BLAND v. SAM'S EAST INC et al

Filing 49

ORDER reserving ruling on 36 Motion for Sanctions; denying 48 Motion for Extension of Time; and, granting in part and denying in part 20 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE CLAY D. LAND on 1/9/2019 (tlf).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
JOSHUA BLAND,

*

Plaintiff,

*

vs.

*

SAM’S EAST, INC., WAL-MART
ASSOCIATES, INC., and WAL-MART
STORES, INC.,

*

CASE NO. 4:17-CV-190 (CDL)

Defendants.

*
*

O R D E R
Joshua
(“Sam’s”).1

Bland

previously

worked

for

Sam’s

East,

Inc.

Sam’s claims it terminated Bland for disrespectful

conduct toward his manager.

Bland alleges that he was terminated

after he complained of a race-based double standard.

He brings

this action pursuant to 42 U.S.C. § 2000e, et seq. (“Title VII”)
and 42 U.S.C. § 1981.
20).

Sam’s moved for summary judgment (ECF No.

For the following reasons, Sam’s motion is granted as to

Bland’s discriminatory termination claim but denied as to Bland’s
retaliatory termination claim.
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

1

The parties use “Sam’s” to reference all three defendants in this case.
Therefore, the Court does the same in this Order.

1

movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

In determining whether a genuine 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

party’s favor.
(1986).

all

justifiable

inferences

in

the

opposing

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

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 Bland, the parties’
citations to the record reveal the following facts:
I.

Bland’s Tenure at Sam’s
Bland is a white male.

technician in January 2017.

He started working at Sam’s as a tire
He reported to team leader Rebecca

McCoy, who reported to assistant manager Walter Capozucca.

Edgar

Cornell Robinson, a black male, also worked as a Sam’s tire
technician.

On April 24, 2017, Bland and Robinson argued and

cussed at one another. During the argument, Robinson said he would
“beat [Bland’s] ass.”

Bland Dep. 86:14-15, ECF No. 22.

In

response, Bland suggested they “go outside or do it right here.”
Id. at 86:15-17.

Robinson said he did not want to lose his job,

so both Bland and Robinson walked away.

2

Id. at 86:17-21.

Robinson

also called Bland a “dumbass, hillbilly, redneck, white boy” and
threatened to damage his new rims.

Id. at 87:11-20.

After the argument, Robinson complained to management that
the other technicians were arguing and not helping him enough.
McCoy then requested statements regarding the incident from the
tire technicians and told them Capozucca was on his way to talk to
them.

Id. at 89:14-18.

All the technicians, including Bland,

provided statements and handed them to Capozucca when he arrived.
Id. at 89:17-19.

Bland’s statement included his complaint that

Robinson had called him a “dumb redneck/hillbilly.”
11.

Id. at 97:4-

Capozucca then gave the technicians a twenty-five second “pep

talk” and encouraged them to work together.
94:20-95:3.

Id. at 86:23-25;

Capozucca did not specifically address the incident

between Bland and Robinson or say anything about racial namecalling.

Darden Dep. 20:4-13, ECF No. 27.

Capozucca took no other

action regarding Bland’s complaint about Robinson’s conduct.
II.

Bland’s Termination
The next day, Bland texted McCoy regarding his work schedule

for the following day, April 26.

See generally McCoy Dep. Ex. 46,

Text Messages from J. Bland to R. McCoy (Apr. 25, 2017), ECF No.
26-1.

McCoy told him he was scheduled to work with Robinson that

day and encouraged him to behave himself and stay out of trouble.
Id.

When Bland reported to work the next day, he approached

Capozucca and said, “[h]ey, just so you know, I’m opening with

3

[Robinson].”

Bland Dep. 102:8-9.

Capozucca then pulled both

Bland’s and Robinson’s statements from his pocket and told Bland
that he and Robinson were “embarrassing” and should both be fired.
Id. at 102:13-18.

Bland replied that he was one of the best

employees in the shop.

He also told Capozucca that if Bland had

used the “N word” during his argument with Robinson, he would have
been fired immediately.

Id. at 102:23-25.

Bland complained that

Capozucca had taken no action against Robinson for being racist
toward him.
42.

Id. at 113:3-12; see also Bland Aff. ¶ 4, ECF No. 35-

Capozucca then grew angry and directed Bland to clock out and

go home.

Bland Dep. 103:2-5.

Bland called the store later that day and learned he had been
terminated for being rude, disrespectful, and aggressive toward
Capozucca.
document

See

which

id.

stated

at

120:11-25

that

Bland

(describing
was

“very

exit

interview

aggressive”

with

Capozucca and “didn’t know what might happen” between him and
Robinson).
any way.

Bland, however, felt he was not rude to Capozucca in

Id. at 114:2-10.

He testified that he did not raise his

voice, step forward or lunge toward him, or stand over him in a
hostile way.

Id. at 105:18-106:1.

He also testified that he

“particularly” was not trying to intimidate Capozucca and did not
walk near him for that reason.
Other

employees

Id. at 106:15-19.

remembered

the

encounter

differently.

Bland’s exit interview information states that when he arrived at

4

work on April 26, he “was very aggressive and negative with
[Capozucca] about another associate.”
22-4.

It

also

stated

that

Bland

Exit Interview 1, ECF No.
“had

very

aggressive

body

language.” Id. After his termination, Bland also made a complaint
to Sam’s Ethics Hotline about his termination and the lack of
discipline for Robinson.
ECF No. 35-16.

See Case Details Mem. 1-2 (May 2, 2017),

Sam’s opened an investigation and took another

statement from Capozucca.

Capozucca Dep. 60:13-16, ECF No. 28.

In that statement, Capozucca noted that Bland came by “with a mean
attitude” and complained about having to work with Robinson that
morning.

Capozucca Statement (May 16, 2017), ECF No. 35-21 at 3.

Capozucca stated that Bland “looked like he wanted to fight [him]
and [Robinson].”

Id.

Capozucca also claimed Bland had “his arms

and hands like he was going to start with me.

He disrespected me

because I never talked to him in a bad tone or bad attitude towards
him.”

Id.

Capozucca likewise testified that Bland “got really

close” to him, causing him to step back because he “didn’t know
what was going to happen.”

Capozucca Dep. 46:15-18.

it was possible that Bland would take a swing at him.
15.

But

interaction

Capozucca
he

also

“[c]ould

testified
have

been”

that

at

afraid

physically harm him, but that he did not know.

the
that

He thought
Id. at 91:7-

time
Bland

of

the

would

Id. at 80:14-17.

Another Sam’s employee, Latasha Wims, was present at the time
of the encounter.

She likewise testified that Bland spoke to

5

Capozucca about scheduling and “[t]hen from there he just, like
exploded.”

Wims Dep. 14:5-10, ECF No. 24.

She stated that Bland

was “saying bad things” to Capozucca, getting “aggressive,” had “a
bad attitude and filthy mouth,” and “use[d] foul language.”

Id.

at 14:10-18.
III. Video Footage of the Termination
Cameras recorded video, but not audio, of the interaction
between Bland and Capozucca.

After he was terminated, Bland

returned to the store several days later to try to speak with the
store manager, Madeline Torres.

When she refused to speak with

him, Bland told her she would hear from his lawyer.

Hayes Dep.

12:3-6, ECF No. 38 (describing conversation between Bland and
Torres); see also Torres Dep. 39:12-40:6, ECF No. 31 (recalling
the conversation).

Bland also applied to the Georgia Department

of Labor for unemployment benefits and explained to the state
examiner

that

he

was

suing

Sam’s

in

federal

court

over

his

termination. See Email from J. Bland to V. Wilberd (June 2, 2017),
ECF No. 35-26.

The Department of Labor approved Bland’s request

for

and

benefits,

Torres

decided

to

appeal

that

decision,

presumably having read Bland’s rebuttal to the state examiner
describing his prospective federal lawsuit.

See Cooper Dep. 20:5-

12, ECF No. 34 (explaining that Torres made the decision to
appeal); Letter from T. Freeman to Ga. Dep’t of Labor (June 21,
2017), ECF No. 34-6.

Sam’s destroyed the video footage pursuant

6

to its record retention policy 60 days after the incident, despite
having some notice of Bland’s intent to sue based on his statement
to Torres and his unemployment claim.
Before the video’s destruction, a Sam’s employee named Mary
Elizabeth Gill viewed the footage.

She testified that she would

not have fired Bland based on what she saw on the video, but that
she could not say how Capozucca felt.
No. 25.

Gill Dep. 128:20-22, ECF

She further stated that if Capozucca felt intimidated,

“then he had every right to do what he did.”

Id. at 128:24-25.

Gill is “not a small person” and “would not have felt threatened,”
but stated that Capozucca “very well might have.”

Id. at 69:20-

23.2
IV.

Sam’s Workplace Policies
Sam’s uses a progressive discipline policy for its associates

known as “Coaching for Improvement.”
(Mar. 1, 2016), ECF No. 32-2.

See Coaching for Improvement

The policy provides the following

steps of progressive discipline: first written coaching, second

2

Bland moved for sanctions prohibiting Sam’s from proffering his
behavior toward Capozucca as a reason for his termination based on the
destruction of the videotape (ECF No. 36). As explained below, the Court
must accept Bland’s version of the encounter at this stage; and
therefore, he does not need the Court to strike Sam’s defense or an
adverse inference arising from the spoliation to survive summary judgment
on his retaliation claim. Furthermore, even if Sam’s suffered an adverse
inference due to the destruction of the video, Bland would still not be
able to avoid summary judgment on his race-based termination claim.
Consequently, Bland’s motion for sanctions regarding the destruction of
the video is irrelevant to the determination of the pending summary
judgment motion. The Court therefore reserves ruling on Bland’s motion
for sanctions until trial.

7

written coaching, third written coaching, active coaching period,
investigations and appropriate action, and termination.

Id. at 1.

Bland had received two written coachings for working through his
lunch period, but had received no other discipline under the
policy.

The

policy

also

provides

that

an

associate

may

be

immediately terminated and will not be eligible for rehire for
“[v]iolence or a safety violation, that creates a high risk of
injury to people or damage to property.”

Id. at 3.

Torres

testified, however, that Bland was not terminated for such a
violation and is eligible for rehire.
Additionally,

Sam’s

See Torres Dep. 43:22-44:9.

“Violence-Free

Workplace

Policy”

prohibits “any form of violence or threat of violence in or
affecting

the

customers/members.

workplace,

other

associates

or

our

This includes, but is not limited to, any

conduct or communication . . . which: 1) harms, damages, injures
harasses, intimidates, bullies, threatens, stalks, taunts, forces,
coerces, restrains or confines another person; [or] 2) reasonably
causes another person to fear for his/her health or safety.”
Violence-Free Workplace Policy 1 (Mar. 21, 2017), ECF No. 22-1.
The policy also provides that violations could subject an associate
“to disciplinary action up to and including termination.”
2.

Torres

testified

disrespectful
workplace.”

approach

that
to

Bland

Capozucca

Torres Dep. 45:7-9.

8

was
and

terminated
“violence

Id. at

for

his

in

the

DISCUSSION
Bland

brings

race

discrimination

pursuant to Title VII and § 1981.

and

retaliation

claims

Title VII and § 1981 claims

“have the same requirements of proof and use the same analytical
framework.”

Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249,

1256-57 (11th Cir. 2012) (quoting Standard v. ABEL Servs., Inc.,
161 F.3d 1318, 1330 (11th Cir. 1998)).

Therefore, the following

analysis applies to both sets of claims.
Bland pointed to no direct evidence of discrimination or
retaliation. Therefore, both his claims are subject to the burdenshifting framework of McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981).
“create

an

Under this framework, Bland must first

inference”

of

discrimination

establishing his prima facie case.

or

retaliation

by

Trask v. Sec’y, Dep’t of

Veterans Affairs, 822 F.3d 1179, 1191 (11th Cir. 2016).

“Once the

plaintiff has made a prima facie case, a rebuttable presumption
arises that the employer has acted illegally.”

Id. (quoting

Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253, 1264 (11th
Cir.

2010)).

“The

employer

can

rebut

that

presumption

by

articulating one or more legitimate non-discriminatory reasons for
its action.”

Id. (quoting Alvarez, 610 F.3d at 1264).

“If it

does so, the burden shifts back to the plaintiff to produce
evidence that the employer’s proffered reasons are a pretext” for

9

discrimination or retaliation.
1264).

Id. (quoting Alvarez, 610 F.3d at

As explained below, the Court concludes Bland waived his

discriminatory termination claim, but that his retaliation claim
survives summary judgment.
I.

Discriminatory Termination
Bland

alleges

that

Sam’s

discriminated

against

him

by

terminating him not only because of his complaint to Capozucca,
but also because of his race.
claim.

Sam’s argues that Bland waived this

A plaintiff may only waive a discrimination claim through

an “unequivocal concession.”

Smelter v. S. Home Care Servs. Inc.,

904 F.3d 1276, 1289 (11th Cir. 2018) (quoting Ross v. Jefferson
Cty. Dep’t of Health, 701 F.3d 655, 661 (11th Cir. 2012) (per
curiam)).

Bland testified as follows:

Q: Do you believe that you were terminated because of
your race?
A: No. I think I was terminated more along the lines
of [Capozucca] didn’t want to deal with it. He didn’t
want to hear about it, like, along those lines. I don’t
think it was, like, a white thing, though, you know.
Bland Dep. 136:21-137:2.

Bland pointed to no testimony where he

expressed his belief that he was terminated because of his race.
Instead, as Bland’s testimony makes clear, he believes he was
terminated because of his complaint about Robinson’s name-calling,
his complaint to Capozucca about Capozucca’s refusal to act, and
his belief (as he expressed it to Capozucca) that if he had used
the

“N

word”

to

Robinson,

Capozucca

10

would

have

treated

the

situation differently.

Therefore, Bland unequivocally conceded

his discriminatory termination claim.

Compare Ross, 701 F.3d at

661 (finding waiver when plaintiff was asked during her deposition
whether she “[felt] like [her] termination had anything to do
[with] . . . [her] race” and responded, “no”), with Smelter, 904
F.3d at 1289-90 (concluding that plaintiff did not waive claim
when

answering

decisionmaker

question

was

termination).

“being

about
racial”

whether
when

she

believed

informing

non-

plaintiff

of

Therefore, Sam’s motion for summary judgment on

this ground is granted.3
II.

Retaliation
Sam’s next contends Bland cannot establish a prima facie case

of retaliation.

Title VII prohibits an employer from retaliating

against an employee for opposing racial discrimination.
§ 2000e-3(a).

42 U.S.C.

To establish a prima facie case of retaliation,

Bland must show: (1) he engaged in an activity protected under
Title VII, (2) he suffered an adverse employment action, and (3)
his protected activity “was a but-for cause of the alleged adverse
action by the employer.”

Univ. of Tex. Sw. Med. Ctr. v. Nassar,

3

Likewise, summary judgment is proper on Bland's discriminatory
termination claim because he failed to point to a valid comparator to
establish his prima facie case. Further, Bland failed to point to a
convincing mosaic of circumstantial evidence to create a triable issue
concerning Sam’s discriminatory intent regarding his termination. See,
e.g., Smith v. Lockheed-Martin, Corp., 644 F.3d 1321, 1328 (11th Cir.
2011) (noting that failure to point to a comparator “does not necessarily
doom the plaintiff’s case”).
Accordingly, summary judgment is also
proper on Bland’s discriminatory termination claim for these reasons.

11

570 U.S. 338, 362 (2013); see also Crawford v. Carroll, 529 F.3d
961,

970

(11th

elements).

Cir.

The

2008)

statute’s

(setting

forth

protections,

prima

however,

facie
“only

case
reach

individuals who ‘explicitly or implicitly communicate[] a belief
that

the

practice

discrimination.’”

constitutes

unlawful

employment

Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295,

1311 (11th Cir. 2016) (alteration in original) (quoting Equal Emp’t
Opportunity Comm’n Compliance Manual § 8-11-B(2) (2006)).
A.

Protected Activity

Sam’s contends Bland cannot establish the protected activity
prong of his prima facie case.
plaintiff

is

reasonable

required

belief

that

to

show

the

employment practices.’”

To establish this prong, “a
that

employer

[he]
was

‘had

a

good

engaged

in

faith,

unlawful

Id. (quoting Little v. United Techs.,

Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997)).
“This

burden

component.”

includes
Id.

both

a

Therefore,

subjective
Bland

must

and
show

an

objective

both

that

he

“subjectively (i.e., in good faith)” believed he was opposing
unlawful

discrimination

and

that

his

belief

“was

objectively

reasonable in light of the facts and record present.” Id. (quoting
Little, 103 F.3d at 960).

Bland need not prove, however, “that

the discriminatory conduct complained of was actually unlawful.”
Id.

12

Bland points to his verbal complaint to Capozucca about
Capozucca’s

deficient

treatment

of

his

written

complaint

of

Robinson’s racial harassment as statutorily protected activity.4
In that statement, Bland complained to Capozucca that he would
have been immediately fired if he had used the “N word” to
Robinson, but that Robinson was not disciplined for calling him a
“dumb redneck/hillbilly.”

Therefore, to survive summary judgment,

Bland must demonstrate that he subjectively believed Sam’s failure
to address the allegations in his written statement constituted an
unlawful employment practice and that this belief was objectively
reasonable.
1.

Subjective Component

Sam’s first argues that Bland did not subjectively believe
that his “N word” comment opposed an unlawful employment practice.
Sam’s points to Bland’s deposition testimony stating that he
“wasn’t trying to make [his conversation with Capozucca] a race
thing at all.”

Bland Dep. 110:16-17.

Bland elaborated on this

testimony in an affidavit in response to summary judgment.

In

that affidavit, Bland explained that his initial purpose for

4

Bland appears to rely only on this statement, not his April 24 written
complaint, for this requirement. Pl.’s Mem. of Law in Supp. of Pl.’s
Opp. to Defs.’ Mot. for Summ. J. 5, ECF No. 35; see also id. at 8
(“Plaintiff’s complaint that Defendant did not give sufficient attention
to his earlier statement that he was being racially harassed by a coworker was a statutorily protected statement so as to support his claim
for retaliation.”).
Therefore, the Court does not consider whether
Bland’s April 24 written statement constitutes protected activity.

13

speaking to Capozucca was to tell him that he and Robinson had
argued two days earlier and were scheduled to open the shop
together and was unrelated to race.

Bland Aff. ¶ 7.

Bland stated

that the conversation “became a ‘race thing’ when [he] complained
about [Capozucca] not properly addressing [his] complaint about
[Robinson’s] racist behavior.”

Id.

Sam’s urges the Court to strike this portion of Bland’s
affidavit as a sham.

A court may only “disregard an affidavit as

a matter of law when, without explanation, it flatly contradicts
[a plaintiff’s] prior deposition testimony for the transparent
purpose of creating a genuine issue of fact where none existed
previously.”
(explaining

Furcron, 843 F.3d at 1306; see also id. at 1306-07
that

“sham

affidavit”

rule

should

be

applied

“sparingly” (quoting Allen v. Bd. of Pub. Educ. for Bibb Cty., 495
F.3d 1306, 1316 (11th Cir. 2007))).

Bland’s deposition testimony

that he was not “trying” to make his conversation with Capozucca
a “race thing” is not inconsistent with his affidavit that the
conversation became a “race thing” when Bland brought up his
earlier complaint about Robinson.

Therefore, the Court considers

Bland’s affidavit in this Order.5

Consequently, Bland pointed to

sufficient evidence that he subjectively believed he was making a
race-based

complaint

of

an

unlawful

5

employment

practice

to

Sam’s also objected to ¶ 4 of Bland’s affidavit for the same reasons.
The Court likewise considers ¶ 4.

14

Capozucca before his termination, and Sam’s motion for summary
judgment on this ground is denied.
2.

Objective Component

Sam’s next argues that Bland’s belief was not objectively
reasonable.

First, Sam’s contends that Bland’s complaint related

only to a hypothetical Title VII violation about what would happen
to him if he used a racial slur.
about

hypothetical

discipline

But Bland’s complaint was not
for

him,

but

rather

about

Capozucca’s actual failure to discipline or investigate Robinson.
Bland simply analogized the actual situation to a different one to
make his point about what he perceived to be Capozucca’s deficient
treatment of the matter.

This statement also clearly communicated

Bland’s belief that Capozucca’s treatment of his written complaint
was unfair and perhaps unlawful, thus bringing Bland within the
protection of Title VII’s anti-retaliation provisions.
Further, Bland could reasonably believe that Sam’s failure to
investigate his complaint of racial harassment by Robinson was
unlawful.

Title

VII

broadly

prohibits

an

employer

from

discriminating against any employee with respect to the “terms,
conditions,

or

privileges

individual’s race.”

of

employment,

42 U.S.C. § 2000e-2(a)(1).

because

of

such

Bland complained

to Capozucca that Sam’s failed to investigate his complaint of
racial harassment in the workplace because he was white, not black.
Bland “need not be correct in [his] beliefs or consult a lawyer

15

for expert analysis of [his] complaint” to form a good faith belief
that this constituted unlawful discrimination.

Jefferson v. Sewon

Am., Inc., 891 F.3d 911, 925 (11th Cir. 2018).

Accordingly, Bland

pointed to sufficient evidence to create a genuine dispute as to
whether his belief was objectively reasonable, and Sam’s motion
for summary judgment on this ground is also denied.
B.

Pretext

Additionally, Sam’s contends that Bland cannot demonstrate
that its proffered non-retaliatory reason for his termination, his
behavior toward Capozucca, is pretextual.

Bland must meet this

proffered reason “head on and rebut it,” and he cannot survive
summary judgment “by simply quarreling with the wisdom” of this
reason.

Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir.

2000) (en banc).

“The inquiry at this stage asks whether the

plaintiff has produced ‘reasons sufficient to allow a reasonable
factfinder to determine that the defendant’s proffered legitimate
reasons were not what actually motivated its conduct.’”

Crockett

v. GEO Grp., Inc., 582 F. App’x 793, 797 (11th Cir. 2014) (per
curiam) (quoting Silvera v. Orange Cty. Sch. Bd., 244 F.3d 1253,
1258 (11th Cir. 2001)); see also id. (applying the burden-shifting
framework to Title VII retaliation claim).
Here, Bland clearly testified that he did not act aggressively
toward

Capozucca

in

any

way.

He

instead

testified

that

he

“particularly” sought to avoid antagonizing Capozucca during the

16

interaction.

Though the weight of the evidence may not support

Bland’s version of events, the Court must accept it at this stage.
And when viewing the facts in this light, Bland clearly pointed to
evidence sufficient for a jury to disbelieve Sam’s proffered reason
for

his

termination.

Additionally,

Capozucca’s

ambiguous

testimony about his fear during the interaction, Gill’s testimony
that the conduct she viewed on the destroyed tape was neither
intimidating nor fire-able, and Torres’s willingness to rehire
Bland notwithstanding his behavior could also support Bland’s
version of events.

Based on this evidence, a jury could find that

Sam’s proffered reason for Bland’s termination was pretextual and
that

Sam’s

was

instead

motivated

by

unlawful

retaliation.

Accordingly, Sam’s motion for summary judgment on this ground is
denied.6
CONCLUSION
As explained above, the Court grants in part and denies in
part Sam’s motion for summary judgment (ECF No. 20); Bland’s
retaliation claims under Title VII and § 1981 shall proceed to
trial.

The Court reserves ruling on Bland’s motion for sanctions

6

Sam’s likewise argues that Bland’s misconduct severs the chain of
causation necessary for his prima facie case of retaliation. But because
Bland pointed to evidence disputing whether he even engaged in
misconduct, that misconduct cannot sever the causal connection as a
matter of law at this stage. Additionally, because of the close temporal
proximity between Bland’s verbal complaint and his termination, a jury
could find a causal connection between his protected activity and
termination.

17

(ECF No. 36) and will hear oral argument from the parties on this
motion at the final pretrial conference.
The Court denies

Sam’s motion for a continuance of the

pretrial conference deadlines

(ECF No. 48).

The Court will

accommodate defense counsels’ conflict during the first week of
the trial term, but intends to try this case during the upcoming
March term of court.
IT IS SO ORDERED, this 9th day of January, 2019.
S/Clay D. Land
CLAY D. LAND
CHIEF U.S. DISTRICT COURT JUDGE
MIDDLE DISTRICT OF GEORGIA

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