Bass v. ARCHBOLD MEDICAL CENTER
Filing
28
ORDER granting 12 Motion for Summary Judgment. Ordered by US DISTRICT JUDGE HUGH LAWSON on 9/30/2016. (aks)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
DEBBIE BASS,
Plaintiff,
v.
Civil Action No. 7:14-CV-201
ARCHBOLD MEDICAL CENTER
d/b/a BROOKS COUNTY
HOSPITAL,
Defendant.
ORDER
Plaintiff Debbie Bass, an African-American female, brings this action under
Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”),
and under the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“§ 1981”). Plaintiff
asserts that Defendant Archbold Medical Center discriminated against her on the
basis of her race and retaliated against her for reporting allegedly unlawful
employment practices. Now before the Court is Defendant’s Motion for Summary
Judgment (Doc. 12). After reviewing the pleadings, briefs, depositions, and other
evidentiary materials presented, and determining that there is no genuine dispute
of the material facts, the Court finds that Defendant is entitled to judgment as a
matter of law and grants Defendant’s motion.1
1
The complaint presently before the Court is one in a series of meritless and
potentially frivolous complaints filed by counsel for Plaintiff, James Garrity.
I.
LOCAL RULE 56
Plaintiff’s Statement of Disputed and Undisputed Facts (Doc. 25) complies
in no part with the local rule, which provides, “The respondent to a motion for
summary judgment shall attach to the response a separate and concise
statement of material facts, numbered separately, to which the respondent
contends there exists a genuine dispute to be tried. Response shall be made to
each of the movant’s numbered material facts.” M.D. Ga. L.R. 56. Rather than
responding to each numbered paragraph as directed by the rule, Plaintiff
essentially has responded in the form of a supplemental brief, which is
insufficient under the local rule.
The Court accordingly deems admitted
Defendant’s statement of facts that are properly supported by citations to the
record. M.D. Ga. L.R. 56; see also Mann v. Taser Intern., Inc., 588 F.3d 1291,
1303 (11th Cir. 2009) (holding that district court properly deemed defendant’s
statement of material facts admitted when plaintiff failed to comply with the local
rule); BMU, Inc. v. Cumulus Media, Inc., 366 Fed. App’x 47, 49 (11th Cir. 2010)
(affirming grant of summary judgment when respondent failed to file a response
to movant’s statement of undisputed facts).
Although not sought by Defendant, the Court gave some thought as to whether a
sua sponte Rule 11 sanction was appropriate in this case. While the Court
declines to levy sanctions at this time, Mr. Garrity should be warned that the
future pursuit of frivolous litigation in this Court will result in the imposition of
sanctions.
2
II.
FACTUAL BACKGROUND
Defendant Archbold Medical Center, Inc., operates Brooks County Hospital
in Quitman, Georgia. (Doc. 12-2, ¶ 2). Defendant hired Plaintiff Debbie Bass on
December 28, 2004 to the position of Registration Officer. (Doc. 12-2, ¶ 3). In
June of 2006, Plaintiff completed a radiology technology program at Valdosta
Tech. (Doc. 12-2, ¶ 6). By virtue of her degree, Plaintiff applied for and received
a promotion to the position of PRN (“part time” or “as needed”) radiology
technologist on February 1, 2007. (Doc. 12-2, ¶¶ 7, 8). At that time, Zinda
McDaniel, Radiology Coordinator, began supervising Plaintiff. (Doc. 12-2, ¶ 10).
Ms. McDaniel retired in 2008, and Kristi Hylton was promoted to the position of
Radiology Coordinator.
(Doc. 12-2, ¶ 11).
Ms. Hylton assumed supervision
duties over Plaintiff. (Doc. 12-2, ¶ 12).
When Ms. Hylton was promoted to Radiology Coordinator, a full-time
radiology technologist position for the second shift became available. (Doc. 12-2,
¶¶ 13–14). Ms. Hylton interviewed candidates and hired Plaintiff for the position
on August 11, 2008. (Doc. 12-2, ¶¶ 15–16). Plaintiff believes that Ms. Hylton
attempted to hire a Caucasian male for the position prior to awarding the job to
Plaintiff.
(Doc. 12-2, ¶¶ 19–20).
Plaintiff does not know the identity of the
Caucausian male to whom Ms. Hylton allegedly offered the position, and other
than Plaintiff’s allegation, there is no evidence that any other individual was
offered the job prior to Plaintiff. (Doc. 12-2, ¶¶ 20, 22–23). In addition to Plaintiff,
3
there were five radiology technologists employed by Defendant and supervised
by Ms. Hylton, three of whom were African American. (Doc. 12-2, ¶ 24).
Plaintiff primarily worked the second shift.
(Doc. 12-2, ¶ 26).
When
Plaintiff was hired for the position, the shift was 3:00 pm to 11:00 pm. (Doc. 122, ¶ 26). The shift was later changed to 4:00 pm to 11:00 pm. (Doc. 12-2, ¶ 26).
In 2008, as a result of budgetary concerns, the hospital began pushing
reductions for hourly employees. (Doc. 12-2, ¶ 27). As a result, everyone in the
radiology department had their hours reduced, and no one was supposed to
receive a weekly schedule of 40 hours unless necessary. (Doc. 12-2, ¶ 27).
Plaintiff’s work schedule was impacted by the reductions, as were the schedules
of all of the radiology technologists.
(Doc. 12-2, ¶ 28).
The reduced-hour
schedules typically called for 32 to 38 work hours each week. (Doc. 12-2, ¶ 28).
The hospital was still operating under the reduced hours schedule as of the filing
of Defendant’s motion for summary judgment. (Doc. 12-2, ¶ 4).
During her employment with Brooks County Hospital, Plaintiff was
disciplined on several occasions for various policy violations. Plaintiff received
two Verbal Corrective Interviews for overtime violations: one on September 5,
2008 and another on October 17, 2008. (Doc. 12-2, ¶ 31). Plaintiff received a
Final Corrective Interview from Ken Rhudy, the Administrator at Brooks County
Hospital, on November 7, 2013.
The Final Corrective Interview occurred
because of an argument between Plaintiff and Ms. Hylton on October 25, 2013
and another incident that same day involving Plaintiff and a co-worker. (Doc. 124
2, ¶ 49). The argument between Plaintiff and Ms. Hylton concerned Plaintiff’s
belief that she was never included in Radiology Week events. (Doc. 12-2, ¶ 51).
On the Final Corrective Interview form, Plaintiff alleged that Ms. Hylton “ha[d]
been attacking [her] for years.” (Doc. 12-2, ¶ 53). Mr. Rhudy spoke with both
Plaintiff and Ms. Hylton and explained that he wanted them to get along. (Doc.
12-2, ¶ 52).
The majority of Plaintiff’s policy violations involved excessive tardiness.
Ms. Hylton’s policy was to consider an employee late if he or she clocked in more
than one minute after the start of the shift. (Doc. 12-2, ¶ 46). Hospital policy
requires corrective action if an employee is tardy three or more times in a 90-day
period. (Doc. 12-2, ¶ 40). Plaintiff received four Tardiness Disciplinary Actions
over the course of her employment, on April 24, 2013, October 7, 2013,
December 9, 2013, and February 11, 2014. (Doc. 12-2, ¶ 31). Each of these
Tardiness Disciplinary Actions was issued as a result of Plaintiff being late to
work at least three times in a 90-day period. (Doc. 12-2, ¶ 40). The October 7,
2013 Tardiness Disciplinary Action was issued because Plaintiff was late on nine
separate occasions in September of 2013. (Doc. 12-2, ¶ 44). Ms. Hylton has
never had an employee have as many tardies as Plaintiff, and has only had to
issue one other employee a corrective action for tardiness. (Doc. 12-2, ¶¶ 47–
48). That employee was Brenda Blair, who is Caucasian. (Doc. 12-2, ¶¶ 24, 48).
In addition to Plaintiff’s disciplinary record, she received two Radiologic
Technologist Error and Action Forms: one on December 18, 2008 and another on
5
March 26, 2010.
(Doc. 12-2, ¶ 32).
The Radiologic Technologist Error and
Action Forms are learning tools used to identify and correct technical errors and
mistakes and are not intended to be disciplinary tools. (Doc. 12-2, ¶¶ 32, 33). All
of the radiology technologists in the department have received an Error and
Action Form, including Ms. Hylton. (Doc. 12-2, ¶ 34).
Following the October 25, 2013 altercation with Ms. Hylton, Plaintiff began
stopping by the office of Janet Eldridge, Personnel Coordinator, to informally
complain about Ms. Hylton. (Doc. 12-2, ¶ 57). Plaintiff did not mention race in
her complaints, until she filed a formal grievance on November 25, 2013. (Doc.
12-2, ¶¶ 57, 59). In her grievance, Plaintiff itemized several complaints about
Ms. Hylton: Ms. Hylton cutting Plaintiff’s hours when she was a PRN employee in
2007 or 2008; Ms. Hylton supposedly offering Plaintiff’s position to a Caucasian
male in 2008 prior to hiring Plaintiff; Ms. Hylton yelling at Plaintiff when she
stated that Plaintiff would receive a write up if she was ever late; Plaintiff
receiving a write up when she and her co-worker (Jackie Adams, African
American) worked a patient together with incorrect paper work; Plaintiff being left
out of department events; Plaintiff not receiving 40 hours per week; Plaintiff being
written up for being late; and Plaintiff having to work holidays. (Doc. 12-2, ¶ 60).
On December 5, 2013, Plaintiff met with Ms. Eldridge, Ms. Hylton, and
another hospital employee named Glenda Creech. (Doc. 12-2, ¶ 61). During the
meeting, Plaintiff reiterated many of the concerns raised in her formal grievance:
that Plaintiff was not included in radiology events, that Ms. Hylton originally
6
wanted to hire a Caucasian male for Plaintiff’s position, that Plaintiff was written
up for being tardy, that Plaintiff was never asked if she would like holidays off,
that Plaintiff did not get to work 40 hours a week, and that she believed Ms.
Hylton “had it out for her” in general. (Doc. 12-2, ¶ 62). It was explained to
Plaintiff that she was the only one who was hired for the full-time position in 2008
and that no one was receiving 40 hour work weeks because of cutbacks. (Doc.
12-2, ¶ 62). Further, Plaintiff was told that the hospital’s policy calls for tardy
employees to receive write ups, and she should try to get to work on time. (Doc.
12-2, ¶ 62).
Plaintiff filed an addendum to her grievance on January 12, 2014. (Doc.
12-2, ¶ 68). Plaintiff raised the same topics that were discussed in the grievance
meeting, but stated that she was including “race discrimination, age, and
retaliation.” (Doc. 12-2, ¶ 69). Plaintiff had a second grievance meeting with Mr.
Rhudy, Ms. Eldridge, and Ms. Creech on January 13, 2014. (Doc. 12-2, ¶ 71).
Plaintiff explained that she was upset that Ms. Hylton wrote her up on December
9, 2013 for being tardy. (Doc. 12-2, ¶ 72). Plaintiff was again told that, if she
came to work on time, she would be fine. (Doc. 12-2, ¶ 72). Further, Mr. Rhudy
disclosed that Plaintiff had received more hours than any other employee in the
radiology department, other than Billy Green, who is African American. (Doc. 122, ¶ 72). When asked about her race and age complaints, Plaintiff explained that
her race complaint was because Ms. Hylton attempted to hire a Caucasian male
back in 2008, and her age complaint was based on Ms. Hylton’s statement
7
during the October 2013 altercation that Plaintiff was “not acting her age.” (Doc.
12-2, ¶ 72).
Following the second grievance meeting, Plaintiff’s complaints were
investigated. (Doc. 12-2, ¶ 74). Plaintiff had a third and final grievance meeting
on January 28, 2014 with Mr. Rhudy and Ms. Eldridge. (Doc. 12-2, ¶ 75). Mr.
Rhudy told Plaintiff that all of her grievances had been reviewed. (Doc. 12-2, ¶
76). He explained that there appeared to be tension between Plaintiff and Ms.
Hylton and said that they needed to work together.
(Doc. 12-2, ¶ 76).
He
suggested that, if Plaintiff got to work on time, things would run more smoothly.
(Doc. 12-2, ¶ 76). He told Plaintiff that he could not give her more hours to work
because of the budget. (Doc. 12-2, ¶ 76). Plaintiff stated that she understood
Mr. Rhudy’s explanations, and the meeting was concluded. (Doc. 12-2, ¶ 76).
Shortly thereafter, on February 11, 2014, Plaintiff received another
Tardiness Disciplinary Action from Ms. Hylton.
(Doc. 12-2, ¶ 77).
Plaintiff
refused to sign that document and stated that she had a lawyer and was going to
file suit. (Doc. 12-2, ¶ 78). Plaintiff made no further complaints to Ms. Eldridge
or Ms. Hylton. (Doc. 12-2, ¶¶ 78–79). Ms. Eldridge believed that the issues had
been resolved. (Doc. 12-2, ¶ 81). Plaintiff filed a Charge of Discrimination with
the Equal Employment Opportunity Commission in March of 2014. (Doc. 12-2, ¶
93). The EEOC issued Plaintiff a Notice of Right to Sue dated September 15,
2014. (Doc. 17, p. 50).
8
Plaintiff was out extensively for medical issues beginning in June of 2014.
She was out approximately eight months intermittently over the next year. (Doc.
12-2, ¶ 80). Plaintiff voluntarily submitted a notice of resignation on May 29,
2015, effective June 10, 2015. (Doc. 12-2, ¶ 82). Plaintiff was never demoted,
suspended, or terminated. (Doc. 12-2, ¶ 85).
III.
SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “the pleadings, the discovery and
disclosure materials on file, and any affidavits show there is no genuine issue as
to any material fact and . . . the moving party is entitled to a judgment as a matter
of law.” Fed. R. Civ. P. 56(c); see Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). A genuine issue of material fact arises only when “the evidence is such
that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
When considering a motion for summary judgment, the court must
evaluate all of the evidence, together with any logical inferences, in the light most
favorable to the nonmoving party. Id. at 254–55. The court may not, however,
make credibility determinations or weigh the evidence.
Id. at 255; see also
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000).
The
party
seeking
summary
judgment
“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
9
believes demonstrate the absence of a genuine issue of material fact.” Celotex,
477 U.S. at 323 (internal quotation omitted). If the movant meets this burden, the
burden shifts to the party opposing summary judgment to go beyond the
pleadings and present specific evidence showing that there is a genuine issue of
material fact, or that the movant is not entitled to judgment as a matter of law. Id.
at 324–26. This evidence must consist of more than conclusory allegations. See
Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991).
In sum, summary
judgment must be entered “against a party who fails to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.
IV.
DISCUSSION
Plaintiff alleges that Defendant discriminated against her on the basis of
race, in violation of Title VII and § 1981, by writing her up for tardiness and
allegedly reducing her work hours, by creating a hostile work environment, and
by retaliating against her for voicing opposition to Defendant’s allegedly unlawful
employment practices. Title VII and § 1981 “have the same requirements of
proof and use the same analytical framework.” Standard v. A.B.E.L. Servs., 161
F.3d 1318, 1330 (11th Cir. 1998). Accordingly, the Court will address Plaintiff’s
Title VII claims with the understanding that the analysis also applies to the §
1981 claims.
10
A.
Race Discrimination Claim
1.
Disparate Treatment
Title VII makes it unlawful for an employer “to fail or refuse to hire or to
discharge any individual, or otherwise to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment
because of such individual’s race . . . .” 42 U.S.C. § 2000e-2(a)(1). A plaintiff
can establish a prima facie case of discrimination through either direct or
circumstantial evidence. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1085
(11th Cir. 2004).
Claims of race discrimination premised on circumstantial
evidence, as is the present case, are evaluated under the burden-shifting
framework developed in McDonnell Douglas Corp. v. Green.2 In order to make
out a prima facie case under this framework, the plaintiff first must set forth “facts
adequate to permit an inference of discrimination.” Holifield v. Reno, 115 F.3d
1555, 1562 (11th Cir. 1997). If the plaintiff is able to do so, the burden shifts to
the employer to articulate a legitimate, nondiscriminatory reason for its actions.
Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256 (1981). The employer
“need not persuade the court that it was actually motivated by the proffered
reasons.” Id. at 254–55. “If the employer satisfies its burden of articulating one
or more reasons, then the presumption of discrimination is rebutted, and the
burden of production shifts to the plaintiff to offer evidence that the alleged
2
411 U.S. 792 (1973)
11
reason of the employer is a pretext for illegal discrimination.” Wilson, 376 F.3d at
1087.
To establish a prima facie case of race discrimination under Title VII, a
plaintiff must show: “(1) [s]he belongs to a racial minority; (2) [s]he was subjected
to [an] adverse job action; (3) [her] employer treated similarly situated employees
outside [her] classification more favorably; and (4) [s]he was qualified to do the
job.” Holified, 115 F.3d at 1562 (citing McDonnell Douglas Corp., 411 U.S. at
802). The parties here do not dispute that Plaintiff is an African American or that
she was qualified for her job. Plaintiff has not established a prima facie case of
disparate treatment because she was not subjected to an adverse job action and
because she fails to point to a similarly situated comparator who was treated
more favorably.
A.
Adverse Employment Action
To establish an adverse employment action, a plaintiff must show either:
(1) an ultimate employment decision, such as termination, failure to hire, or
demotion; or (2) for conduct falling short of an ultimate employment decision,
conduct that “in some substantial way, alter[s] the employee’s compensation,
terms, conditions, or privileges of employment, deprive[s] him or her of
employment opportunities, or adversely affect[s] his or her status as an
employee.” Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).
Here, there was no ultimate employment decision.
Plaintiff voluntarily
resigned. (Doc. 12-2, ¶ 83). Plaintiff contends, in her response to Defendant’s
12
motion for summary judgment, that she was constructively discharged and that
she “had no choice but to quit” due to intolerable conditions. (Doc. 24, p. 12).
However, Plaintiff failed to plead a constructive discharge claim in her complaint,
and has never amended her complaint to include such a claim.
Plaintiff’s
constructive discharge claim was raised for the first time in her summary
judgment briefing. “A plaintiff may not amend her complaint through argument in
a brief opposing summary judgment.” Gilmour v. Gates, McDonald and Co., 382
F.3d 1312, 1315 (11th Cir. 2004). Accordingly, that claim may not be considered
by the Court.3
3
Although the Court may not consider Plaintiff’s argument that she was
constructively discharged, the Court notes that such a claim would fail as a
matter of law based on the evidence presented. A constructive discharge occurs
“when a discriminatory employer imposes working conditions that are so
intolerable that a reasonable person in [the employee’s] position would have
been compelled to resign.” Fitz v. Pugmire Lincoln-Mercury, Inc., 348 F.3d 974,
976 (11th Cir. 2003). Plaintiff has failed to present evidence that the conditions
of her employment were so intolerable that she was compelled to resign. Rather,
Plaintiff testified in her deposition that she resigned “[b]ecause [she] got a better
opportunity, and with [her] history there already, [she] wanted to leave.” (Doc.
15, p. 114). When asked what she meant by “history,” Plaintiff replied that she
was referring to her history with Kristi Hylton. (Doc. 15, p. 114). The allegations
regarding Plaintiff’s “history” with Kristi Hylton, taken together, do not rise to the
level of creating a workplace so intolerable that a reasonable person would have
been compelled to resign, as is required to establish constructive discharge.
Furthermore, Plaintiff’s contention that she was told she was going to be
replaced upon her return from medical leave (Doc. 1, ¶ 11) is too speculative to
support a claim for constructive discharge. See Fitz, 348 F.3d at 978 (upholding
the district court’s order granting summary judgment on the plaintiff’s argument
that he was constructively discharged because his co-workers told him that his
employer planned to fire him because of his race at some point in the future,
“declin[ing] to reach a holding that would encourage speculative litigation”).
13
Further, Plaintiff has failed to present any evidence that her race negatively
impacted her compensation; that the terms, conditions, or privileges of her
employment were altered; that she was deprived of employment opportunities; or
that her status as an employee was adversely affected. Plaintiff first argues that
she suffered an adverse employment action when Ms. Hylton repeatedly wrote
her up for being tardy. However, Plaintiff was repeatedly tardy (Doc. 12-2, ¶ 47),
and Ms. Hylton had a policy of considering employees tardy if they clocked in
more than one minute late. (Doc. 12-2, ¶ 46). Plaintiff received four Tardiness
Disciplinary Actions over the course of eight years of employment. (Doc. 12-2, ¶
31). These write-ups had no impact on Plaintiff’s employment, and therefore do
not constitute an adverse employment action. See Davis v. Town of Lake Park,
245 F.3d 1232, 1238 (11th Cir. 2001) (rejecting the contention that placing
negative job performance memoranda in an employee’s file constitutes an
adverse employment action)4.
Plaintiff next argues that she suffered an adverse employment action
because she never received a 40 hour work week.
However, none of the
radiology technologists were receiving 40 hour work weeks due to the hospital’s
budgetary concerns. (Doc. 12-2, ¶¶ 27–28). In fact, Plaintiff was often assigned
4
In Davis, the Eleventh Circuit Court of Appeals explained that “[n]either of the
memos at issue caused [the employee] any present or foreseeable future
economic injury.” 245 F.3d at 1240. Despite the fact that the employee felt that
the memoranda were “unwarranted, diminished his prestige and self-esteem, and
potentially may interfere with (unspecified and unexplored) future job prospects,”
the Court of Appeals concluded that “Congress simply did not intend for Title VII
to be implicated where so comparatively little is at stake.” Id.
14
more work hours than the other radiology technologists because she was the
only employee on the second shift. (Doc. 12-2, ¶ 29). Plaintiff’s reduced-hours
work schedule does not constitute an adverse employment action.
Because
Plaintiff has failed to demonstrate that she suffered an adverse employment
action, she cannot establish a prima facie case of race discrimination, and
Defendant is entitled to summary judgment.
B.
“Similarly Situated” Employees
Even if Plaintiff’s circumstances constituted an adverse employment
action, she has not proffered any evidence that Ms. Hylton treated other “similarly
situated” employees more favorably.
“To show that employees are similarly
situated, the plaintiff must show that the ‘employees are similarly situated in all
relevant respects.’” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316
(11th Cir. 2003) (citation omitted). “The comparator must be nearly identical to
the plaintiff to prevent courts from second-guessing a reasonable decision by the
employer.” Wilson, 376 F.3d at 1091. “[I]t is necessary to consider whether the
employees are involved in or accused of the same or similar conduct and are
disciplined in different ways.” Holifield, 115 F.3d at 1562; see also Rioux v. City
of Atlanta, Ga., 520 F.3d 1269, 1281 (11th Cir. 2008) (“The most important
factors in a comparator analysis in the disciplinary context are the nature of the
offenses committed and the nature of the punishment imposed.”).
Plaintiff has not pointed to a single employee that was tardy as frequently
as she was and was not written up. In fact, Ms. Hylton testified that no employee
15
has ever been late to work as often as Plaintiff. (Doc. 12-2, ¶ 47). Ms. Hylton
has only had to issue one other employee a corrective action for tardiness, and
that was to Brenda Blair, a Caucasian employee. (Doc. 12-2, ¶ 48; Doc. 15, p.
178). As far as Plaintiff’s one and only final written warning, which followed the
altercation with Ms. Hylton, Ms. Hylton was also given a final written warning and
thereby received identical treatment. (Doc. 12-2, ¶¶ 49, 52).
Likewise, Plaintiff has failed to present evidence that another similarly
situated employee was treated more favorably with respect to hours received in
the schedule. As previously stated, everyone in the radiology department was
subject to reduced hours beginning in 2008 due to the hospital’s budgetary
concerns. (Doc. 12-2, ¶ 27). No one was supposed to receive 40 hours unless it
was necessary. (Doc. 12-2, ¶ 27). Plaintiff, as a radiology technologist, was in
the group that was affected by this reduction. (Doc. 12-2, ¶ 28). Further, as the
only radiology technologist who worked the second shift, Plaintiff often received
more hours than her co-workers. (Doc. 12-2, ¶ 72). The only employee who
received more hours than Plaintiff was Billy Green, another African American
radiology technologist. (Doc. 12-2, ¶ 72). Accordingly, Plaintiff has failed to point
to an adequate comparator.
Plaintiff has failed to demonstrate that she suffered an adverse
employment action, or to produce any evidence of a similarly situated Caucasian
comparator who was treated more favorably by her supervisor.
As a result,
Plaintiff cannot establish a prima facie case of disparate treatment, as required
16
by the McDonnell Douglas framework. Because Plaintiff has so clearly fallen
short of stating a prima facie case, the Court need not determine whether
Defendant offered a legitimate, non-discriminatory reason for writing Plaintiff up
for tardiness or assigning a reduced-hours work schedule, nor whether
Defendant’s reasons for writing her up or assigning a reduced-hours work
schedule were merely pretext.
Defendant’s motion for summary judgment is
granted with respect to Plaintiff’s disparate treatment claim.
2.
Hostile Work Environment
In addition to Plaintiff’s complaints of disparate treatment, she alleges that
Defendant’s “allowance and ratification” of the disparate treatment “perpetuated
and facilitated an abusive and offense work environment.” (Doc. 1, ¶ 18). The
Court finds no validity in Plaintiff’s claim.
Title VII is violated “when the workplace is permeated with racially
discriminatory intimidation, ridicule, and insult that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an
abusive working environment.” Jones v. UPS Ground Freight, 683 F.3d 1283,
1292 (11th Cir. 2012) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S.
101, 116 (2002)) (internal punctuation omitted). The same is true under § 1981.
See Edwards v. Prime, Inc., 602 F.3d 1276, 1300 (11th Cir. 2010); see also
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Shields
v. Fort James Corp., 305 F.3d 1280, 1282, n.2 (11th Cir. 2002). An employer
therefore is liable to an employee for a racially hostile work environment where
17
the employee proves that “(1) [s]he belongs to a protected group; (2) [s]he was
subjected to unwelcome harassment; (3) the harassment was based on [her]
membership in the protected group; (4) it was severe or pervasive enough to
alter the terms and conditions of employment and create a hostile or abusive
working environment; and (5) the employer is responsible for that environment
under a theory of either vicarious or direct liability.” Id.
The court will consider “the frequency and severity of the conduct, whether
it is physically threatening or humiliating, and to what degree it reasonably
interferes with the plaintiff’s job performance.” Rojas v. Florida, 282 F.3d 1339,
1344 (11th Cir. 2002). However, “mere utterance of an ethnic or racial epithet
which engenders offensive feelings in an employee” does not sufficiently impact
the conditions of employment to trigger the applicability of Title VII. Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986) (quoting Rogers v. EEOC, 454 F.2d
234, 238 (5th Cir. 1971)). “Conduct that is not severe or pervasive enough to
create an objectively hostile or abusive work environment—an environment that
a reasonable person would find hostile or abusive—is beyond Title VII’s purview.”
Harris v. Forklift Sys., Inc., 510 U.S. 17, 22 (1993).
Plaintiff’s allegations of hostility in the workplace do not rise to the level of
creating a racially hostile work environment. Plaintiff appears to base her hostile
work environment claim on the following allegations: Ms. Hylton would not talk to
Plaintiff when Plaintiff walked into a room; Plaintiff was left out of “Radiology
Week” events; Ms. Hylton would yell at Plaintiff; and Plaintiff was written up for
18
being only a minute late. (Doc. 15, pp. 183–84, 200–01; Doc. 12-2, ¶¶ 53–56).
Plaintiff concedes that no one employed by Defendant ever used racially
offensive terms toward her and that there were not racial overtones to any
comments made by Ms. Hylton to Plaintiff. (Doc. 15, pp. 183, 201).
“Discourtesy or rudeness should not be confused with racial harassment.”
Brown v. Greene Cnty., No. 3:05-CV-89, 2007 WL 945144, at *8 (M.D. Ga. Mar.
27, 2007). While Ms. Hylton’s treatment of Plaintiff may be considered rude,
discourteous, and boorish, the Court finds that this does not rise to the level of
creating a hostile work environment. The conduct Plaintiff alleges was not so
“severe and pervasive” as to alter Plaintiff’s work environment, and there is
certainly no indication that Plaintiff was subject to this conduct based on her race.
Plaintiff, therefore, has failed to establish a prima facie case of a racially hostile
work environment and Defendant’s motion for summary judgment is granted as
to Plaintiff’s hostile work environment claim.
B.
Retaliation Claim
Finally, the Court grants Defendant’s motion for summary judgment with
regard to Plaintiff’s retaliation claim. Plaintiff’s retaliation claim is premised on
the allegation that she voiced opposition to unlawful employment practices during
her employment with Defendant and was the victim of retaliation thereafter.
(Doc. 1, ¶¶ 25, 27). Under Title VII’s opposition clause, “an employer may not
retaliate against an employee because the employee ‘has opposed any practice
made an unlawful employment practice by this subchapter.’” E.E.O.C. v. Total
19
System Services, Inc., 221 F.3d 1171, 1174 (11th Cir. 2000) (citing 42 U.S.C. §
2000e–3(a)). There is no direct evidence of retaliation on the facts alleged, so
this claim must also be analyzed using the McDonnell Douglas framework. See
Adams v. Cobb Cnty. Sch. Dist., 242 F. App’x 616, 620 (11th Cir. 2007). To
state a prima facie case for a Title VII retaliation claim, a plaintiff must show that
(1) she engaged in an activity protected by Title VII; (2) she suffered a materially
adverse employment action5; and (3) the two events were causally connected.
Chapter 7 Tr. v. Gate Gourmet, Inc., 683 F.3d 1249, 1258 (11th Cir. 2012).
For claims based on the opposition clause, a plaintiff must also establish
“that [s]he had a good faith, reasonable belief that the employer was engaged in
unlawful employment practices.” Little v. United Techs., Carrier Transicold Div.,
103 F.3d 956, 960 (11th Cir. 1997). This requirement contains both a subjective
and objective component: “[a] plaintiff must not only show that he subjectively
(that is, in good faith) believed that his employer was engaged in unlawful
employment practices, but also that his belief was objectively reasonable in light
of the facts and record presented.” Id. (emphasis in original). “Put differently, an
employee’s statements constitute ‘protected activity’ only if they reflect an
objectively reasonable, subjective belief that the employer engaged in an
5
The standard for what constitutes an adverse employment action is broader in
the Title VII retaliation context than it is for a Title VII race discrimination claim.
“For an action to be ‘adverse’ in the retaliation context, it ‘must be harmful to the
point that [it] could well dissuade a reasonable worker from making or supporting
a charge of discrimination.’” Clark v. S. Broward Hosp. Dist., 601 Fed. Appx.
886, 891–92 (11th Cir. 2015) (quoting Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 57 (2006)).
20
unlawful employment practice.” Duncan v. Madison Cnty., No. 3:05-cv-93, 2007
WL 2874803, at *7 (M.D. Ga. Sept. 27, 2007).
Plaintiff fails to state a prima facie case of retaliation because she has not
established that she had an objectively reasonable belief that Defendant was
engaged in unlawful employment practices.
“The reasonableness of the
employee’s belief is measured against existing substantive law . . . . No actual
unlawfulness is required but the opposed conduct ‘must be close enough [to
unlawful] to support an objectively reasonable belief that it is.’” Van Portfliet v.
H&R Block Mortg. Corp., 290 F. App’x 301, 303 (11th Cir. 2008) (quoting Clover
v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351 (11th Cir. 1999)).
Plaintiff’s retaliation claim rests on her contention that she was retaliated
against for filing grievances complaining that she was not receiving a 40-hour
work week, she was written up for being late, she was left out of Radiology Week
events, she was always assigned to work on holidays, and a Caucasian male
was initially hired for her position. As the Court has previously concluded, none
of these complaints supports a claim of racial discrimination, and they cannot
support an objectively reasonable belief that actionable racial discrimination
occurred.
Even if Plaintiff could establish that she had an objectively reasonable
belief that Defendant was engaging in unlawful employment practices, Plaintiff’s
prima facie retaliation claim fails for lack of causation. To satisfy the causation
element, a plaintiff must prove that her complaints were the “but-for” cause of the
21
adverse action, not just a motivating factor. Reynolds v. Winn-Dixie Raleigh,
Inc., 85 F.Supp.3d 1365, 1373 (M.D. Ga. 2015).
The Eleventh Circuit has
“emphasize[d] that Title VII’s anti-retaliation provisions do not allow employees
who are already on thin ice to insulate themselves against termination or
discipline by preemptively making a discrimination complaint.” Alvarez v. Royal
Atlantic Developers, Inc., 610 F.3d 1253, 1270 (11th Cir. 2010). Even assuming
that Plaintiff could show that being written up for tardiness or not receiving a 40hour work week were adverse actions sufficient to meet the standard for what
constitutes an adverse action in the Title VII retaliation context6, Plaintiff cannot
show that her grievances and complaints were the “but-for” cause of these
actions. Rather, the Tardiness Disciplinary Actions that Plaintiff received were
the consequence of her repeated tardiness, and she did not receive a 40-hour
work week because the entire radiology department was operating under
reduced hours due to budget concerns. Plaintiff cannot satisfy the causation
element of her Title VII retaliation claim, and her prima facie case fails.
Defendant’s motion for summary judgment is granted with respect to Plaintiff’s
retaliation claim.
6
Plaintiff’s other complaints—that she was excluded from Radiology Week
events and that Ms. Hylton attempted to hire a Caucasian male for her position—
clearly fall outside the standard for what constitutes an adverse employment
action in the Title VII retaliation context. No reasonable employee would be
dissuaded from making or supporting a charge of discrimination based on these
actions.
22
V.
CONCLUSION
For the foregoing reasons, Defendant’s Motion for Summary Judgment
(Doc. 12) is granted, and this case is dismissed with prejudice.
SO ORDERED, this the 30th day of September, 2016.
/s/ Hugh Lawson_________________
HUGH LAWSON, SENIOR JUDGE
les
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