SMITH v WILLIAMS
ORDER granting 21 Motion for Summary Judgment. Defendant's Motion to Compel 25 is terminated as moot. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/09/2017. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
CASE NO. 3:16-CV-122 (CDL)
O R D E R
Plaintiff ShaQuinn Smith claims that her former employer,
brought claims against Defendant under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.
summary judgment on all of Plaintiff’s claims.
For the reasons
set forth below, Defendant’s summary judgment motion (ECF No.
21) is granted.
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
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.
Id. at 248.
dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.
Under the Court’s local rules, a party moving for summary
statement of the material facts to which the movant contends
there is no genuine dispute to be tried.”
M.D. Ga. R. 56.
Those facts must be supported by the record.
The respondent to
a summary judgment motion must respond “to each of the movant’s
numbered material facts.”
“All material facts contained in
the movant’s statement which are not specifically controverted
by specific citation to particular parts of materials in the
record shall be deemed to have been admitted, unless otherwise
proceeding pro se, received a notice regarding the significance
of Defendant’s summary judgment motion and of her opportunity to
respond to the motion and statement of material facts.
to Pro Se Party of Mot. for Summ. J., ECF No. 22.
Plaintiff filed a response brief and some exhibits, Plaintiff
did not respond to
statement of material facts.1
admitted pursuant to Local Rule 56.
The Court is still required
to review Defendant’s citations to the record to determine if a
genuine factual dispute exists.
Reese v. Herbert, 527 F.3d
1253, 1269 (11th Cir. 2008).
A review of Defendant’s citations to the record reveals
that Defendant relied heavily on the fact that Plaintiff did not
timely serve her response to Defendant’s requests for admission.
Defendant contends that because Plaintiff did not timely respond
to its requests for admission, the matters set forth in the
requests for admission are deemed admitted under Federal Rule of
Civil Procedure 36(a)(3).
The deadline for Plaintiff to respond
to the requests for admission was originally July 24, 2017.
Defendant denied that extension but granted a ten-
response is dated August 4, 2017, she mailed her response four
Receipt, ECF No. 23-6 at 1.
But Plaintiff did ask the Court to
Plaintiff’s exhibits are (1) an email from her to Defendant’s counsel
requesting an extension of time to respond to Defendant’s requests for
admissions, (2) a Christmas card from 2011, (3) Plaintiff’s
performance appraisals from 2012 and 2013, (4) a quarterly review from
2015, (5) photographs of an office, and (6) Plaintiff’s response to
Defendant’s requests for admissions.
summary judgment response; the Court construes this act by a pro
se plaintiff as a motion to withdraw the deemed admissions under
Federal Rule of Civil Procedure 36(b), which is granted.
Court thus did not consider any of Defendant’s fact statements
that are supported solely by the now-withdrawn admissions.2
But Plaintiff’s response brief is not evidence.
the summary judgment stage, a party asserting that a fact is
genuinely disputed “must support the assertion by . . . citing
affidavits or declarations, stipulations (including those made
answers, or other materials[.]”
Fed. R. Civ. P. 56(c)(1)(A).
The Clerk further explained to Plaintiff: “If you do not respond
to the motion for summary judgment on time with affidavits or
documentary evidence contradicting the material facts asserted
in the motion for summary judgment, the Court may accept the
factual assertions in the motion as true.”
Notice to Pro Se
Plaintiff’s response to Defendant’s requests for admissions is not
sworn, notarized, or made under penalty of perjury, and the Court does
not consider it to be evidence in opposition to Defendant’s summary
judgment motion. The only effect of Plaintiff’s response is that the
matters set forth in Defendant’s requests for admissions are not
Party of Mot. for Summ. J.
Plaintiff’s response brief is not
sworn or notarized, and it does not state that it was made under
penalty of perjury or that it was made on personal knowledge.
Therefore, it is not an affidavit or declaration sufficient to
oppose summary judgment.
See Fed. R. Civ. P. 56(c)(4) (“An
affidavit or declaration used to support or oppose a motion must
admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.”); 28 U.S.C. §
penalty of perjury to have the same force and effect as a sworn
And since it is not an affidavit or declaration, it
is not evidence.
Viewed in the light most favorable to Plaintiff, the record
reveals the following facts.
assistant in January 2010.
2014 and took maternity leave.
Plaintiff had a baby in
When she returned from maternity
position “[d]ue to infractions.”
In 2012, Plaintiff was transferred
to an endoscopy secretary position.
Williams Aff. ¶ 5, ECF No. 5-
It is undisputed that her pay rate and benefits remained the
It is also undisputed that Plaintiff received a $500
bonus in 2014, as well as a raise.
Plaintiff admits that she used the wrong marker to label
biopsy cassettes in January 2015; the writing came off during
processing, and this mistake resulted in delayed test results.
Although Plaintiff appears to believe that someone planted the
wrong type of marker in her work area in an attempt to sabotage
her, there is no evidence in the present record that Defendant
took any action against Plaintiff due to the marker incident.
At some point, Plaintiff decided to go back to school, and
she asked Defendant to allow her to leave work early several
days a week so she could attend classes.
the scheduling request.
Plaintiff asserts in her response brief
that Defendant did so by placing her on part-time status without
health insurance, but she did not point to any evidence on this
As discussed above, Plaintiff’s response brief is not
Plaintiff resigned from her position in May 2015.
appears to contend in her response brief that she did so because
(1) she was moved to an office in the back of the building away
medical assistant training that other employees received, and
(3) Defendant rehired an employee who had been terminated for
Plaintiff did not point to any evidence to
support these assertions.
In her Amended Complaint, Plaintiff appears to make claims
based on: (1) the transfer from endoscopy secretary to pathology
technician; (2) the amount of her 2014 bonus and raise; and (3)
Defendant argues that Plaintiff’s resignation
is not an adverse employment action within the meaning of Title
establish that any other actions were because of her race.
Court addresses each claim in turn.
Proof Required for Plaintiff’s Claims
A plaintiff may prove employment discrimination with direct
burden-shifting framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Trask v. Sec’y, Dep’t of Veterans
discrimination through her prima facie case.”
a prima facie case of discrimination to avoid summary judgment,
an employee may point to evidence that creates a genuine factual
dispute on the following elements: (1) she is a member of a
protected class, (2) she was qualified to do the job, (3) her
employer subjected her to an adverse employment action, and (4)
her employer treated similarly situated individuals outside of
her protected class more favorably.
Id. at 1192.
articulate “one or more legitimate non-discriminatory reasons
for its action.” Id. at 1191 (quoting Alvarez v. Royal Atl.
Developers, Inc., 610 F.3d 1253, 1264 (11th Cir. 2010)). If the
employer does so, then the plaintiff must “produce evidence that
Transfer to Pathology Technician Position
Defendant argues that Plaintiff cannot make out a prima
facie case of race discrimination based on her transfer to the
evidence that a similarly situated employee was treated more
favorably than she was.3
The Court agrees.
Even if the Court
assumes for summary judgment purposes that this transfer—which
In its reply brief, Defendant argued for the first time that the
transfer was not an adverse employment action within the meaning of
Title VII. Defendant did not raise the argument in its opening brief,
and Plaintiff thus did not have an opportunity to respond to it. As
counsel should know, “[a]rguments raised for the first time in a reply
brief are not properly before the reviewing court.” United States v.
Oakley, 744 F.2d 1553, 1556 (11th Cir. 1984).
resulted in no change to Plaintiff’s pay or benefits—was an
Plaintiff did not present evidence that employees outside her
Plaintiff argues that other employees were permitted to return
to their original position following an extended leave and that
she was not, but she did not present any evidence on this point.
establish a prima facie case of race discrimination based on her
transfer to the pathology technician position.
thus entitled to summary judgment on Plaintiff’s claim based on
this employment action.
III. 2014 Raise and Bonus
Defendant does not dispute that it would be an adverse
employment action within the meaning of Title VII if it gave
similarly situated employees outside Plaintiff’s protected class
larger raises and bonuses than it gave Plaintiff.
did not point to any evidence that any employee outside her
relevant respects received a larger raise or bonus than she did.
Without evidence that similarly situated employees
received larger raises and bonuses in 2014, Plaintiff cannot
discrimination based on her 2014 raise and bonus.
thus entitled to summary judgment on Plaintiff’s claim based on
her 2014 raise and bonus.
In her response brief, Plaintiff contends that she
did not resign voluntarily and that she resigned because (1) she
was moved to an office in the back of the building away from
patients and other employees, (2) she did not receive medical
Defendant rehired an employee who had been terminated for rude
behavior and racial comments on Facebook.
She also appears to
placing the wrong kind of marker in her work area and that she
was placed on part-time status
after she asked Defendant
accommodate her class schedule.
But Plaintiff did not point to
position would have felt compelled to resign, Plaintiff did not
In its reply brief, Defendant argued for the first time that any
claim based on Plaintiff’s resignation is barred for failure to
exhaust administrative remedies.
Again, the Court cannot consider
arguments raised for the first time in a reply brief.
F.2d at 1556.
present any evidence to support this claim.
Cf. Akins v. Fulton
Cty., Ga., 420 F.3d 1293, 1302 (11th Cir. 2005) (explaining that
produce substantial evidence that conditions were intolerable”).
Instead, she presented these arguments in her response brief,
Because Plaintiff failed to point to evidence to create a
genuine fact dispute on her claims, the Court grants Defendant’s
summary judgment motion (ECF No. 21).
IT IS SO ORDERED, this 9th day of November, 2017.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
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