SMITH v WILLIAMS

Filing 26

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
ATHENS DIVISION
SHAQUINN SMITH,

*

Plaintiff,

*

vs.

*

ATHENS GASTROENTEROLOGY
ASSOCIATION, P.C.,

*

CASE NO. 3:16-CV-122 (CDL)

*
Defendant.
*
O R D E R
Plaintiff ShaQuinn Smith claims that her former employer,
Defendant

Athens

discriminated

Gastroenterology

against

her

because

of

Association,
her

race.

P.C.,
Plaintiff

brought claims against Defendant under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 2000e et seq.

Defendant seeks

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

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.

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.

Under the Court’s local rules, a party moving for summary
judgment

must

attach

to

its

motion

“a

separate

and

concise

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.”

Id.

“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
inappropriate.” Id.
Defendant
facts

with

its

submitted
summary

a

statement

judgment

of

motion.

undisputed
Plaintiff,

material
who

is

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.

Notice

to Pro Se Party of Mot. for Summ. J., ECF No. 22.

Though

2

Plaintiff filed a response brief and some exhibits, Plaintiff
did not respond to
Therefore,

Defendant’s

Defendant’s

statement of material facts.1

statement

of

admitted pursuant to Local Rule 56.

material

facts

is

deemed

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.
Plaintiff
extension.
day

asked

Defendant’s

counsel

for

a

forty-five

day

Defendant denied that extension but granted a ten-

extension,

until

August

4,

2017.

Though

Plaintiff’s

response is dated August 4, 2017, she mailed her response four
days

late,

on

August

8,

2017.

Receipt, ECF No. 23-6 at 1.

Pl.’s

Resp.

Ex.

7,

Postage

But Plaintiff did ask the Court to

1

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.

3

consider

her

response

by

attaching

it

as

an

exhibit

to

her

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.

The

Court thus did not consider any of Defendant’s fact statements
that are supported solely by the now-withdrawn admissions.2
Finally,
response

the

brief

arguments.

Court
so

that

notes

that

it

it

could

reviewed

understand

Plaintiff’s
Plaintiff’s

But Plaintiff’s response brief is not evidence.

At

the summary judgment stage, a party asserting that a fact is
genuinely disputed “must support the assertion by . . . citing
to

particular

depositions,

parts

of

documents,

materials

in

electronically

the

record,

stored

including

information,

affidavits or declarations, stipulations (including those made
for

purposes

of

the

motion

only),

answers, or other materials[.]”

admissions,

interrogatory

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.”
2

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
deemed admitted.

4

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
be

made

on

personal

knowledge,

set

out

facts

that

would

be

admissible in evidence, and show that the affiant or declarant
is competent to testify on the matters stated.”); 28 U.S.C. §
1746

(requiring

that

an

unsworn

declaration

be

made

under

penalty of perjury to have the same force and effect as a sworn
affidavit).

And since it is not an affidavit or declaration, it

is not evidence.
FACTUAL BACKGROUND
Viewed in the light most favorable to Plaintiff, the record
reveals the following facts.
Plaintiff

began

working

assistant in January 2010.

for

Defendant

2014 and took maternity leave.
Plaintiff

was

medical

Plaintiff had a baby in

When she returned from maternity

transferred

position “[d]ue to infractions.”
3.

a

In 2012, Plaintiff was transferred

to an endoscopy secretary position.

leave,

as

to

a

pathology

technician

Williams Aff. ¶ 5, ECF No. 5-

It is undisputed that her pay rate and benefits remained the

5

same.

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.

Defendant accommodated

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
point.

As discussed above, Plaintiff’s response brief is not

evidence.
Plaintiff resigned from her position in May 2015.

She

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
from

patients

and

other

employees,

(2)

she

did

not

receive

medical assistant training that other employees received, and
(3) Defendant rehired an employee who had been terminated for
rude

behavior

and

racial

comments

6

on

Facebook.

Although

Plaintiff

made

Plaintiff’s

these

response

explained above.

assertions

brief

is

in

not

her

response

evidence

for

the

brief,
reasons

Plaintiff did not point to any evidence to

support these assertions.
DISCUSSION
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)
her resignation.

Defendant argues that Plaintiff’s resignation

is not an adverse employment action within the meaning of Title
VII

and

that

she

did

not

present

sufficient

evidence

establish that any other actions were because of her race.

to
The

Court addresses each claim in turn.
I.

Proof Required for Plaintiff’s Claims
A plaintiff may prove employment discrimination with direct

or

circumstantial

direct

evidence

circumstantial

evidence.
of

Plaintiff

discrimination,

evidence

of

did

but

not

she

discriminatory

present

may

intent

rely
under

any
on
the

burden-shifting framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).
Affairs,

822

framework,

F.3d
a

1179,

plaintiff

Trask v. Sec’y, Dep’t of Veterans

1191

(11th

must

Cir.

2016).

“create

discrimination through her prima facie case.”

an
Id.

Under
inference

that
of

To establish

a prima facie case of discrimination to avoid summary judgment,

7

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.

plaintiff

case,

establishes

a

prima

facie

the

Once the

employer

may

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
the

employer’s

discrimination.”
II.

proffered

reasons

are

pretext

for

Id.

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
pathology

technician

position

because

she

did

not

present

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

3

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).

8

resulted in no change to Plaintiff’s pay or benefits—was an
adverse

employment

action

within

the

meaning

of

Title

VII,

Plaintiff did not present evidence that employees outside her
protected

class

were

treated

more

favorably

than

she

was.

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.
Without

such

evidence,

Plaintiff

cannot

meet

her

burden

to

establish a prima facie case of race discrimination based on her
transfer to the pathology technician position.

Defendant is

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.

But Plaintiff

did not point to any evidence that any employee outside her
protected

class

who

was

similarly

situated

to

her

in

all

relevant respects received a larger raise or bonus than she did.
Again,

Plaintiff’s

evidence.

argument

in

her

response

brief

is

not

Without evidence that similarly situated employees

received larger raises and bonuses in 2014, Plaintiff cannot
meet

her

burden

to

establish

a

9

prima

facie

case

of

race

discrimination based on her 2014 raise and bonus.

Defendant is

thus entitled to summary judgment on Plaintiff’s claim based on
her 2014 raise and bonus.
IV.

Plaintiff’s Resignation
Defendant

adverse

argues

that

employment

voluntarily.4

Plaintiff’s

action

resignation

because

is

Plaintiff

not

an

resigned

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
assistant

training

that

other

employees

received,

and

(3)

Defendant rehired an employee who had been terminated for rude
behavior and racial comments on Facebook.
argue

that

someone

in

the

office

tried

She also appears to
to

sabotage

her

by

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

any

evidence

actions,

taken

conditions

so

of

these

actions.

together,

could

intolerable

that

So
have
a

even
made

these

alleged

Plaintiff’s

working

reasonable

if

to

employee

in

her

position would have felt compelled to resign, Plaintiff did not
4

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.
Oakley, 744
F.2d at 1556.

10

present any evidence to support this claim.

Cf. Akins v. Fulton

Cty., Ga., 420 F.3d 1293, 1302 (11th Cir. 2005) (explaining that
a

plaintiff

pursuing

a

constructive

discharge

claim

“must

produce substantial evidence that conditions were intolerable”).
Instead, she presented these arguments in her response brief,
which

is

summary

not

evidence.

judgment

on

any

Defendant
claim

is

therefore

arising

out

of

entitled

to

Plaintiff’s

resignation.
CONCLUSION
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

11