CLEMMONS v. COLUMBUS CONSOLIDATED GOVERNMENT
Filing
33
ORDER granting 21 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D LAND on 11/22/2016. (CCL)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
MARILYN CLEMMONS,
*
Plaintiff,
*
vs.
*
COLUMBUS CONSOLIDATED
GOVERNMENT,
*
CASE NO. 4:15-CV—54 (CDL)
*
Defendant.
*
O R D E R
Plaintiff Marilyn Clemmons is a black woman who is employed
by
Defendant
firefighter.
Columbus
Consolidated
Government
(“CCG”)
as
a
Clemmons argues that CCG discriminated against her
because of her race and gender and retaliated against her for
complaining
of
race
and
gender
discrimination.
She
asserts
claims under 42 U.S.C. § 1981, the Equal Protection Clause of
the Fourteenth Amendment, and Title VII of the Civil Rights Act
of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq.
summary judgment
on
all of Clemmons’s claims.
CCG seeks
As discussed
below, CCG’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.
FACTUAL BACKGROUND
Viewed in the light most favorable to Clemmons, the record
reveals the following.
I.
Clemmons’s Employment, Indictment, and Administrative Leave
Clemmons is a black woman who has been employed by CCG as a
firefighter since 1988.
Between 2010 and 2012, Clemmons also
worked as a store manager for Big Dawg Calling Card Company.
At
Big Dawg stores, customers paid money to have points added to a
phone card.
With those points, customers could play games in
the Big Dawg store and win money prizes.
on
her
Dekalb
involvement
County,
Georgia’s
with
Georgia
criminal
Big
on
Dawg,
three
Racketeer
Organizations Act (“Georgia RICO”).1
1
In March 2012, based
Clemmons
felony
was
counts
Influenced
indicted
in
of
violating
and
Corrupt
On March 15, 2012, Clemmons
Although Clemmons argues that she was wrongfully accused of violating
Georgia RICO, she did not point to any evidence to suggest that any of
2
was placed on administrative leave with pay; on March 16, 2012,
that changed to administrative leave without pay.
Clemmons does
not know of any other CCG employees who were indicted on felony
racketeering charges.
Clemmons did not file a fair treatment report with CCG when
she was placed on administrative leave without pay.
She did
speak with CCG’s then-human resources director, Tom Barron, at
some unspecified point.
“if
all
charges
are
According to Clemmons, Barron said that
dropped,
[Clemmons]
problem [sic] in getting [her] back pay.”
236:1, ECF No. 23.
of
CCG
Policy
shouldn’t
have
no
Clemmons Dep. 235:24-
Barron also sent Clemmons’s attorney a copy
220-502.
Policy
220-502
contains
disciplinary procedure for employee criminal behavior.
CCG’s
Clemmons
Dep. Ex. 9, CCG Policy 220-502, ECF No. 23-1 at 120-24.
The
policy states that if an employee is indicted on felony charges,
“then any administrative leave with pay shall convert, upon the
date of the indictment, to administrative leave without pay.”
Id.
at
4,
ECF
No.
23-1
at
123.
If
the
employee
is
not
convicted, an administrative investigation is to be conducted,
and
the
results
of
that
investigation
“may
result
in
reinstatement, with or without back payment for all or portions
of [the] administrative leave without pay.”
Id.
the decisionmakers in this case received information to corroborate
Clemmons’s assessment of the indictment against her.
3
While Clemmons was on administrative leave without pay, she
applied for unemployment benefits.
According to Clemmons, CCG
initially
benefits.
opposed
her
unemployment
At
the
appeal
hearing, though, a fire department representative spoke well of
Clemmons,
and
Clemmons
was
awarded
unemployment
benefits.
Clemmons did not point to any evidence that the unemployment
benefits
appeal
had
an
adverse
impact
on
her,
such
as
a
reduction of her benefits.
II.
Clemmons’s Return to Work and Fair Treatment Report
The criminal case against Clemmons was dismissed on March
14, 2014.
Clemmons was cleared to return to work on March 18,
2014.
She was assigned to the training department because her
state
firefighter
certification
administrative leave.
lapsed
while
she
was
on
Clemmons Dep. Ex. 7, Letter from Greg
Long to Marilyn Clemmons (Mar. 25, 2014), ECF No. 23-1 at 115.
Clemmons was given six weeks to pass the recertification test,
and she passed on her first attempt.
that
the
recertification
Clemmons does not contend
requirement
was
discriminatory.
Clemmons does, however, contend that CCG discriminated against
her
by
not
informing
her
of
the
recertification
requirement
while she was on leave (before the indictment was dismissed),
and she appears to contend that she should have been given more
time to prepare for her recertification test.
4
When Clemmons returned to work, she asked Deputy Chief Mike
Higgins for back pay for the two years she was on administrative
leave.
Higgins referred Clemmons to Chief Jeff Meyer, who told
Clemmons that she would not receive back pay.
2014,
Clemmons
submitted
a
fair
treatment
On April 16,
report
to
her
supervisor in the training division, Tim Smith, complaining that
she had not been given back pay after the charges against her
were
dropped
and
that
recertification training.
she
she
believed
discrimination
employees,”
and
that
had
April
18,
Clemmons
2014,
been
treatment”
did
discrimination she was alleging.
On
to
complete
In her letter, Clemmons stated
she
unfair
though
required
Clemmons Dep. Ex. 8, Fair Treatment
Report, ECF No. 23-1 at 117-18.
that
was
as
not
subjected
compared
state
to
to
what
“pay
“other
type
of
Id.
Higgins
informed
request for back pay was denied.
Clemmons
that
her
Clemmons Dep. Ex. 10, Letter
from Mike Higgins to Marilyn Clemmons (Apr. 18, 2014), ECF No.
23-1 at 126.
Reather
Higgins’s
Clemmons
Clemmons called CCG’s human resources director,
Hollowell,
response.
that
he
to
say
that
Hollowell
would
conduct
she
was
contacted
an
unsatisfied
Meyer,
“additional
who
with
informed
administrative
review” of her fair treatment report and asked her to provide
any additional information she wished to present in support of
her request for back pay.
Clemmons Dep. Ex. 11, Letter from
5
Jeff Meyer to Marilyn Clemmons (Apr. 29, 2014), ECF No. 23-1 at
128.
Clemmons wrote Meyer a letter stating that the charges
against her were dropped following a motion to suppress hearing
because after the hearing the state lacked evidence to show that
Clemmons
and
gambling.”
her
Big
Dawg
colleagues
were
“doing
illegal
Clemmons Dep. Ex. 12, Letter from Marilyn Clemmons
to Jeff Meyer (May 9, 2014), ECF No. 23-1 at 130.
Clemmons also
noted that a fellow firefighter, D.M.,2 “received a charge, a DUI
and the obstruction of an officer, and continued employment at
the fire station until verdict.”
Id.
Meyer responded to Clemmons’s letter on May 16, 2014.
He
determined that the denial of back pay was not unfair treatment;
his staff “confirmed that no employee indicted on felony charges
was granted back pay after returning to work.”
Clemmons Dep.
Ex. 13, Letter from Jeff Meyer to Marilyn Clemmons (May 16,
2014), ECF No. 23-1 at 133.
letter
did
not
contain
any
Meyer stated that Clemmons’s May 9
new
information
position that she should be awarded back pay.
to
Id.
support
her
Meyer also
determined that the fire department followed CCG Policy 220-502,
found that the state firefighter certification requirements were
administered fairly, and informed Clemmons that her retirement
benefit had not been impacted.
Id.
2
Though Clemmons asserts
The Court finds it unnecessary to refer to certain non-parties and
non-decisionmakers by their full names.
Therefore, throughout this
order, several individuals are identified using only their initials.
6
that she tried to reach Hollowell by telephone regarding her
back pay request, Clemmons did not point to any evidence that
she
pursued
an
appeal
personnel review board.
in
writing
to
Clemmons also
Hollowell
or
to
CCG’s
asserts that she was
never provided with a copy of any investigation regarding her
request for back pay.
III. Clemmons’s Return to Station 14 and Assignment to Station 4
On May 1, 2014, Clemmons was reassigned from the training
division to her old station—Station 14.
When she returned to
Station 14, she found that her equipment, locker, and bed were
no longer where they had been in 2012.
Clemmons contends that
CCG employees did not follow proper procedures when they moved
her belongings.
Clemmons asserts that some things were missing
from her locker, but she did not say what items were missing.
Clemmons also asserts that other firefighters had slept on her
personal mattress.
Clemmons does not dispute that when a fire
department employee purchases a mattress, all fire department
employees who are assigned to the same station have access to
the mattress and can use it.
Clemmons verbally complained to
her supervisor, Lieutenant Clifton Wherry, that her belongings
had been moved and that her mattress had been used, but she did
not file a written complaint or a fair treatment report.
On August 11, 2014, Clemmons was assigned to Station 4.
CCG asserts that Clemmons was assigned to traveling duty because
7
Station 4 was short-staffed.
Clemmons maintains that she was
transferred because her battalion chief wanted her out of his
battalion for some undisclosed reason.
Clemmons Dep. 126:13-18.
The Station 4 battalion chief, Janice Bruner, called the Station
14 battalion chief, Bobby Dutton, and informed him that Clemmons
was upset about the assignment to Station 4.
Dutton had Wherry
direct Clemmons to return to Station 14 on the following shift.
Wherry Dep. 99:7-100:12, ECF No. 24.
Clemmons states that she
asked Wherry why she had been sent to Station 4; according to
Clemmons, Wherry replied that he could not keep five people on
Squad B at Station 14 and that he had to move someone.
Dep.
140:21-142:16.
After
Clemmons
returned
to
Clemmons
Station
14
following her one shift at Station 4, there were five people on
Squad B at Station 14 for a while.
In
options:
February
remain
2015,
at
Wherry
Station
transfer to Station 5.
presented
14,
transfer
Clemmons
to
with
Station
three
4,
or
Clemmons opted to stay at Station 14, so
another firefighter was transferred
to Station 4.
With the
exception of Clemmons and Wherry, all of the employees who were
assigned to Station 14 in 2014 were ultimately transferred to a
different station or position.
IV.
Perceived Harassment
Clemmons contends that she was subjected to harassment by
Wherry and two coworkers.
Clemmons pointed to evidence that
8
Wherry made statements to “other guys” suggesting that he had “a
complex against womens [sic] in the fire department.”
Clemmons
Dep. 59:1-6; accord id. at 71:22-72:12 (testifying that Wherry
stated that a female firefighter performed badly on a car fire
and needed to be retrained after she had been on a lengthy
military
leave).
unspecified
Clemmons
derogatory
also
alleges
comments
about
that
Wherry
made
women
and
their
performance as firefighters and also stated his discomfort with
women drivers.
Clemmons Am. Aff. ¶ 35, ECF No. 31.
did
to
not
point
any
evidence
of
when
Wherry
Clemmons
made
these
statements.
Clemmons claims that she was harassed by D.J.
She pointed
to evidence that D.J., an engineer who is no longer employed at
the fire department, stated in her presence that he believed
that women should not work in the fire department.
Dep. 61:22-62:8.
D.J.
is,
whether
Clemmons
It is not clear from the present record who
he
was
a
supervisor,
when
he
made
this
statement, or whether Clemmons complained about the statement to
anyone.
Clemmons
placed
on
71:13-16.
further
contends
administrative
that
leave,
in
C.D.
2012,
before
harassed
her.
she
Id.
was
at
She testified that he “would make little jokes about
womens [sic]” and once stated that women should be at home,
barefoot and pregnant.
Id. at 70:11-19.
9
When Clemmons returned
to work in 2014, C.D. was no longer in her squad.
Id. at 71:19-
21.
V.
Clemmons’s Sick Leave and EEOC Charge
Beginning on August 20, 2014, Clemmons exercised her sick
leave due to anxiety issues.
In September 2014, Clemmons tried
to return to work, but she had a doctor’s note stating that she
was incapable of driving a fire truck or an ambulance.
57:10-23.
Id. at
Clemmons acknowledges that one of her major duties as
a firefighter is to drive the fire truck.
Id. at 56:23-24.
Because Clemmons could not drive a fire truck, she asked to be
placed on light duty.
Under the CCG fire department’s policy, an employee with “a
long-term illness or medical condition may apply for light duty
in writing when their all [sic] sick leave, vacation, comp time,
et cetera, is reduced to 10 days remaining.”
Id. at 322:13-19.
There is an exception to this rule for employees who are injured
while on duty as a result of duty-related activities.
See Pl.’s
Resp. to Def.’s Mot. for Summ. J. Ex. L, Light-Restricted Duty
Assignment Policy, ECF No. 30-2 at 16.
Thomas
Streeter,
operations,
that
the
her
fire
anxiety
Clemmons argued to Chief
department’s
was
caused
deputy
by
chief
of
harassment
she
suffered while on the job, so it should be categorized as an onduty
injury.
Chief
Streeter,
however,
Clemmons’s anxiety was an off-duty injury.
10
determined
that
Clemmons did not
file a fair treatment report about this issue, and she did not
point to evidence that she complained to anyone but Streeter
about this issue.
Clemmons does maintain that a white female employee who
suffered from anxiety, L.G., was not required to exhaust any of
her leave time to go on light duty.
Clemmons
did
not
point
to
any
Clemmons Am. Aff. ¶ 32.
other
evidence
about
L.G.’s
situation—like the root of L.G.’s anxiety (e.g., whether it was
related to injuries suffered at work or was related to something
else) or whether LG was permitted to go on light duty solely
because of anxiety.
On August 27, 2014, Clemmons hand delivered a letter to the
Equal Employment Opportunity Commission (“EEOC”) and met with an
EEOC investigator.
anyone at CCG.
She did not deliver a copy of that letter to
Clemmons filed a charge of discrimination with
the EEOC on October 22, 2014.
VI.
Clemmons’s Return from Sick Leave
Clemmons
returned
from
sick
leave
on
January
2,
2015.
After she returned, Clemmons was required to complete and pass
her annual pump training, which is required of all firefighters.
Clemmons passed the training.
Clemmons believes that certain
firefighters who were temporarily assigned to Station 14 did not
have to complete and pass the training at Station 14.
11
Clemmons
did not point to evidence of whether they completed and passed
the training at their home stations.
When she returned from sick leave, Clemmons continued to
experience
anxiety
about
driving
the
fire
truck,
supervisor, Wherry, was aware of this fear.
and
her
Wherry required
Clemmons to complete additional driver training.
Wherry took
Clemmons to a church parking lot on a number of occasions so
that Clemmons could practice driving the fire truck and gain
confidence.
Clemmons Dep. 59:19-60:16; Wherry Dep. 49:17-50:10.
Wherry explained that he provided this additional training to
Clemmons so that she could get more comfortable driving the fire
truck.
According
to
Wherry,
Clemmons
did
well
during
training and became more confident with her driving.
the
Clemmons
did not point to evidence of any other employees who expressed a
fear of driving the fire truck but were not required to take
additional driving training.
Clemmons did not file a fair treatment report about the
annual pump training or the extra driving training.
VII. Additional Issues
There
are
four
restrooms
at
required to clean two restrooms.
squad,
a
white
male,
was
Station
12
Clemmons
was
The other firefighter on her
required
restrooms.
14.
to
clean
the
other
two
At some point, Wherry became aware that Clemmons had made a
complaint of discrimination.
Clemmons did not point to evidence
of which complaint (the April 2014 fair treatment report or the
October 2014 EEOC charge) Wherry became aware of or when he
became aware of it.
She does assert that Wherry, along with
Captain Karl Kinslow, attempted to ask her questions about her
case at a meeting in March or April 2015, but she told them that
she could not discuss it.
Clemmons believes that Kinslow and
Wherry called the meeting “to be nosy.”
24.
Clemmons Dep. 207:23-
Sometime after the meeting, Wherry told Clemmons that he
thought she would probably lose the case.
VIII.
Clemmons’s Claims
Clemmons
filed
this
action
on
April
10,
2015,
alleging
claims against CCG under Title VII, § 1981 (through § 1983) and
the
Constitution’s
Equal
Protection
Clause
(through
§ 1983).
She claims that CCG discriminated against her based on her race
and/or
gender
complaining
and
of
that
CCG
retaliated
discrimination.
That
against
her
discrimination
for
and/or
retaliation occurred when CCG:
1.
Placed Clemmons on leave without pay in March 2012 (race
and gender).
2.
Initially
opposed
Clemmons’s
benefits (race).
13
request
for
unemployment
3.
Failed to give Clemmons sufficient time to complete her
recertification (race, gender, and retaliation).
4.
Moved Clemmons’s belongings while she was on administrative
leave (race and gender).
5.
Denied Clemmons’s request for back pay when she returned to
work in 2014 and failed to provide her with a copy of the
investigative report regarding her back pay request (race,
gender, and retaliation).
6.
Required Clemmons to travel to Station 4 (race, gender, and
retaliation).
7.
Required
Clemmons
accrued
leave
refused
to
to
before
clear
her
exhaust
being
for
all
but
assigned
full
duty
ten
to
days
of
her
duty
and
gender,
and
light
(race,
retaliation).
8.
Required Clemmons to complete additional training (race,
gender, and retaliation).
9.
Required
Clemmons
to
clean
two
bathrooms
at
the
fire
station (race and gender).
10.
Subjected Clemmons to harassment (race and gender).
11.
Tried to question Clemmons about this matter (gender).3
3
Clemmons also asserts that CCG retaliated against her for having a
picture of a weapon. She did not point to any evidence on this point.
She did not explain how she was retaliated against, when it happened,
or how the alleged retaliation was causally related to her protected
activity. This claim thus fails.
14
DISCUSSION
Clemmons
claims
that
CCG
intentionally
discriminated
against her based on her race in violation of Title VII, § 1981,
and the Equal Protection Clause.
She also asserts that CCG
intentionally discriminated against her based on her gender in
violation of Title VII and the Equal Protection Clause.
And she
contends that CCG retaliated against her for complaining of race
and gender discrimination, in violation of Title VII, § 1981,
and the Equal Protection Clause.
I.
Proof Required for Clemmons’s Claims
Clemmons’s
discriminatory
Affairs,
822
discrimination
intent.”
F.3d
discrimination
Trask
1179,
claims,
claims
v.
1191
she
Sec’y,
(11th
must
“require
Dep’t
Cir.
also
proof
of
2016).
prove
of
Veterans
For
that
her
she
was
“subjected to an adverse employment action,” meaning that she
suffered
“a
conditions,
serious
or
and
privileges
material
of
change
employment.”
in
the
Medearis
terms,
v.
CVS
Pharmacy, Inc., 646 F. App’x 891, 897 (11th Cir. 2016) (per
curiam) (quoting Davis of Town Lake Park, 245 F.3d 1232, 1239
(11th Cir. 2001)).
Clemmons’s retaliation claims require proof of retaliatory
intent.
See Trask, 822 F.3d at 1193-94.
Clemmons must also
prove that “(1) [she] engaged in statutorily protected conduct;
(2) [she] suffered an adverse employment action; and (3) the
15
adverse
action
expression.”
was
Id.
causally
related
to
the
protected
For retaliation claims, “adverse employment
action” (often called a “materially adverse action”) means an
action that “well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.”
Burlington N.
& Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting
Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
A plaintiff may prove discrimination and retaliation with
direct or circumstantial evidence.
that
establishes
the
“Direct evidence is evidence
existence
of
discriminatory
[or
retaliatory] intent behind the employment decision without any
inference or presumption.”
Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998).
So, if a decisionmaker
tells an employee, “I am firing you because you’re a man,” that
would
be
“remarks
direct
by
evidence
of
discrimination.
non-decisionmakers
decisionmaking
process
discrimination.”
Id.
itself
or
remarks
are
not
In
contrast,
unrelated
direct
to
evidence
the
of
Here, Clemmons argues that she presented
direct evidence of discrimination because she presented evidence
that
her
comments
supervisor,
about
unspecified time.
remarks
were
Wherry,
women
to
made
unspecified
unspecified
derogatory
individuals
at
an
But she did not point to evidence that these
related
to
Wherry’s
decisionmaking
process
with
regard to Clemmons, so these remarks are not direct evidence of
16
discrimination.
Neither are the 2012 comments of C.D., who did
not make any decisions related to this case and was no longer in
Clemmons’s
squad
administrative
when
she
leave.
returned
Thus,
to
work
her
must
Clemmons
after
rely
on
as
here,
the
evidence
of
circumstantial evidence to establish her claims.
At
the
plaintiff
summary
depends
discriminatory
judgment
solely
or
stage,
on
retaliatory
where,
circumstantial
intent,
the
“courts
apply
the
burden-shifting framework set out in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973).”
Trask, 822 F.3d at 1191.
that
must
framework,
a
plaintiff
“create
an
discrimination through her prima facie case.”
Under
inference
Id.
of
To establish
a prima facie case of discrimination to avoid summary judgment,
an
employee
must
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
outside of her protected class more favorably.
individuals
Id. at 1192.
To
establish a prima facie case of retaliation to avoid summary
judgment, an employee must point to evidence that creates a
genuine
employee
factual
engaged
dispute
in
on
the
statutorily
following
protected
elements:
(1)
the
conduct;
(2)
the
employee suffered a materially adverse employment action; and
17
(3) “the adverse action was causally related to the protected
expression”.
Once
employer
Id. at 1193-94.
the
plaintiff
may
establishes
articulate
“one
a
facie
more
or
prima
legitimate
discriminatory reasons for its action.”
case,
the
non-
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 proffered reasons are
pretext for discrimination.”
Id.
With these standards in mind, the Court evaluates each of
Clemmons’s claims.
II.
2012 Placement on Administrative Leave Without Pay
Clemmons claims that CCG discriminated against her based on
her race and gender when it placed her on administrative leave
without pay in 2012.
Clemmons does not dispute that she was
placed on administrative leave without pay in 2012 under CCG
Policy 220-502.
Although Clemmons takes issue with CCG’s 2014
decision not to award her back pay for the time she was on
administrative leave, she does not appear to contend that CCG’s
initial decision to place her on leave without pay under CCG
Policy 220-502 was discriminatory.
And she did not point to any
evidence that CCG was motivated by a discriminatory animus, such
as
evidence
employees
who
that
were
“her
not
employer
members
18
treated
of
her
similarly
protected
situated
class
more
favorably.” Summers v. City of Dothan, 444 F. App’x 346, 347–48
(11th
Cir.
2011)
(per
evidence of any other
curiam).
Clemmons
did
not
point
to
employees who were indicted on felony
charges but were not placed on administrative leave without pay.
Clemmons has failed to point to any evidence that would support
a prima facie case, and CCG is entitled to summary judgment on
Clemmons’s claims based on CCG’s 2012 decision to place her on
administrative leave without pay.
III. CCG’s Opposition to Clemmons’s Unemployment Benefits
Clemmons
asserts
that
CCG
unnecessarily
appealed
her
application for unemployment benefits and that the appeal was
discriminatory.
She pointed to evidence that CCG stated that
the “reason for separation” was Clemmons’s “failure to follow
rules, orders, or instructions.”
Pl.’s Resp. to Def.’s Mot. for
Summ. J. Ex. I, Reason for Separation Inquiry, ECF No. 30-2 at
4.
But at the hearing on the appeal, a CCG representative said
positive things about Clemmons, and she was awarded unemployment
benefits.
Clemmons has the burden to establish that she suffered an
adverse employment action that was motivated by a discriminatory
animus.
With regard to her claims based on her unemployment
benefits, Clemmons did not point to evidence to satisfy either
requirement.
suffered
a
She
serious
did
not
point
and
material
19
to
any
change
in
evidence
the
that
terms
of
she
her
employment based on CCG’s initial opposition to her unemployment
application;
she
did
not
point
to
any
evidence
that
CCG’s
unemployment benefits appeal had an adverse impact on her, such
as a reduction of her benefits.
point
to
motive
any
when
evidence
it
that
appealed
Moreover, Clemmons did not
CCG
her
acted
with
application
a
discriminatory
for
unemployment
benefits; she did not point to any evidence that CCG initially
opposed her application for unemployment benefits because of her
race or gender.
Clemmons
prima
failed
facie
For these reasons, the Court concludes that
to
case
present
on
her
sufficient
claims
evidence
related
to
to
support
CCG’s
opposition to her unemployment benefits application.
a
initial
CCG is
thus entitled to summary judgment on these claims.
IV.
Recertification Requirement
Clemmons
against
her
contends
by
that
giving
recertification test.4
her
CCG
discriminated
only
six
weeks
and
to
retaliated
take
her
Clemmons does not appear to argue that
the recertification requirement itself was invalid.
Clemmons
did not point to any evidence that similarly situated employees
who had to take a recertification test to reinstate their state
firefighter certification were given more time than she was.
She did not point to any evidence of who decided how long to
4
Based on Clemmons’s response brief, it appears that Clemmons has
abandoned this claim.
Clemmons did respond to CCG’s fact statements
on this issue, though, so the Court will evaluate the claim.
20
give Clemmons to take her recertification test, whether Clemmons
had engaged in protected activity before the decision was made,
or
whether
the
person
protected activity.
who
made
the
decision
knew
of
any
And Clemmons did not point to any evidence
that the six-week period was inadequate for a firefighter with
more than twenty years of experience on the job.
test on her first attempt.
prima
facie
case:
discriminatory
or
she
She passed the
In sum, Clemmons did not establish a
did
not
retaliatory
show
motive
that
in
CCG
giving
acted
with
Clemmons
a
six
weeks to complete her recertification test, and she did not show
that CCG’s failure to give her more time constituted an adverse
employment action or a materially adverse action.
CCG is thus
entitled to summary judgment on Clemmons’s claims related to the
recertification requirement.
V.
Movement of Clemmons’s Belongings
It
is
undisputed
that
Clemmons’s
belongings
while she was on administrative leave.
were
moved
Clemmons claims that
Wherry permitted her belongings to be moved and that the move
amounted
to
gender
discrimination.
She
also
contends
that
several male firefighters were on some type of leave for at
least two years but their belongings were not moved.
She did
not provide any details to show that these firefighters were
similarly situated to her, such as where the male firefighters
were stationed, why they were on leave, or who their supervisor
21
was.
Thus,
the
present
record
does
not
establish
discriminatory motive for moving Clemmons’s belongings.
a
Even if
it did, the movement of Clemmons’s belongings was not a serious
and material change to the terms, conditions, or privileges of
her employment and was thus not an adverse employment action.
For these reasons, the Court concludes that Clemmons failed to
establish
movement
a
prima
of
her
facie
case
belongings,
on
and
her
CCG
claims
is
related
entitled
to
to
the
summary
judgment on these claims.
VI.
Denial of Back Pay
Clemmons
argues
that
CCG employees discriminated against
her based on her race and gender in deciding to deny her request
for
back
pay.
She
also
contends
that
the
denial
was
in
retaliation for her submission of the Fair Treatment Report.
The
fire
department’s
final
decision
on
Clemmons’s
back
pay
request was made by Meyer, so the Court must determine whether
Clemmons presented sufficient evidence to create a genuine fact
dispute
on
whether
Meyer
acted
with
discriminatory
or
retaliatory intent.
A.
Discrimination Claims
With
regard
to
Clemmons’s
discrimination
claims,
she
attempts to establish discrimination by showing that she was
disciplined
more
harshly
similar misconduct.
than
white
and
male
employees
for
“When a plaintiff seeks to show that he is
22
similarly
situated
favorably,
he
‘similarly
to
situated
Colquitt
EMC,
must
651
an
show
in
F.
employee
that
all
he
who
and
relevant
App’x
891,
was
the
treated
comparator
respects.’”
896
(11th
more
are
Robinson
Cir.
2016)
v.
(per
curiam) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997)). “In cases involving discriminatory discipline, [the
courts]
consider
whether
the
employees
are
involved
in
or
accused of the same or similar conduct and are disciplined in
different ways.”
Id.
Clemmons relies on the following comparators to establish
her
back
pay
discrimination
claim:
O.G.
and
T.W.5
Clemmons
asserts that O.G. was charged with assault and stalking in 2015
and
continued
to
receive
pay
while
he
was
incarcerated
twenty-eight days while the charges were pending.
5
for
Clemmons Am.
CCG posited that Clemmons would attempt to argue that D.B., M.B.,
K.D., and D.M. are also similarly situated comparators. Clemmons did
not point to evidence regarding the conduct or discipline of these
employees, so the Court concludes that she is not attempting to rely
on them as comparators. Clemmons did point to a chart that lists fire
department employees, their alleged criminal offenses, and the
corrective action; CCG does not appear to object to it. Pl.’s Resp.
to Def.’s Mot. for Summ. J. Ex. M, ECF No. 30-2 at 18. According to
the chart, D.M., D.B., and M.B. were arrested on various misdemeanor
charges. The chart does not contain any information about K.D. There
is no indication that any of these individuals were indicted on felony
charges like Clemmons was. That alone is sufficient to establish that
they were not similarly situated to Clemmons.
Moreover, two of the
individuals—D.M., a white male, and D.B., a black male, were
terminated by the fire department—a punishment harsher than Clemmons’s
administrative leave without pay.
After the fire department decided
to terminate D.B., he appealed to CCG’s personnel review board and was
reinstated but demoted.
Clemmons did not appeal to the personnel
review board; a different decisionmaker was responsible for her
discipline, so D.B. is not a suitable comparator.
23
Aff. ¶ 12.
Clemmons did not point to any evidence that O.G. was
indicted
on
felony
evidence
of
the
charges,6
details
and
she
regarding
the
charges or the discipline he received.7
did
not
point
disposition
to
of
any
O.G.’s
Being charged with two
misdemeanors is not the same as being indicted on three felony
charges, so the Court concludes that Clemmons was not similarly
situated
to
O.G.
and
that
O.G.
is
thus
not
a
suitable
comparator.
Clemmons also maintains that T.W., a black male sergeant,
was granted partial back pay after he was charged with felony
aggravated
assault.
In
support
of
this
assertion,
Clemmons
pointed to the chart of fire department employees, their alleged
criminal offenses, and the corrective action.
Pl.’s Resp. to
Def.’s Mot. for Summ. J. Ex. M, ECF No. 30-2 at 18.
The chart
shows that T.W. was charged with felony aggravated assault; he
was placed on administrative leave without pay on January 14,
2007 and terminated on April 29, 2008.
Id.
Thus, the fire
department’s response to T.W.’s felony charge was more severe
than
its
response
to
Clemmons’s
felony
indictment.
CCG’s
personnel review board—a different decisionmaker—overturned the
termination “with back pay Retro 60 days” on June 14, 2008, and
T.W. resigned on June 16, 2008.
6
Id.
Clemmons did not point to
Stalking is a misdemeanor under Georgia law. O.C.G.A. § 16-5-90(b).
So is simple assault. O.C.G.A. § 16-5-20(b).
7
O.G. is not listed on the chart of employee criminal offenses and
discipline that Clemmons submitted.
24
any
evidence
of
the
basis
for
the
personnel
review
board’s
decision or to any evidence of the disposition of the charges
against T.W.
Clemmons also did not appeal to the personnel
review board regarding the fire department’s denial of her back
pay request.
Clemmons is not similarly situated to T.W. given
that (a) the fire chief’s discipline decision for Clemmons was
not as harsh as his discipline of T.W. and (b) the personnel
review board, not the fire chief, made the ultimate decision
with
regard
to
T.W.’s
discipline
but
not
Clemmons’s.
“[D]ifferences in treatment by different supervisors or decision
makers
can
seldom
discrimination.”
be
the
basis
for
a
viable
claim
of
Silvera v. Orange Cty. Sch. Bd., 244 F.3d
1253, 1261 n.5 (11th Cir. 2001).
For these reasons, the Court
finds that Clemmons has not established a prima facie case of
disparate discipline, and CCG is entitled to summary judgment on
Clemmons’s denial of back pay claim.
In addition to her complaint regarding the denial of back
pay, Clemmons also complains that she did not receive a copy of
investigative reports that were completed in 2012 and 2014.
But
she did point to evidence that she received a letter from Meyer
in 2012 stating that “an initial administration investigation
ha[d] been completed concerning the nature of the charges filed
against you by the Georgia Bureau of Investigation.”
Pl.’s
Resp. to Def.’s Mot. for Summ. J. Ex. C, Letter from Jeff Meyer
25
to Marilyn Clemmons (Mar. 16, 2012), ECF No. 30-1 at 10.
The
letter further states that Meyer received information from the
Dekalb County superior court that Clemmons had been arrested and
indicted
on
three
felony
counts
for
violating
Georgia
RICO.
Clemmons also pointed to evidence that she received letters from
Higgins and Meyer in 2014 explaining the reasons why she had
been placed on leave and why her request for back pay had been
denied.
E.g., Pl.’s Resp. to Def.’s Mot. for Summ. J. Ex. G,
Letter from Jeff Meyer to Marilyn Clemmons (May 16, 2014), ECF
No.
30-1
at
18.
In
other
words,
these
letters
appear
to
summarize the investigations taken by the fire department in
determining whether to place Clemmons on administrative leave
without pay.
Even if there was some additional investigation
document that the fire department did not provide, the Court is
not convinced that the failure to provide such a document is an
adverse
employment
particularly
given
action
that
or
the
a
materially
fire
adverse
department
gave
action,
several
detailed explanations of its decision to deny Clemmons’s request
for back pay.
Thus, to the extent Clemmons attempts to base any
claims on the fire department’s alleged failure to provide her
with a copy of its investigation, CCG is entitled to summary
judgment on those claims.
26
B.
Retaliation Claims
Clemmons contends that Meyer’s ultimate decision to deny
her back pay request was in retaliation for her Fair Treatment
Report.
Again, to establish a claim of retaliation, Clemmons
“must prove that she engaged in statutorily protected activity,
she suffered a materially adverse action, and there was some
causal relation between the two events.”
Wells v. Gen. Dynamics
Info. Tech. Inc., 571 F. App’x 732, 736 (11th Cir. 2014) (per
curiam).
a
Statutorily protected activity includes opposition to
practice
prohibited
Protection Clause.
by
Id.
Title
VII,
§ 1981,
or
the
Equal
In her fair treatment report, Clemmons
stated that she had been subjected to “pay discrimination and
unfair treatment.”
She
stated
that
Fair Treatment Report, ECF No. 23-1 at 118.
she
was
appealing
“what
are
clearly
unfair
actions and inconsistent discipline (i.e. other employees can
work
with
convictions
certification).”
Id.
and
lose
no
pay
or
firefighter
She referenced the EEOC and stated that
she “strongly believe[d]” that she was “discriminated against.”
Id.
Nowhere in her Fair Treatment Report did Clemmons state
that she believed she was discriminated against based on some
protected characteristic, such as her race or gender.
Thus, the
Court is skeptical that her Fair Treatment Report constituted
protected activity—opposition to a practice prohibited by the
employment discrimination laws.
But as explained below, even if
27
it did, she has failed to point to evidence to create a genuine
factual dispute on the issue of whether CCG’s non-retaliatory
reason for denying her back pay was pretextual.
The Court does find for purposes of deciding the present
motion that Clemmons’s follow-up letter to Meyer was protected
activity.
In
that
letter,
Clemmons
notes
that
another
firefighter was charged with DUI and obstruction of an officer
but kept his job “until verdict.”
Letter from Marilyn Clemmons
to Jeff Meyer (May 9, 2014), ECF No. 23-1 at 130.
Clemmons’s
letter
does
not
explicitly
state
Though
that
she
is
complaining of racial or gender discrimination, she is asserting
that a white male firefighter remained on-the-job after being
charged with two misdemeanors while she, a black female, was
placed on administrative leave without pay after being indicted
on felony charges.
The Court is satisfied that a reasonable
factfinder could construe this letter, in context, as opposing
gender and race discrimination.
Not long after Clemmons sent her Fair Treatment Report and
her follow-up letter, Meyer issued his final decision upholding
the denial of back pay.
proximity
response
letter,
decision
and
to
a
the
fact
that
Meyer’s
Clemmons’s
Fair
Treatment
reasonable
was
Based on this very close temporal
factfinder
causally
related
28
could
to
decision
Report
conclude
Clemmons’s
was
in
and
that
direct
follow-up
Meyers’s
correspondence
regarding her back pay request—this is enough to establish a
prima facie case of retaliation.
CCG presented a non-retaliatory reason for Meyer’s decision
to uphold the denial of back pay: CCG Policy 220-502 did not
require CCG to award any back pay, and based on the research of
Meyer’s staff, the fire department had never awarded back pay to
an employee who returned to work following an administrative
leave due to an indictment on felony charges.
present
evidence
to
show
that
this
reason is pretext for retaliation.
proffered
Clemmons must
non-retaliatory
See Trask, 822 F.3d at 1194
(noting that the plaintiff has the burden to prove “that the
reason provided by the employer is a pretext for prohibited,
retaliatory conduct”) (quoting Pennington v. City of Huntsville,
261
F.3d
Clemmons
1262,
must
1266
(11th
demonstrate
inconsistencies,
Cir.
“such
incoherencies,
2001))).
weaknesses,
or
To
show
pretext,
implausibilities,
contradictions
in
the
employer’s proffered legitimate reasons for its action that a
reasonable factfinder could find them unworthy of credence” and
conclude that retaliation is the real reason for the decision.
McCann
v.
Tillman,
526
F.3d
1370,
1375–76
(11th
Cir.
2008)
(quoting Cooper v. S. Co., 390 F.3d 695, 725 (11th Cir. 2004)
(overruled on other grounds by Ash v. Tyson Foods, Inc., 546
U.S. 454, 457 (2006)).
29
Clemmons
decision
asserts
to
termination
award
and
that
partial
just
the
CCG
back
before
personnel
pay
his
to
review
T.W.
following
resignation
establish a fact question on pretext.
board’s
is
his
enough
to
Again, Clemmons did not
appeal the denial of back pay to the personnel review board; her
case
involved
a
different
decicionmaker
than
T.W.’s
case.
Clemmons did not point to any evidence that the fire department
ever awarded full back pay to an employee who was indicted on
felony charges, and she did not point to any evidence that Meyer
knew about the CCG personnel review board’s 2008 decision to
award partial back pay to T.W.
For these reasons, the Court
finds that Clemmons has failed to point to evidence that creates
a genuine factual dispute regarding whether CCG’s stated reason
for denying her back pay was a pretext for retaliation.
And
Clemmons did not present any other evidence that would permit a
factfinder to infer intentional discrimination or retaliation
with regard to her request for back pay.
CCG is thus entitled
to summary judgment on these claims.
VII. Temporary Assignment to Station 4
Clemmons
argues
that
her
August
11,
2014
temporary
assignment to Station 4 was discriminatory and retaliatory.
As
discussed above, Clemmons was assigned to Station 4 for one
shift.
When
she
complained
about
returned to Station 14.
30
the
assignment,
she
was
Clemmons’s
discrimination
claims
based
on
the
temporary
assignment to Station 4 fail because the assignment was not an
adverse employment action.
“A work reassignment may constitute
an adverse employment action when the change is ‘so substantial
and material that it . . . alter[s] the terms, conditions, and
privileges
of
employment.’”
Trask,
822
F.3d
at
1194
(alterations in original) (quoting Davis, 245 F.3d at 1245).
Clemmons did not submit any evidence to demonstrate that her
temporary assignment for a single shift was so substantial and
material that it altered her terms, conditions, and privileges
of employment.
Her discrimination claims based on the temporary
assignment thus fail.
Clemmons’s
reassignment
retaliation
also
fail.
claims
Clemmons
based
on
asserts
the
that
temporary
the
fire
department temporarily assigned her to Station 4 in retaliation
for her Fair Treatment Report, which she filed in April 2014 and
supplemented on May 9, 2014.
evidence
that
responsible
for
Dutton
the
and
Clemmons did not point to any
Wherry—who
assignment—knew
she
about
the
Report when the temporary assignment was made.
she
did
not
point
to
a
causal
connection
contends
Fair
were
Treatment
Even if she had,
between
the
Treatment Report and the temporary assignment to Station 4.
Fair
The
only possible basis for causation here is temporal proximity.
“Temporal
proximity
between
the
31
protected
activity
and
the
adverse action can establish causation if it is ‘very close.’”
Baroudi v. Sec’y, U.S. Dep’t of Veterans Affairs, 616 F. App’x
899, 902 (11th Cir. 2015) (per curiam) (quoting Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007)).
Where
temporal proximity is the only basis for causation, “a delay of
three
to
four
months
is
too
long,
as
a
matter
establish causation by temporal proximity.”
Id.
of
law,
to
Here, there
was a three-month delay between Clemmons’s Fair Treatment Report
follow-up letter and the temporary transfer.
Given this delay
and the lack of any other evidence, the Court finds under the
circumstances presented here that Clemmons has failed to present
sufficient
evidence
causation,
and
to
thus
create
her
a
genuine
retaliation
factual
claims
dispute
based
on
on
the
temporary assignment to Station 4 fail.
VIII.
Light Duty Request
Clemmons does not dispute that she became unable to drive
the fire truck due to anxiety.
Clemmons acknowledges that in
September 2014, when she tried to return to work, she had a
doctor’s note which stated she was incapable of driving the fire
truck.
Clemmons also concedes that driving a fire truck is an
essential function for a firefighter.
that
Clemmons
claims
that
CCG
Therefore, to the extent
discriminated
or
retaliated
against her by failing to return her to full duty despite her
inability to drive the fire truck, that claim fails.
32
Clemmons claims that Streeter improperly required her to
exhaust
all
but
ten
days
of
her
accrued
leave
before
being
assigned to light duty, as required by CCG’s Light-Restricted
Duty Assignment Policy for off-duty injuries.
Clemmons contends
that she suffered anxiety due to on-the-job harassment, so the
policy that applies to personnel injured while on duty should
have
applied
pointed
to
to
her.
the
In
support
deposition
of
testimony
her
of
argument,
her
Clemmons
physician,
who
testified that Clemmons reported to him that she had anxiety
because she felt that she was being subjected to discrimination
at work.
Dominguez Dep. 27:1-28:10, ECF No. 26.
Clemmons did
not point to any evidence of precisely what the doctor’s note
said.8
Clemmons
did
not
present
any
evidence
to
suggest
that
Streeter’s decision to classify Clemmons’s anxiety as an offduty
injury
was
motivated
by
her
gender
or
by
retaliatory
animus.
She did not point to any evidence that a similarly
situated
male
employee
immediately
received
assignment based on a diagnosis of anxiety.
a
light-duty
She also did not
point to any evidence that Streeter was aware of any protected
activity
when
he
made
the
decision
to
classify
Clemmons’s
anxiety as an off-duty injury.
8
As discussed in more detail below, Clemons did not point to evidence
that she was subjected to actionable harassment.
33
Clemmons also did not point to any evidence that any other
firefighters who became unable to work due to anxiety caused by
the stress of their job were categorized as on-duty injuries
rather than off-duty injuries.
Clemmons does assert that L.G.,
a white female fire medic, was treated more favorably than she
was.
Clemmons contends that L.G. suffered from anxiety and was
permitted to go on light duty without exhausting any of her
leave.
If that were true, and if Clemmons had pointed to some
evidence to show that L.G. and Clemmons were similarly situated
with regard to their injury and the response to it, then such
evidence
might
discrimination.
contention.
support
But
Rather,
a
the
CCG
prima
record
presented
facie
does
case
not
evidence
of
race
support
that
when
this
L.G.
expressed to her battalion chief that she was unable to perform
her duties as a medic due to stress (including work-related
stress), the battalion chief placed her on administrative leave—
not light duty.
Def.’s Reply Br. Ex. A, Letter from Glen Bahde
to Jeff Meyer (Aug. 28, 2012), ECF No. 32-1.
L.G. was permitted
to return to work once she completed counseling.
Def.’s Reply
Br. Ex. B, Mem. from Mark Strunk to Tom Barron (Sept. 11, 2012),
ECF No. 32-2.
In sum, Clemmons did not establish that she was
similarly situated to
differently.
L.G.
(or anyone else)
For these reasons,
but
was
treated
CCG is entitled to summary
judgment as to Clemmons’s claims based on her contention that
34
Streeter should have classified her anxiety as an on-the-job
injury.
IX.
Additional Training
Clemmons
claims
that
she
was
treated
differently
than
similarly situated male firefighters when she was required to
complete
and
pass
annual
pump
training
in
January
2015.
Clemmons does not dispute that firefighters, including her, must
complete
appear
and
to
pass
dispute
annual
that
pump
all
training.
of
the
She
also
firefighters
does
who
not
were
permanently assigned to Station 14 had to complete and pass the
annual
pump
training.
Clemmons
does,
however,
contend
that
several male firefighters were not required to pass the pump
test when they were on a temporary assignment to Station 14.
The mandatory annual pump training that was required of all
firefighters
adverse
permanently
employment
action
assigned
or
a
to
Station
materially
14
was
adverse
not
an
employment
action, even if the temporarily assigned firefighters were not
required
to
complete
it
while
they
were
at
Station
14.
Clemmons’s claims based on the annual pump training thus fail.
Clemmons also argues that the additional driving training
she had to complete upon returning to work in January 2015 was
discriminatory and retaliatory.
But Clemmons acknowledged that
she had anxiety driving the truck—anxiety so severe that she
could not work for several months.
35
Her supervisor, Wherry, knew
that Clemmons had anxiety about driving the truck.
Clemmons did
not point to evidence that there were any other employees who
expressed a fear of driving the fire truck but were not required
to do additional driving training.
There is simply no evidence
that the additional driving training was because of Clemmons’s
race
or
gender
activity.
training
or
There
amounted
that
is
to
it
was
also
an
materially adverse action.
no
in
retaliation
evidence
adverse
that
for
the
employment
protected
additional
action
or
a
For these reasons, CCG is entitled
to summary judgment on Clemmons’s claims based on the additional
driving training.
X.
Restroom Duty
Clemmons claims that she was discriminated against based on
her race and gender when she was required to clean two of the
four restrooms at Station 14.
But the other firefighter on her
squad,
clean
a
Clemmons
white
male,
failed
to
had
to
explain
discriminatory or retaliatory.
this
assignment
could
be
materially adverse action.
an
the
how
other
this
two
restrooms.
assignment
was
The Court is also skeptical that
adverse
employment
action
or
a
CCG is entitled to summary judgment
on this claim.
XI.
Meeting About the Case
Clemmons asserts that CCG discriminated against her based
on her gender when Kinslow and Wherry had a short meeting with
36
her
to
believed
ask
her
that
questions
Kinslow
about
and
her
Wherry
pending
were
case.
being
Clemmons
nosy,
replied that she could not talk about the case.
asked if she could leave, the meeting was over.
and
she
When Clemmons
This short
meeting, which Clemmons attributes to her supervisors’ nosiness,
certainly does not rise to the level of an adverse employment
action based on Clemmons’s gender.
CCG is entitled to summary
judgment on this claim.
XII. Hostile Work Environment
Clemmons claims that she was subjected to a hostile work
environment based on the following conduct:9
A handful of statements Wherry made to other employees at
some unspecified time which suggested to Clemmons that
Wherry had a complex about women in the fire department.
A comment by D.G., the engineer who no longer works at
the fire department, who stated in her presence that he
believed women should not work in the fire department.
A 2012 comment by C.D., who is no longer in her squad,
that women should be at home, barefoot and pregnant.
The movement of her belongings.
The one-shift assignment to Station 4.
The annual
training.
pump
training
and
the
additional
driving
The restroom cleaning assignment.
9
CCG argues that Clemmons did not assert a harassment claim because
she did not include it as a separate count in her Amended Complaint.
But she did allege that she was subjected to harassment, so the Court
will evaluate the claim.
37
“To establish a claim of a hostile work environment, an
employee
must
prove
discriminatory
that
‘the
intimidation,
workplace
ridicule,
is
and
permeated
insult,
that
with
is
sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment.’”
Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248 (11th Cir.
2014) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21
(1993)).
(1) she
To prove a harassment claim, an employee must show
“is
a
member
of
a
protected
class;”
(2)
she
“was
subjected to unwelcome . . . harassment;” (3) “the harassment
was based on” her race, gender, or protected activity; (4) “the
harassment was severe or pervasive enough to alter the terms and
conditions
abusive
of
[her]
working
responsible
for
employment
and
environment;”
the
and
environment
vicarious or direct liability.”
create
(5)
under
a
discriminatorily
“the
a
employer
theory
of
is
either
Id. at 1248-49.
This case is a far cry from a case like Jones v. UPS Ground
Freight, where the Eleventh Circuit concluded that a black truck
driver
presented
sufficient
evidence
of
a
hostile
work
environment where the truck driver’s co-worker stated that he
had
trained
banana
peels
“your
on
kind”
his
before,
truck,
co-workers
co-workers
wore
repeatedly
shirts
and
left
hats
displaying Confederate flags, and co-workers approached him with
a crowbar and asked if he had reported them for the banana peels
38
and Confederate flags.
Jones v. UPS Ground Freight, 683 F.3d
1283, 1299-1301, 1304
Clemmons
motive
did
for
assignment
not
the
to
additional
demonstrate
movement
Station
driving
assignment.
(11th Cir. 2012).
a
of
4,
In contrast, here,
discriminatory
her
the
belongings,
annual
training,
or
pump
the
or
retaliatory
the
one-shift
training,
restroom
the
cleaning
Even if she had, the Court cannot conclude that
these actions plus a handful of comments made by one supervisor
and two colleagues (mainly to others) over several years were
severe or pervasive enough to alter the terms and conditions of
Clemmons’s
employment
and
create
a
hostile
work
environment.
Thus, CCG is entitled to summary judgment on Clemmons’s hostile
work environment claim.
CONCLUSION
As
discussed
above,
Clemmons
did
not
submit
sufficient
evidence to create a genuine fact dispute on any of her claims
against CCG.
CCG’s summary judgment motion (ECF No. 21) is
therefore granted.
IT IS SO ORDERED, this 22nd day of November, 2016.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA
39
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