Dunn-Carter v. Donahoe

Filing 43

ORDER granting Defendant's 27 Motion for Summary Judgment. Plaintiff's 30 Motion to Amend Complaint is DENIED, Defendant's 33 Motion to Strike or, Alternative, Exclude from Consideration is GRANTED, and Plaintiff's 39 Motion to Strike is DENIED. Signed by Judge Richard W. Story on 3/30/2015. (cem)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PAMELA DUNN-CARTER,
Plaintiff,
v.
PATRICK DONAHOE,
POSTMASTER GENERAL,
UNITED STATES POSTAL
SERVICE,
Defendant.

:
:
:
:
:
:
:
:
:
:
:
:

CIVIL ACTION NO.
1:13-CV-1489-RWS

ORDER
This case comes before the Court on Defendant’s Motion for Summary
Judgment [27], Plaintiff’s Motion to Amend Complaint [30], Defendant’s
Motion to Strike or, Alternatively, Exclude from Consideration [33], and
Plaintiff’s Motion to Strike [39]. After reviewing the record, the Court enters
the following Order.
Background
Plaintiff Pamela Dunn-Carter filed this action under the Americans with
Disabilities Act (“ADA”)1 against Defendant Patrick Donahoe, Postmaster
1

The Rehabilitation Act, 29 U.S.C. § 791 et seq., applies to federal employers,
but the standards used under the Rehabilitation Act are the same as those used under

AO 72A
(Rev.8/82)

General of the United States Postal Service (“USPS”), alleging that Defendant
retaliated against her for filing an Equal Employment Opportunity Charge of
Discrimination (“EEO Charge”) against USPS. Plaintiff began working for
USPS in 1988 as a distribution clerk. (Def.’s Statement of Material Facts
(“SMF”), Dkt. [27-1] ¶¶ 1-2.) In 1993, Plaintiff suffered a work-related injury,
and as a result, she has been on modified or limited-duty status with USPS. (Id.
¶¶ 4-5.) Around March 2006, Plaintiff began working at the North Metro USPS
office in a modified-duty position performing human-resources specialist
functions, namely processing job applications. (Id. ¶¶ 12-13.) By July 2007,
James Reid and Deb Gracek were Plaintiff’s supervisors on the Human
Resources Team at North Metro. (Id. ¶¶ 15-16.)
According to Defendant, Plaintiff began having some performance
problems associated with an increased work load. (See id. ¶¶ 19-21.) Plaintiff
then decided to move from the North Metro facility to the Bulk Mail Center
(“BMC”) where she could get extra help with her work processing jobapplication files, which she would send on to Mr. Reid and Ms. Gracek at North

the ADA. Cash v. Smith, 231 F.3d 1301, 1305 (11th Cir. 2000).
2

AO 72A
(Rev.8/82)

Metro. (Id. ¶ 24.) On September 4, 2007, Plaintiff began working at the BMC,
where Marvin Rasheed was the Acting Plant Manager. (Id. ¶ 28.)
Around September 14 or 15, 2007, Plaintiff initiated an EEO Complaint
naming Mr. Reid and Ms. Gracek as the discriminating officials. (Id. ¶ 34.)
Plaintiff alleged that Mr. Reid and Ms. Gracek unfairly scrutinized her work
and harassed her because of her race and disability when she tried to discuss the
heavy workload at North Metro. (See Info. for Pre-Compl. Counseling, Dkt.
[27-3] at 8-10.) After she filed her EEO Complaint, Plaintiff states that Mr.
Reid sent numerous e-mails to her and other USPS human-resource supervisors,
as well as Mr. Rasheed, between October 16, 2007, and November 5, 2007,
pointing out various problems with Plaintiff’s processing of job applicants.
(Def.’s SMF, Dkt. [27-1] ¶¶ 37-38; E-mails, Dkt. [27-3] at 16-23.) Plaintiff
says she never had documented performance problems before receiving those emails. (Pl.’s Statement of Disputed Facts, Dkt. [29-2] ¶ 6.)
On November 6, 2007, Plaintiff participated in an EEO mediation
proceeding related to her EEO Charge against Mr. Reid and Ms. Gracek, who
were still working at the North Metro facility. (Def.’s SMF, Dkt. [27-1] ¶ 43.)
Two days after mediation, Mr. Rasheed removed Plaintiff from her position
3

AO 72A
(Rev.8/82)

performing human-resources specialist functions and gave her other duties. (Id.
¶ 44; Pl.’s Statement of Disputed Facts, Dkt. [29-2] ¶¶ 16-17, 27.) It appears
that the new position was less favorable because it was not a limited-duty
position. (See Pl.’s Statement of Disputed Facts, Dkt. [29-2] ¶ 31.) On
November 15, 2007, Plaintiff was told to leave her office, and the next day she
was told to store her work-related items on a cart and to sit in a conference
room until it was needed by other employees. (Id. ¶¶ 28-29.) When other
employees needed the conference room, Plaintiff wandered the halls looking for
a place to sit. (Id. ¶ 30.)
Plaintiff now brings a retaliation claim based on Mr. Rasheed’s decision
to remove her from her human-resources duties. Defendant argues that Mr.
Rasheed could not have possibly retaliated against her because he did not know
that Plaintiff had filed an EEO Charge against Mr. Reid and Ms. Gracek. As
discussed below, in response to Defendant’s summary judgment motion,
Plaintiff attempts to introduce affidavits from two witnesses purporting to show
that Mr. Rasheed had knowledge of Plaintiff’s EEO Charge. Defendant moves
to strike those affidavits. In addition, Plaintiff moves to amend her Complaint

4

AO 72A
(Rev.8/82)

to add allegations about Mr. Rasheed’s knowledge, and Plaintiff also moves to
strike two of Defendant’s filings related to its Motion for Summary Judgment.
Discussion
I.

Plaintiff’s Motion to Strike [39]
Plaintiff moves to strike two documents Defendant filed in connection

with its Motion for Summary Judgment: the Objections and Responses to
Plaintiff’s Statement of Disputed Facts [36], and the Consolidated Statement of
Undisputed Facts & Reply to Undisputed Material Facts [35]. Plaintiff argues
that in both documents, Defendant failed to limit its responses to the acceptable
responses listed under Local Rule 56.1.B(3), instead relying on argumentative
statements. The Court finds that Defendant substantially complied with Local
Rule 56.1. However, to the extent that any of Defendant’s arguments are
argumentative, the Court will not consider them. Therefore, the Court DENIES
Plaintiff’s Motion to Strike [36].
II.

Defendant’s Motion to Strike or Exclude from Consideration [33]
Defendant moves to strike two affidavits Plaintiff uses to respond to

Defendant’s Motion for Summary Judgment. The affidavits are from
Gwendolyn Joyce White and Glenda Sparks Karasoulis. Both witnesses
5

AO 72A
(Rev.8/82)

provide evidence that the Acting Plant Manager at the BMC, Mr. Rasheed, had
knowledge of Plaintiff’s 2007 EEO activities when he removed her from her
employment position. Ms. White states she accompanied and represented
Plaintiff during her mediation on November 6, 2007. (White Aff., Dkt. [31-7] ¶
2.) After the mediation, Ms. White and Plaintiff ran into Mr. Rasheed, Plaintiff
introduced Ms. White to Mr. Rasheed, and they discussed the fact that Ms.
White had attended Plaintiff’s mediation. (Id. ¶ 4.) In light of this testimony,
Plaintiff argues that Mr. Rasheed knew of her protected activities and therefore
retaliated against her two days later.
Ms. Karasoulis offers testimony that she was with Plaintiff before and
after Plaintiff’s November 8, 2007 meeting with Mr. Rasheed. After the
meeting, Ms. Karasoulis states that Plaintiff appeared stressed, startled, and
shaken. (Karasoulis Aff., Dkt. [31-10] ¶¶ 4-5.) Plaintiff explained that Mr.
Rasheed had just told her that he would change her employment position
because two other employees no longer wanted to work with her because they
feared that Plaintiff would retaliate against them based on her history of having
filed an EEO Charge. (Id. ¶ 6.) Again, Plaintiff asserts that this is evidence Mr.
Rasheed was aware of her EEO activities.
6

AO 72A
(Rev.8/82)

Defendant objects to the use of these affidavits because neither Ms.
White nor Ms. Karasoulis was disclosed as a witness with discoverable
information. Parties are required to disclose the names of individuals likely to
have discoverable information that the parties may use to support their claims or
defenses, unless the use would be solely for impeachment. FED. R. CIV. P.
26(a)(1)(i). Parties are also required to supplement incomplete Rule 26(a)
disclosures. FED. R. CIV. P. 26(e)(1). Thus, “the obligation to disclose
pertinent parties is continuing [throughout the case].” F.T.C. v. Nat’l
Urological Grp., Inc., 645 F. Supp. 2d 1167, 1179 (N.D. Ga. 2008). If a party
fails to comply with Rule 26(a) or (e), that party is precluded from using the
undisclosed witness “to supply evidence on a motion . . . unless the failure was
substantially justified or is harmless.” FED. R. CIV. P. 37(c)(1).
In her initial disclosures, Plaintiff identified four individuals with
discoverable information: (1) Plaintiff, (2) Mr. Rasheed, (3) Ms. Gracek, and
(4) Mr. Reid. (Dkt. [33-1] at 8.) Plaintiff does not deny that she never
disclosed Ms. White or Ms. Karasoulis as witnesses, instead arguing that she
was not required to disclose them because they are impeachment witnesses used
solely to undermine Mr. Rasheed’s testimony. (See Pl.’s Resp., Dkt. [38] at 37

AO 72A
(Rev.8/82)

4.) But it is Plaintiff’s burden to establish her prima facie case of retaliation,
and therefore Plaintiff must show that Mr. Rasheed knew about Plaintiff’s
protected activities. See, e.g, Brungart v. BellSouth Telecomms., Inc., 231 F.3d
791, 799 (11th Cir. 2000) (“In order to show the two things were not entirely
unrelated, the plaintiff must generally show that the decision maker was aware
of the protected conduct at the time of the adverse employment action.”). Just
because the evidence contradicts Mr. Rasheed’s statement does not mean that
the evidence is only impeachment evidence; on the contrary, Plaintiff must rely
on the evidence for the substantive purpose of establishing Mr. Rasheed’s
knowledge. Cf. Bearint ex rel. Bearint v. Dorell Juvenile Grp., Inc., 389 F.3d
1339, 1353 (11th Cir. 2004) (holding that disclosure was not required because
“the disputed evidence, relating to the expert witness’s qualifications as an
engineer, was used solely for the purposes of impeachment rather than for a
substantive purpose”). For that reason, the Court finds that the affidavits of Ms.
White and Ms. Karasoulis are not solely impeachment evidence and should
have been disclosed to Defendant. Plaintiff’s failure to disclose these witnesses
is not justified.

8

AO 72A
(Rev.8/82)

Furthermore, the Court finds that Plaintiff’s failure is not harmless to
Defendant, either. These witnesses speak to an element of Plaintiff’s prima
facie case. In fact, as discussed below, Defendant’s summary judgment motion
relies heavily on its contention that Mr. Rasheed did not know about Plaintiff’s
protected activity. And there is not evidence showing that Defendant knew
what these witnesses might testify about despite the lack of disclosure, so
Defendant did not have an opportunity to depose them. While Ms. White was
identified as Plaintiff’s mediation representative in some of the forms Plaintiff
disclosed, (Pl.’s Reply, Dkt. [38] at 2) that fact does not hint that she had
discoverable information about Mr. Rasheed’s retaliation against Plaintiff.
Plaintiff next states that Ms. Karasoulis was disclosed in an EEOC hearing
related to this case, but the portion of the transcript Plaintiff cites simply says:
“I went back to my office [after meeting with Mr. Rasheed] and Louise Spark[s
Karasoulis]2 was in my office and I told her what had happened.” (See Pl.’s
Reply, Dkt. [38] at 2; EEOC Hearing Tr., Dkt. [27-2] at 62:24-63:4.) That is
the only time Ms. Karasoulis is named during the entire EEOC hearing. Nor

2

Ms. Sparks got married in December 2008 and later changed her last name to
Karasoulis. (Karasoulis Aff., Dkt. [31-10] ¶ 2.)
9

AO 72A
(Rev.8/82)

does Plaintiff point to other documents or pleadings showing that she would
rely on testimony from Ms. Karasoulis, or what that testimony would be. The
Court finds that Defendant would not have known that Plaintiff would use these
witnesses, and so Plaintiff’s non-disclosure was not harmless. For these
reasons, the Court GRANTS Defendant’s Motion to Strike [33].
III.

Plaintiff’s Motion to Amend the Complaint [30]
Plaintiff also seeks leave to amend her Complaint, apparently in order to

correct minor mistakes and to add the allegation that Plaintiff, Ms. White, and
Mr. Rasheed had a conversation about Plaintiff’s EEO mediation. (See Am.
Compl., Dkt. [30-1] ¶ 16.) The Federal Rules of Civil Procedure provide that
leave to amend a pleading should be given “freely” “when justice so requires.”
FED. R. CIV. P. 15(a)(2). Leave to amend is “not an automatic right,” however.
Faser v. Sears, Roebuck & Co., 674 F.2d 856, 860 (11th Cir. 1982). In deciding
whether to grant a party leave to amend, the Court should consider factors such
as whether there has been “undue delay, bad faith or dilatory motive on the part
of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of allowance of the
amendment, [and] futility of the amendment.” Foman v. Davis, 371 U.S. 178,
10

AO 72A
(Rev.8/82)

182 (1962). The decision of whether to give leave to amend is within the
discretion of the trial court. Saewitz v. Lexington Ins. Co., 133 F. App’x 695,
699 (11th Cir. 2005).
Defendant opposes amendment, arguing that the motion came too long
after the close of discovery and without justification for the undue delay. The
Court agrees. Plaintiff filed this action on May 2, 2013, and discovery closed
on May 12, 2014, after the Court extended the time for discovery at Plaintiff’s
request. Defendant moved for summary judgment on July 8, 2014, and Plaintiff
did not move to amend until August 28, 2014, over three months after the close
of discovery.
Although leave to amend should be freely granted, here the Court finds
no justification for Plaintiff’s request to add allegations about Ms. White at this
late stage. Plaintiff was present at the conversation with Ms. White, and so
Plaintiff knew that Ms. White could speak to Mr. Rasheed’s knowledge of her
EEO mediation. Therefore, Ms. White does not offer any newly discovered
evidence, and Plaintiff could have included this allegation in her original
Complaint or sought leave to amend much earlier. Granting leave to amend at
this point would prejudice Defendant and reward Plaintiff’s undue delay in
11

AO 72A
(Rev.8/82)

seeking leave to amend. See, e.g., Reese v. Herbert, 527 F.3d 1253, 1263 (11th
Cir. 2008) (“Because the period of discovery had expired [seven weeks earlier],
granting the motion would have caused the defendants undue prejudice, as they
would not have been able to conduct further discovery with respect to the claim
the proposed amendment asserted.”); Lowe’s Home Ctrs., Inc. v. Olin Corp.,
313 F.3d 1307, 1315 (11th Cir. 2002) (“It is not an abuse of discretion for a
district court to deny a motion for leave to amend a complaint when such
motion is designed to avoid an impending adverse summary judgment.”).
Consequently, Plaintiff’s Motion for Leave to Amend [30] is DENIED.
IV.

Defendant’s Motion for Summary Judgment [27]
A.

Summary Judgment Legal Standard

Federal Rule of Civil Procedure 56 requires that summary judgment be
granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV. P.
56(a). “The moving party bears ‘the initial responsibility of informing the . . .
court of the basis for its motion, and identifying those portions of the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, which it believes demonstrate the absence of a genuine issue
12

AO 72A
(Rev.8/82)

of material fact.’ ” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259
(11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
(internal quotations omitted)). Where the moving party makes such a showing,
the burden shifts to the non-movant, who must go beyond the pleadings and
present affirmative evidence to show that a genuine issue of material fact does
exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).
The applicable substantive law identifies which facts are material. Id. at
248. A fact is not material if a dispute over that fact will not affect the outcome
of the suit under the governing law. Id. An issue is genuine when the evidence
is such that a reasonable jury could return a verdict for the non-moving party.
Id. at 249-50.
In resolving a motion for summary judgment, the court must view all
evidence and draw all reasonable inferences in the light most favorable to the
non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th
Cir. 2002). But, the court is bound only to draw those inferences which are
reasonable. “Where the record taken as a whole could not lead a rational trier
of fact to find for the non-moving party, there is no genuine issue for trial.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting
13

AO 72A
(Rev.8/82)

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).
“If the evidence is merely colorable, or is not significantly probative, summary
judgment may be granted.” Anderson, 477 U.S. at 249-50 (internal citations
omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met
its burden under Rule 56(a), the nonmoving party “must do more than simply
show there is some metaphysical doubt as to the material facts”).
B.

Analysis

In addition to its prohibition on discrimination, the ADA prohibits
retaliation, providing that “[n]o person shall discriminate against any individual
because such individual has opposed any act or practice made unlawful by [the
ADA] or because such individual has made a charge . . . under [the ADA].” 42
U.S.C. § 12203(a). The same burden-shifting framework that governs claims
for ADA discrimination also governs claims for ADA retaliation. Stewart v.
Happy Herman’s Cheshire Bridge, Inc., 117 F.3d 1278, 1287 (11th Cir. 1997);
see also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). In that
regard, Plaintiff must first establish a prima facie case of retaliation by showing:
“(1) statutorily protected expression; (2) adverse employment action; and (3) a

14

AO 72A
(Rev.8/82)

causal link between the protected expression and the adverse action.” Stewart,
117 F.3d at 1287.
“[I]f the plaintiff successfully demonstrates a prima facie case, the burden
then shifts to the employer to produce evidence that its action was taken for a
legitimate, non-discriminatory reason.” Brooks v. Cnty. Comm’n of Jefferson
Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006). If the employer meets this
burden, then the burden of production shifts back to the plaintiff, who “must
show that the proffered reason really is a pretext for unlawful discrimination.”
Id. (quoting EEOC v. Joe’s Stone Crab, Inc., 296 F.3d 1265, 1272 (11th Cir.
2002)).
1.

Plaintiff Fails to State a Prima Facie Case of Retaliation

Defendant’s alleged retaliatory act is Mr. Rasheed’s decision to remove
Plaintiff from her human-resources duties on November 8, 2007. Plaintiff
argues that other actions constituted retaliation, such as Mr. Reid and Ms.
Gracek’s alleged harassing e-mails, but the only retaliatory act identified in
Plaintiff’s Complaint was Mr. Rasheed’s employment decision. (See Compl.,
Dkt. [1] ¶ 20.) In any event, the Court has reviewed the e-mails and concludes
that they do not rise to the level of an adverse employment action. (See E15

AO 72A
(Rev.8/82)

mails, Dkt. [27-3] at 16-23.) “An adverse employment action is an ultimate
employment decision, such as discharge or failure to hire, or other conduct that
‘alters the employee’s compensation, terms, conditions, or privileges of
employment, deprives him or her of employment opportunities, or adversely
affects his or her status as an employee.” Van Voorhis v. Hillsborough Cnty.
Bd. of Cnty. Comm’rs, 512 F.3d 1296, 1300 (11th Cir. 2008) (internal
quotation marks omitted) (quoting Gupta v. Fla. Bd. of Regents, 212 F.3d 571,
587 (11th Cir. 2000)). The e-mails here raised concerns about Plaintiff’s
processing of employment applications but did not alter her employment status
or terms of employment. Even if these e-mails were motivated by
discriminatory animus, they do not rise to the level of an adverse employment
action. Instead, the Court focuses on Mr. Rasheed’s decision to remove
Plaintiff from her employment duties on November 8, 2007.
In arguing that Mr. Rasheed did not even know about the EEO Charge,
Defendant attacks the third element of Plaintiff’s retaliation claim: the causal
connection between the protected activity and the adverse employment action.
(See Rasheed Aff., Dkt. [27-12] ¶¶ 116-18.)

16

AO 72A
(Rev.8/82)

“To establish a causal connection, [a plaintiff] must show that (1) the
decision-makers were aware of the protected conduct and (2) the protected
activity and the adverse act were not wholly unrelated.” Alansari v. Tropic Star
Seafood Inc., 388 F. App’x 902, 905 (11th Cir. 2010) (citing Shannon v.
Bellsouth Telecomms., Inc., 292 F.3d 712, 716 (11th Cir. 2002)). Even in cases
like this one where there is close temporal proximity between the protected act
and adverse action, “temporal proximity alone is insufficient to create a genuine
issue of fact as to causal connection where there is unrebutted evidence that the
decision maker did not have knowledge that the employee engaged in protected
conduct.” Brungart, 231 F.3d at 799. “Furthermore, knowledge on the part of
persons other than a decision maker cannot be imputed from other supervisors
to the decision maker for purposes of an [ADA] retaliation claim.” Krutzig v.
Pulte Home Corp., 602 F.3d 1231, 1235 (11th Cir. 2010).
At the June 11, 2009 EEOC hearing related to this case, Mr. Rasheed
testified that in November 2007 he did not know about Plaintiff’s EEO Charge.
(EEOC Hearing Tr., Dkt. [27-2] at 251-52.) Mr. Rasheed also denied that he
told Plaintiff that Ms. Gracek and Mr. Reid no longer wanted to work with her
out of fear of reprisal, or that either one of them told him as much. (Id. at 243,
17

AO 72A
(Rev.8/82)

251.) Rather, Mr. Rasheed stated that he removed Plaintiff from her position
because he thought her work relationship with other human-resources
employees “was not productive.” (Id. at 245.)
Plaintiff cites three pieces of evidence to show Mr. Rasheed’s
knowledge: Ms. White’s recollection of a conversation with Mr. Rasheed, Ms.
Karasoulis’s recollection of a conversation with Plaintiff, and Plaintiff’s
testimony that Mr. Rasheed told her that Ms. Gracek and Mr. Reid did not want
to work with her. (See Pl.’s Resp., Dkt. [29] at 15-16.) Because the Court will
not consider the affidavits from the undisclosed witnesses, the Court turns to
Plaintiff’s statement about what Mr. Rasheed told her.
At the June 11, 2009 EEOC hearing, Plaintiff described her conversation
with Mr. Rasheed:
Q

Okay, now, what did Mr. Rasheed tell you, the reason he
was taking you out?

A

He said they did not — Deb [Gracek] and James [Reid] did
not — did no longer wanted [sic] to work with me.

Q

Okay. And did you ask him why?

A

Yes, he said that he thinks that some kind of reprisal or
retaliator something about that [sic].

18

AO 72A
(Rev.8/82)

(EEOC Hearing Tr., Dkt. [27-2] at 63.)
The administrative judge then interrupted the questioning to get more
details and clarification:
Judge Layton: . . . [T]hat they were worried that you were going to
reprise against them?
The Complainant: Yes.
Judge Layton: But they were worried about [whether] you were
going to file an EEO against them?
The Complainant: That’s what I assume. I don’t —
Judge Layton: What exactly did he say?
The Complainant: He said that they no longer wanted to work with
me for fear of reprisal.
Judge Layton: For fear of reprisal. But he didn’t say whether or not
that meant they were afraid you were going to file an EEO against
them or what? Because that’s pretty sketchy. I mean somebody’s
telling you that they don’t want to work with you; you didn’t ask
him, well, what do you mean by that?
The Complainant: He said that they said that my work was — I
wasn’t doing a good job with my work and it was causing . . .
causing them to be late hiring people and they didn’t want to work
with me anymore and he was going to give that job to Bridget
O’Neill.
(Id. at 64-65 (emphasis added).)

19

AO 72A
(Rev.8/82)

This evidence does not create a factual dispute concerning Mr. Rasheed’s
knowledge of Plaintiff’s EEO Charge against Mr. Reid and Ms. Gracek. Her
testimony that Mr. Rasheed mentioned those two employees’ fear of reprisal is
vague. Plaintiff even admits that she only assumed Mr. Rasheed was referring
to an EEO charge as reprisal. What is more, Plaintiff’s version still does not
show that Mr. Rasheed knew that she had already filed an EEO Charge against
Mr. Reid and Ms. Gracek, or that she otherwise engaged in protected activity by
opposing unlawful discrimination. As explained below, there is no evidence
that Mr. Rasheed took part in or knew about Mr. Reid and Ms. Gracek’s alleged
discrimination against Plaintiff; the evidence only shows he knew about
complaints related to Plaintiff’s performance. Without a causal connection
between any protected activity and Mr. Rasheed’s action, Plaintiff cannot
establish a prima facie case of retaliation.
2.

Defendant Proffers a Legitimate, Non-Discriminatory
Reason for Its Action

Even though the Court finds that Plaintiff fails to establish a prima facie
case of retaliation, the Court addresses the rest of the burden-shifting analysis.
Once a plaintiff has established a prima facie case, a defendant need only raise a

20

AO 72A
(Rev.8/82)

genuine issue of fact as to whether the employer discriminated against its
employee. Wascura v. City of South Miami, 257 F.3d 1238, 1241 (11th Cir.
2001). The defendant at this stage need not prove that he or she actually was
motivated by the proffered non-discriminatory reasons; on the contrary, the
defendant need only raise sufficient evidence from which a reasonable trier of
fact could conclude that the employer’s decision was not motivated by
discriminatory animus. Combs v. Plantation Patterns, 106 F.3d 1519, 1528
(11th Cir. 1997).
As stated above, Defendant contends that Mr. Rasheed removed Plaintiff
from her human resources position because “[t]he work relationship between
her and the HR employees at North Metro was not productive.” (Rasheed Aff.,
Dkt. [27-12] ¶ 62.) Mr. Rasheed based his decision on that fact that there
“seemed to be a lot of conflict, disagreement between her and the people over
[t]here at North Metro.” (EEOC Hearing Tr., Dkt. [27-2] at 245.) He stated
that they were not getting enough applicants hired, and so he contacted Mr.
Reid and Ms. Gracek, who reported to him that Plaintiff “was making a lot of
mistakes” on the applicant files (Id. at 246, 261-62.)

21

AO 72A
(Rev.8/82)

Defendant has therefore proffered a legitimate, non-discriminatory reason
for taking the adverse employment action. And so, to avoid summary
judgment, Plaintiff must produce “sufficient evidence to create a genuine issue
of material fact as to whether each of the defendant’s proffered reasons is
pretextual.” Wascura, 257 F.3d at 1243.
3.

Plaintiff Fails to Show Pretext

To establish pretext, a plaintiff must present evidence “sufficient to
permit a reasonable factfinder to conclude that the reasons given by the
employer were not the real reasons for the adverse employment decision.”
Martin v. Brevard Cnty. Pub. Schs., 543 F.3d 1261, 1268 (11th Cir. 2008). The
“employee must meet that reason head on and rebut it.” Chapman v. AI
Transp., 229 F.3d 1012, 1030 (11th Cir. 2000). This “inquiry is limited to
whether the employer gave an honest explanation of its behavior.” Elrod v.
Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991) (quoting Mechnig
v. Sears, Roebuck & Co., 864 F.2d 1359, 1365 (7th Cir. 1988)). “[F]or an
employer to prevail the jury need not determine that the employer was correct
in its assessment of the employee’s performance; it need only determine that the
defendant in good faith believed plaintiff’s performance to be unsatisfactory . . .
22

AO 72A
(Rev.8/82)

.” Id. (quoting Moore v. Sears, Roebuck & Co., 683 F.2d 1321, 1323 n.4 (11th
Cir. 1982)); see also Alvarez v. Royal Atl. Developers, Inc., 610 F.3d 1253,
1266 (11th Cir. 2010) (“The question to be resolved is not the wisdom or
accuracy of [the defendant’s] conclusion that [the plaintiff’s] performance was
unsatisfactory, or whether the decision to fire her was ‘prudent or fair.’ ”
(quoting Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir. 2002))).
Plaintiff presents no evidence to dispute whether Mr. Rasheed believed in
good faith that Plaintiff’s performance was lacking. While Plaintiff argues that
she had no documented performance problems until after she filed her 2007
EEO Charge, (see Pl.’s Resp., Dkt. [29] at 19) there is no evidence that Mr.
Rasheed used Mr. Reid’s complaints about Plaintiff’s performance as pretext
for disability discrimination. Mr. Rasheed stated that he respected Plaintiff’s
capabilities, and “she did a fantastic job for years.” (EEOC Hearing Tr., Dkt.
[27-2] at 250.) But he went on to say that Mr. Reid “just brought it out that she
was making errors and I think Ms. [Gracek] had just came on the scene and, you
know, basically, you can do something for years and still don’t get it right, you
know, he brought out examples of what was going on and the mistakes she was
making. It did not appear to be personal from their perspective.” (Id.)
23

AO 72A
(Rev.8/82)

To be clear, whether Plaintiff actually made errors is not the issue here.
Courts are careful not to permit plaintiffs “simply to litigate whether they are, in
fact, good employees.” Alvarez, 610 F.3d at 1266 (quoting Rojas, 285 F.3d at
1342). What matters is what goes on inside “the decision maker’s head.” Id.
And Plaintiff does not produce any evidence contradicting that Mr. Rasheed
believed there were personality conflicts and a lack of productivity. Instead, the
evidence indicates that Mr. Rasheed contacted Mr. Reid and Ms. Gracek to ask
why they were not hiring the applicants Plaintiff sent to them, which “was
causing problems.” (EEOC Hearing Tr., Dkt. [27-2] at 262.) They reported
that Plaintiff was making mistakes, and so Mr. Rasheed made the decision to
remove her from her human resources duties. Plaintiff even acknowledges that
Mr. Rasheed told her that the performance problems causing late hiring
informed his decision. (See id. at 65.) And, construing the facts in Plaintiff’s
favor, the Court assumes that Mr. Rasheed also said Mr. Reid and Ms. Gracek
did not want to work with Plaintiff out of fear of reprisal. But without evidence
that Mr. Rasheed was aware of allegations of discrimination or of Plaintiff’s
protected activity, Plaintiff’s speculation that he was referring to filing an EEO
complaint, without more, is not enough to rebut Mr. Rasheed’s legitimate, non24

AO 72A
(Rev.8/82)

discriminatory reason for his decision. In sum, because Plaintiff fails to create a
factual dispute regarding pretext, Defendant is entitled to summary judgment.
Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment
[27] is GRANTED, Plaintiff’s Motion to Amend Complaint [30] is DENIED,
Defendant’s Motion to Strike or, Alternatively, Exclude from Consideration
[33] is GRANTED, and Plaintiff’s Motion to Strike [39] is DENIED.
SO ORDERED, this 30th day of March, 2015.

________________________________
RICHARD W. STORY
United States District Judge

25

AO 72A
(Rev.8/82)