SCOTT v. MACON BIBB COUNTY GEORGIA
Filing
97
ORDER GRANTING 67 Motion for Summary Judgment; DENYING 73 Motion to Defer Consideration of Defendants' 67 Motion for Summary Judgment; DENYING as moot 86 Motion to Strike. Ordered by CHIEF DISTRICT JUDGE MARC T TREADWELL on 3/26/2024. (kat)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TERESA J. SCOTT,
Plaintiff,
v.
MACON-BIBB COUNTY, GA, et al.,
Defendants.
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CIVIL ACTION NO. 5:21-cv-239 (MTT)
ORDER
Defendants Macon-Bibb County, Georgia, Andrea Crutchfield, and Jody Claborn
move for summary judgment on plaintiff Teresa Scott’s claims under Title VII of the Civil
Rights Act of 1964, 42 U.S.C. § 1981, and 42 U.S.C. § 1983. Doc. 67. In response,
Scott moves to defer consideration of the defendants’ motion to allow additional time to
conduct discovery. Doc. 73. For the reasons that follow, Scott’s motion to defer (Doc.
73) is DENIED and the defendants’ motion for summary judgment (Doc. 67) is
GRANTED.
I. BACKGROUND 1
Scott, a black female, is employed by the Macon-Bibb County Board of Tax
Assessors’ Office (“TAO”) as an Appraiser II in the Personal Property Division. See
Docs. 45 ¶ 10; 67-3 at 14:13-15. Scott’s allegations of discrimination center around the
Unless otherwise stated, these facts are undisputed and are viewed in the light most favorable to the
party opposing summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
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defendants’ failure to reclassify her to the Appraiser III position in the Personal Property
Division.
A. Reclassification Process 2
To qualify for reclassification to the Appraiser III position in the Personal Property
Division, the TAO’s policies and procedures manual states an individual:
Must have the ability to make accurate appraisals of all types of personal
property within his/her jurisdiction. Must be able to supervise and direct
the activities of subordinate personnel effectively. The Appraiser Ill must:
• Be 21 years of age or older; hold a high school diploma or its
equivalent;
• Have a minimum of four (4) years appraisal experience;
• Have the ability to apply correctly the three (3) approaches to value
in appraising properties within his/her jurisdiction;
• Have the ability to organize and direct the activities of subordinate
personnel;
• Have the ability to perform all phases of mass appraisal and
revaluation work within his/her jurisdiction, including the ability to
develop pricing and valuation schedules for personal property;
• Successfully have completed the State Appraiser Ill exam.
• Successfully have completed these appraisal courses offered by
the Georgia Department of Revenue: Course I or Course IA,
Course Ill, and two (2) of the following courses: Course II, Course
IV (A/B), and Course V.
Doc. 67-3 at 463-64. The TOA sets the standards for reclassification in Macon-Bibb
County, while the Georgia Department of Revenue is responsible for administering the
appraiser examination. See Docs. 67-3 at 460; 67-4 at 279; 67-7 ¶ 14; 67-8 ¶ 14. The
Georgia Department of Revenue provides that “a passing grade of 70 or better” is
considered “successful completion” of the Appraiser III examination. Docs. 67-2 ¶ 24;
67-4 at 283; 76-1 ¶ 24. However, to be eligible for the next level of examinations, the
2 The TAO’s policies and procedures use the term “promotion,” while the parties use the term
“reclassification” to refer to the change from the Appraiser II to Appraiser III position. Compare Doc. 67-3
at 460 with Doc. 67-1 at 1.
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Georgia Department of Revenue requires a score of at least 80 on the prior
examination. Doc. 67-4 at 317-18. For example, to sit for the Appraiser IV examination,
the individual must have scored at least 80 on the Appraiser III examination. Id. For
that reason, the TAO sets “a higher bar” and requires a score of at least 80 for
reclassification to the Appraiser I, II, and III positions. Docs. 67-1 at 4-5; 67-4 at 283;
67-7 ¶ 5; 67-8 ¶ 6; 83 at 3 n.7.
Furthermore, the TAO’s policies and procedures manual provides that while
“[p]osition vacancies do not have to exist,” reclassification to the next appraiser level is
“not automatic, and … must be accompanied by a favorable recommendation by the
immediate supervisor and Chief Appraiser.” Doc. 67-3 at 460. Scott testified that
reclassification within a division did not require a formal application and interview
process. Id. at 151:11-15, 155:17-156:2. However, she acknowledges that
reclassification to a different division (i.e., from the Commercial Property Division to the
Personal Property Division) required a formal application and interview process. Id.
B. Scott’s Employment History
Scott began working for the TAO in 1998 as a receptionist. Docs. 67-2 ¶ 1; 67-3
at 18:3-12; 76-1 ¶ 1. In 2000, Scott’s title changed from “receptionist” to “senior data
clerk,” but her job responsibilities remained the same. Docs. 67-2 ¶ 36; 76-1 ¶ 36. In
2008, Scott entered the appraiser track. Docs. 67-2 ¶ 8; 67-3 at 70:14-18, 71:7-10,
78:7-8; 76-1 ¶ 8. Specifically, Scott applied and interviewed for the position of
Appraiser Trainee in the Commercial Property Division. Docs. 67-2 ¶ 8; 76-1 ¶ 8. On
August 15, 2008, Andrea Crutchfield, then Deputy Chief Appraiser, Pat Falin, Scott’s
supervisor as a senior data clerk, and Judy Reynolds, the Commercial Property Division
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supervisor, interviewed Scott for the position. Docs. 67-2 ¶ 8; 67-3 at 80:1-8, 85:2086:3, 406-07; 67-2 ¶ 8. On September 9, 2008—less than a month after Scott
interviewed for the position—Crutchfield approved her transfer to the Appraiser Trainee
position. Doc. 67-3 at 408.
On July 1, 2010, Scott took both the Appraiser I and Appraiser II exams, scoring
94 and 90 respectively. Docs. 67-2 ¶ 26; 67-3 at 420-421; 76-1 ¶ 26. Reynolds, Scott’s
supervisor as an Appraiser Trainee, recommended Scott for reclassification to the
Appraiser I position on August 12, 2012. Docs. 67-2 ¶ 9; 67-3 at 92:25-93:3, 590; 76-1
¶ 9. Scott testified that Reynolds did not recommend her for the Appraiser I position
earlier because “there were certain things” Reynolds believed Scott “needed more
experience in before she could make the recommendation.”3 Doc. 67-3 at 127:11-21.
On August 14, 2012—two days after receiving Reynolds’ recommendation—Crutchfield,
now Chief Appraiser, approved Scott’s reclassification to the Appraiser I position in the
Commercial Property Division. Docs. 67-2 ¶ 9; 67-3 at 156:17-19, 591; 76-1 ¶ 9.
On July 14, 2015, Scott applied for an Appraiser II position in the Personal
Property Division. Docs. 67-2 ¶ 10; 67-4 at 31-32; 76-1 ¶ 10. Because Scott had earlier
scored 90 on the Appraiser II exam, Desiree Murray, the Personal Property Division
supervisor, interviewed Scott for the position on July 16, 2015. Docs. 67-2 ¶ 10; 67-3 at
161:13-162:9; 67-4 at 35; 76-1 ¶ 10. On July 30, 2015—less than two weeks after Scott
interviewed for the position—Crutchfield approved Scott’s reclassification to the
Scott testified that she “assum[ed]” Reynolds recommended her for reclassification multiple times before
August 2012 but was “shut down” by Crutchfield. Doc. 67-3 at 153:21-154:16. She stated that Reynolds
would “testify to” this “assumption.” Id. Reynolds never testified to this “assumption.”
3
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Appraiser II position in the Personal Property Division. Docs. 67-2 ¶ 10; 67-4 at 36; 761 ¶ 10.
On February 6, 2018, Scott took the Appraiser III exam and scored 74. Docs.
67-2 ¶ 23; 76-1 ¶ 23. Scott retook the exam on April 12, 2018, and scored 74, and
again on June 26, 2018, and scored 76. Docs. 67-2 ¶ 23; 76-1 ¶ 23. Although Scott
had not scored 80 or above, Murray, nonetheless, recommended that Scott be
reclassified to the Appraiser III position in the Personal Property Division. Docs. 67-2 ¶
21; 76-1 ¶ 21; 76-2 at 1; 76-3 ¶ 29. Claborn denied the request on February 25, 2020.
Doc. 76-2 at 1.
Claborn and Crutchfield both testified by affidavit that Scott was denied
reclassification because she did not score at least 80 on the Appraiser III examination
and she did not have supervisory experience. Docs. 67-7 ¶¶ 5, 14-15; 67-8 ¶¶ 6, 14-15.
As noted, during Claborn’s and Crutchfield’s tenure as Chief Appraiser and Deputy
Chief Appraiser, “and in accordance with the practice of the [TAO],” individuals must
score at least 80 on the Appraiser III examination to qualify for reclassification. Docs.
67-7 ¶ 5; 67-8 ¶ 6. Thus, “no one” in the TAO “has been promoted to an Appraiser III
with a score of less than 80.” Docs. 67-2 ¶ 25; 76-1 ¶ 25. Furthermore, the Appraiser
III position requires that individuals “[m]ust be able to supervise and direct the activities
of subordinate personnel effectively.” Doc. 67-3 at 463-64. Crutchfield and Claborn
both testified that Scott “has not had a supervisory position” with the TAO, “nor has she
been assessed as being capable of effectively supervising subordinate personnel.”
Docs. 67-7 ¶ 15; 67-8 ¶ 15; see also Doc. 67-3 at 241:9-11 (Q: “And you’ve never been
a supervisor. Is that accurate?” A: “That is correct.”).
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C. Procedural History
Following the reclassification denial, Scott filed a charge of racial discrimination
with the Equal Employment Opportunity Commission (“EEOC”) on August 19, 2020.
Doc. 1-2. The charge of discrimination alleged the following:
On or about February 20, 2020, my Supervisor recommended me for
reclassification as an Appraisal [sic] III. On February 25, 2020, the
reclassification was denied. As of today, no reason was given for the
denial. I believe that I have been discriminated against because of my
race (African American), in violation of Title VII of the Civil Rights Act of
1964, as amended.
Id. On April 15, 2021, the EEOC dismissed Scott’s charge and issued a right-to-sue
letter, giving Scott 90 days to file suit. 4 Doc. 1-3. After receiving the right-to-sue letter,
Scott timely filed a pro se complaint on July 15, 2021. Doc. 1
1. Pleadings
Scott retained counsel in late August 2021. Doc. 4. The train then left the track.
First, Scott’s counsel failed to timely serve the defendants. Doc. 11 at 2-3. On
November 5, 2021, the Court ordered Scott to show cause why the original complaint
should not be dismissed for failure to serve. Doc. 5. Before filing a response to the
show cause order, Scott’s counsel filed, without leave of Court, a first amended
complaint on November 17, 2021. 5 Doc. 6. The first amended complaint added new
defendants and additional claims well beyond the scope of Scott’s EEOC charge.
4
The right-to-sue letter was postmarked April 17, 2021. Doc. 1-4.
Prior to December 1, 2023, Federal Rule of Civil Procedure 15 provided that a party may amend her
pleading once as a matter of course “within … 21 days after serving it.” Fed. R. Civ. P. 15(a)(1)
(emphasis added). Because Scott did not serve her original complaint, the Court concluded that the
window for filing an amended complaint as a matter of course had not yet opened. See Stephens v.
Atlanta Indep. Sch. Sys., 2013 WL 6148099 (N.D. Ga. Nov. 22, 2013); Jamison v. Long, 2021 WL
2936132 (M.D. Ga. June 13, 2021); Susan E. Houser, The 2009 Amendment to Federal Rule 15(a)(1)—A
Study in Ambiguity, 33 N.C. CENT. L. REV. 10 (2011).
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Compare Doc. 1-2 with Doc. 6 ¶¶ 119-22, 149-50, 161. Most notably, the improperly
filed first amended complaint alleged the defendants violated Title VII when they failed
to timely reclassify Scott to the Appraiser I and II positions. Doc. 6 ¶¶ 119-22, 149-50,
161.
The defendants answered the improperly filed first amended complaint and
moved to dismiss Scott’s claims. Docs. 15; 16-1 at 11-15. The defendants argued that
“[a]ny claims based on alleged adverse employment actions that occurred before
[Scott’s] EEOC Charge [were] time-barred” and that the original complaint should be
dismissed for failure to serve. Docs. 16-1 at 14; 19 at 3-5. The Court convened a
hearing on August 8, 2022, to clarify the case’s procedural posture and the scope of
Scott’s Title VII claims. Doc. 33. At the hearing, Scott confirmed that her Title VII
claims were limited to the defendants’ failure to reclassify her to the Appraiser III
position. Doc. 42 at 13:3-14:7. Thus, Scott’s improperly filed first amended complaint—
which included allegations that the defendants violated Title VII when they failed to
timely reclassify her to the Appraiser I and II positions—exceeded the scope of Scott’s
charge of discrimination and contradicted Scott’s admissions that her claims were
limited to the February 2020 failure to reclassify her to the Appraiser III position.
In an effort to get the case back on track, the Court allowed Scott to amend her
original complaint consistent with her charge of discrimination and counsel’s
admissions. Doc. 34 at 9. In other words, the Court granted Scott leave to amend to
allege fully her claims arising from the February 25, 2020 failure to reclassify.
Additionally, and despite the lack of good cause, the Court gave Scott additional time to
perfect service. Id. at 8.
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Scott filed her amended complaint, denominated as her “First Amended
Complaint,” on August 19, 2022. Doc. 35. Contrary to the Court’s order and counsel’s
admissions, Scott’s first amended complaint once again attempted to assert claims
arising from the defendants’ failure to reclassify her to the Appraiser I and II positions
after she passed the requisite exams in 2010. Id. ¶¶ 123, 138-39.
The Court ordered Scott’s counsel to read the transcript of the August 8, 2022
hearing, and to show cause why Scott should not be sanctioned and the first amended
complaint struck for failure to comply with the Court’s instructions. Doc. 41. Scott
responded to the show cause order with a proposed “Second Amended Complaint” on
October 18, 2022. Doc. 43-1.
The proposed second amended complaint removed problematic paragraphs
identified in the Court’s show cause order but inserted new offending paragraphs that
the Court missed. Id. Specifically, Scott alleged, for the first time, that her pay
discrimination claims based on the defendants’ alleged delay in reclassifying her to the
Appraiser I and II positions were timely under the Lilly Ledbetter Fair Pay Act (“LLFPA”)
of 2009. 6 Id. ¶¶ 141-43. Failing to spot Scott’s counsel’s latest effort to exceed the
scope of the Court’s order granting leave to amend, the Court allowed Scott to file her
proposed second amended complaint. Docs. 44; 45.
The defendants again moved to dismiss. Docs. 38; 46. The defendants argued,
among other things, that Scott improperly “reli[ed] on allegations regarding prior
In any event, the LLFPA did not save Scott’s claims. See Doc. 64 at 9-11. The LLFPA extends the time
in which victims of discrimination can challenge and recover for “discriminatory compensation decisions or
other practices.” Pub. L. No. 111-2, 123 Stat. 5 (2009). “[T]he phrase ‘discrimination in compensation’
means paying different wages or providing different benefits to similarly situated employees, not
promoting one employee but not another.” Schuler v. Pricewaterhouse Coopers, L.L.P., 595 F.3d 370,
374 (D.C. Cir. 2010). Therefore, the LLFPA does not cover Scott’s claims based on the defendants’
alleged failure to promote her to the next appraiser level.
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reclassifications” in her pay discrimination claim, that these allegations had “long
passed the 180-day [exhaustion] requirement,” and that any claim based on these
allegations was “barred.” Doc. 46-1 at 10-11. In response, Scott stated once again that
her claims were limited to the failure to reclassify her to the Appraiser III position. Doc.
51 at 12 (“There is nothing to suggest that the allegations of prior failures to reclassify
form the actual basis of Ms. Scott’s claims.”). Based on that admission, the Court struck
paragraphs 141, 142, and 143 in the second amended complaint because those
paragraphs attempted to assert liability based on the alleged untimely reclassifications
to the Appraiser I and II positions. Doc. 53 at 10. Scott moved for reconsideration of
this portion of the Court’s Order. Doc. 55. The Court denied Scott’s motion for
reconsideration, detailing Scott’s repeated admissions that her claims were limited to
the defendants’ failure to reclassify her to the Appraiser III position. 7 Doc. 64.
2. Discovery, or the lack thereof, and Scott’s motion to defer consideration of the
defendants’ motion for summary judgment
On November 30, 2022, the Court entered a scheduling order setting a May 26,
2023 discovery deadline and a June 26, 2023 dispositive motion deadline. Doc. 50. In
an affidavit supporting Scott’s motion to defer, Scott’s counsel testified that “on or about
March 8, 2023”—seventy-nine days before the May 26 discovery deadline —Scott
As set forth at length in the Court’s prior orders, any claim based on the defendants’ alleged failure to
timely reclassify Scott to the Appraiser I and II positions is time-barred and improper. See Docs. 53; 64.
As it turns out, there was no factual support for Scott’s counsel’s contention that the defendants delayed
Scott’s reclassification to Appraiser I and II. Crutchfield approved Scott’s reclassification to Appraiser I on
August 14, 2012, two days after receiving Scott’s supervisor’s recommendation, and she approved
Scott’s reclassification to Appraiser II on July 30, 2015, two weeks after Scott interviewed for the position.
Docs. 67-2 ¶¶ 9, 10; 67-3 at 156:17-19, 591, 408; 67-4 at 36; 76-1 ¶¶ 9, 10. The only “delay” was caused
by Reynolds, Scott’s supervisor as an Appraiser Trainee and Appraiser I, who—in Scott’s own words—did
not recommend her for reclassification earlier because “there were certain things” Reynolds believed
Scott “needed more experience in before she could make the recommendation.” Doc. 67-3 at 127:11-21.
Scott did not claim Reynolds harbored any discriminatory animus.
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informed him that several of her former coworkers “had been contacted … by someone
acting on behalf of Macon-Bibb County” from “the Noland Law Firm” to investigate
“discrimination in Macon-Bibb County’s workplace.” Doc. 73-1 ¶ 5. The Noland Law
firm does not represent and never has represented the defendants in this action. Then,
on May 8, 2023, Scott “confirmed” that the investigation was about “racial
discrimination, generally, in Macon-Bibb County’s workplace” and shared this
information with her lawyer. Id. ¶ 6. Scott’s counsel spoke with Murray on May 17,
2023, who also “confirmed” that “she sat for an interview with someone from the Noland
[Law] Firm … concerning these topics.” Id. ¶ 7. As a result, Scott’s counsel’s initial
“impression” was that the “focus of the investigation was about allegations of racial
discrimination, generally.” Id. ¶ 10.
On May 26, 2023, the last day of discovery, Scott’s counsel moved for an
extension of the discovery deadline. Doc. 62. The Court granted Scott’s motion and
extended the discovery deadline to July 25, 2023, and the dispositive motion deadline to
August 24, 2023. Doc. 63.
On June 1, 2023, Scott’s counsel spoke with Ophelia Hill, a former employee of
the TAO. Doc. 73-1 ¶ 8. The conversation with Hill led Scott’s counsel “to believe that
the [Noland Law Firm] investigation was part of the defense’s representation in this
litigation.” Id. ¶ 10. Scott’s counsel does not state the specific basis for this “belief.”
Scott’s counsel’s apparent point is that as of June 1, but not earlier, he “believed” for
some unstated reason that the Noland Law Firm investigation was somehow part of the
defendants’ defense and, thus, not discoverable. See id. ¶ 11.
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Discovery closed July 25, 2023. Doc. 63. Scott’s counsel conducted no
discovery generally and no discovery specifically concerning the Noland Law Firm
investigation. Docs. 73 at 11-12 n.6; 75 at 6-7.
On August 24, 2023, the defendants moved for summary judgment. Doc. 67.
Scott’s counsel spoke with Scott about the defendants’ pending motion for summary
judgment on August 30, 2023. Doc. 73-1 ¶ 14. During this conversation, Scott told her
attorney that the “investigation” was “prompted” by a resignation letter Murray sent to
her supervisors in March 2022. Id. According to Scott’s counsel, “[i]t was at this point”
that he “came to believe” the Noland Law Firm investigation “was not for the purposes
of this litigation” but rather “was an internal investigation into allegations made by
employees of Macon-Bibb County of discrimination in [the TAO] generally.” Id. ¶ 16.
On August 30, 2023, Scott’s counsel sent a Georgia Open Records Act (“ORA”)
request to Macon-Bibb County for:
Any and all documents, including the complete investigative file,
concerning any investigation that the County has made into the Macon‐
Bibb Board of Tax Assessors, including its subdivisions, officers, or
employees from January 1, 2022 to the present, including such
investigation for which the County engaged the services of William H.
Noland, Esq. and/or Noland Law Firm, LLC
Docs. 73-1 ¶ 22; 73-8 at 6. The same day, Senior Assistant County Attorney, Michael
McNeill, responded to the request and claimed that “any such investigation files are
generally privileged attorney work product and would be exempt from the ORA.” Doc.
73-8 at 6-8. Scott’s counsel responded to McNeill’s email challenging his assertion that
the documents were privileged and arguing that he was “requesting documents within
the possession of [Macon-Bibb County], and not necessarily those of the Noland Law
Firm.” Id. at 5-6.
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On September 26, 2023, Scott’s counsel moved for an extension of time to
respond to the defendants’ motion for summary judgment. Doc. 71. Scott’s counsel
explained that he needed an extension of time, in part because he was waiting for a
response to his ORA request. Id. ¶ 5. The Court granted Scott’s motion for an
extension and gave Scott until October 27, 2023, to file her response to the motion for
summary judgment. Doc. 72.
On September 29, 2023, McNeill responded to Scott’s counsel’s objections to his
assertion of privilege:
The only thing that I ever received arising out of Noland Law Firm’s
representation is a final report, which provided legal advice on the matters
I referred out. Therefore, where you said below, “we are requesting
documents that are within the possession of MBC, and not necessarily
those of the Noland Law Firm,” then I must say that we have no
responsive documents in county control other than the report that I
referenced, and that report is legally privileged and exempt from
production under the Open Records Act.
Doc. 73-8 at 1. Rather than file a response to the defendants’ motion for summary
judgment, Scott moved to defer consideration of the defendants’ motion under Federal
Rule of Civil Procedure 56(d). Doc. 73. Scott’s motion to defer requests that the Court
defer consideration of the motion for summary judgment because the defendants “are in
exclusive control of highly relevant evidence [i.e., the investigative file] that Scott did not
have a fair opportunity to obtain, and this evidence is essential to establish Scott’s
opposition to the Motion.” Id. at 9. Further, Scott’s counsel requests that the Court
“enter an order allowing for the Court’s in camera inspection of the documents at issue
to determine whether such records should have been produced, or in the alternative, to
permit limited discovery solely on the investigative file.” Id. at 1.
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The Court ordered Scott to respond to the defendants’ motion for summary
judgment by November 7, 2023. Doc. 74. The motion for summary judgment and the
motion to defer consideration of the motion for summary judgment are now ripe for
review.
II. STANDARD
A. Motion to Defer Under Rule 56(d)
Federal Rule of Civil Procedure 56(d) provides that if a party opposing summary
judgment shows “by affidavit or declaration, that for specified reasons, it cannot present
facts essential to justify its opposition, the court may: (1) defer considering the motion or
deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3)
issue any other appropriate order.” Fed. R. Civ. P. 56(d). “Generally summary
judgment is inappropriate when the party opposing the motion has been unable to
obtain responses to his discovery requests.” Snook v. Tr. Co. of Ga. Bank of
Savannah, 859 F.2d 865, 870 (11th Cir. 1988). “Nevertheless, the discovery rules do
not permit the [parties] to go on a fishing expedition.” Porter v. Ray, 461 F.3d 1315,
1324 (11th Cir. 2006). Whether to grant a continuance under Rule 56(d) is left to the
sound discretion of the trial court. See Virgilio v. Ryland Group, Inc., 680 F.3d 1329,
1338-39 (11th Cir. 2012).
“Because the burden on a party resisting summary judgment is not a heavy one,
[the party] must conclusively justify his entitlement to the shelter of [Rule 56(d)] by
presenting specific facts explaining the inability to make a substantive response.”
Virgilio, 680 F.3d at 1338 (quoting Sec. & Exch. Comm'n v. Spence & Green Chem.
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Co., 612 F.2d 896, 901 (5th Cir. 1980)). 8 This requirement is particularly important
where ample time and opportunities for discovery have lapsed. Spence & Green Chem.
Co., 612 F.2d at 901. In other words, “a party will not be entitled to conduct further
discovery under Rule 56(d) where the absence of evidence essential to that party's case
is the result of that party's lack of diligence in pursuing such evidence through permitted
methods of discovery.” Cordero v. Readiness Mgmt. Support, L.C., 2012 WL 3744513,
at *3 (M.D. Fla. Aug. 29, 2012) (citing Barfield v. Brierton, 883 F.2d 923, 932 (11th Cir.
1989)). “Fairness, equity, and whether a party had a reasonable opportunity to discover
information are also considerations in deciding a Rule 56(d) motion.” Franklin v.
Caterpillar Inc., 2015 WL 535655, at *11 (N.D. Ala. Feb. 10, 2015).
B. Motion for Summary Judgment
A court must grant summary judgment “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.” Fed. R. Civ. P. 56(a). A factual dispute is not genuine unless, based on
the evidence presented, “a reasonable jury could return a verdict for the nonmoving
party.” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir.
2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th
Cir. 1991)); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant
may support its assertion that a fact is undisputed by “citing to particular parts of
materials in the record, including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other materials.” Fed. R. Civ. P.
The Eleventh Circuit has adopted as binding precedent the decisions of the former Fifth Circuit rendered
prior to October 1, 1981. Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc).
8
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56(c)(1)(A). “When the nonmoving party has the burden of proof at trial, the moving
party is not required to ‘support its motion with affidavits or other similar material
negating the opponent's claim[]’ in order to discharge this ‘initial responsibility.’” Four
Parcels of Real Prop., 941 F.2d at 1437-38 (quoting Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986)). Rather, “the moving party simply may ‘show[ ]—that is, point[ ] out to
the district court—that there is an absence of evidence to support the nonmoving party’s
case.’” Id. (quoting Celotex, 477 U.S. at 324) (alterations in original). Alternatively, the
movant may provide “affirmative evidence demonstrating that the nonmoving party will
be unable to prove its case at trial.” Id.
The burden then shifts to the non-moving party, who must rebut the movant’s
showing “by producing … relevant and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011)
(citing Celotex, 477 U.S. at 324). The non-moving party does not satisfy its burden “if
the rebuttal evidence ‘is merely colorable or is not significantly probative’ of a disputed
fact.” Id. (quoting Anderson, 477 U.S. at 249-50). Further, where a party fails to
address another party’s assertion of fact as required by Fed. R. Civ. P. 56(c), the Court
may consider the fact undisputed for purposes of the motion. Fed. R. Civ. P. 56(e)(2).
However, “[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge. … The
evidence of the non-movant is to be believed, and all justifiable inferences are to be
drawn in [her] favor.” Anderson, 477 U.S. at 255.
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III. DISCUSSION
A. Motion to Defer
Scott’s counsel requests that the Court defer consideration of the defendants’
motion for summary judgment because the defendants “are in exclusive control of highly
relevant evidence that Scott did not have a fair opportunity to obtain.” Doc. 73 at 9.
Specifically, Scott’s counsel requests documents related to an internal investigation
conducted by the Noland Law Firm into allegations of racial discrimination in the TAO.
Id. at 3-4. Scott’s counsel contends that he diligently pursued this evidence and that the
defendants have “prevented Scott from obtaining the records at issue at her earliest
reasonable opportunity to do so.” Id. at 10. The record conclusively refutes that
contention.
Scott’s counsel testified that he was aware of the Noland Law Firm’s
investigation as early as March 8, 2023—four months before the July 25 discovery
deadline. Doc. 73-1 ¶ 5. Scott’s counsel then waited until after discovery closed on
July 25, 2023, and after the defendants moved for summary judgment on August 24,
2023, to request information about the investigation through an ORA request. Docs. 63;
67; 73-1 ¶ 22. Despite having every opportunity to request the investigative file during
discovery, Scott’s counsel failed to do so.
Scott’s counsel’s excuse for doing nothing—he assumed the investigation was
the work product of defense counsel—is patently false in part and almost certainly false
in whole. First, when he first learned of the investigation, and for weeks thereafter, he
did not believe the investigation was work product. Doc. 73-1 ¶ 10. Second, it strains
credulity to think that he could conclude from a report of a different law firm investigating
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“discrimination … in Macon-Bibb County’s workplace” that the investigation was
defense counsel’s work product. Id. ¶ 6. In any event, even if he drew that conclusion,
the only reasonable response was to inquire, i.e., serve discovery, or even better, pick
up the phone and call defense counsel, to confirm that suspect conclusion. Instead,
counsel did nothing.
In fact, Scott’s counsel failed to conduct any discovery. Unfortunately, that is not
unusual for Scott’s counsel. 9 But it is unusual for an attorney to do no discovery and
then, after discovery has closed, represent to the Court that he has been diligent and
seek relief to remedy his failures. While “summary judgment is inappropriate when the
party opposing the motion has been unable to obtain responses to his discovery
requests,” there have been no “inadequate” discovery responses because Scott’s
counsel did no discovery. 10 Snook, 859 F.2d at 870. In short, Scott’s counsel was not
“prevented” from obtaining the investigative file; rather, he failed to engage in discovery.
Doc. 73 at 10.
In sum, contrary to Scott’s counsel’s representations, the “record indicate[s] that
[he] had ample time and opportunity for discovery, yet failed to diligently pursue his
options.” Barfield, 883 F.2d at 932; see also Cnh Indus. Cap. Am., LLC v. Coley, 2019
9 See, e.g., Loyd v. Twin Cedars Youth and Family Serv., Inc., No. 5:22-cv-195-MTT (M.D. Ga. May 26,
2022); Gordon v. Bibb Cnty. Sch. Dist., No. 5:21-cv-143-TES (M.D. Ga. Apr. 23, 2021); Assad v. Air
Logistics and Eng’g Sols., LLC, No. 5:20-cv-135-TES (M.D. Ga. Apr. 8, 2020); Johnson v. Cirrus Educ.
Grp., Inc., No. 5:20-cv-256-MTT (M.D. Ga. July 1, 2020); Washington v. Gov’t Emps. Ins. Co., No. 5:22cv-457-MTT (M.D. Ga. Dec. 27, 2022).
Scott’s counsel contends that the defendants had an affirmative obligation to turn over the investigative
file as a part of its initial required disclosures under Federal Rule of Civil Procedure 26. Doc. 73 at 10-11.
Rule 26 provides that a party must disclose documents “in its possession” that it “may use to support its
claims or defenses.” Fed. R. Civ. P. 26(a)(1)(A)(ii). The investigative file is not in the defendants’
possession, as McNeill advised Scott’s counsel, and the defendants are not using it to support their
claims or defenses.
10
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WL 13170153, at *2 (M.D. Ala. Mar. 25, 2019) (holding that the defendant’s failure to
conduct discovery was a sufficient basis for denying the defendant’s Rule 56(d) motion);
Franklin, 2015 WL 535655, at *11 (holding that the plaintiff’s “fail[ure] to diligently
pursue discovery” and her “delayed … complaint[s] about” the defendant’s discovery
responses were “sufficient grounds to deny the [p]laintiff’s Rule 56(d) motion”).
Accordingly, the motion (Doc. 73) is DENIED.
B. Motion for Summary Judgment
Scott brings race-based discrimination claims under Title VII, § 1981, and the
Fourteenth Amendment pursuant to § 1983 based on the defendants’ failure to
reclassify her to the Appraiser III position. Doc. 45 ¶¶ 119-132, 147-155. Employment
discrimination claims under Title VII, § 1981, and § 1983 “are subject to the same
standards of proof and use the same analytical framework.” 11 Hornsby-Culpepper v.
Ware, 906 F.3d 1302, 1312 n.6 (11th Cir. 2018); see also Johnson v. Miami-Dade
Cnty., 948 F.3d 1318, 1325 (11th Cir. 2020); Phillips v. Legacy Cabinets, 87 F.4th 1313,
1321 n.5 (11th Cir. 2023).
To succeed in a discrimination claim, an employee must present either direct or
circumstantial evidence of discriminatory intent. “Direct evidence is ‘evidence, which if
believed, proves existence of a fact in issue without inference or presumption.’” Burrell
v. Bd. of Trustees of Ga. Mil. Coll., 125 F.3d 1390, 1393 (11th Cir. 1997) (quoting
Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n.6 (11th Cir. 1987)); Jones v. Gulf
Coast Health Care of Del., LLC, 854 F.3d 1261, 1270 (11th Cir. 2017). In the absence
However, the causation standards may differ. Comcast Corp. v. Nat'l Ass'n of Afr. Am.-Owned Media,
140 S. Ct. 1009, 1014 (2020); Bostock v. Clayton Cnty., Ga., 590 U.S. 644, 657 (2020); HornsbyCulpepper, 906 F.3d at 1312 n.6; Phillips, 87 F.4th at 1321 n.5.
11
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of direct evidence, a plaintiff can rely on either the McDonnell Douglas burden-shifting
framework or present a convincing mosaic of circumstantial evidence sufficient to create
a triable issue of fact as to whether the defendant acted with discriminatory intent.
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Berry v. Crestwood
Healthcare LP, 84 F.4th 1300, 1310-11 (11th Cir. 2023). Regardless of the specific
framework, the question ultimately is “whether the evidence permits a reasonable
factfinder to find that the employer [discriminated] against the employee.” Berry, 84
F.4th at 1311. Scott relies on circumstantial evidence to demonstrate discriminatory
intent. Doc. 76.
1. McDonnell Douglas framework
Pursuant to McDonnell Douglas, a plaintiff must first establish a prima facie case
of discrimination. 411 U.S. at 802. If a plaintiff establishes a prima facie case of
discrimination, the burden of production, but not the burden of persuasion, shifts to the
employer to articulate a legitimate, nonretaliatory reason for the employment action.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-56 (1981). This burden of
production means the employer “need not persuade the court that it was actually
motivated by the proffered reasons,” but must produce evidence sufficient to “raise[] a
genuine issue of fact as to whether it discriminated against the plaintiff.” Kragor v.
Takeda Pharms. Am., Inc., 702 F.3d 1304, 1308 (11th Cir. 2012) (quoting Combs v.
Plantation Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997)).
A plaintiff must then show that the employer’s stated reason is in fact pretext for
discrimination. Kragor, 702 F.3d at 1308. This may be done “either directly by
persuading the court that a discriminatory reason more likely motivated the employer or
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indirectly by showing that the employer’s proffered explanation is unworthy of
credence.” Id. at 1308-09 (emphasis added) (quoting Burdine, 450 U.S. at 256).
Ultimately, the burden of persuasion rests with the plaintiff who must show that the
proffered reasons for the employment action were pretextual— thereby permitting, but
not compelling, the trier of fact to conclude that the employment action at issue was the
product of impermissible discrimination.
To establish a prima facie case of discrimination, a plaintiff must show “(1) that
she belongs to a protected class, (2) that she was subjected to an adverse employment
action, (3) that she was qualified to perform the job in question, and (4) that her
employer treated ‘similarly situated’ employees outside her class more favorably.”
Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220-21 (11th Cir. 2019). It is
undisputed that Scott is a member of a protected class. Doc. 67-1 at 16. However, the
defendants argue that Scott has not suffered an adverse employment action, she was
not qualified to be an Appraiser III, and she was not treated less favorably than any
similarly situated employee outside of her protected class. Id.
First, the Court cannot, as the defendants urge, conclude as a matter of law that
the failure to reclassify Scott to the Appraiser III position is not an adverse employment
action. An adverse employment action is “a tangible employment action [which]
constitutes a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision causing
a significant change in benefits.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761
(1998) (emphasis added). A plaintiff “must show a serious and material change in the
terms, conditions, or privileges of employment” to establish an adverse employment
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action. Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1239 (11th Cir. 2001),
abrogated on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53
(2006).
The defendants argue that because Scott was not automatically entitled to
reclassification, the failure to reclassify her to the Appraiser III position is not an adverse
employment action. Docs. 67-1 at 16-18; 78 at 3-4. That argument obviously conflates
eligibility for reclassification with whether reclassification is a material change in the
terms, conditions, or privileges of employment. Reclassification is accompanied by
increased job responsibilities and increased pay and the TAO’s policies and procedures
characterize reclassification as a “promotion.” See Docs. 67-3 at 460-66; 67-5 at 14-15.
Thus, a jury could conclude that because reclassification involves a material change in
the terms, conditions, or privileges of employment, a reclassification denial is an
adverse employment action. 12
However, Scott cannot establish that she was qualified for reclassification to the
Appraiser III position. The defendants contend that Scott was not qualified because she
had not scored at least 80 on the Appraiser III exam and she did not have supervisory
experience. Docs. 67-1 at 2-6; 78 at 4-6. The TAO’s policies and procedures provide
that to be eligible for reclassification to the Appraiser III position, an individual must
“[s]uccessfully have completed the State Appraiser Ill exam.” Doc. 67-3 at 464. While
the Georgia Department of Revenue only requires a “grade of 70 or better,” the TAO,
12 The defendants cite Hawkins v. BBVA Compass Bancshares, Inc. in support of their contention that
Scott has not experienced a “serious and material change” in her employment. Doc. 78 at 4 (citing 613 F.
App'x 831 (11th Cir. 2015)). However, the Eleventh Circuit specifically noted that the plaintiff in Hawkins
did “not claim that Defendant failed to promote her.” 613 F. App'x at 837. Rather, the plaintiff in Hawkins
was only asserting a failure to transfer claim. Id. at 836-37. By contrast, Scott asserts that the
defendants’ failure to reclassify her is equivalent to the failure to promote her. Doc. 76 at 10.
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which sets the standards for reclassification in Macon-Bibb County, requires a score of
at least 80 for reclassification to the Appraiser III position. Docs. 67-4 at 283; 67-7 ¶¶ 5,
14; 67-8 ¶¶ 6, 14. The TAO sets “a higher bar” because a score of at least 80 is
required to sit for the Appraiser IV examination. Docs. 67-1 at 4-5; 83 at 3 n.7. It is
undisputed that Scott has not scored at least 80 on the Appraiser III examination and,
for that reason, Crutchfield and Claborn did not approve her reclassification. Docs. 67-2
¶ 22; 67-7 ¶ 14; 67-8 ¶ 14; 76-1 ¶ 22.
Scott, citing Murray’s declaration, argues that “generally, a score of 70 is required
in order to obtain reclassification to the next level of appraiser.” Docs. 76-1 ¶ 25.
Specifically, Murray states that she “first passed the Appraiser II exam with a 73 on [her]
fourth attempt in 1997 and was reclassified in 1998 or 1999.” Doc. 76-3 ¶ 7. Murray’s
reclassification in the late 1990s to the Appraiser II position does not refute
Crutchfield’s or Claborn’s testimony that during their tenure as Chief Appraiser and
Deputy Chief Appraiser—years after Murray’s reclassification—that the Appraiser III
position required at least 80 on the Appraiser III examination. See Doc. 67-3 at 31:2432:6; 67-7 ¶¶ 5, 14; 67-8 ¶¶ 6, 14. In fact, Scott’s testimony confirms that a score of 80
or above on the Appraiser III examination is required for reclassification. When asked if
anyone “has been promoted to an Appraiser III at” the TAO “with a score of less than 80
percent?” Scott answered, “[a]t this time, no one.” Docs. 67-3 at 206:5-8. Similarly,
Murray could not identify anyone employed at the TAO that has been reclassified to the
Appraiser III position with a score below 80. See Doc. 76-3.
Apart from her low score on the Appraiser III exam, Scott did not have the
supervisory experience necessary to qualify for reclassification. Although Scott claims
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she “trained” and gave “directive[s] to subordinates,” she has never held a supervisory
position. Doc. 67-3 at 229:20-22. As a result, Claborn and Crutchfield testified that
Scott did not have the supervisory experience necessary to qualify for reclassification to
the Appraiser III position. Docs. 67-7 ¶ 15; 67-8 ¶ 15.
Finally, even if Scott was qualified for reclassification, she has not identified a
similarly situated comparator outside of her protected class who was treated more
favorably. 13 Notwithstanding her sworn testimony to the contrary, Scott identified in her
response to the defendants’ statement of facts nine employees who “were not black, but
were reclassified much more quickly than Scott and/or before said individuals made an
80 score on their respective exams”: Hollie Wilson, Bo Parrott, Anna Stanfield, Sean
Austin, Lynn Beasley, Lori Buchanan, Katie Kern, and Lynmarie Pye. Doc. 76-1 ¶ 30.
That is not true—none of the alleged comparators were reclassified to the Appraiser III
position with a score lower than 80 on the Appraiser III examination. Docs. 83; 85; 88.
The Court will address each “comparator.”
Although Scott’s response to the defendants’ motion for summary judgment named multiple
“comparators,” Scott’s counsel failed to provide admissible evidence of the comparators’ appraiser
examination scores. See Docs. 76 at 13-14; 76-1 ¶ 30. That is an inevitable consequence of failing to
conduct discovery. Nevertheless, in fairness to Scott, the Court ordered production of the relevant
information. Doc. 80. Scott did not object, which was understandable because if Scott was right the
evidence would support her claim that white employees with scores lower than 80 had been reclassified.
The defendants’ response, however, confirmed that no one, including Scott’s “comparators,” was
promoted to an Appraiser III absent a score of 80 or above. Doc. 83.
13
Although Scott did not object, the Court sua sponte ordered the defendants to submit an affidavit
establishing the technical admissibility of the comparator evidence. Doc. 84. After the defendants
submitted an appropriate affidavit, Scott then objected to the admissibility of the records, citing the best
evidence rule. Doc. 86. The Court noted that “[a]rguably by not initially objecting, Scott waived this
argument.” Doc. 87. Nonetheless, the Court ordered the defendants to supplement the comparator
evidence by attaching the appropriate records and an affidavit attesting to the authenticity and
admissibility of those records. Id. The defendants submitted the appropriate records and affidavit. Doc.
88. Scott’s counsel then withdrew his objection. Doc. 91 at 1. Accordingly, Scott’s motion to strike (Doc.
86) is DENIED as moot.
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Kern, who is Caucasian, is the manager of the Special Projects Division. Doc. 83
at 2. Kern is not an appraiser and, thus, she is not an appropriate comparator. Id.
Similarly, Beasley, who is Caucasian, was the Commercial Supervisor and Assistant
Chief Appraiser of the Commercial Property Division. Id. She was not reclassified
during her employment by Macon-Bibb County and, thus, she is not an appropriate
comparator. Id.
Stanfield, who is Caucasian, is an Appraiser I in the Personal Property Division.
Id. at 5. She took the Appraiser II examination on June 24, 2015, and scored 72. Id.
She has not been reclassified to the Appraiser II position, much less to Appraiser III. Id.
Stanfield is not an appropriate comparator. Id.
Buchanan, who is Caucasian, was reclassified to the Appraiser I position in the
Commercial Property Division on November 1, 2012, after scoring 82 on the Appraiser I
examination. Id. at 2. She was reclassified to the Appraiser II position in the
Commercial Property Division on April 27, 2015, after scoring 84 on the Appraiser II
examination. Id. She was reclassified to the Appraiser III position in the Commercial
Property Division on July 12, 2017, after scoring 84 on the Appraiser III examination. Id.
at 2-3. Because Buchanan was reclassified to the Appraiser III position after she
scored at least 80 on the Appraiser III examination—consistent with the TAO’s policy—
she is not an appropriate comparator. 14 Id.
Buchanan was also reclassified to the Appraiser IV position after scoring a 74 on the Appraiser IV
examination. Doc. 83 at 3. This is consistent with the TAO’s policy. Specifically, individuals must score
at least 80 on the Appraiser I, II, and III examinations “so that individual is eligible for the next
examination.” Id. at 3 n.7. But because “there is no level beyond Appraiser IV,” the TAO “does not
require a score of 80 for that designation.” Id. In any event, Scott is challenging the failure to reclassify
her to the Appraiser III position and, thus, the requirements for reclassification to the Appraiser IV position
are irrelevant.
14
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Wilson, who is Caucasian, was reclassified to the Appraiser II position in the
Commercial Property Division on August 15, 2018, after scoring 86 on the Appraiser II
examination. Id. at 3. She was reclassified to the Appraiser III position in the
Commercial Property Division on July 14, 2021, after scoring 90 on the Appraiser III
examination. Id. Thus, Wilson is not an appropriate comparator because she was
reclassified to the Appraiser III position after she scored at least 80 on the Appraiser III
examination. Id.
Pye, who is Caucasian, was reclassified to the Appraiser II position in the
Residential Property Division on December 13, 2013, after scoring 94 on the Appraiser
II examination. Id. at 4. She was reclassified to the Appraiser III position in the
Residential Property Division on June 13, 2017, after scoring 80 on the Appraiser III
examination. Id. Thus, Pye is not an appropriate comparator because she was
reclassified to the Appraiser III position after she scored at least 80 on the Appraiser III
examination. Id.
Parrot, who is Asian, took the Appraiser II examination on August 15, 2018, and
scored 74. Id. She took the Appraiser II examination again on October 17, 2018,
scored 86, and was then reclassified to the Appraiser II position in the Residential
Property Division. Id. She was reclassified to the Appraiser III position in the
Residential Property Division on July 28, 2021, after she scored 80 on the Appraiser III
examination. Id. Thus, Parrot is not an appropriate comparator because she was
reclassified to the Appraiser III position after she scored at least 80 on the Appraiser III
examination. Id.
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Austin, who is Caucasian, was reclassified to the Appraiser II position in the
Residential Property Division on August 31, 2018, after he scored 90 on the Appraiser II
examination. Id. He took the Appraiser III examination on July 21, 2021, and scored
86. Id. He “resigned from his employment” with the TAO on April 24, 2022, and was
“rehired as an Appraiser III in the Residential Property Division on April 17, 2023.” Id. at
4-5. Thus, Austin is not an appropriate comparator because he was hired for the
Appraiser III position after he scored at least 80 on the Appraiser III examination. Id.
In sum, Scott cannot identify anyone at the TAO who was reclassified to the
Appraiser III examination with a score below 80 on the Appraiser III examination. Scott
has failed to adduce admissible evidence supporting a prima facie case of
discrimination and summary judgment for the defendants on Scott’s Title VII, § 1981,
and § 1983 claims is appropriate. 15
2. Scott’s catchall arguments
In the last section of her brief, Scott raises a variety of points which are difficult to
categorize. Doc. 76 at 13-17. She doesn’t call it a convincing mosaic argument or a
direct evidence argument. She just recites a gaggle of purported facts. The Court
addresses these “facts.” 16
15 The defendants do not expressly argue that they had a legitimate nondiscriminatory reason for denying
Scott’s reclassification. See Doc. 67-1. That, no doubt, is because their reason is that Scott was not
qualified—she did not score at least 80 on the Appraiser III examination and she did not have supervisory
experience. Docs. 67-7 ¶¶ 5, 15; 67-8 ¶¶ 6, 15. As for pretext, Scott merely contends that the
defendants “have failed to produce any evidence … that Scott is not qualified for reclassification.” Doc.
76 at 12-14. As outlined at length above, it is Scott who has no admissible evidence that she was
qualified for reclassification.
16 Scott also provides additional “facts” in her reply brief on the motion to strike. Doc. 91. Specifically,
Scott claims that she was recently provided a job description for the Appraiser II position that states an
Appraiser II must have “received a score of 70 or better on the Appraiser II exam.” Doc. 91-1 at 7. Thus,
Scott argues, this “suggest[s] that a score of 80” is not required for reclassification. Doc. 91 at 3. The
defendants dispute the correctness and accuracy of the job description. Doc. 94 at 4 n.2. None of that
matters. A job description for an Appraiser II position is irrelevant because Scott is seeking
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First, Scott contends that her claims of discrimination are “bolstered” by the fact
that “several black employees” in the TAO were also discriminated against. Id. at 1314. In her response to the defendants’ statement of facts, Scott claims Martia Thomas,
Rodney Coachman, Vaness Phillips, Lakendra Thomas, and Ophelia Hill are “black
employees who … were passed over for promotions that went to less qualified
candidates or whose reclassifications were otherwise delayed.” Doc. 76-1 ¶ 30.
With regard to the allegations of discrimination against Martia Thomas, Lakendra
Thomas, and Phillips, Scott has no admissible evidence supporting her argument.
Specifically, she cites her interrogatory responses to support her allegation that the TAO
discriminated against these individuals. Docs. 67-4 at 6-13; 76-1 ¶ 30. But her
interrogatory responses merely state that these individuals “will,” “may,” or “are
expected to” testify that they were subjected to racial discrimination. Doc. 67-4 at 6, 1213. Scott never obtained this testimony.
Nor does Scott have admissible evidence that Coachman was discriminated
against. Scott cites to her deposition testimony where she claims that Sean Austin, “a
white male,” “did not have the qualifications that Rodney Coachman had and applied for
[the] same job and was promoted over Rodney.” Docs. 67-3 at 298:7-10; 76-1 ¶ 30.
But Scott later testified that she did not know any of her coworkers’ appraiser
examination scores, educational backgrounds, work experience, or objective
qualifications. Doc. 67-3 at 159:13-14, 298:21-299:11. Scott also cites to her
interrogatory responses, which state in a conclusory manner that Coachman was
reclassification to the Appraiser III position. Furthermore, it remains undisputed that no one, including
Scott’s alleged comparators, at the TAO has been reclassified to the Appraiser III position with a score
lower than 80.
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“overlooked for promotions into a supervisory position … despite being more qualified
than the white employees who received those promotions.” Docs. 67-4 at 7; 76-1 ¶ 30.
Like her other interrogatory responses, Scott never obtained Coachman’s testimony or
other admissible evidence suggesting that Coachman was more qualified than these
other applicants. Thus, her claims of “discrimination” against Coachman are conclusory
and not based on personal knowledge. The defendants, on the other hand, provide
evidence of Coachman’s various reclassifications while employed at the TAO, which
illustrates that he was promptly reclassified to the next appraiser level after passing
each applicable appraiser examination. Docs. 83 at 5; 85; 88.
Scott also points to the declarations of Ophelia Hill, a former black coworker, and
Murray, her former white supervisor, in support of her claims of racial discrimination.
Docs. 76 at 14; 76-3; 76-4. As the defendants note, Hill’s and Murray’s declarations are
“riddled with hearsay” and conclusory assertions of discrimination. Doc. 78 at 9. The
Court will briefly address a few of the most egregious examples.
First, Hill testifies that her “supervisors” told her that Crutchfield and Claborn
instructed them to change “rating” scores, including Hill’s. Doc. 76-4 ¶ 15. Scott cites
no basis for the admission of this out of court statement and, in any event, the
statements do not suggest that rating scores were changed based on race. Second,
Hill testifies that a “white female” was promoted to replace Helen Rutledge, one of Hill’s
supervisors, after Hill applied for the position and Human Resources “determine[ed] that
[she] met the qualifications for the position.” Id. ¶ 9. However, Hill does not provide the
name of this “white female,” or the factual basis for her claim that this individual was
less qualified. Id. Moreover, whatever may have happened to Hill is not relevant to
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Scott. Third, Hill testifies that during her “tenure, many black employees ultimately quit
due to unequal treatment” in the TAO but does not provide the names of these
“employees” or specific instances of racial discrimination that she witnessed. Id. ¶ 10.
Murray’s declaration is plagued by the same problems. See, e.g., Doc. 76-3 ¶¶ 20, 31
(testifying that based on conversations she “overheard” many “candidates of color …
were let go within the first six months of their employment because of the favoritism that
they sensed in the office” and that she knew of “three” unnamed employees “who
passed their Appraiser III exams and were reclassified in fewer than 30 days” without
identifying these individuals’ appraiser examination scores).
In short, Hill’s and Murray’s declarations do not provide admissible evidence of
racial discrimination, much less evidence of discrimination against Scott. In the end,
Scott herself cannot unequivocally support her claim that she was a victim of intentional
discrimination. When asked whether she thought the defendants’ alleged mistreatment
was due to her race, Scott replied “to be set aside, treat[ed] differently, whether or not it
was because of the color of my skin or my personality … to me—that’s a form of
discrimination.” Doc. 67-3 at 301:1-8 (emphasis added).
Finally, Scott’s § 1981 claim against Macon-Bibb County also fails because Scott
has not provided evidence of an official custom or policy that gave rise to the alleged
racial discrimination. “The Supreme Court has placed strict limitations on municipal
liability under § [1981].” 17 Grech v. Clayton Cnty., Ga., 335 F.3d 1326, 1329 (11th Cir.
Section 1983 is the conduit through which employees may bring § 1981 claims against state actors.
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 735-36 (1989) (“We hold that the express ‘action at law’
provided by § 1983 for the ‘deprivation of any rights, privileges, or immunities secured by the Constitution
and laws,’ provides the exclusive federal damages remedy for the violation of the rights guaranteed by §
1981 when the claim is pressed against a state actor. Thus, to prevail on his claim for damages against
the school district, petitioner must show that the violation of his ‘right to make contracts’ protected by §
1981 was caused by a custom or policy within the meaning of Monell and subsequent cases.”). As a
17
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2003). “A county’s liability under § [1981] may not be based on the doctrine of
respondeat superior.” Id. Instead, only when the county’s “official policy” causes a
constitutional violation may a county be held responsible. Monell v. Dept. of Soc.
Servs., 436 U.S. 658, 694 (1978). Scott can establish an official policy of Macon-Bibb
County by showing “either (1) an officially promulgated county policy or (2) an unofficial
custom or practice of the county shown through the repeated acts of a final policymaker
for the county.” Grech, 335 F.3d at 1329. “A custom or practice, while not adopted as
an official formal policy, may be so pervasive as to be the functional equivalent of a
formal policy.” Id. at 1330 n.6.
Scott argues that her previously identified “comparators” and the testimony of
Murray and Hill demonstrate “that there is an unofficial custom or practice of racial
discrimination that is so pervasive it is the functional equivalent of a formal policy.” Doc.
76 at 13-15. This argument fails. As discussed above, none of the identified
employees outside of Scott’s protected class are appropriate comparators and Scott
fails to provide admissible evidence that other black employees were subject to racial
discrimination. Thus, summary judgment in favor of Macon-Bibb County on Scott’s §
1981 claim is also appropriate for this reason. 18
In sum, Scott has not adduced admissible evidence supporting her contention
that she was subject to intentional race discrimination. Consequently, summary
result, cases interpreting municipal liability under § 1983 are relevant for determining whether Scott
alleged a § 1981 claim against Macon-Bibb County.
18 To the extent that Scott alleges § 1983 claims against Claborn and Crutchfield in their official capacity,
those claims would essentially be suits against the county and would fail for the reasons outlined above.
Busby v. City of Orlando, 931 F.2d 764, 776 (11th Cir. 1991); Marsh v. Butler Cnty., 268 F.3d 1014, 1027
(11th Cir. 2001).
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judgment is appropriate on Scott’s Title VII claim against Macon-Bibb County; § 1981
claims against Crutchfield, Claborn, and Macon-Bibb County; and § 1983 claims against
Crutchfield and Claborn. 19
IV. CONCLUSION
For the reasons discussed above, Scott’s motion to defer (Doc. 73) and motion to
strike (Doc. 86) are DENIED. And the defendants’ motion for summary judgment (Doc.
67) is GRANTED.
SO ORDERED, this 26th day of March, 2024.
S/ Marc T. Treadwell
MARC T. TREADWELL, CHIEF JUDGE
UNITED STATES DISTRICT COURT
19 Scott does not address her remaining pay discrimination claim in her response to the defendants’
motion for summary judgment. See Doc. 45 ¶¶ 133-146. Thus, she has abandoned this claim. See
United States v. Esformes, 60 F.4th 621, 635 (11th Cir. 2023). In any event, Scott’s pay discrimination
claim fails because she has not provided evidence that she is being paid less than her similarly situated
colleagues outside of her protected class. In fact, the defendants proffered evidence that Scott is paid the
same as a more experienced white male who is also an Appraiser II. Docs. 67-1 at 6; 67-7 ¶ 22.
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