Furcron v. Mail Centers Plus, LLC

Filing 106

ORDER: The Court VACATES in part the Magistrates 80 Order as it relates to Tameka Johnsons Declaration. Defendants 74 Motion to Exclude Declarations Filed in Support of Plaintiffs Opposition to Defendants Motion for Summary Judgment is therefore GRANTED in part and DENIED in part as to Plaintiffs Declaration and DENIED as to Tameka Johnsons Declaration. Defendants 53 Motion for Summary Judgment is DENIED in part and GRANTED in part. Count II is therefore DISMISSED. The parties are ORDERED to file a proposed consolidated pretrial order within 30 days of the entry of this Order. Signed by Judge Richard W. Story on 07/12/17. (rsg)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
MYRA FURCRON,
Plaintiff,
v.
MAIL CENTERS PLUS, LLC,
Defendant.

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CIVIL ACTION NO.
1:14-CV-01188-RWS

ORDER
This case comes before the Court on remand from the Eleventh Circuit
Court of Appeals for consideration of Defendant’s Motion for Summary
Judgment [53] and Defendant’s Motion to Exclude Declarations Filed in
Support of Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment [74]. After considering the record, the Court enters the following
Order.
Background
This case arises out of Plaintiff Myra Furcron’s employment with and
termination from Defendant Mail Centers Plus, LLC. Plaintiff claims that

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Defendant subjected her to unlawful sexual harassment and unlawfully
retaliated against her in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e, et seq.
I.

Factual Background
The Court adopts the Facts as set forth in the Report and

Recommendation [80].
II.

Procedural Background
Plaintiff filed her Complaint [1-1] in the Superior Court of DeKalb

County on March 7, 2014. On April 22, 2014, Defendant removed the action
to federal court. (Notice of Removal, Dkt. [1].) Defendant subsequently filed a
Motion for Summary Judgment [53] and a Motion to Exclude Declarations
Filed in Support of Plaintiff’s Opposition to Defendant’s Motion for Summary
Judgment (“Motion to Exclude”) [74]. The Magistrate Judge issued an Order
and Final Report and Recommendation [80] granting in part and denying in
part Defendant’s Motion to Exclude [74] and recommending the Court grant
Defendant’s Motion for Summary Judgment [53]. As to the Motion to Exclude
[74], the Magistrate Judge’s Order [80] excluded Plaintiff’s affidavit insofar as
it contradicted her prior sworn deposition testimony under the sham affidavit
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rule and excluded Tameka Johnson’s Declaration in its entirety as largely
immaterial. In recommending the Court grant Defendant’s Motion for
Summary Judgment [53], the Magistrate Judge concluded that as to her claim
for sexual harassment, Plaintiff could not show that the alleged harassment was
based on sex or that it was sufficiently severe or pervasive so as to alter the
terms and conditions of her employment. As to her claim for retaliation, the
Magistrate Judge concluded that assuming Plaintiff presented a prima facie
case of retaliation, Defendant presented evidence of its legitimate reasons to
suspend and terminate her employment which Plaintiff failed to show was
merely a pretext to disguise unlawful retaliation.
On September 30, 2015, the Court entered an Order [87] adopting the
Final Report and Recommendation’s ultimate conclusion as to both claims. As
to the sexual harassment claim, the Court found that the Magistrate Judge
failed to view the evidence in the light most favorable to the Plaintiff as the
non-moving party as to whether the alleged harassment was sufficiently severe
or pervasive so as to alter the terms and conditions of her employment. The
Court agreed, however, that Plaintiff failed to establish that the alleged
harassment was based on sex. The Court also agreed with the Magistrate
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Judge’s reasoning and conclusion as to the retaliation claim. The Court granted
summary judgment in favor of Defendant on both claims and dismissed this
action.
Plaintiff appealed the Court’s Order [87]. On December 16, 2016, the
Eleventh Circuit issued an opinion affirming in part and vacating and
remanding in part. Furcron v. Mail Ctrs. Plus, LLC, 843 F.3d 1295 (11th Cir.
2016). The case is now before the Court on remand from the Eleventh Circuit.
Discussion
I.

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.” “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 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
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quotation 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.
Additionally, “the plain language of Rule 56(c) mandates the entry of
summary judgment, after adequate time for discovery and upon motion, 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. No genuine issue of
material fact exists “since a complete failure of proof concerning an essential
element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Id. at 323. Thus, if a party who has the burden of proof fails to
make a showing sufficient to establish the existence of any essential element to
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a claim, summary judgment may be properly granted against them. Id.
Finally, 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 that 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
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”).
II.

Analysis1
An employer is liable for violation of Title VII based on sexual
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The Eleventh Circuit upheld the potion of the Court’s Order [87] granting
summary judgment as to Plaintiff’s claim for retaliation. That portion of the Order
[87] therefore remains in effect.
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harassment when the harassing conduct unreasonably interferes with an
employee’s job performance by creating a hostile, intimidating, or offensive
work environment. Meritor Sav. Bank v. Vinson, 477 U.S. 57, 65 (1986). To
establish a prima facie case for a hostile work environment based on sexual
harassment, Plaintiff must show that: (1) she belongs to a protected group; (2)
she was subjected to unwelcome harassment; (3) the harassment was based on
sex (or race or another protected class under Title VII); (4) the harassment was
sufficiently severe or pervasive to alter the terms and conditions of
employment; and (5) there is a basis for holding the employer liable for the
harassment either directly or indirectly. See Miller v. Kenworth of Dothan,
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002); Cross v. Alabama, 49 F.3d 1490,
1504 (11th Cir. 1995).
In its Order [87] adopting the ultimate conclusion of the Magistrate
Judge’s Report and Recommendation [80] and granting Defendant’s Motion for
Summary Judgment [53], the Court held that the Report and Recommendation
[80] failed to sufficiently construe the facts in favor of Plaintiff as the nonmoving party as to the fourth factor. (Order, Dkt. [87], at 5.) A genuine issue
of material fact therefore existed as to the fourth factor of the prima facie case.
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As to the third factor, the Court adopted the Report and Recommendation’s
conclusion that Plaintiff failed to show that any harassment was “based on sex”
or her membership in a protected class. (Id. at 6.) It is that determination as to
the third factor that is before the Court on remand from the Eleventh Circuit.2
The Eleventh Circuit instructed the Court to reconsider the exclusion of
Tameka Johnson’s Declaration as “largely immaterial.” Upon further review of
the record, and in light of the Eleventh Circuit’s opinion, the Court now rules
that Johnson’s Declaration is admissible evidence. “Evidence is relevant if: (a)
it has any tendency to make a fact more or less probable than would be the case
without the evidence; and (b) the fact is of consequence in determining the
action.” Fed. R. Evid. 401. Whether the harassment Furcron allegedly faced
was based on sex is made more probable by the facts Johnson swore to in her
Declaration. Whether the harassment was based on sex is a fact of
consequence in this action because it is a necessary element to Plaintiff’s prima
facie case. Additionally, the Johnson Declaration is admissible under Rule

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In its Order [87], the Court assumed without deciding that Plaintiff could
establish or show a genuine issue of material fact as to factors one, two, and five of
the prima facie case of her claim. (Order, Dkt. [87], at 3.) The Court now holds that
Plaintiff has met her burden at the summary judgment stage as to these three elements.
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404(b), which “permits the admissibility of so-called ‘me too’ evidence to
prove intent to discriminate and retaliation.” Furcron, 843 F.3d at 1309 (citing
Goldsmith v. Bagby, 513 F.3d 1261, 1285–86 (11th Cir. 2008)).
At this stage in the litigation, Defendant does not contest the
admissibility of Johnson’s Declaration under either Rule 401 or 404(b). It
instead argues for the first time that the Declaration is inadmissible because it
“lacks detail and specificity” and because “its probative value is substantially
outweighed by its harm and cumulative effect since it too supports that
Seligman’s actions were not based on sex.” (Def.’s Post-Remand Br. in Supp.
of Striking Tameka Johnson’s Decl. (“Def.’s Br.”), Dkt. [104], at 1.) The Court
rejects both of these arguments.
Defendant’s arguments are based on Rule 403, which provides: “The
court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
As to the vagueness of Johnson’s Declaration, Defendant complains that
it fails to explain, for example, when the incidents between Johnson and
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Seligman occurred, how often they occurred, whether she reported the alleged
sexual harassment, when that report was made, and the relevant time period.
(Def.’s Br., Dkt. [104], at 3.) Defendant also argues that Johnson did not have
first hand knowledge of Plaintiff’s complaint about Seligman. (Id. at 4.) The
Court finds, however, that Johnson’s Declaration is sufficiently based upon her
personal knowledge and is not so vague as to be excluded. Defendant has
failed to show that the Declaration’s probative value is substantially
outweighed by any prejudice or risk of misleading the jury as required by Rule
403.
Defendant next argues that Johnson’s Declaration presents needlessly
cumulative evidence that Seligman’s actions were not based on sex, so it
should therefore be excluded under Rule 403. Defendant focuses on one of
Johnson’s statements: “I witnessed Mr. Seligman exhibiting these behaviors
towards other MCP employees including Myra Furcron” (Decl. of Tameka
Johnson, Dkt. [104-1] ¶ 7). This statement, Defendant argues, is duplicative of
other evidence in the record showing that both men and women experienced
harassment by Seligman. (Def.’s Br., Dkt. [104], at 5.) This argument,
however, picks one sentence from the Declaration and fails to take it in the
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light most favorable to the Plaintiff as the non-moving party. Even if this one
sentence is cumulative, any risk of needlessly presenting cumulative evidence
fails to substantially outweigh the probative value of Johnson’s Declaration as
required by Rule 403. Johnson’s Declaration is therefore admissible, and the
Court will consider it when ruling on Defendant’s Motion for Summary
Judgment [53].
In its opinion, the Eleventh Circuit held that “the inclusion of Johnson’s
Declaration would preclude a grant of summary judgment ” by creating a
genuine issue of material fact as to whether the alleged harassment was based
on sex. Furcron, 843 F.3d at 1309. Summary judgment is therefore
inappropriate at this stage, and Defendant’s Motion for Summary Judgment
[53] is denied as to Count I for sexual harassment.
Conclusion
In accordance with the foregoing, the Court VACATES in part the
Magistrate’s Order as it relates to Tameka Johnson’s Declaration. Defendant’s
Motion to Exclude Declarations Filed in Support of Plaintiff’s Opposition to
Defendant’s Motion for Summary Judgment [74] is therefore GRANTED in
part and DENIED in part as to Plaintiff’s Declaration and DENIED as to
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Tameka Johnson’s Declaration. Defendant’s Motion for Summary Judgment
[53] is DENIED in part and GRANTED in part. Count II is therefore
DISMISSED. The parties are ORDERED to file a proposed consolidated
pretrial order within 30 days of the entry of this Order.
SO ORDERED, this 12th day of July, 2017.

________________________________
RICHARD W. STORY
United States District Judge

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