HUBBARD v. Georgia Farm Bureau Mutual Insurance Company
Filing
22
ORDER denying 18 Motion for Summary Judgment. Ordered by Judge C. Ashley Royal on 3/29/13 (lap)
IN THE UNITED STATES DISTRICT COURT FOR THE
MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
SANDRA H. HUBBARD,
:
:
Plaintiff,
:
:
v.
:
:
No. 5:11‐CV‐290 (CAR)
GEORGIA FARM BUREAU
:
MUTUAL INSURANCE COMPANY, :
:
Defendant.
:
___________________________________ :
ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendant Georgia Farm Bureau Mutual Insurance
Company’s Motion for Summary Judgment [Doc. 18]. Plaintiff Sandra H. Hubbard
contends Defendant terminated her in retaliation for reporting sex discrimination and
sexual harassment, in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e, et seq. (“Title VII”). After fully considering the matter, the Court finds
that triable issues of fact exist as to both of Plaintiff’s retaliation claims. Thus,
Defendant’s Motion for Summary Judgment [Doc. 18] is DENIED.
1
BACKGROUND
Plaintiff worked as an insurance agent for Defendant Georgia Farm Bureau
Mutual Insurance Company in its Webster County, Georgia office from 1994, until she
was terminated on December 4, 2008. Plaintiff contends Defendant unlawfully
terminated her in retaliation for reporting sex discrimination and sexual harassment.
Defendant, on the other hand, maintains it lawfully terminated Plaintiff for her failure
to apologize for unprofessional conduct toward one of Defendant’s influential policy‐
holders and his wife. The facts of this case, viewed in the light most favorable to
Plaintiff, are as follows.
Defendant’s Relationship with County Farm Bureaus
Because an understanding of the relationship and interplay between Defendant,
the county Farm Bureaus, and the farmers who make up the county Farm Bureaus is
both helpful and necessary to understand this case, the Court will start with a
background of the Georgia Farm Bureau organization and its establishment of
Defendant.
Georgia Farm Bureau is a grassroots organization that uses its resources and
facilities “to assist in providing farm families a fair and equitable standard of living and
2
to ensure the existence of agriculture as a vital and thriving industry in the future.”1
“To understand Farm Bureau, it is important to start at the local rather than the state
level. It is in the 159 county Farm Bureaus where programs are developed to meet the
needs of farm families. Farm Bureau relies on its member families for strength and
direction.”2 Every county in the State of Georgia has a county Farm Bureau; individual
farmer members form the county Farm Bureaus; and the county Farm Bureaus, in turn,
form Georgia Farm Bureau.
To provide insurance to its members, Georgia Farm Bureau established
Defendant – Georgia Farm Bureau Mutual Insurance Company. Defendant employs
local insurance agents in counties throughout Georgia to service its policy‐holders, the
majority of whom are the farmers who make up the county Farm Bureaus.3 Defendant
and its insurance agents work closely with the county Farm Bureaus. Defendant
maintains business agreements with each county Farm Bureau, providing certain funds
to the county Farm Bureau in exchange for the county Farm Bureau’s assistance in the
solicitation and service of Defendant’s insurance policy‐holders.4 As part of the
agreement, the county Farm Bureau owns and provides the office space used by
About Georgia Farm Bureau, http://www.gfb.org/aboutus/default.html.
Id.
3 Defendant no longer requires its policy‐holders to be farmers.
4 Pl. Depo, pp. 41‐42; 118 [Doc. 18‐9].
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Defendant’s insurance agents and pays the salary for the support staff who assist
Defendant’s agents.5
Each county Farm Bureau is operated by a county Farm Bureau board comprised
of farmer members who hold insurance policies written by Defendant. Due to their
voting privileges and control of the office space and support staff, county Farm Bureau
board members and the farmer members themselves have considerable influence over
the county agents and within Defendant.
Plaintiff’s Employment in Webster County
Plaintiff worked as an insurance agent in Defendant’s Webster County agency. 6
The building for Defendant’s Webster County office is owned by the Webster County
Farm Bureau Board (the “Board”), and the Board hires and pays the salary for the
secretary staffing the office. 7 The Board is comprised of farmer policy‐holders in
Webster County. The Board aids in soliciting new policy‐holders and is instrumental in
promoting, maintaining, and growing Defendant’s business in Webster County. 8 As
part of her employment, Plaintiff was required to maintain a positive relationship with
Id. at pp. 19‐20; 41.
Id. at p. 18.
7 Minnick Depo., p. 19‐20 [Doc. 18‐8].
8 Pl. Depo., p. 39‐40 [Doc. 18‐9].
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the Board, attend Board meetings, and keep the Board informed of issues concerning
Defendant’s business in Webster County. 9
Plaintiff began working for Defendant as a training agent in 1994, and eventually
became a career agent under Mack Brown, the managing agent in Webster County until
April 2008.10 Upon Brown’s departure, the Board voted and approved Defendant’s
decision to promote Plaintiff as the acting agency manager.11 Thus, from April 1, 2008,
until her termination eight months later, Plaintiff was the acting agency manager. After
Brown left, Defendant did not hire a second agent, and therefore Plaintiff remained as
Defendant’s sole insurance agent in Webster County.12 During the almost 15 years
Plaintiff worked for Defendant, she was never reprimanded or disciplined in any way
until the incidents giving rise to this lawsuit took place.
Plaintiff’s Relationship with Paul Stapleton
Plaintiff was born and raised in Webster County and had been friends with
Paul Stapleton, an influential policy‐holder with Defendant, since she was a teenager.13
In 1996, Plaintiff and Stapleton, who were both divorced at that time, began an ongoing,
Document signed by Plaintiff and her district sales manager, David Farnsworth dated March 24, 2008,
Pl. Depo., Ex. 6 [Doc. 18‐10]; Pl. Depo., pp. 38‐39 [Doc. 18‐9].
10 Id. at pp. 18‐21.
11 Id. at pp. 36 ‐ 37.
12 Id. at p. 20.
13 Id. at p. 60.
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consensual sexual relationship that ended in 1999, prior to both Plaintiff’s and
Stapleton’s second marriages.14 Prior to the events leading to her termination in 2008,
Plaintiff and Stapleton had maintained a friendship and business relationship.15
Stapleton held both business and personal insurance accounts with Defendant at
all times during Plaintiff’s employment. Plaintiff continuously served as the insurance
agent on Stapleton’s business insurance accounts until her termination in December
2008.16 However, Plaintiff only served as the insurance agent on Stapleton’s personal
insurance accounts until the end of January 2004, when Stapleton’s wife, Allyson,
requested that their personal accounts be transferred to Brown, the acting agency
manager.17 The transfer occurred within days after Stapleton first inappropriately
touched Plaintiff.
On January 20, 2004, Plaintiff met Stapleton at his newly‐built house to inspect it
for a new insurance policy.18 While at the house Stapleton made inappropriate
comments to Plaintiff about continuing their past sexual relationship.19 He then put his
Id. at p. 62.
15 Id. at pp. 60‐64.
16 Id. at pp. 66‐67.
17 Id. at pp. 69‐71; Brown Depo., pp. 4‐7; 14‐15 [Doc. 18‐4].
18 Pl. Depo., pp. 71‐72 [Doc. 18‐9].
19 Id.
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hands on her breasts and said, “they don’t look as big as they used to.”20 Plaintiff
immediately rebuffed his advances.21
After returning to the office, Plaintiff informed Brown, her managing agent,
about the incident, telling him that Stapleton had been “overly friendly,” “aggressive,”
and “put his hands on [her].”22 Brown did not inform his superiors. After Allyson
requested that their personal insurance policies be transferred from Plaintiff, Plaintiff
informed Brown in more detail about the incident with Stapleton.23 She also informed
her district manager at the time, David Farnsworth, of the incident.24 Neither the
managing agent nor the district manager reported the incident to their superiors.
Despite Plaintiff’s objections to Stapleton’s actions during the home inspection,
he continued to display sexually inappropriate conduct and make inappropriate
comments to Plaintiff until the events giving rise to her termination took place in 2008.
Although Plaintiff attempted not to service Stapleton’s accounts in an effort to avoid
contact with him, he continued to ask specifically for her.25 Indeed, sometime after the
home inspection in 2004, Stapleton and Plaintiff met at one of his farms to complete
Id. at pp. 71‐72.
21 Id. at p. 72.
22 Id. at pp. 70; 80.
23 Id. at p. 81.
24 Id. at p. 83.
25 Id. at pp. 87‐88.
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insurance paperwork, and he grabbed Plaintiff’s buttocks.26 Stapleton regularly came
by to see Plaintiff at the office to check on his business accounts and “chat.”27 Stapleton
was “flirty” and continued to make sexual comments to her, alluding to her breasts and
commenting on what she was wearing or how low her shirt was.28 He would tell
Plaintiff that his wife was jealous of her. 29 During a period of time Stapleton called
Plaintiff’s cell phone every day.30 Plaintiff did not pursue an official complaint against
Stapleton because she felt that if she reported his conduct, “he would come after [her].
[She] knew the power he had with [Defendant].”31 Indeed, Plaintiff was “trained to
look after [her] farm members[,] . . . try not to question them[,] . . . [and] try to keep
[her] farm members happy.”32
In 2008 when Plaintiff became the acting agency manager and only agent in
Webster County, she again became the agent on the Stapletons’ personal insurance
accounts.33 Allyson, unhappy with this arrangement, inquired with an agent in a
neighboring county about moving their accounts from Webster County.34 She became
Id., pp. 77‐88.
Id. at p. 60.
28 Id. at p. 79.
29 Id. at p. 63.
30 Id. at p. 89.
31 Id. at p. 84.
32 Id.at p. 87.
33 Id. at p. 66.
34 Id. at pp. 93‐94.
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upset when she learned that Plaintiff had talked to the agent from the neighboring
county.35
On September 8, 2008, Allyson telephoned Plaintiff at work, initiating a heated
and contentious discussion.36 Two days later, on September 10, 2008, Allyson
complained to Defendant’s district manager and Plaintiff’s direct supervisor, Mark
Herndon, about Plaintiff’s unprofessional conduct during their telephone
conversation.37 Allyson stated that she and her husband “were not objecting the idea of
moving all of [their] business out of the Webster County Farm Bureau office” and that
she expected a verbal apology from Plaintiff.38 Stapleton also threatened that if he did
not receive an in‐person apology from Plaintiff, he was seriously considering moving
his accounts either out of the county or away from Defendant all together.39
Plaintiff’s Relationship with the Webster County Farm Bureau Board
Contemporaneous to Plaintiff’s issues with the Stapletons, Plaintiff also began
having problems with the Webster County Farm Bureau Board. On September 18, 2008,
the Board held its first meeting after Plaintiff became acting agency manager.40 Because
Id. at pp. 94‐95.
36 Id. at pp. 92‐93.
37 Letter from Allyson Stapleton to Mark Herndon dated Sept. 10, 2008, Pl. Depo., Ex. 11 [Doc. 18‐10].
38 Id.
39 Pl. Depo., p. 27 [Doc. 18‐9].
40 Id. at pp. 134‐135.
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the Board pays the secretary’s salary, Plaintiff indicated that the secretary deserved a
raise.41 In response, Bill Minick, a long‐time Board member, asked Plaintiff if her salary
had increased since she became the sole agent in the office and how much money she
made.42 After Plaintiff refused to disclose her salary, he then remarked, “now that you
are making more money, looks like you can afford to supplement [the secretary’s]
salary.”43 Plaintiff responded that paying the secretary from her salary was not Farm
Bureau policy.44 In the 15 years Plaintiff had been employed by Defendant, the Board
never asked her male predecessors the amount of their salaries or that they supplement
the salary of the support staff.45
Immediately after the Board meeting, Plaintiff sent an e‐mail to Board president
Gerald Smith stating that she was offended by Board member Minick’s remarks
concerning her salary, stating that his comments “seemed like sexual discrimination.”46
Smith responded that he did not believe Minick’s comments “were intended to
Id. at pp. 114‐115.
Id. at p. 115.
43 Id. at p. 115.
44 Id.
45 Id. at pp. 134‐135; E‐mail from Sandra Hubbard to Gerald Smith dated September 18, 2008, Pl. Depo.,
Ex. 13 [Doc. 18‐10].
46 E‐mail from Sandra Hubbard to Gerald Smith dated September 18, 2008, Pl. Depo., Ex. 13 [Doc. 18‐10].
41
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offend.”47 He copied Ken Murphree, employed by Defendant as a liason between the
Board and Defendant, on his response e‐mail to Plaintiff.48
Approximately a week to ten days after the Board meeting on September 18,
2008, Ken Murphree contacted Herndon, the district manager and Plaintiff’s direct
supervisor, to discuss the concerns raised at the Board meeting and requested Herndon
set up a meeting with Board president Smith. 49 Thereafter, the first of three meetings
between Plaintiff’s direct supervisor, Board president Smith, and Board member Minick
took place to discuss Plaintiff’s employment. At the first meeting in late September, the
three men discussed the incident at the Board meeting and Allyson’s complaint letter.50
In early October, a second meeting took place between district manager
Herndon, liason Murphree, and only three Board members, including Board president
Smith and Board member Minick.51 It was decided at this meeting that Herndon would
discuss the issues of both the Board meeting and Allyson’s complaint letter with
Plaintiff.52
Id.
Id.
49 Herndon Depo., p. 24 [Doc. 18‐5]; Murphree Depo., p. 15 [Doc. 19‐18] .
50 Herndon Depo., pp. 18‐19 [Doc. 18‐5].
51 Herndon Depo., pp. 41‐4 [Doc. 18‐5]; Murphree Depo., pp. 21‐24 [Doc. 19‐18]; Smith Depo., pp. 31‐34
[Doc. 19‐19]; Minick Depo., pp. 31‐32 [Doc. 18‐8].
52 Id.
47
48
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Plaintiff’s Complaints and Ultimate Termination
On October 15, 2008, shortly after the second meeting with the select Board
members, district manager Herndon met with Plaintiff for the first time to discuss
Allyson’s letter of complaint and the comments made during the September Board
meeting. Plaintiff told Herndon the letter was the result of a personal situation and
Allyson’s jealousy.53 Herndon told Plaintiff he felt she needed to apologize to the
Stapletons, but he did not make an apology a condition of her continued employment.54
In fact, he even stated that he could not require Plaintiff to apologize.55 He told Plaintiff
she would receive a warning for her conduct.56 Plaintiff then shared her specific
concerns about Board member Minick’s comments during the September 18 Board
meeting.57
Approximately two weeks later, on October 29, 2008, Herndon met with
Plaintiff for the second time and presented the warning. The warning stated:
Please allow this memo to recap our meeting October 15th 2008 to discuss
your unprofessional conduct toward Webster County Farm Bureau
Members. Based on our conversation and information I have received I
felt that an apology was in order and encouraged you to do so. You were
adamant in your refusal to consider my suggestion.
Herndon Depo., p. 32 [Doc. 18‐5].
54 Id. at p. 46.
55 Pl Depo., p. 144 [Doc. 18‐9].
56 Herndon Depo., p. 46 [Doc. 18‐5].
57 Pl. Depo. at pp. 144‐45 [Doc. 18‐9].
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Please be aware that future displays of unprofessional conduct on your
part may jeopardize your position with the Farm Bureau Companies.58
Plaintiff signed the warning, acknowledging her understanding of the terms. At this
meeting, district manager Herndon encouraged Plaintiff to salvage the Stapleton
account and put her personal issues to the side.59 Again, Herndon told Plaintiff that he
could not force her to apologize.60 Plaintiff believed the matter was resolved.61
However, in early November 2008, the third and final meeting took place
between liason Murphree, district manager Herndon, and a select few Board members,
including Board president Smith and Board member Minick.62 During this meeting, the
Board members raised concerns about Plaintiff, including rumors of problems in the
County office and the likelihood of losing the Stapleton account.63
Thereafter, on November 12, 2008, district manager Herndon met with Plaintiff
for the third time about the “Stapleton situation.”64 Plaintiff told Herndon that
everything was fine, and when he asked her again to apologize, Plaintiff again
Warning memorandum signed by Sandra Hubbard and Mark Herndon, Pl. Depo., Ex. 14 [Doc. 18‐10].
Herndon Depo., p. 36 [Doc. 18‐5].
60 Pl. Depo., pp. 146‐47 [Doc. 18‐9].
61 Id. at p. 149.
62 Herndon Depo. at pp. 41‐42 [Doc. 18‐5].
63 Id.
64 Pl. Depo. at pp. 150‐51 [Doc. 18‐9].
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refused.65 Plaintiff then told Herndon of Stapleton’s sexually offensive behavior.66
Herndon told Plaintiff to not contact Stapleton, that he needed to report this to human
resources, and that an investigation would ensue.67 Herndon also informed Plaintiff at
this meeting that she had a problem with the Board.68
Two days later, after discussing Plaintiff’s sexual harassment complaint with his
supervisor, district manager Herndon called Plaintiff and told her that Kathy
Hawthorne, Defendant’s Director of Human Resources, would set up a meeting to
discuss and investigate her sexual harassment claims.69 Hawthorne, however, never
met with Plaintiff, and no investigation of Plaintiff’s complaints ever took place.70
Instead, three weeks later on December 4, 2008, Herndon met with Plaintiff for
the fourth time regarding her unprofessional conduct toward the Stapletons, conduct
for which she had received a warning over a month earlier. For the first time, Herndon
made an apology to the Stapletons a condition of her continued employment, informing
her that if she did not apologize to the Stapletons in person, she would be terminated.71
Plaintiff refused to apologize, and thus, Herndon terminated her, effective December
Id.
Id.
67 Id.
68 Id. at p. 154.
69 Id. at p. 162.
70 Id. at p. 164.
71 Id. at pp. 168‐69.
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14, 2008. Plaintiff’s termination occurred less than three months after she first wrote the
Board complaining of sex discrimination, and less than a month after the November 12,
2008 meeting when Plaintiff complained of Stapleton’s sexually inappropriate behavior.
Procedural History
On January 22, 2009, Plaintiff completed an online intake questionnaire with the
Equal Employment Opportunity Commission (“EEOC”) alleging unlawful termination
by Defendant. On the questionnaire Plaintiff identified the parties and described in
detail the alleged unlawful conduct by Defendant. Plaintiff checked the box at the end
of the questionnaire indicating that she wished to file a charge. In March of 2009, the
EEOC began an investigation and assigned Plaintiff’s case a charge number. On April
23, 2009, an EEOC investigator sent an official Notice of Charge of Discrimination to
Defendant’s Webster County Farm Bureau office. However, the EEOC did not mail
Plaintiff the official charge form until June 18, 2009, after the statutory 180‐day period
had expired. Plaintiff signed and returned the official charge form on June 24, 2009, and
a subsequent Notice of Charge of Discrimination was mailed to Defendant’s Webster
County Farm Bureau office on July 13, 2009.
After receiving her right to sue letter from the EEOC, Plaintiff filed this lawsuit
seeking damages against Defendant for unlawfully terminating her in retaliation for her
15
protected conduct of opposing sex discrimination and sexual harassment. Thereafter,
Defendant filed the current Motion for Summary Judgment.
LEGAL STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must
be granted “if the movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”72 A genuine issue of
material fact only exists when “there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict for that party.”73 Thus, summary judgment must be
granted if there is insufficient evidence for a reasonable jury to return a verdict for the
nonmoving party or, in other words, if reasonable minds could not differ as to the
verdict.74 When ruling on a motion for summary judgment, the court must view the
facts in the light most favorable to the party opposing the motion.75
The moving party “always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue of
Fed. R. Civ. P. 56(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986 ).
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
74 See id. at 249‐52.
75 Welch v. Celotex Corp., 951 F.2d 1235, 1237 (11th Cir. 1992).
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material fact” and that entitle it to a judgment as a matter of law.76 If the moving party
discharges this burden, the burden then shifts to the nonmoving party to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact.77 This evidence must consist of more than mere conclusory allegations or
legal conclusions.78
DISCUSSION
Plaintiff claims Defendant terminated her in retaliation for reporting sex
discrimination by the Board and sexual harassment by Stapleton, in violation of Title
VII. Defendant first contends Plaintiff’s claims fail because they are time‐barred by Title
VII’s limitation period. Alternatively, Defendant contends the claims fail because
Plaintiff can neither prove her prima facie cases of retaliation nor prove that
Defendant’s legitimate reason for termination is pretext for retaliation.
Administrative Exhaustion
First, Defendant argues that Plaintiff’s retaliation claims are time‐barred by Title
VII’s limitation period. It is well‐settled that before filing suit under Title VII a plaintiff
must exhaust certain administrative procedures.79 In Georgia, exhaustion requires that
Celotex Corp., 477 U.S. at 323 (internal quotation marks omitted).
See Fed. R. Civ. P. 56(e); see also Celotex Corp., 477 U.S. at 324‐26.
78 See Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
79 Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001) (citation omitted).
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a plaintiff file a charge of discrimination with the EEOC within 180 days after the
alleged unlawful employment practice occurred.80 Failure to file a timely charge entitles
the defendant to summary judgment.81
Here, it is undisputed that Plaintiff did not file her official charge with the EEOC
until June 24, 2009, 192 days after her termination on December 14, 2008. However, five
months earlier on January 22, 2009, well within the 180 day statutory period, Plaintiff
completed an online intake questionnaire form with the EEOC and checked the
appropriate box indicating that she wished to file a charge against Defendant. Thus, the
issue is whether the intake questionnaire that Plaintiff submitted online is sufficient to
constitute a charge made to the EEOC.
Under the law of the Eleventh Circuit, the Court may find that a verified intake
questionnaire which includes the “basic information suggested by 29 C.F.R. § 1601.12(a)
may constitute a charge for purposes of the Title VII statute of limitations when the
circumstances of the case would convince a reasonable person that the charging party
manifested her intent to activate the administrative process by filing the intake
42 U.S.C.A. § 2000e‐5(e)(1); Watson v. Blue Circle, Inc., 324 F.3d 1252, 1258 (11th Cir. 2003).
See, e.g., Armstrong v. Martin Marietta Corp., 138 F.3d 1374, 1394 (11th Cir. 1998); accord Wilson v. Bailey,
934 F.3d 301, 304 n. 1 (11th Cir. 1991) (“Failure to file a timely complaint with the EEOC mandates the
dismissal of the Title VII suit.”).
80
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questionnaire with the EEOC.”82 This “manifest‐intent approach requires a charging
party to indicate clearly that she wishes to activate these functions” and “ensure[ ] that,
once a charging party’s intent is made clear, the EEOC’s inaction will not vitiate her
claim” but also “not treat intake questionnaires willy‐nilly as charges. . . .”83
“To determine whether the intake questionnaire . . . can function as a charge,”
the Eleventh Circuit requires analysis of the “following question: Would the
circumstances of this case convince a reasonable person that [plaintiff] manifested her
intent to activate the machinery of Title VII by lodging her intake questionnaire with the
EEOC?”84 “Some facts relevant to [that] inquiry include what [the plaintiff] and EEOC
personnel said to each other, what the questionnaire form itself indicated, and how the
EEOC responded to the completed questionnaire.”85 Also the Supreme Court has
explained that whether the filing demonstrates “an individual’s intent to have the
agency initiate its investigatory and conciliatory processes . . . must be examined from
the standpoint of an objective observer to determine whether, by a reasonable
Wilkerson, 270 F.3d at 1321.
Id. at 1320‐21.
84 Id. at 1321.
85 Id.
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construction of its terms, the filer requests the agency to activate its machinery and
remedial processes. . . .”86
Applying this “manifest‐intent” test here, the Court finds Plaintiff’s intake
questionnaire is sufficient to constitute a charge. First, the intake questionnaire meets
the basic requirements for an EEOC charge – that “it be in writing under oath or
affirmation and [ ] contain such information and be in such form as the Commission
requires.”87 Although Plaintiff did not verify her questionnaire, she did subsequently
verify the official charge she filed on June 24, 2009. The EEOC regulations specifically
provide for curing the omission of “failure to verify the charge” and that such an
amendment relates back.88 Thus, Plaintiff cured this defect. The EEOC regulations
require that
[e]ach charge should contain . . . [t]he full name, address and telephone
number of the person making the charge . . . [t]he full name and address
of the person against whom the charge is made, . . . [a] clear and concise
statement of the facts, including pertinent dates, constituting the alleged
unlawful employment practices, . . . [i]f known, the approximate number
of employees of the respondent employer . . . and . . . [a] statement
disclosing whether proceedings involving the alleged unlawful
employment practice have been commenced before a State or local agency
Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 402 (2008) (citing Wilkerson, 270 F.3d at 1319) (other citations
omitted) (explaining that if Wilkerson’s “manifest intent” requires an objective determination, then “that
would be in accord with [the Court’s] conclusion”).
87 42 U.S.C. § 2000e‐5(b); see also 29 C.F.R. § 1601.9 (“A charge shall be in writing and signed and shall be
verified.”).
88 29 C.F.R. § 1601.12(b).
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charged with the enforcement of fair employment practice laws and, if so,
the date of such commencement and the name of the agency.89
Plaintiff provided all of this information in the questionnaire.
Second, from the facts presented, a reasonable person could determine that
Plaintiff intended to “activate the machinery of Title VII.”90 The questionnaire plainly
stated, “[i]f you want to file a charge, you should check Box 1, below.”91 Plaintiff
checked Box 1 on the questionnaire, which specifically stated:
I want to file a charge of discrimination, and I authorize the EEOC to look
into the discrimination I described above. I understand that the EEOC
must give the employer . . . that I accuse of discrimination information
about the charge, including my name. I also understand that the EEOC
can only accept charges of job discrimination based on race, color,
religion, sex, national origin, disability, age, or retaliation for opposing
discrimination.92
The questionnaire does not make clear that Plaintiff would need to file an additional
formal charge; indeed, the questionnaire refers to the information provided specifically
as a charge. A reasonable person clearly could find that in checking Box 1, Plaintiff was,
in fact, filing a formal charge of discrimination. Moreover, the EEOC began an
investigation of Plaintiff’s claims in March 2009 and assigned the case a charge
29 C.F.R. § 1601.12(a).
Wilkerson, 270 F.3d at 1321.
91 Pl. Online EEOC Intake Questionnaire [Doc. 19‐9].
92 Id. (emphasis added).
89
90
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number.93 Defendant received notice of Plaintiff’s allegations in April 2009, and
Plaintiff left telephone messages and sent e‐mails to the EEOC to inquire and follow up
on her complaints. This evidence establishes that Plaintiff intended to initiate the
investigatory process of her claims. Thus, Plaintiff’s claims are not time‐barred by Title
VII’s statutory time period, and the Court must address the merits of Plaintiff’s
retaliation claims.
I. Merits of Plaintiff’s Retaliation Claims
Plaintiff claims she was unlawfully terminated in retaliation for her statutorily
protected conduct of (1) opposing sex discrimination by the Board and (2) opposing
sexual harassment by Paul Stapleton, both in violation of Title VII.
Title VII makes it unlawful for an employer to retaliate against an employee for
her participation in certain statutorily protected activities:
It shall be an unlawful employment practice for an employer to
discriminate against any of his employees . . . because he has opposed any
practice made an unlawful employment practice by this subchapter, or
because he has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under this
subchapter. 94
93
94
EEOC records [Doc 19‐10 & 19‐11].
42 U.S.C. § 2000e‐3(a).
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The former clause is known as the “opposition clause”; the latter is known as “the
participation clause.”95
Plaintiff brings both of her retaliation claims under the “opposition clause” of
Title VII. Under the opposition clause, an employee is protected from discrimination if
she opposes an employer’s unlawful practice. 96 Plaintiff alleges that she was unlawfully
terminated in retaliation for opposing unlawful employment practices of sex
discrimination and sexual harassment.
Where, as here, a plaintiff relies on circumstantial evidence to prove retaliation,
the Court applies the burden shifting framework developed in McDonnell Douglas Corp.
v. Green.97 Under this analysis, a plaintiff must establish a prima facie case of retaliation
by showing that: “(1) she engaged in statutorily protected activity, (2) an adverse
employment action occurred, and (3) the adverse action was causally connected to the
plaintiff’s protected activities.”98 If the plaintiff establishes a prima facie case, the
burden of production shifts to the employer to articulate some legitimate,
nondiscriminatory reason for its action.99 The burden then shifts back to the plaintiff
See, e.g., Hudson v. Norfolk S. R.R. Co., 209 F. Supp. 2d 1301, 1308 (N.D. Ga. 2001).
96 42 U.S.C. § 2000e‐(3)(a).
97 411 U.S. 792 (1973).
98 Gregory v. Ga. Dept. of Human Res., 355 F.3d 1277, 1279 (11th Cir. 2004) (internal quotation marks
omitted).
99 Tex. Depʹt of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981).
95
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who must show that the employerʹs proffered reasons for its actions were not the real
reasons that motivated its conduct, but that the employerʹs proffered reasons were
merely pretext for prohibited retaliatory conduct.100
A. Opposition to Sex Discrimination
1. Prima Facie Case
Plaintiff’s burden of establishing a prima facie case is not heavy,101 and the Court
finds genuine issues of material fact exist as to whether Plaintiff establishes a prima
facie case of retaliation for her opposition to sex discrimination.
a. Statutorily Protected Activity
First, Plaintiff must establish that she engaged in statutorily protected activity.
To establish that she engaged in a statutorily protected activity, Plaintiff must show that
she “had a good faith, reasonable belief in unlawful employment practices.”102 It is “not
enough for a plaintiff to allege that h[er] belief in this regard was honest and bona fide;
the allegations and record must also indicate that the belief, though perhaps mistaken,
McCann v. Tillman, 526 F.3d 1370, 1375 (11th Cir. 2008) (citation omitted) (“[I]f the [defendant]
articulate[s] legitimate reasons for their actions, [the plaintiff] must then show that the employer’s
proffered reasons for taking the adverse action were actually a pretext for prohibited retaliatory
conduct.”).
101 See, e.g., Crapp v. City of Miami Beach, 242 F.3d 1017, 1020 (11th Cir. 2001) (“[T]he prima facie
requirement is not an onerous one. . . .”).
102 Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1311‐12 (11th Cir. 2002) (quotation omitted).
100
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was objectively reasonable.”103 In other words, an employee’s statements constitute
“protected activity” only if they reflect an objectively reasonable, subjective belief that
the employer engaged in an unlawful employment practice.
To show that she engaged in statutorily protected conduct, Plaintiff does not
have to prove actual sex discrimination.104 Rather, she must show that she reasonably
held a good faith belief that the discrimination existed.105 “The objective reasonableness
of an employee’s belief that her employer has engaged in an unlawful employment
practice must be measured against existing substantive law.”106 In order to establish sex
discrimination, a plaintiff must show that (1) she belongs to a protected class; (2) that
she was subjected to an adverse employment action; (3) her employer treated similarly
situated employees outside her classification more favorably; and (4) she was qualified
to do the job.107
Plaintiff contends she engaged in statutorily protected expression when she sent
the e‐mail to Board president Smith complaining of sex discrimination at the meeting
on September 18, 2008.108 Defendant does not dispute that it knew of both the e‐mail
Id. at 312 (quotation omitted).
104 Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989).
105 Id.
106 Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999).
107 Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1091 (11th Cir. 2004).
108 Pl. Depo., p. 115 [Doc. 18‐9].
103
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and Plaintiff’s complaint of sex discrimination. Defendant does argue, however, that
Plaintiff did not engage in statutorily protected activity because no reasonable person
could find Plaintiff held an objectively reasonable, good faith belief she was a victim of
sex discrimination.
Despite Defendant’s arguments otherwise, a fact‐finder could certainly
determine that Plaintiff subjectively believed the Board was discriminating against her
because she was female. She plainly wrote in her e‐mail: “I would like to be on record
stating that I was offended by Bill Minick’s remarks concerning my salary and my
responsibilities. . . [,] and this seems like sexual discrimination.”109 Thus, the real issue is
whether her subjective belief is objectively reasonable.
After reading the facts in the light most favorable to Plaintiff, the Court finds a
reasonable jury could determine Plaintiff’s belief was objectively reasonable. Plaintiff
was the first female acting agency manager in Webster County in at least 15 years.
Board member Minick’s comments occurred at her first Board meeting as acting
manager. Plaintiff had been employed by Defendant and working with the Board for
almost 15 years and had never witnessed any Board member question her male
predecessors about their salaries or ask them to supplement the support staff’s salary.
E‐mail from Sandra Hubbard to Gerald Smith dated Sept. 18, 2008, Pl. Depo., Ex. 13 [Doc. 18‐10]
(emphasis added).
109
26
Defendant argues Plaintiff could not objectively believe she was being
discriminated against because she knew the Board was not her employer and therefore
had no control over her salary. Again, the Court disagrees. Plaintiff is not required to
prove her employer engaged in actual sex discrimination. Plaintiff must prove that she
reasonably believed she was opposing unlawful sex discrimination for which her
employer unlawfully terminated her. Thus, the fact she knew the Board was not her
employer does not nullify her claim. Indeed, the evidence is sufficient for a fact‐finder
to determine that Plaintiff’s belief that the Board had authority over her employment
was reasonable. The Board voted and approved Plaintiff as the acting agency manager.
Plaintiff’s supervisors met with select Board members three times to discuss Plaintiff’s
employment. Defendant’s business model is premised on its agents working closely
with county farm bureau boards to solicit and maintain its policy‐holders. Here, one of
Plaintiff’s duties of employment was to maintain a positive relationship with the Board
and report to the Board. From this evidence a reasonable jury could find Plaintiff’s
belief reasonable. Thus, genuine issues of material fact exist as to whether Plaintiff
engaged in statutorily protected conduct by opposing unlawful sex discrimination by
the Board.
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b. Causal Connection
Because Defendant does not dispute Plaintiff was subjected to an adverse
employment action (her termination), Plaintiff must next establish a causal connection
between her complaint of sex discrimination and her termination. Plaintiff’s burden is a
light one: “To meet the causal link requirement, the plaintiff ‘merely has to prove that
the protected activity and the negative employment action are not completely
unrelated.’”110 A sufficient causal relationship may be inferred if an adverse action is
taken in close temporal proximity to the time “the decision‐maker became aware of the
protected activity.”111 The required temporal proximity is not a clearly‐bounded
concept, but it likely requires that the adverse employment action take place less than
three months after the adverse actor’s discovery of the protected activity. 112
This Court cannot find as a matter of law that Plaintiff’s termination and her
complaints of sex discrimination are “not completely unrelated.”113 Plaintiff first
complained of sex discrimination in her e‐mail to Board member Smith on September
18, 2008; she was terminated less than three months later on December 4, 2008. Indeed,
Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir. 1997) (quoting E.E.O.C. v. Reichhold Chems., Inc., 988 F.2d
1564, 1571‐72 (11th Cir. 1993)).
111 Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).
112 See Higdon v. Jackson, 393 F.3d 1211, 1220‐21 (11th Cir. 2004) (noting that a one‐month gap would
suggest a causal relationship, but refusing to recognize a three‐month proximity between the protected
activity and the adverse employment action as sufficient proof of causation).
113 Farley, 197 F.3d at 1337.
110
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Defendant terminated Plaintiff less than two months after she first directly reported her
concerns about discrimination from the Board to her supervisor on October 15, 2008.
Moreover, the evidence shows that after Plaintiff sent the e‐mail, Board president Smith
– to whom Plaintiff first complained of sex discrimination – and Board member Minick
– who made the alleged discriminatory comments – began having meetings with
Plaintiff’s direct supervisor; after three of these meetings, Plaintiff was terminated.
From these facts, a reasonable jury could determine a causal connection exists between
Plaintiff’s termination and her complaints of sex discrimination.
2. Pretext
Having found genuine issues of material fact with respect to Plaintiff’s prima
facie case of retaliation for opposing sex discrimination, the Court must next determine
whether Defendant’s stated legitimate, non‐retaliatory reason for termination is merely
pretext for retaliation. Defendant’s stated reason for terminating Plaintiff – her failure to
apologize to the Stapletons for her unprofessional conduct – is one “that might motivate
a reasonable employer,”114 and thus, Defendant has satisfied its “exceedingly light”
burden of producing a legitimate, non‐retaliatory reason for termination. 115
Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc).
See Vessels v. Atlanta Ind. School Syst., 408 F.3d 763, 769‐770 (11th Cir. 2005) (employer’s burden is
exceedingly light and is satisfied as long as the employer articulates a clear and reasonable non‐
discriminatory basis for its actions).
114
115
29
Because Defendant has met its burden, Plaintiff must present sufficient evidence
to create a genuine issue of material fact that Defendant’s proffered legitimate reason
for termination are merely pretext for race discrimination. To establish pretext, Plaintiff
“must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or
contradictions in the employer’s proffered reasons for its action that a reasonable fact‐
finder could find them unworthy of credence.”116
The Court finds genuine issues of material fact exist as to whether Defendant’s
non‐retaliatory reason for Plaintiff’s termination is “unworthy of credence.” The close
temporal proximity between Plaintiff’s complaints of alleged sex discrimination and her
termination – less than three months after she e‐mailed Board president Smith and less
than two months after she reported her concerns of sex discrimination directly to her
supervisor – evidences pretext.117 More importantly, however, the evidence shows that
Plaintiff’s failure to apologize may not be the real reason she was terminated. A
reasonable juror could find that Defendant had already punished Plaintiff for the exact
behavior Defendant states she was later terminated for. On October 29, 2008, Plaintiff
signed a warning that specifically stated: “Please be aware that any future displays of
unprofessional conduct on your part may jeopardize your position with the Farm
116
117
McCann, 526 F.3d at 1375.
Hurlbert v. St. Mary’s Health Care System, 439 F.3d 1286, 1298 (11th Cir. 2006).
30
Bureau Companies.”118 There is no evidence that she exhibited any “future displays of
unprofessional conduct”; indeed, it appears she performed her regular duties with no
complaints. However, her supervisor continued to meet with a select number of Board
members, including Board member Minick and Board president Smith, to discuss
Plaintiff. Moreover, although her supervisor had encouraged Plaintiff to apologize to
the Stapletons, he did not condition her employment on an apology until the day she
was terminated on December 4, 2008, over a month and a half after Plaintiff had signed
the warning. Thus, a reasonable jury could find Defendant’s proffered reason for
Plaintiff’s termination unworthy of credence and therefore is pretext for unlawful
retaliation due to Plaintiff’s report of sex discrimination by the Board.
B. Opposition to Sexual Harassment
1. Prima Facie Case
a. Statutorily Protected Activity
Plaintiff also contends she engaged in protected activity when she reported
Stapleton’s sexually offensive behavior to her direct supervisor on November 12, 2008.
As stated earlier, in order to show that she engaged in statutorily protected conduct,
Warning memorandum signed by Sandra Hubbard and Mark Herndon, Pl. Depo., Ex. 14 [Doc. 18‐10]
(emphasis added).
118
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Plaintiff does not have to prove that Stapleton actually harassed her.119 Rather, she must
show that she reasonably held a good faith belief that the harassment occurred.120 “The
objective reasonableness of an employee’s belief that her employer has engaged in an
unlawful employment practice must be measured against existing substantive law.”121
To establish a sexual harassment claim under Title VII, an employee must show, among
other things, that the harassment was sufficiently severe or pervasive to alter the terms
and conditions of employment and create a discriminatorily abusive working
environment.122
Viewing the evidence in the light most favorable to Plaintiff, and drawing all
inferences in Plaintiff’s favor, a reasonable jury could determine that Plaintiff held a
good faith belief Stapleton was sexually harassing her and that such belief was
objectively reasonable. Stapleton clearly propositioned Plaintiff to re‐kindle a sexual
relationship, grabbed her breast and put his hand on her buttocks. The fact these acts
occurred in 2004, more than five years before she reported them, does not render her
belief unreasonable as a matter of law. Viewing the evidence in the light most favorable
to Plaintiff, Stapleton continuously made inappropriate sexual overtures to Plaintiff up
Tipton, 872 F.2d at 1494.
Id.
121 Clover, 176 F.3d at 1351.
119
120
122
Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999) (en banc).
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until the events in 2008 that led to her termination. Although Plaintiff was no longer
the agent on his personal accounts, Stapleton would call and specifically ask for her; he
regularly came by the office to “chat”; he called Plaintiff’s cell phone every day for a
period of time; and he made sexually inappropriate comments about her breasts and
how low her shirt was. Importantly, Stapleton was an influential policy‐holder, holding
multiple large policies with Defendant, and Plaintiff was the agent on his accounts.
Moreover, Plaintiff’s employment was based on maintaining a positive relationship
with the policy‐holders. Based on this evidence, a reasonable jury could find Plaintiff
had a reasonable, good faith belief that she was subjected to sexual harassment.
The Court is mindful that in establishing her prima facie case of retaliation,
Plaintiff is not required to establish the harassment actually occurred; only that the
conduct was sufficient, for purposes of rebutting summary judgment, to establish she
reasonably believed it was happening. 123 Statutorily protected expression under Title
VII includes internal complaints to superiors concerning conduct that could reasonably
be viewed as sexually offensive.124 Viewing the facts in the light most favorable to
Plaintiff, the Court cannot find, as a matter of law, that Stapleton’s conduct could not be
See Mulkey v. Bd. of Com’rs of Gordon Cnty., 488 F. App’x. 384, 390 (11th Cir. 2012).
124 See, e.g., Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001) (“Statutorily protected
expression includes internal complaints of sexual harassment to superiors.”).
123
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reasonably viewed as sexually offensive. Thus, triable issues of fact exist as to whether
Plaintiff engaged in statutorily protected activity.
b. Causal Connection
The fact that Plaintiff was terminated less than one month after making the
sexual harassment complaint is enough to meet the causation element of her prima facie
case. “To meet the causal link requirement, the plaintiff ‘merely has to prove that the
protected activity and the negative employment action are not completely
unrelated.’”125 A sufficient causal relationship may be inferred if an adverse action is
taken in close temporal proximity to the time “the decision‐maker became aware of the
protected activity.”126 Plaintiff reported Stapleton’s sexually offensive conduct to her
direct supervisor on November 12, 2008. Less than one month later, on December 4,
2008, she was terminated. Thus, from temporal proximity alone, a causal connection
exists between Plaintiff’s report of the alleged unlawful conduct and her termination.
2. Pretext
Genuine issues of material fact also exist as to whether Defendant’s non‐
retaliatory reason for Plaintiff’s termination – her failure to apologize to the Stapletons –
is merely pretext for unlawful retaliation of her report of Stapleton’s sexually offensive
125
126
Holifield, 115 F.3d at 1566 (quoting Reichhold Chems., 988 F.2d at 1571‐72).
Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).
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conduct. As discussed in the previous section on pretext, the temporal proximity of
Plaintiff’s termination and her report of Stapleton’s alleged unlawful conduct – less
than one month – is even stronger evidence of pretext here. In addition, although
Plaintiff’s supervisor stated that Defendant would initiate an investigation of the
alleged harassment, no such investigation ever took place. Moreover, as stated in the
previous section, a reasonable jury could determine Defendant’s stated reason for
termination is unworthy of credence. Viewing the evidence in Plaintiff’s favor,
Defendant punished her for unprofessional conduct toward the Stapletons on October
29, 2008; she did not exhibit any future unprofessional conduct; she reported Stapleton’s
sexual harassment; yet, less than one month later Defendant terminated her for the
unprofessional conduct she had been punished for a month and half earlier. These facts,
together with the additional reasons set forth in the previous section, create genuine
issues of material fact as to whether Defendant’s non‐retaliatory reason for Plaintiff’s
termination is merely pretext for retaliation based on Plaintiff’s report of sexual
harassment.
CONCLUSION
Based on the foregoing, Defendant’s Motion for Summary Judgment [Doc. 18] is
hereby DENIED.
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SO ORDERED, this 29th day of March, 2013.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
SSH/lmh
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