WILLIAMS v. Vilsack
ORDER granting 19 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE C ASHLEY ROYAL on 8/5/15 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
No. 3:13‐CV‐138 (CAR)
TOM J. VILSACK, Secretary,
United States Department of
ORDER ON MOTION FOR SUMMARY JUDGMENT
Plaintiff Mary Williams, proceeding pro se, brings this suit against her current
employer, Defendant Tom J. Vilsack, in his official capacity as Secretary of the United
States Department of Agriculture, alleging that Defendant failed to promote her in
retaliation for prior Equal Employment Opportunity (“EEO”) activity, in violation of
Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. (“Title
VII”). Currently before the Court is Defendant’s Motion for Summary Judgment [Doc.
19]. Having carefully considered the Motion, the response thereto, and the applicable
law, Defendant’s Motion [Doc. 19] is GRANTED.
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted “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.”1 A genuine issue of material
fact only exists when “there is sufficient evidence favoring the nonmoving party for a
jury to return a verdict for that party.”2 Thus, summary judgment must be granted if
there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving
party or, in other words, if reasonable minds could not differ as to the verdict.3 When
ruling on a motion for summary judgment, the Court must view the facts in the light
most favorable to the party opposing the motion.4
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
material fact” and that entitle it to a judgment as a matter of law.5 If the moving party
discharges this burden, the burden then shifts to the nonmoving party to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact.6 This evidence must consist of more than mere conclusory allegations or
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
3 See id. at 249‐52.
4 Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
5 Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).
6 See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324‐26.
7 See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
As a pro se litigant, Plaintiff is held “to a less stringent standard than formal
pleadings drafted by lawyers.”8 Nevertheless, Plaintiff’s pro se status “does not exempt
[her] from compliance with relevant rules of procedural and substantive law,”
including those applicable on summary judgment.9
The facts viewed in the light most favorable to Plaintiff, the nonmovant, are as
follows: Plaintiff is currently employed by the United States Department of Agriculture
(the “USDA”) as a biological technician with the Forest Service in Athens, Georgia,
where she has worked since November of 1986.10 Before moving to Athens, Plaintiff
worked for the USDA in its Macon office.11 In 1986, Plaintiff filed a sexual harassment
complaint against an official in the Macon office and, as part of the resolution of that
complaint, was transferred to Athens.12
Each staff position within the Forest Service has a corresponding job description
with specified “grade‐controlling” duties.13 The grade of any position is determined by
those enumerated duties.14 An employee’s classification, in turn, is determined by
Haines v. Kerner, 404 U.S. 519, 520 (1972).
Hillemann v. Univ. of Cent. Fla., 411 F. Supp. 2d 1354, 1358‐59 (M.D. Fla. 2004), aff’d, 167 F. App’x 747
(11th Cir. 2006) (internal quotation marks omitted).
10 Decl. of Mary Kaye Williams, Ex. A, p. 49 [Doc. 6‐2] (“Williams Decl.”).
11 Id. at p. 50.
12 Id.; Admin. Hearing Trans. 6:24‐7:2 (March 13, 2009) [Doc. 23‐2] (“Hearing Trans.”).
13 Decl. of Ivory Walker, Ex. A, p. 61 [Doc. 6‐2].
which of those duties that employee regularly performs.15 So, for example, an employee
classified as a “GS‐7” level employee would have certain specified duties; whereas, a
“GS‐8” level employee would have different duties with broader decisionmaking
authority and greater responsibility than the “GS‐7” level employee. 16 At the time
Plaintiff transferred to Athens in 1986, she was classified as a GS‐4 level employee.17
Within approximately a year of her arrival, Plaintiff was promoted to the GS‐5 level.18
In 1993, Plaintiff received another promotion to the GS‐6 level, where she remained
until 2006.19 Around the mid to late 1990s, Dr. Kerry Britton took over as Plaintiff’s
supervisor.20 During that time, Dr. Britton gave Plaintiff additional duties but did not
promote her.21 Dissatisfied with the lack of promotion, Plaintiff expressed her concerns
to Dr. Britton but to no avail.22 Finally, in 1999, Plaintiff contacted the Equal
Employment Opportunity (“EEO”) Office and mediation took place between Plaintiff
and Dr. Britton in which a career plan was developed for Plaintiff.23 Despite these
discussions, Dr. Britton never promoted Plaintiff.24
17 Hearing Trans. 7:3‐9.
18 Id. at 7:15‐19.
19 Id. at 8:2‐5; Williams Decl., Ex. A, p. 50.
20 Hearing Trans. 8:21‐23, 97:7‐8.
21 Id. at 9:11‐10:4.
22 Id. at 10:22‐23.
23 Id. at 9:18‐19, 56‐60, 104:1‐6.
24 Id. at 8:11‐12.
In December 2002, Dr. James Hanula took over as Plaintiff’s direct supervisor.25
At that time, Dr. Britton told Dr. Hanula about Plaintiff’s 1986 complaint as well as the
mediation in 1999.26 Dr. Britton, however, did not inform Dr. Hanula about any specific
details surrounding the 1986 complaint.27 Shortly after Dr. Hanula began supervising
Plaintiff, she asked for a promotion.28 Instead of promoting her at that time, Dr. Hanula
suggested a “desk audit,” which entailed submitting a description of Plaintiff’s position
to Defendant’s human resources department to determine the appropriate GS‐level
classification for Plaintiff’s current duties.29 The human resources department
determined that Plaintiff was performing at the GS‐6 level.30
Over three years later, in November 2006, Dr. Hanula promoted Plaintiff to the
GS‐7 level through a competitive selection process.31 After that time, Plaintiff took on
duties related to hazardous material inventory and pickup and served as chairwoman
of the safety committee.32 Approximately a year later, on October 31, 2007, Dr. Hanula
met with Plaintiff during a performance evaluation and told her she was performing
well.33 In fact, Plaintiff always performed well under Dr. Hanula’s supervision and
Decl. of James Lee Hanula, Ex. A, p. 56 [Doc. 6‐2] (“Hanula Decl.”).
Id.; Hearing Trans. 104:16‐25.
27 Hanula Decl., Ex. A, p. 56.
28 Hearing Trans. 127:3‐4.
29 Id. at 127:6‐128:7.
30 Id. at 129:12‐15; Evaluation Statement, Ex. A, pp. 70‐72 [Doc. 6‐2].
31 Id. at 18:6‐11, 130:14‐133:7.
32 Williams Decl., Ex. A, p. 51; Hearing Trans. 27:10‐11.
33 Williams Decl., Ex. A, p. 51.
never received any reprimands.34 During that meeting, Plaintiff requested a promotion
to the GS‐8 level.35 Dr. Hanula denied her request, stating that Plaintiff was not
performing work at the GS‐8 level, and he did not have the work or the need for a GS‐8
level employee.36 Plaintiff further testified that Dr. Hanula told her that she would
never be promoted higher than a GS‐7.37
A month later, Plaintiff contacted an EEO counselor regarding the denial of the
GS‐8 level promotion.38 On March 7, 2008, Plaintiff filed a formal EEO complaint,
alleging that the USDA retaliated against her for prior EEO activity by failing to
promote her to the GS‐8 level.39 At a hearing before an Equal Employment Opportunity
Commission (“EEOC”) Administrative Judge (“AJ”), Plaintiff testified that she had not
been promoted, but a few of her peers—Mike Cody (GS‐9), Susan Best (GS‐8), and
Lynn Burgess (GS‐8)—were performing similar work and had been promoted.40 Of
those three co‐workers, only Mike Cody reported directly to Dr. Hanula.41 Dr. Hanula
did not, however, promote Cody to the GS‐9 level; Cody was already at the GS‐9 level
when Dr. Hanula began working at the Athens branch. 42
Hearing Trans. 22:16‐24.
Williams Decl., Ex. A, p. 51.
36 Hearing Trans. 134:10‐13.
37 Williams Decl., Ex. A, p. 51.
38 Investigative Report, Ex. A, p. 13 [Doc. 6‐2].
40 Hearing Trans. 18:22‐20:5.
41 See Hearing Trans. 164:25‐165:4.
42 Id. at 150:3‐14.
Following the hearing, the AJ issued an opinion dated October 1, 2010, finding
that Plaintiff was not retaliated against for either the 1986 sexual harassment complaint
or the 1999 mediation.43 On November 23, 2010, the USDA entered a Final Order fully
implementing the AJ’s decision and notified Plaintiff of her right to appeal.44 Plaintiff
timely appealed the Final Order to the EEOC Office of Federal Operations (the “OFO”),
which affirmed.45 Plaintiff requested reconsideration of the OFO decision, but the OFO
denied Plaintiff’s request on September 11, 2013.46
Thereafter, on December 9, 2013, Plaintiff timely filed this suit, raising claims for
race discrimination, sex discrimination, hostile work environment, and retaliation. The
Court dismissed all the claims except for the retaliation claim for failure to exhaust
administrative remedies. Defendant now moves for summary judgment on the
remaining retaliation claim.47
Decision, Ex. D, p. 20 [Doc. 6‐5].
Final Order, Ex. E [Doc. 6‐6].
45 Decision, Ex. F [Doc. 6‐7].
46 Denial, Ex. G [Doc. 6‐8].
47 In her response to the instant Motion, Plaintiff continues to argue the merits of the dismissed hostile
work environment claim. Specifically, Plaintiff contends that the hostile work environment claim was
raised and argued at the hearing before the AJ. Plaintiff should have raised these arguments in response
to the motion to dismiss. In any event, the arguments now presented do not provide the Court with
grounds to reconsider its decision to dismiss the hostile work environment claim. That claim remains
dismissed, and, therefore, the Court will not consider argument related to that claim on summary
Title VII prohibits any employer from discriminating against an employee who
“has opposed any practice made an unlawful employment practice by this subchapter,
or because [s]he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under this subchapter.”48 In this case, Plaintiff
alleges that Defendant’s failure to promote her to the GS‐8 level in October 2007
amounts to retaliation for her prior EEO activity in violation of Title VII.
To establish a prima facie case of retaliation, “[a] plaintiff must show that (1) she
engaged in statutorily protected activity, (2) an adverse employment action occurred,
and (3) the adverse action was causally related to the plaintiffʹs protected activities.”49
Once the plaintiff satisfies her burden of establishing each of these elements, “the
employer has an opportunity to articulate a legitimate, nonretaliatory reason for the
challenged employment action.”50 “The plaintiff [then] bears the ultimate burden of
proving retaliation by a preponderance of the evidence and that the reason provided by
the employer is a pretext for prohibited retaliatory conduct.”51 Having reviewed all the
evidence of record, the Court finds that Plaintiff fails to establish a prima facie case of
retaliation, and thus Defendant is entitled to summary judgment.
42 U.S.C. § 2000e‐3(a).
Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 959 (11th Cir. 1997).
50 Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1277 (11th Cir. 2008).
In this case, Plaintiff successfully establishes the first two elements of the prima
facie case—the 1986 sexual harassment complaint and the 1999 mediation constitute
statutorily protected activity, and failure to promote constitutes an adverse
employment action. However, there is no evidence showing a causal connection
between Plaintiff’s protected activity and Defendant’s decision not to promote her.
“To establish a causal connection, a plaintiff must show that the relevant
decisionmaker was aware of the protected conduct, and that the protected activity and
the adverse actions were not wholly unrelated.”52 Additionally, Plaintiff must prove
“that the desire to retaliate was the but‐for cause of the challenged employment
action.”53 A causal connection can sometimes be established “by showing close
temporal proximity between the statutorily protected activity and the adverse
employment action.”54 If the plaintiff is relying on temporal proximity alone to
establish a prima facie case, the protected activity and adverse employment action must
be “very close” in time.55 If there is a significant gap of time between the two, “the
plaintiff must offer additional evidence to demonstrate a causal connection, such as a
Kidd v. Mando Am. Corp., 731 F.3d 1196, 1211 (11th Cir. 2013) (quotation marks omitted).
Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2528 (2013).
54 Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
pattern of antagonism or that the adverse action was the ‘first opportunity’ for the
employer to retaliate.”56
Here, Plaintiff cannot establish a causal connection because too much time
passed—approximately eight years—between her protected activity and Defendant’s
decision not to promote her in October 2007. The Eleventh Circuit has held “[a] three to
four month disparity between the statutorily protected expression and the adverse
employment action is not [close] enough.”57 If a matter of several months is not close
enough to infer a retaliatory motive, an eight‐year gap, without more, is clearly too long
to infer a retaliatory motive.
Furthermore, Plaintiff fails to proffer any additional evidence suggesting that the
1986 complaint or the 1999 mediation influenced Dr. Hanula’s decision. While Dr.
Hanula knew about Plaintiff’s prior protected activity, he did not know the particular
details of her earlier sexual harassment complaint and was not personally involved in
either the 1986 complaint or the 1999 mediation.58 Moreover, a causal connection is
even more attenuated given that Dr. Hanula’s decision not to promote her in 2007 was
not the “first opportunity to retaliate” against Plaintiff. Just one year prior, despite his
Jones v. Suburban Propane, Inc., 577 F. Appʹx 951, 955 (11th Cir. 2014).
Thomas, 506 F.3d at 1364; see also Smith v. City of Fort Pierce, Fla., 565 F. Appʹx 774, 779 (11th Cir. 2014)
(seven months is too long to support an inference of causation).
58 See Philon v. Rice, 758 F. Supp. 724, 725 (M.D. Ga. 1991) (finding plaintiff failed to show causal
connection because, although hiring supervisor knew about the prior complaints, he was not involved in
the prior complaints).
knowledge of Plaintiff’s protected activity, Dr. Hanula promoted her to the GS‐7 level.
In light of these facts, Plaintiff fails to show that the decision not to promote her in
October 2007 was motivated by a retaliatory motive. There is simply no evidence from
which a reasonable jury could find that Plaintiff’s prior EEO activity was the but for
cause of Defendant’s decision not to promote her. Thus, Plaintiff fails to establish a
prima facie case of retaliation.59
Based on the foregoing, Defendant’s Motion for Summary Judgment [Doc. 19] is
SO ORDERED, this 5th day of August, 2015.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
Even if Plaintiff could establish a prima facie case, Defendant would still be entitled to summary
judgment. Defendant articulated legitimate nonretaliatory reasons for not promoting Plaintiff—namely,
Plaintiff was not performing GS‐8 level work, and Dr. Hanula did not have the work or need for another
GS‐8 employee. Plaintiff fails to offer any evidence showing these reasons were merely pretext to
retaliate. There is insufficient evidence, for example, that Plaintiff’s GS‐8 and GS‐9 level coworkers were
similarly situated with Plaintiff. Plaintiff’s bare assertions of retaliation, without evidentiary support, are
insufficient to meet her burden of showing pretext. See Castillo v. Roche Labs, Inc., 467 F. App’x 859, 864
(11th Cir. 2012).
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