
employee
must
do
discriminated against.
more
To prevail on such a claim,
than
prove
that
he
has
been
When the employer raises the employee’s
failure to exhaust his administrative remedies as a defense, the
employee
must
demonstrate
that
he
has
filed
a
timely
and
adequate
charge
of
discrimination
with
the
Equal
Employment
Opportunity Commission (“EEOC”) prior to filing suit.
Because
the undisputed evidence here establishes that Hicks failed to
file
a
timely
judgment.
Regents
charge,
his
Accordingly,
of
the
the
University
employer
Court
System
is
entitled
grants
of
to
Defendant
summary
of
(“Board
Georgia’s
Board
of
Regents”) motion for summary judgment as to Hicks’s Title VII
claims
(ECF
supplemental
No.
23).1
jurisdiction
The
Court
over
also
Hicks’s
declines
state
law
to
exercise
claims,
and
those claims are dismissed without prejudice.
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.
477 U.S. 242, 255 (1986).
Anderson v. Liberty Lobby, Inc.,
A fact is material if it is relevant
or necessary to the outcome of the suit.
1
Id. at 248.
A factual
Although Plaintiff sued both the Board of Regents and the University
of Georgia, it is clear that the University of Georgia is not a proper
defendant, and therefore, the claim against the University of Georgia
must be dismissed. See McCafferty v. Med. Coll. of Ga., 249 Ga. 62,
68, 287 S.E.2d 171, 176 (1982), overruled on other grounds by Self v.
City of Atlanta, 259 Ga. 78, 377 S.E.2d 674 (1989).
2
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Id.
FACTUAL BACKGROUND
The relevant record viewed in the light most favorable to
Hicks reveals the following.
Hicks, a black male, began working as a utility worker at
the University of Georgia in August 2003.
to
equipment
operator
in
February
utility worker on November 30, 2006.
After being promoted
2005,
he
was
demoted
to
Defs.’ Mot. for Summ. J.
App. Ex. 8, Letter from S. Whitmore to J. Hicks (Nov. 27, 2006),
ECF No. 23-11.
During August 2008, Rod Platt, the manager of
the Support Services Department of the Physical Plant Division,
decided to terminate Hicks’s employment based on performance and
attendance issues, which Hicks disputed.
his termination on August 26, 2008.
Hicks was notified of
Defs.’ Mot. for Summ. J.
App. Ex. 16, Letter from R. Platt to J. Hicks (Aug. 26, 2008),
ECF No. 23-19.
Over the next few months, Hicks appealed Platt’s decision
within
the
University
of
internal appeal procedures.
Georgia
through
the
university’s
After the termination decision was
upheld by two of Hicks’s supervisors, Hicks then requested and
received
a
hearing
before
a
disciplinary
review
committee.
Defs.’ Mot. for Summ. J. App. Ex. 17, Letter from D. Fisher to
J. Hicks (Sept. 2, 2008), ECF No. 23-20; Defs.’ Mot. for Summ.
3
J. App. Ex. 18, Letter from R.F. Johnson to J. Hicks (Sept. 8,
2008), ECF No. 23-21.
Hicks not be terminated.
The review committee recommended that
In accordance with the review policy,
the President of the University of Georgia, Michael Adams, had
the responsibility to review the committee’s recommendation and
make the ultimate decision on Hicks’s appeal.
President Adams
declined to follow the committee’s recommendation and upheld the
termination of Hicks’s employment.
Defs.’ Mot. for Summ. J.
App. Ex. 19, Letter from M. Adams to J. Hicks (Nov. 7, 2008),
ECF No. 23-22.
of
Regents,
Hicks next appealed his termination to the Board
and
on
February
10,
2009,
the
upheld the termination of Hicks’s employment.
Board
of
Regents
Defs.’ Mot. for
Summ. J. App. Ex. 20, Letter from J. Newsome to J. Hicks (Feb.
11, 2009), ECF No. 23-23.
Hicks initiated contact with the EEOC sometime during the
previously described internal appeal process.
Defs.’ Mot. for
Summ. J. App. Ex. 4, Hicks Dep. 125:8-126:6, 138:18-139:24, ECF
No. 23-7.
On September 3, 2009, Hicks signed his EEOC Charge of
Discrimination, stating that he was discriminated against based
on his race and color from June 3 to August 26, 2008.
Defs.’
Mot. for Summ. J. App. Ex. 21, EEOC Charge of Discrimination,
ECF No. 23-24.
10, 2009.
Id.
The EEOC received Hicks’s charge on September
The EEOC, without making a determination as to a
Title VII violation, issued Hicks a right-to-sue letter on April
4
20, 2011.
Defs.’ Mot. for Summ. J. App. Ex. 22, EEOC Dismissal
& Notice of Rights, ECF No. 23-25.
Hicks, who is proceeding pro se, subsequently filed this
action.
After the Board of Regents moved to dismiss Hicks’s
Complaint, the Court granted Hicks an opportunity to amend his
Complaint.
12/16/2011
Amended Complaint
Order,
ECF
No.
10.
Hicks
filed
an
asserting discrimination claims under Title
VII based on his demotion and termination as well as state law
claims for wrongful termination and discrimination.
1-2, ECF No. 11.
Am. Compl.
Presently pending before the Court is the
Board of Regents’s Motion for Summary Judgment (ECF No. 23).
DISCUSSION
The Board of Regents argues that Hicks’s federal claims are
barred
because
Hicks
failed
to
exhaust
his
administrative
remedies by timely filing his charge of discrimination with the
EEOC as required under Title VII.
42 U.S.C. § 2000e-5(e)(1).
In Georgia, a charge “must be filed within 180 days of the last
discriminatory
1314,
1317
act.”
(11th
Cir.
Wilkerson
2001).
v.
The
Grinnell
filing
Corp.,
of
a
270
F.3d
charge
is
effective upon receipt, and the 180-day filing period begins
“when the employee receives notice of the adverse employment
action.”
Kelly v. Dun & Bradstreet Corp., 457 F. App’x
804,
805 (11th Cir. 2011) (per curiam) (citing Stewart v. Booker T.
Washington, Ins., 232 F.3d 844, 848 (11th Cir. 2000)).
5
Here, Hicks filed his EEOC charge on September 10, 2009.
Although Hicks had notice of his termination on August 26, 2008,
he waited 380 days to file his charge with the EEOC.
is therefore untimely.
the
180-day
filing
His charge
The Court rejects any suggestion that
period
did
not
begin
to
run
until
university’s internal appeals process had been completed.
the
See
Everett v. Cobb Cnty. Sch. Dist., 138 F.3d 1407, 1410 (11th Cir.
1998).
It is also clear that the EEOC’s issuance of the right-
to-sue
letter
Hicks’s
is
claims
of
are
no
consequence
time-barred.
in
See,
determining
e.g.,
H&R
whether
Block
E.
Enters., Inc. v. Morris, 606 F.3d 1285, 1295 (11th Cir. 2010)
(per curiam); Wilkerson, 270 F.3d at 1316-17, 1321-22; see also
Bost
v.
Fed.
Express
Corp.,
372
F.3d
1233,
1241
(11th
Cir.
2004); Forehand v. Fla. State Hosp. at Chattahoochee, 89 F.3d
1562, 1567-68 (11th Cir. 1996).
The EEOC right-to-sue letter
even notifies Hicks that its issuance “does not certify that the
respondent is in compliance with the statutes
[and that
n]o
finding is made as to any other issues that might be construed
as having been raised by this charge.”
Defs.’ Mot. for Summ. J.
App. Ex. 22, EEOC Dismissal & Notice of Rights.
The issuance of
the right-to-sue letter does not save Hicks’s untimely claim.
The
Court
also
finds
that
Hicks
has
failed
to
present
sufficient evidence to demonstrate that he actually filed his
“charge”
prior
to
the
date
6
of
his
formal
charge
of
discrimination with the EEOC.
Hicks appears to contend that
before he filed his formal charge on September 10, 2009, he
filed paperwork with the EEOC within the 180-day period that
would satisfy the charge requirements.
charge,
Title
VII
requires
the
To qualify as a valid
document
to
be
verified
“in
writing under oath or affirmation” and “contain such information
and be in such form as the [EEOC] requires.”
5(b).
the
42 U.S.C. § 2000e-
The EEOC requires that a charge must at minimum identify
parties
complained
and
of,
generally
and
the
describe
EEOC
the
action
regulations
or
practices
specifically
provide
that “[a] charge may be amended to cure technical defects or
omissions, including failure to verify the charge, or to clarify
and amplify allegations made therein.”
In
general,
initial
29 C.F.R. § 1601.12(b).
paperwork,
such
as
an
intake
questionnaire, fails to satisfy the two significant functions of
a charge: notification to the employer and initiation of the
agency’s
investigation.
submissions
are
requirements.
not
Therefore,
generally
considered
verified
circumstances.
to
preliminary
meet
the
charge
See Pijnenburg v. W. Ga. Health Sys., Inc., 255
F.3d 1304, 1306 (11th Cir. 2001).
is
these
can
serve
as
a
However, a questionnaire that
charge
under
certain
limited
It must at a minimum contain the information
required for a charge by the EEOC’s regulations and demonstrate
that
a
reasonable
person
would
7
conclude
that
the
plaintiff
intended to activate the administrative machinery of Title VII.
See
Wilkerson,
exhaustive
270
F.3d
factors
communication
at
under
between
the
1319-20
the
(focusing
on
three
manifest-intent
plaintiff
and
EEOC
non-
approach:
personnel,
misleading language on the form itself indicating that it could
be a charge, and the EEOC’s ultimate treatment of the form as a
charge).
But see Francois v. Miami Dade Cnty., Port of Miami,
432 F. App’x 819, 822 (11th Cir. 2011) (per curiam) (concluding
that a plaintiff’s intake questionnaire did not qualify for the
narrow exception to the formal charge requirements under the
circumstances); Bost, 372 F.3d at 1241 (applying Wilkerson to an
ADEA claim and finding that a plaintiff’s intake questionnaire
and sworn affidavit did not satisfy the requirements of a timely
charge).
Hicks
has
failed
to
produce
sufficient
evidence
to
demonstrate that he submitted information prior to the filing of
his formal charge of discrimination that would be considered a
substitute for his untimely-filed charge.
In fact, he does not
point to any facts in the record from which one can determine
whether an earlier submission satisfies the charge requirements.
The
evidence
when
construed
in
his
favor
is
limited
to
the
following: (1) Hicks called the EEOC at least by the end of his
internal appeals process on February 10, 2009 and “had a case
number registered with them,” Hicks Dep. 138:18-139:3; (2) at
8
some point prior to the formal September 10, 2009 charge, Hicks
submitted “three maybe four different forms” to the EEOC because
the
EEOC
had
to
keep
making
changes
to
“get
[the]
charge
corrected,” id. at 125:8-126:6; and (3) eventually somebody else
had to “fill[] out paperwork” for him, id.
From these facts,
one cannot reasonably infer that such paperwork would constitute
a valid charge.
Based on the present record, the Court must conclude that
the only valid charge of discrimination was filed on September
10,
2009.
Since
that
charge
was
untimely,
Hicks
failed
to
exhaust his administrative remedies as required by Title VII.2
CONCLUSION
For the reasons explained above, the Board of Regents’s
Motion
Hicks’s
for
Summary
federal
Judgment
claims.
(ECF
Having
No.
23)
disposed
is
of
granted
all
of
as
to
Hicks’s
federal law claims, the Court declines to exercise supplemental
jurisdiction over his state law claims, and those claims are
dismissed without prejudice.
IT IS SO ORDERED, this 14th day of January, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE
2
To the extent Hicks attempts to assert a discrimination claim under
Title VII based on his demotion in November of 2006, Am. Compl. 1-2,
ECF No. 11, such a claim is also time-barred for the same reasons.
9
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