Wiggins v. McHugh

Filing 74

ORDER granting 59 Motion for Summary Judgment, instructing the Clerk to enter judgment in favor of Defendant. Signed by Judge Dudley H. Bowen on 10/2/2012. (thb)

FILED

IN THE UNITED STATES DISTRICT COURT U.S. OISTRCT COURT
AUGUTA D! V.
FOR THE SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

7111? OCT -2 P 1 , 33

AYANNA WIGGINS,

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Plaintiff,

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SO. MST. OFGA. /

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V.

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JOHN M. MCHUGH, Secretary,
Department of Army,
Defendant.

CLERK

CV 109-142

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ORDER

Plaintiff Ayanna Wiggins, a black female, is suing her
former employer, Defendant John N. McHugh, Secretary for the
Department of the Army, asserting claims of race
discrimination, retaliation, and hostile work environment.
The case is presently before the Court on the Army's motion
for summary judgment. Upon consideration of the record
evidence, the relevant law, and the briefs of counsel, the
motion is GRANTED.

I. BACKGROUND
A. Plaintiff's Early Employment
Plaintiff was hired as a marketing assistant in the
office of Morale, Welfare, and Recreation ("MWR") at Fort

Gordon, Georgia, in June 2002.' MWR is an organization that
enhances "the quality of life and readiness by continually
improving recreational, social, educational, and personal
services to [] service members, their families and community."
As a marketing assistant, Plaintiff promoted MWR activities
and programs. She also worked on the MWR magazine - FYI which advertises local businesses and promotes activities at
Fort Gordon. When Plaintiff starting working for MWR, FYI was
a black-and-white booklet, less than thirty pages in length.

Unless otherwise indicated, the stated facts reflect Plaintiff's
admissions to Defendant's Statement of Material Facts. (See Doc. No. 661.)
The record contains depositions of witnesses as well as testimony and
statements offered by witnesses during the EEC investigation by CCI
(Office of complaint Investigations) . The witness testimony offered
during the CCI Fact-Finding Conference on April 8, 2008 will be referred
to as "CCI Hrg." Plaintiff testified at the CCI hearing and at a
deposition on November 23, 2010.
Aside from these sources of evidence, Plaintiff also submitted an
affidavit in response to Defendant's motion for summary judgment.
Defendant has interposed an objection to the consideration of the
affidavit, arguing that it contains conclusory and speculative
allegations, matters not within Plaintiff's personal knowledge, and
statements that flatly contradict Plaintiff's deposition testimony. In
setting forth the facts of this case in the light most favorable to
Plaintiff, the Court has considered Defendant's objections to Plaintiff's
affidavit, cognizant of the fact that "[cjonclusory, uncorroborated
allegations in an affidavit will not create an issue of fact for trial
sufficient to defeat a well supported summary judgment motion." See
Solliday v. Federal Officers, 413 Fed. Appx. 206, 207 (l1th Cir. 2011)
Thus, to the extent that Plaintiff's averments are simply bald allegations
of impermissible motive attributed to others or matters not within her
personal knowledge, this Court has not considered them. However,
Plaintiff's assertions of her own observations may be relevant and
admissible, and where considered are noted herein, so long as such factual
assertions do not flatly contradict her prior testimony. In short,
Defendant's objections to Plaintiff's affidavit filed in opposition to the
motion for summary judgment have been duly noted and sustained where
appropriate.

In the beginning, Plaintiff's immediate supervisor was
the marketing director, Chris Rieke. Shortly thereafter,
Ellen Shepard became the marketing director. The office in
which Plaintiff worked was relatively small. Kim Lyons worked
as the commercial sponsorship coordinator. (Lyons Dep. at 11.)
There was also a graphic designer, an illustrator, and a
salesperson in the office. Outside the immediate office,
Plaintiff's second level supervisor was Mildred Hazeirigs,
Chief of the Financial Management Division, and her third
level supervisor was James Green, Director of MWR at Fort
Gordon.
In December of 2002, Plaintiff became advisor to the
Better Opportunities for Single Service members (BOSS")
program, which organizes special events and volunteer
initiatives. Plaintiff managed the day-to-day activities of
the program, working with soldiers within the program and
acting as a liaison to MWR. Under the direction of Shepard,
Plaintiff also became the editor of FYI. Plaintiff explains
this role as follows:
I basically decided the things we were going
to include in the magazine each month as far as
like theme-wise. I worked with the [facility]
managers to get the information that they would be
putting in. If there were people available to
write articles, I would work with them to get those
articles, and I also wrote articles as well. And I
worked closely with Bartley Harper, the graphic
designer.
(Pl.'s Dep. at 29.)

3

B. Plaintiff's First EEO Complaint

In late 2005, Shepard resigned her position as marketing
director, and both Plaintiff and Lyons applied for the
position. Lyons, a white female, was hired, and Plaintiff
filed an EEO complaint alleging race discrimination in
February 2006. Plaintiff contends that the bachelor's degree
requirement for the position was removed to allow Lyons, who
did not have a degree, to obtain the job

.

2

(Pl.'s Dep. at 18-

21.) Plaintiff has a master's degree. (1d. at 8.)
As a result of her 2006 EEO complaint, the Army performed
a desk audit at Plaintiff's request, which involved the
evaluation of Plaintiff's job duties. 3 (See generally Pl.'s
Dep., Ex. 1.) Thereafter, the Army changed Plaintiff's
position to Public Relations Coordinator effective April 19,
2007. (Def.'s Ex. 4.) She did not get any additional duties,
but her position became more focused on public relations as

2

Plaintiff points out that Lyons had filed a sexual harassment claim
against Green prior to the marketing director vacancy and that it was "a
bit odd" that Green was on the selection panel for the position. (Pl.'s
Dep. at 21-22, 80.) Plaintiff believes that Lyons's promotion to
marketing director was part of the settlement of the sexual harassment
case against Green. (Id. at 80.)
Pursuant to the negotiated settlement agreement following the 2006 EEO
complaint, the Army agreed "[tJo analyze [Plaintiff's] current duties as
Marketing Assistant and submit a recommended position description title
that more accurately reflects non-supervisory marketing professional
duties and responsibilities." (Pl.'s Dep., Ex. 1.) The Army also agreed
to approve and fund Plaintiff's attendance at job related courses or
seminars. (Id.)

4

opposed to marketing.

Plaintiff retained her position as

editor of FYI.
C.

Plaintiff's Employment

Under Lyons

According to Plaintiff, after Lyons became marketing
director and her first level supervisor, Plaintiff's work
atmosphere changed. Plaintiff explains:
I just really never knew what I was going to be
dealing with when I walked into the office . .
[Lyons] was just in my face a lot about things that
- I felt like she tried to blame me for things that
were not right . . . . I felt that, you know, prior
to her being selected for the position, I was
involved in marketing, like whatever we had going.
I had a role. But once she
on, I was involved.
became manager, I noticed that I was kind of being
kept out of the loop on things that were directly
related to my job. When I would express that to
her, I was often met with hostility.
(Pl.'s Dep. at 32.)

Plaintiff continues:

And, you know, it wasn't so much that she made it
difficult, because I could probably deal with that,
but I noticed that other people in the office were
not being treated the way that I was being treated.
And so, you know, toward the end, the FYI
magazine was the bone of contention. That was the
thing that, you know, constantly thrown in my face
like I wasn't doing what I was supposed to do so
that the magazine could go out in a timely manner.
And I felt like it was less about that and more
about the fact that she was in this role and she
had the power to make my life hell, and she did.
at 33.)

5

The FYI magazine was indeed the bone of contention in
Plaintiff's last years of employment.' Beginning in March of
2006, during Lyons's first meeting with Plaintiff as her
supervisor, the obligation to meet FYI's deadlines was
stressed. (Pl.'s Dep., Ex. 2.) Hazelrigs was present during
this meeting. As early as April 5, 2006, Lyons again met with
Plaintiff about missing deadlines (J, Ex. 3), although
Plaintiff testified that Lyons had actually been trying to get
Plaintiff to place blame on Bartley Harper, the graphics
designer (id. at 50-51) . Lyons and Plaintiff met again on
April 14, 2006, concerning missed deadlines for the May issue.
Ex. 4.)
During this period of time, the marketing staff was
putting more effort into FYI, and it became longer - 44 pages and in full color. The staff working on the magazine typically
numbered four or five people. Each month the staff met to
discuss the upcoming issue. Plaintiff coordinated with MWR
facility managers throughout Fort Gordon to get their input for
the month. Plaintiff worked closely with Bartley Harper, who
designed the graphics and laid out the magazine. Plaintiff and
Harper further contributed by writing articles. Generally, in
addition to Plaintiff and Harper, Henry Wynn provided

It was Lyons's practice to memorialize
"Memoranda of Record," wherein she summarized
meetings. For the most part, Plaintiff does
the memoranda except in limited circumstances

ILI

meetings with Plaintiff in
what transpired during their
not dispute the contents of
noted herein where relevant.

illustrations, and Sue Russell and Molly Swift sold and created
advertisements.
As editor, Plaintiff would review each submission and make
appropriate changes and then forward the submission to Harper
to do the layout. The process was supposed to involve
simultaneous work so that Harper could do the layout on one
article or advertisement while Plaintiff was editing other
submissions, which would later be provided to him. When the
layout was complete, it was sent to an off-site printer.
At some point in Plaintiff's tenure as editor, Green, the
Director of MWR, decided that the magazine needed to be
available to the public four days before the end of the month. 5
This deadline imposed on the staff internal deadlines of
anywhere between the 101 and the 15 of the month in order to
get the final layout to the printer. Even though Plaintiff
was the editor of FYI, she insists that she did not have
primary responsibility for any missed deadlines. (Pl.'s Dep.
at 40, 64; Pl.'s Aff. 9191 5-6.) Instead, Plaintiff believes
everyone involved had the duty to ensure deadline compliance,
and she also contends that the missed deadlines were typically
the fault of untimely submissions by others or a result of

This publication date was important because FYI had advertisements and
information for events occurring early in the month. (See Def.'s Exs. 67.)

7

being understaffed. (Pl.'s Dep. at 47, 59-60, 63 - 64; Pl.'s
Aft. ¶91 5-6.)
The next encounter between Lyons and Plaintiff in the
record occurred in June 2006. According to Lyons, during a
telephone call between the two on June 21, 2006, Plaintiff
expressed her dissatisfaction of having been "left out of the
loop on many things." (Pl.'s Dep., Ex. 7.) Plaintiff further
stated that she knew what Lyons was doing. ( Id. ) The next
morning Lyons went to Plaintiff's office to ask Plaintiff to
further explain her comments from the telephone conversation.
During the ensuing conversation, Lyons asked Plaintiff to
"keep [her] paranoia out of the office because it is clouding
[Plaintiff's] judgement."

(j)

According to Lyons,

Plaintiff became upset, raised her voice, and asked Lyons how
she would have felt if someone had said that to her in
relation to her accusation against Green for sexual
harassment. (I d.

On January 22, 2006, Lyons placed a

"Caution Memo" in Plaintiff's file for insubordination. In
the memorandum, Lyons expressed that Plaintiff's "attitude and
lack of respect for [her] authority is not acceptable
behavior." (Id.)
On July 19, 2006, Plaintiff wrote a responsive memorandum
for her file. , Ex. 6.) While Plaintiff begins the
memorandum by stating that the "telephone conversation

n.

referenced did not transpire the way it is stated" in the June
22, 2006 memorandum, Plaintiff goes on to essentially admit all
other-pertinent statements between the two. (Id.) The entire
exchange demonstrates the tension between Lyons and Plaintiff. 6
On January 8, 2007, Lyons again reminded Plaintiff of
"the seriousness of the FYI reaching the printer and [being]
delivered to the racks" in accordance with Green's directive.
(Id., Ex. 8.)

Plaintiff acknowledged that she understood

there would be consequences for missing deadlines.

In a

memorandum of May 9, 2007, Lyons noted that Plaintiff had
missed a deadline for the May 2007 issue, and they had
discussed "why the FYI was continually late.

1,7

(Id., Ex. 9.)

This memorandum specifically mentioned that disciplinary
action would be taken the next time a deadline was missed.
(Id.) On June 25, 2007, Lyons wrote another memorandum
memorializing a meeting with Plaintiff in which they had
discussed the fact that a June FYI deadline was missed and
that 10,000 copies of the July FYI issue were erroneously

This tension did not go unnoticed. Harper testified: "[T]here seemed
to be a lot of static between them and they didn't seem to get along
." (Harper Testimony, OCT Hrg. at 106.) Molly Swift testified that she
knew there were problems between them. (Swift Testimony, OCI Hrg. at 81
("I think that towards the end of [Plaintiff's] employment that the
stresses between the two of them, the tensions between the two of them
were very obvious ......) •)
The record is not clear as to whether the deadlines that were missed
were internal deadlines imposed in creating the FYI magazine or the
overarching deadline of publication. Plaintiff insists that it was
typically the former and that the publication was publically available by
the first of each month.

identified as the June issue.

(Id., Ex. 10.)

In her

deposition, Plaintiff admitted that the date error was a major
issue but pointed out that everyone could have accessed the
magazine on the server and caught the wrong date. (P1. 's Dep.
at 60.) About this same time, Plaintiff met with Green to
discuss her employment. Green took away Plaintiff's
responsibility for the BOSS program so that she could focus on
marketing. (Id. at 27.)
Despite the missed deadlines, by all accounts Plaintiff's
work product was good. (Harper Dep. at 50 - 52; Swift Dep. at
14-15; Russell Testimony, OCI Hrg. at 67; Lyons Testimony, 001
Hrg. at 134; Green Testimony, 001 Hrg. at 211.) In fact, in
September 2007, upon approval of Lyons, Hazelrigs, and Green,
Plaintiff received a $4000 salary increase based on her
performance. Nevertheless, Plaintiff missed a deadline for
the October FYI issue. Because of this missed deadline,
Plaintiff received a Decision Day memorandum on October 2,
2007, from Hazelrigs. 8 (See Pl.'s Dep., Ex. 12.)
A Decision Day memorandum allows management to give an
employee a day off without pay after which they must, upon

8

Hazelrigs noted that Plaintiff chose to attend an optional training
conference even though she had not completed the largest article for the
October issue. In fact, Plaintiff did not turn in the article until six
days after the proofed issue was due to the printer.
(Pl.'s Dep., Ex.
For her part, Plaintiff explained that she completed the article
12.)
while at the conference, that other submissions were also late, and that
the conference was job-related and intended to benefit the publication of
the magazine. (Pl.'s Dep. at 62-64.)

10

return, agree to abide by expected standards under threat of
immediate termination upon the occurrence of another
infraction. Plaintiff signed the Decision Day memorandum on
October 9, 2007, and while she agreed that a deadline had been
missed, she denied responsibility.
On October 19, 2007, Plaintiff missed another internal
deadline for the November FYI issue; yet, she was not
terminated.

Rather, Plaintiff received a "Final Warning:

Decision Day" memorandum from Hazelrigs. 9

(Pl.'s Dep., Ex.

13.) The memorandum stated: "It is apparent to me that you
did not take the Decision Day seriously at all, nor the
Employee Decision and Commitment you signed on October 9,
2007, to adhere to the performance expectations of your
position and its responsibilities." (Id.) Nevertheless, the
memorandum noted that the infraction occurred so soon after
the issuance of the Decision Day memorandum that Plaintiff was
not terminated to afford her a "reasonable opportunity to
appropriately modify [her] performance." (Id.)
Plaintiff met with Green thereafter to stress that she
believed the Decision Day memorandum to be unfair. Green told
This "second" Decision Day memorandum was an extraordinary
accommodation, at least so far as the written disciplinary policy is
concerned - called the Cooperative Improvement Program. With respect to
Decision Day memoranda, this policy provides: "Because it is a total
performance and conduct decision and commitment on the employee's part,
only one 'Decision Day' is allowed. No other formal levels of discipline
may be administered during the active period of a 'Decision Day'. Any
unacceptable performance /conduct that warrants formal discipline at any
level would be cause for removal." (Def.'s Ex. 7, at 39.)

11

Plaintiff that Lyons and Hazeirigs expressed to him that
Plaintiff continually missed magazine deadlines.

Green

advised Plaintiff to work with Lyons and tell her if Plaintiff
believed she would miss a deadline.
Hrg. at 212-13.)

(Green Testimony, CCI

Green offered to Plaintiff that if she

reached her benchmarks for the next six months, he would
consider withdrawing the Decision Day memorandum and giving
her a raise. (Id.)
D.

Plaintiff's Separation from Employment

The events surrounding Plaintiff's termination center on
a project unrelated to FYI, which will be referred to at times
as the "collage project." The project was initiated by and
revolves around an e-mail chain, appearing in the record as
Exhibit 15 to Plaintiff's deposition. The e-mail chain
reflects the following.
On November 20, 2007, Lyons received an e-mail from Tina
L. Pondy, the supervisor of another department, requesting
copies of prior marketing for certain events and pictures of
certain facilities. Lyons promptly forwarded the e-mail to
Plaintiff, copying Harper, and asked her to complete the
assignment "no later than 30 November." The next day,
Plaintiff inquired of Lyons whether she or Harper should
complete the task. Lyons replied: "You" - indicating
Plaintiff.

12

On November 29, 2007, the day before the deadline,
Plaintiff e-mailed Lyons to inform her that Pondy was out of
work for a few days having surgery and to ask what she should
do with the assignment. To that point, Plaintiff had not
worked on the assignment.' ° (Pl.'s Dep. at 79.) On December
3, 2007, Plaintiff again e-mailed Lyons and told her that
Pondy had come by asking that the project be completed by the
next day." Plaintiff indicated that Pondy stated that she
"would like to sit down with [Harper], if necessary, to go
over what she needs." Within an hour, Lyons responded to
Plaintiff as follows: "Please do what needs to happen. Get
pictures together that she is requesting. Look at the old
FYI's [sic] and pull together what she needs." Within
minutes, Plaintiff informed Lyons that she did not have access
to the requested information and asked if she could involve
Harper.' 2 Lyons responded within minutes - at 3:10 p.m. - as
follows: "The pictures she wants are some of them that we have

'°
Plaintiff testified that prior to this date, Plaintiff and Lyons
discussed the collage project and Plaintiff explained that the project
required a graphics designer. (Pl.'s Dep. at 67.) According to
Plaintiff, Lyons did not want to take Harper off his work on the FYI
magazine, but she told Plaintiff that she would discuss the matter with
Hazelrigs. Plaintiff testified that she was awaiting further word on who
was responsible for completing the collage project. (Id. at 67-69.)
Lyons was on leave and not in the office on December 3 1 2007.
12

Plaintiff testified that she believed the project fell under the
graphics department and therefore was best handled by Harper. (Pl.'s Dep.
Yet, Plaintiff did not want to involve Harper until given
at 67-68.)
(Id. at 70-71.)
express permission to do so.

13

had in past issues. Also pictue [sic] of the actual facility.
It show[s] the renovations."
During the OCT fact-finding conference in April 2008,
another copy of the e-mail chain surfaced, which is attached
as Exhibit 16 to Plaintiff's deposition. In the new e-mail
chain, Lyons's last responding e-mail - also sent at 3:10
p.m. - stated: "I gave you ideas on what to do. Just please
use the info that we used for the FYI. After you gather all
the info if you need [Harper] to help then okay." Plaintiff
denies ever receiving this last e-mail giving her permission
to involve Harper. (Pl.'s Dep. at 74-75.) In fact, Plaintiff
contends that the last e-mail is a fraud.' (Id. at 75.)
Some time after receiving the last e-mail, Plaintiff left
work early. The next day, Lyons aggressively entered
Plaintiff's office and informed Plaintiff that she had to come
in from leave and she and Harper had to work late to complete
the project. (Pl.'s Dep. at 69.) Lyons told Plaintiff that
she could have done the work.

(j)

After further

conversation, Plaintiff was sent home.

(1d. at 61.)

Thereafter, Plaintiff was terminated, effective December 21,

13

Specifically, Plaintiff contends that Lyons created the e-mail giving
Plaintiff permission to involve Harper after the fact to justify her
termination of Plaintiff. The parties' experts were unable to
electronically recover the allegedly fraudulent e-mail communication.
Viewing the evidence in the light most favorable to Plaintiff, the Court
will assume that Lyons never sent the last communication to Plaintiff but
instead the e-mail was somehow created after the fact.

14

2007.

(See id., Ex. 14.)

The stated reason for the

termination is Plaintiff's failure to complete an assigned
project. 4
E.

(id)
Plaintiff's 2007 EEO Complaint

On October 10, 2007, Plaintiff filed an informal
administrative EEO complaint alleging discrimination based
upon her receipt of the Decision Day memorandum of October 2,
2007. Plaintiff then amended her EEO complaint to include her
termination on January 22, 2008. Sec. Pin. Compi., Ex.

On January 28, 2008, Plaintiff filed her Formal Complaint
of Discrimination, listing "wrongful termination (Dec 2007)"
and "retaliation/reprisal (Oct 2007)" as acts of
discrimination. (Id., Ex. C.) On March 31, 2008, the EEO
Officer identified the following claims on Plaintiff's behalf:
(1) the issuance of the Decision Day memorandum of October 2,
2007 was a result of Plaintiff's race and reprisal for prior
EEO activity, and (2) Plaintiff's termination was the result
of reprisal for prior EEC activity. (Id., Ex. F.)
On April 8, 2008, a Fact-Finding Conference was conducted
in the matter. On June 24, 2008, the EEO released a Report of
Investigation, which identifies Plaintiff's claims as follows:
Specifically, the separation letter states: "[N]ot only did you not
provide any of the requested information necessary to complete and meet
the suspense, you also left the office for the day without completing any
of the project material." (Pl.'s Dep., Ex. 14.)

15

(1) Plaintiff was discriminated against based upon her race
and reprisal when she was issued the Decision Day memorandum
of October 2, 2007, and (2) Plaintiff's termination was the
result of reprisal for prior EEC activity. Ex. H.)
Ultimately, Plaintiff received an unfavorable administrative
decision, and her appeal and motion for reconsideration were
denied. Plaintiff was represented by counsel throughout the
administrative proceedings.
Plaintiff timely filed the instant action in this Court
on November 13, 2009. Upon direction of the Court, Plaintiff
filed a Second Amended Complaint on April 28, 2010. The
Second Amended Complaint (doc. no. 18) is the operative
pleading in this case. In Count I of the Second Amended
Complaint, Plaintiff alleges that Defendant took certain
adverse actions against her because of her race and because of
her prior EEC activity. In Count II of the Second Amended
Complaint, Plaintiff alleges that she was subjected to a
"racially hostile work environment."
Presently, Defendant has moved for summary judgment on
Plaintiff's discrimination claims. The Clerk has given
Plaintiff notice of the summary judgment motion and the
summary judgment rules, of the right to file affidavits or
other materials in opposition, and of the consequences of
default. (Doc. No. 61.) Therefore, the notice requirements

16

of Griffith v. Wainwright, 772 F.2d 822, 825

(11th Cir. 1985)

(per curiam), are satisfied. The time for filing materials in
opposition has expired, and the motion is ripe for
consideration.

II. SUMMARY JtYDGMENT STANDARD

Summary judgment is appropriate only if "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). Facts are "material" if they could affect the outcome
of the suit under the governing substantive law. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court must
view the facts in the light most favorable to the non-moving
party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), and must draw "all justifiable
inferences in [its] favor," United States v. Four Parcels of
Real Prop, in Greene and Tuscaloosa Cntvs., 941 F.2d 1428,
1437

(11t1 Cir. 1991) (en banc) (internal punctuation and

citations omitted)
The moving party has the initial burden of showing the
Court, by reference to materials on file, the basis for the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)
How to carry this burden depends on who bears the burden of
proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112,

17

1115 (11' Cir. 1993). When the non-movant has the burden of
proof at trial., the movant may carry the initial burden in one
of two ways - by negating an essential element of the nonmovant's case or by showing that there is no evidence to prove
a fact necessary to the non-movant's case. See Clark v. Coats
& Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)
(explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)
and Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). Before
the Court can evaluate the non-movant's response in
opposition, it must first consider whether the movarit has met
its initial burden of showing that there are no genuine issues
of material fact and that it is entitled to judgment as a
matter of law. Jones v. City of Columbus, 120 F.3d 248, 254
(11th Cir. 1997) (per curiam) . A mere conclusory statement
that the non-movant cannot meet the burden at trial is
insufficient. Clark, 929 F.2d at 608.
If - and only if - the movant carries its initial burden,
the non-movant may avoid summary judgment only by
"demonstrat[ing] that there is indeed a material issue of fact
that precludes summary judgment." Id. When the non-movant
bears the burden of proof at trial, the non-movant must tailor
its response to the method by which the movant carried its
initial burden. If the movant presents evidence affirmatively
negating a material fact, the non-movant "must respond with

evidence sufficient to withstand a directed verdict motion at
trial on the material fact sought to be negated."
Fitzpatrick, 2 F.3d at 1116. If the movant shows an absence
of evidence on a material fact, the non-movant must either
show that the record contains evidence that was "overlooked or
ignored" by the movant or "come forward with additional
evidence sufficient to withstand a directed verdict motion at
trial based on the alleged evidentiary deficiency." Id. at
1117. The non-movant cannot carry its burden by relying on
the pleadings or by repeating conclusory allegations contained
in the complaint. See Morris v. Ross, 663 F.2d 1032, 1033-34
(lith

Cir. 1981) . Rather, the non-movant must respond by

affidavits or as otherwise provided by Federal Rule of Civil
Procedure 56.

III. LEGAL ANALYSIS
A. Race Discrimination

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et

seq.,

prohibits employers from discriminating

"against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of
such individual's race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a) (1). According to Plaintiff,
she was discriminated against because of her race, and such

19

discrimination reached expression in two different forms: (1)
the issuance of the Decision Day memorandum on October 2,
2007; and (2) her termination in December 2007. On the record
evidence, these charges are groundless.
Title VII plaintiffs may prove race discrimination claims
in either of two ways - either through the production of
"direct evidence" of discrimination or through the production
of "circumstantial evidence" that creates an inference of
discrimination.
1293

Wri g ht v. Southland Corp., 187 F.3d 1287,

(11th Cir. 1999) .

In this case, Plaintiff has advanced

only circumstantial evidence.
When a plaintiff bases her case on circumstantial
evidence, the so-called burden shifting analysis of McDonnell
Dglas and its progeny is used. The burden shifting analysis
requires a plaintiff to first come forward with evidence
sufficient to establish a prima facie case of discrimination.
This creates a rebuttable presumption of unlawful
discrimination. The defendant is then called upon to
articulate a legitimate, non-discriminatory reason for its
allegedly discriminatory decision. The production of this
reason serves to shift the burden back to the plaintiff, who
then must produce evidence of "pretext," that is, to show the
proffered reasons are "not the true reasons for the employment
decision." See Brooks v. County Comm'n of Jefferson Cnty

20

Ala., 446 F.3d 1160, 1162-63

(11th Cir. 2006) (citations and

quoted sources omitted) . "Although the intermediate burdens
of production shift back and forth, the ultimate burden of
persuading the trier of fact that the employer intentionally
discriminated against the employee remains at all times with
the plaintiff."

• j at 1162 (quoting EEOC v. Joe's Stone

Crab, Inc., 296 F.3d 1265, 1273
1.

(11th Cir. 2002))

Prima Facie Case of Discimination

In accordance with this burden shifting analysis, the
Court will first look to whether Plaintiff has established a
prima fade case of discrimination in the instant case. A
plaintiff may establish a prima fade case of disparate
treatment by showing that: (1) she is a member of a protected
class; (2) she was qualified for the position; (3) she
suffered an adverse employment action; and (4) she was
replaced by a person outside of her protected class or was
treated less favorably than a similarly-situated individual
outside of her protected class. Maynard v. Bd. of Regents of
Div. of Univs. of Fla. Dep't of Educ., 342 F.3d 1281, 1289
(11th Cir. 2003) . Here, it is undisputed that Plaintiff
belongs to a protected class, was qualified for her position,"

is

"Of course, the fact that [Plaintiff] was qualified to perform her job
competently does not mean that she actually did so, an issue that is
sharply contested by the parties." Alvarez v. Royal Atl. Developers,
Inc., 610 F.3d 1253, 1265 (11th Cir. 2010). "The qualifications and
experience that get a candidate hired for a job and the performance that
is satisfactory enough for her to keep it are two different things." Id.

21

and suffered an adverse employment action when she received
the Decision Day memorandum and then was terminated.
With respect to the fourth prong, however, the Army
contends that Plaintiff has not identified a valid comparator,
while Plaintiff goes to great length to point out that she was
treated unfavorably as compared to the other employees who
were similarly responsible for meeting deadlines for the
publication of FYI. 16 More specifically, Plaintiff complains
that Harper and Swift were never disciplined when they missed
deadlines.
To be a valid comparator, the plaintiff and the employee
she identifies as a comparator must be similarly situated "in
all relevant respects." Holifield v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997) . The Army points out that there is only
one person, Plaintiff, who was the editor of FYI and that she
therefore was ultimately responsible for meeting deadlines.
However, the Eleventh Circuit has pronounced that "[t]he
relevant inquiry is not whether the employees hold the same
job titles, but whether the employer subjected them to

Because Plaintiff's job performance is bound up in the inquiry of whether
the Army's proffered reason for firing her was pretext for discrimination,
the Court will consider it at the pretext stage of the analysis. Id.
Of note, Plaintiff does not rely upon the race of Plaintiff's immediate
successor to the FYI editorship to establish a prima facie case of
discriminatory termination even though there is record evidence that a
white female, Amanda Hamilton, took over the position, albeit informally,
when Plaintiff was terminated. (See Swift Testimony, OCI Hrg. at 92.)

22

different policies." Lathem v. Dep't of Children & Youth
Servs., 172 F. 3d 786, 793 (lith Cir. 1999). Thus, Plaintiff's
ediLorship is not determinative of whether she has a valid
comparator. Rather, viewing the evidence in the light most
favorable to Plaintiff, both Swift and Harper testified that
the timely publication of FYI was a collective effort, and
both Swift and Harper missed deadlines. (Swift Testimony, 001
Hrg. at 76-77; Harper Dep. at 61 - 62; Harper Testimony, OCI
Hrg. at 100-04 (admitting it was his responsibility to make
sure the magazine got to the printer on time) .) More
importantly, Plaintiff did not have any supervisory or
disciplinary control over the other employees working on the
magazine. (Harper Dep. at 47; Pl.'s Aff. ¶ 6.) Thus,
Plaintiff's ability to meet deadlines was, at least in part,
dependent upon other employees or clients over whom she had no
real control. Yet, no other employee received a Decision Day
memorandum for failing to miss deadlines.
In short, for purposes of summary judgment consideration,
the Court finds Swift and Harper to be valid comparators, and
in doing so, Plaintiff has at least created a material fact
question pertaining to a prima facie case of discrimination.
2.

Legitimate, Non-Discriminatory Reason

Assuming Plaintiff can establish a prima facie case of
discrimination, the burden shifts to the Army to articulate

23

legitimate, non-discriminatory reasons for its adverse actions
taken against Plaintiff. This burden is "exceedingly light."
Holifield, 115 F.3d at 1564. "To satisfy this intermediate
burden, the employer need only procure admissible evidence
which would allow the trier of fact rationally to conclude
that the employment decision had not been motivated by
discriminatory animus." Combs v. Plantation Patterns, 106
F.3d 1519, 152 (11th Cir. 1997) (citations omitted)
In this case, the Army has amply demonstrated by
admissible evidence that the Decision Day memorandum was
issued because Plaintiff

continually missed FYI deadlines

despite warnings from her supervisors that discipline would be
taken. Once the Decision Day memorandum was issued, any
infraction by Plaintiff could result in immediate termination,
and it did. That is, the Army has provided evidence that
Plaintiff disobeyed a directive to complete an assigned
project. Thus, the Court readily concludes that the Army has
met its burden of production in coming forward with legitimate
non-discriminatory reasons for the adverse actions taken
against Plaintiff.
3.

Pretext

This case turns on whether there is a genuine issue of
material fact with respect to pretext. In order to show
pretext, a plaintiff must "demonstrate that the proffered

24

reason was not the true reason for the employment decision."
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981).

"[The plaintiff] may succeed in this either directly

by persuading the court that a discriminatory reason more
likely motivated the employer or indirectly by showing that
the employer's proffered explanation is unworthy of credence."
Id. The plaintiff may demonstrate that an employer's reason
is pretextual by identifying

w suc

h weaknesses,

implausibilities, inconsistencies, incoherencies or
contradictions in the employer's proffered legitimate reasons
for its actions that a reasonable faotfinder could find them
unworthy of credence." Combs, 106 F.3d at 1538 (quotation
omitted) . "Provided that the proffered reason is one that
might motivate a reasonable employer, an employee must meet
that reason head on and rebut it, and [she] cannot succeed by
simply quarreling with the wisdom of that reason." Chapman v.
Al Transport, 229 F.3d 1012, 1030 (11 Cir. 2000) . So, when
an employer asserts that it disciplined a plaintiff for poor
performance, it is not enough for the plaintiff to show that
her performance was satisfactory. Alvarez, 610 F.3d at 1266.
Rather, she must demonstrate that the employer did not believe
that her performance was lacking and merely used that claim
"as cover for discriminating against her on account of [her
race]." Id.

25

In the case at bar, Plaintiff does not attempt to argue
that she did not miss deadlines; rather, she argues at length
that the Army held the missed deadlines against her alone and
that to do so was unfair in light of the attendant
circumstances. However, the fact that Plaintiff feels
unfairly blamed for the missed deadlines is beside the point.
The inquiry into pretext centers on the employer's beliefs,
not the employee's beliefs. See Holifield, 115 F.3d at 1565.
The question in consideration of pretext is whether
Plaintiff's supervisors were dissatisfied with her for missing
deadlines or any other non-discriminatory reason, even if
mistakenly or unfairly so, or whether they used the missed
deadlines as a cover for race discrimination. See, eg.,
Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470

(11th Cir.

1991) (inquiry is limited to whether employer believed
employee was guilty of misconduct and if so, whether that was
the reason behind discharge; that employee did not actually
engage in misconduct is irrelevant) . Thus, Plaintiff must
establish not only that the Army's proffered reasons for the
Decision Day memorandum and termination were ill-founded, but
also that unlawful discrimination was the true reason for the
termination. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 148 (2000) (showing only that proffered reasons

W
.

are false does not necessarily get plaintiff past summary
judgment)
Here, Plaintiff failed to rebut much of the Army's
legitimate, non-discriminatory reasons for taking adverse
actions against her. In fact, Plaintiff admits that she
missed deadlines but defends herself by shifting the blame to
her co-workers or to other outside facility managers. She
also blames the poor supervision and management of Lyons.
Similarly, she admits that she did not complete the collage
project, but she again shifts the blame to Lyons. Thus,
Plaintiff cannot seriously contend that the Army's belief that
she was not meeting her responsibilities and deadlines was
unreasonable.
Plaintiff instead would have the Court second-guess the
correctness of the Army's decision to hold her accountable for
this conduct. Yet, the Eleventh Circuit has cautioned that in
analyzing issues like this one, a court "must be careful not
to allow Title VII plaintiffs simply to litigate whether they
are, in fact, good employees." Rojas v. Florida, 285 F.3d
1339, 1342

(11th Cir. 2002) . Instead, the sole concern is

whether "unlawful discriminatory animus" motivated the adverse
decisions. Id. In this case, Plaintiff presents no evidence
that her employer acted with discriminatory animus. The only
evidence related to race is Plaintiff's assertion that Lyons

27

often stated to her and others that Green did not like black
people. ' 7 Pl.'s Dep. at 41-42.) This testimony is at
best double hearsay. Further, even if Green had commented
that he did not like black people, a discriminatory comment,
taken alone, is not enough to present a question of material
fact on the issue of discriminatory intent. See Roj a s, 285
F.3d at 1343; Beaver v. Raynoier, Inc., 200 F.3d 723, 731 (llt
Cir. 1999) . Accordingly, the Court finds that any alleged
discriminatory statement made by Green about black people,
taken alone, is insufficient to create an issue of material
fact regarding whether the Army's proffered reasons for the
adverse treatment of Plaintiff were motivated by Green's
alleged discriminatory animus. 18
Plaintiff also again offers the dissimilar treatment of
her so-called comparators, Harper and Swift, as evidence of
pretext. Plaintiff points out that they were not subjected to
the same level of discipline as she was when deadlines were

17
Plaintiff also indicates in her affidavit that she had been told that
there were "too many Black people" in the FYI magazine. (Pl.'s Aff. ¶ 6.)
This comment, even if made, is unavailing to Plaintiff when she
unequivocally disclaimed in her deposition that she was not told there was
too much coverage for black people or anything related to this sentiment.
(See Pl.'s Dep. at 111.) Thus, Plaintiff's contrary assertion in her
affidavit has not been considered. See Van T. Junkins & Assocs. v. U.S.
Indus. Inc., 736 F'.2d 656, 657 (11th Cir. 1984) ("When a party has given
clear answers to unambiguous questions which negate the existence of any
genuine issue of material fact, that party cannot thereafter create such
an issue with an affidavit that merely contradicts, without explanation,
previously given clear testimony.")

Importantly, Plaintiff has offered no evidence that either Flazelrigs
'
or Lyons made racist remarks or acted in a racially biased manner.

missed. 19 However, it is irrelevant that Plaintiff believed
she was not ultimately responsible for the timeliness of the
publication or even that Harper and Swift believed that the
magazine was a collective effort. Rather, Plaintiff's
supervisors expressly indicated to Plaintiff on several
occasions that she was responsible for the timely publication
of the magazine and that continually missing deadlines was an
unacceptable performance problem which would subject her to
further discipline. The numerous counseling meetings
memorialized by undisputed memoranda establish this point.
Thus, the alleged dissimilar treatment of other employees does
not show pretext.
Turning to her termination, Plaintiff offers certain
discrepancies in Lyons's conduct in the case as evidence of
pretext. In particular, Plaintiff points to the allegedly
false e-mail, Exhibit 16, which shows that Lyons told
Plaintiff she could involve Harper on the collage project - an
allowance Plaintiff contends she never received. Plaintiff
argues that this fraudulent e-mail makes the Army's
legitimate, non-discriminatory reason for firing her unworthy
of credence. Nevertheless, Plaintiff admits that she did not
do any work on the collage project until the day before the

'
There is evidence, however, that Harper and Swift both received
informal disciplinary warnings or letters for missing deadlines. (Harper
Dep. at 61 - 65; Hazelrigs Dep. at 36; Swift Testimony, OCI Hrg. at 77.)

29

project deadline. She also does not dispute that Lyons sent
her an e-mail that told her to "please do what needs to
happen." Certainly, Lyons did not tell her that she could not
involve Harper. Even after Plaintiff asked Lyons if she could
involve Harper, Lyons did not forbid her from doing so.
Accordingly, this after the fact permission to involve Harper
does little to discredit Lyons's belief that Plaintiff should
have completed the collage project, with or without Harper's
assistance, instead of leaving early that day. That is, Lyons
did not need to create justification to terminate Plaintiff
when she already had a reason to do so.
Additionally, Plaintiff points to a discrepancy between
the testimony of Lyons and Harper as it relates to the
completion of the collage project. While Harper testified
that he completed the project by himself (Harper Dep. at 5657), Lyons testified that she and Harper worked on the project
(Lyons Dep. at 120) . However, there is no real inconsistency
in their testimony because Harper testified that Lyons "told
[him] what she needed. . . . [S]he just told me what needed to
be done, what I needed to include, and I did that." (Harper
Cap. at 57.) It is undisputed that Lyons came in on her day
off to direct Harper in completing the project and is indeed
the supervisor; in light of these facts, it is not
unreasonable for Lyons to assert that she helped in completing

30

the project, even if she did not do the actual work. This
alleged inconsistency simply is not enough to discredit
Lyons's account of Plaintiff's termination to an extent to
raise an issue of pretext for a jury.
Clearly, Plaintiff feels that she was unfairly targeted
for failing to perform her job duties as editor of a magazine.
Yet, several undisputed facts belie this suggestion. First,
Plaintiff was not terminated for over a year after Plaintiff's
insubordination of June 2006. Second, she was given numerous
warnings about deadline compliance over a two-year period.
Third, in the months leading up to her termination, Green
relieved Plaintiff of her responsibility for the BOSS program
to give her more time to focus on FYI. Fourth, Plaintiff was
given a discretionary raise a few months prior to her
termination. Fifth, Green offered to rescind the Decision Day
memorandum if Plaintiff complied with the deadlines over a
six-month period. Finally, the Army issued Plaintiff a second
"Final Warning: Decision Day" memorandum on October 19, 2007,
rather than terminating her after missing a deadline following
the Decision Day memorandum. These actions evidence an
employer that made a good-faith effort to work with Plaintiff
in an effort to improve her performance over a significant
amount of time. While putting the ultimate responsibility of
meeting deadlines on Plaintiff and holding her responsible to
complete the collage project may be construed as unfair,

31

Plaintiff has failed to show any improper motive.

"[An]

employer may fire an employee for a good reason, a bad reason,
a reason based on erroneous facts, or for no reason at all, as
long as its action is not for a discriminatory reason." Nix
v. WLCY Radio/Rahall Cominc'ns, 738 F.2d 1181, 1187 (li v Cir.
1984). Further, the alleged discrepancies in Lyons's conduct
in the case do not sufficiently discredit the undisputed facts
of Plaintiff's performance failings to evidence pretext.
In conclusion, Title VII addresses discrimination in the
workplace, not harsh treatment. See JL

Whether the Army's

course of action against Plaintiff appears harsh, erroneous,
unfair, or even incredible to her or an outside observer,
Plaintiff cannot prevail without evidence of discriminatory
intent. Stated another way, Plaintiff's burden is to show not
just that the Army's proffered reasons for any adverse action
were ill-founded but that unlawful discrimination was the true
reason. See Alvarez, 610 F.3d at 1267. Instead, the record
indisputably shows Plaintiff failed to satisfy her employer's
job expectations, and Plaintiff has failed to create a genuine
issue that these failings were cover for racial
discrimination. Defendant is therefore entitled to summary
judgment on Plaintiff's claim of race discrimination.
B.

Retaliation

Title VII makes it unlawful for an employer to
discriminate against an employee in retaliation for opposing
32

"any practice made an unlawful employment practice [under
Title VII]." 42 U.S.C. § 2000e-3(a). Plaintiff contends that
adverse employment actions were taken against her in
retaliation for her 2006 EEC complaint and her October 2007
informal EEO complaint related to the issuance of the Decision
Day memorandum.
Where, as here, a plaintiff's retaliation claim is based
on circumstantial evidence, the claim is also analyzed
according to the burden shifting framework set forth in
McDonnell Douglas and its progeny. Brown v. Ala. Dep't of
Transp, 597 F.3d 1160, 1181 (11th Cir. 2010) . Thus, in order
to survive summary judgment, Plaintiff must set forth a prima
facie case to create a presumption of retaliation. Once
satisfied, the Army must rebut this presumption of retaliation
by articulating legitimate, non-retaliatory reasons for its
adverse actions. Plaintiff must then come forward with
evidence sufficient to permit a reasonable fact finder to
conclude that the adverse action taken by the Army was
retaliatory. See, eg., Cowan v. Jackson Hose. & Clinic,
Inc., 572 F. Supp. 2d 1286, 1289 (M.D. Ala. 2008) (cited
sources omitted)
The elements of the prima facie case of retaliation are
(1) protected activity, (2) adverse employment action, and (3)
a causal link between the protected activity and the adverse

33

action. Hairston v. Gainesville Sun Pub. Co., 9 F.3d 913, 919
(11th Cir. 1993) . Here, the parties do not dispute that
Plaintiff engaged in protected activity and suffered adverse
employment actions. The third element is in dispute.
Causation may be established by showing close temporal
proximity between the statutorily protected activity and the
adverse employment action. Thomas v. Cooper Lighting, Inc.,
506 F.3d 1361, 1364

(111-h Cir. 2007) . Defendant contends that

the eighteen-month period between Plaintiff's filing of the
2006 EEO complaint and the issuance of the Decision Day
memorandum on October 2, 2007, precludes a finding of a causal
connection between the two. Plaintiff responds that the more
relevant fact is that within weeks of her filing the 2006 EEC
complaint, her work environment became in her words "hostile."
(See Pl.'s Dep. at 32.) Plaintiff continues that this
hostility, evidenced by the imposition of stringent deadlines
and being "kept out of the loop on things," was ongoing and
culminated in the Decision Day memorandum. (See id.) For
purposes of summary judgment, the Court will assume that
Plaintiff's work environment changed in March or April of
2006, shortly after she filed the EEO complaint in February of
2006. Given this assumption, a reasonable fact finder could
find a causal connection between Plaintiff's 2006 EEC activity
and the issuance of the Decision Day memorandum. Thus,

34

Plaintiff has established a prima facie case of retaliatory
discipline.
Plaintiff also claims that she was terminated in
retaliation for filing an informal EEO complaint in October
2007 concerning the issuance of the Decision Day memorandum.
Here, there is sufficient temporal proximity - approximately
one month - to establish a prima facie case of retaliatory
discharge as well.
As discussed previously, the Army has produced evidence
that could allow a rational fact finder to conclude that its
adverse actions against Plaintiff are supported by legitimate
reasons and not a retaliatory one. Thus, the burden of
production now shifts to Plaintiff to establish pretext.
To establish pretext Plaintiff may either produce
evidence sufficient to permit a reasonable fact finder to
conclude that a retaliatory reason more than likely motivated
the adverse employment action or demonstrate that the Army's
proffered reason for the employment action is not worthy of
belief. See Burdine, 450 U.S. at 256. In this regard,
Plaintiff has presented no evidence of a retaliatory motive on
any decision maker's part. Moreover, she offers the same
evidence of pretext as she did with respect to her race
discrimination claim.
Plaintiff first points out that when Lyons became

35

supervisor, her work atmosphere changed and she was treated
differently from her co-workers. Plaintiff argues that her
working conditions are evidence that the Army's motive in
issuing the Decision Day memorandum is the result of reprisal.
A closer look at the evidence supporting this claim is in
order. Plaintiff complains that Lyons was "in [her], face" and
tried to blame her for things. (See Pl.'s Dep. at 32.) More
specifically, Plaintiff feels as though she was singled out
for responsibility for FYI's deadlines. To this point,
however, "different supervisors may impose different standards
of behavior, and a new supervisor may decide to enforce
policies that a previous supervisor did not consider
important." Ro j as, 285 F.3d at 1343. Plaintiff does not
dispute that she missed deadlines or that deadline compliance
was important to her employer. Accordingly, the fact that
such compliance became a focal point of Plaintiff's job
performance under Lyons's supervision does not create an issue
of fact with respect to causation.' Further, it must be noted
once again that the Army withstood Plaintiff's performance
failings over a prolonged period and made allowances for
Plaintiff to retain her job despite her failings. The
temporal gap between the EEO complaint and the first adverse
The new supervisor was not the only change at the marketing office. The
FYI magazine was significantly expanded at a time coinciding with the
alleged hostility about deadline compliance and Plaintiff's alleged
diminished role in other marketing activities.

36

action of which Plaintiff complains, the Decision Day
memorandum, are in fact so remote in time as to belie an
assertion of reprisal. Thus, the so-called mistreatment' of
Plaintiff is not sufficient evidence to create a genuine issue
of pretext. 3
The Eleventh Circuit has recently stated: "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, 610 F.3d at 1270. On this record,
however, Plaintiff is attempting to do just that. That is,
with no evidence of retaliatory motive on behalf of any
supervisor, Plaintiff seeks to have the mere fact of filing an
EEO complaint insulate her from further discipline or
criticism. And, while there is no finding that Plaintiff
intentionally filed any EEO complaint for that purpose, the
Court will not allow Plaintiff's filings to achieve the same

2

To be clear, there can be no finding that Plaintiff suffered from a
hostile work environment as that term is defined in employment
discrimination cases. That is, Plaintiff has not established that the
alleged mistreatment rose to the level of harassment "sufficiently severe
or pervasive to alter the conditions of [her] employment and create an
abusive working environment." See Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)
3

Additionally, Plaintiff points to the allegedly fraudulent e-mail and
the inconsistency in Lyons's testimony concerning the collage project.
This evidence would only apply to her retaliatory discharge claim, and as
explained before, it is insufficient to make the Army's legitimate, nondiscriminatory reasons for her termination, unworthy of credence.

37

result in a case in which the employee was offered as many
accommodations by the employer as this employee was.
In light of the fact that Plaintiff has failed to rebut
the Army's legitimate, non-discriminatory reason for the
issuance of the Decision Day memorandum or her termination,
the Court finds that Plaintiff has not demonstrated that its
reason was pretextual. Accordingly, Defendant is entitled to
summary judgment on Plaintiff's Title VII retaliation claim.
C. Racially Hostile Work Environment
A hostile work environment claim is a species of action
available under Title VII, founded upon proof that "the
workplace is permeated with 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." Harris v. Forklift Systems
Inc., 510 U.S. 17, 21 (1993)
omitted) .

(citation and quotations

In this case, Plaintiff alleges that she "was

subjected to a racially hostile environment due to the
misconduct of her supervisors and her co-workers because she
was an African American and because she had previously
reported racially motivated misconduct on the part of her
supervisors in the past." (Second Am. Compl. ¶ 28.) The Army
contends that Plaintiff has failed to exhaust her
administrative remedies with respect to this claim, and even

W.

if she had, such claim fails as a matter of law.
It is well settled that prior to filing an employment
discrimination claim, a plaintiff must first file a charge of
discrimination with the EEOC. Gregory v. Georgia Dep't of
Human Res., 355 F. 3d 1277, 1279

(11th Cir. 2004). "The purpose

of exhaustion is to give the agency the information it needs
to investigate and resolve the dispute between the employee
and the employer." Wade v. Secretary for the Army, 796 F.2d
1369, 1377 (11th Cir. 1986) . The Eleventh Circuit has made
clear that a "plaintiff's judicial complaint is limited by the
scope of the EEOC investigation which can reasonably be
expected to grow out of the charge of discrimination."
Gregory, 355 F.3d at 1279 (internal quotation and citation
omitted)
In this case, Plaintiff never indicated to the OCI, the
investigating authority, that she felt that she labored in a
racially hostile work environment. Indeed, the OCT framed
Plaintiff's claims on two occasions: (1) in aMemorandum dated
March 31, 2008, and copied to Plaintiff's attorney, and (2) in
the June 24, 2008 Report of Investigation. Neither of these
documents include a claim of racially hostile work
environment; rather, they identify only Plaintiff's claims of
discrimination based upon discrete disciplinary action taken
against her, i.e., the Decision Day memorandum and her

39

termination.

(.Sec. Am. Compi., Exs. F & H.) Simply put,

Plaintiff did not exhaust her administrative remedies with
respect to her racially hostile work environment claim because
she never raised such claim in the OCT proceedings.
Even if the Court considered the claim, it would fail.
To establish a hostile work environment, a plaintiff must
show: (1) that she belongs to a protected group; (2) that she
has been subject to unwelcome harassment; (3) that the
harassment was based her membership in a protected group; (4)
that the harassment was sufficiently severe or pervasive to
alter the terms and conditions, of employment and create a
discriminatorily abusive working environment; and (5) a bais
for holding the employer liable. Reeves v. C.H. Robinson
Worldwide- Inc., 525 F. 3d 1139, 1143
V.

(llt Cir. 2008); Mendoza

Borden, Inc., 195 F.3d 1238, 1245

(lit" Cir. 1999).

Application of this rubric demands a fact-intensive survey of
the alleged harassment, but summary judgment is "appropriate
to police the baseline for hostile environment claims."
Mendoza, 195 F.3d at 1244.
In the case at bar, Plaintiff cannot establish that the
alleged harassment was "sufficiently severe or pervasive to
alter the conditions of [her] employment and create an abusive
working environment." Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993) . The "severe or pervasive" requirement contains

40

both a subjective and an objective component.

Miller v.

Kenworth of Dothan, Inc., 277 F. 3d 1269, 1276 (11 111 Cir. 2002).
That is,

"[t]he employee must 'subjectively perceive' the

harassment as sufficiently severe and pervasive to alter the
terms or conditions of employment, and this subjective
perception must be objectively reasonable." Mendoza, 195 F. 3d
at 1246. When determining whether a work environment is
sufficiently hostile under this standard, there are four
general factors to be considered: "(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the
conduct is physically threatening or humiliating, or a mere
offensive utterance; and (4) whether the conduct unreasonably
interferes with the employee's job performance."
Here, the only evidence that Plaintiff has identified as
harassment based upon her race is the allegation that Lyons
often stated that Green did not like black people.' Notably,
Plaintiff never testified that she found these statements
threatening or humiliating nor did she contend that the
statements interfered with her job performance. Race related
statements standing alone will not suffice to support a claim

There is ample evidence to support a finding that Plaintiff was harassed
by Lyons, and perhaps others, with respect to meeting deadlines for
publication of the FYI magazine. However, there is no evidence that this
harassment was racially based or motivated other than Plaintiff's
conclusory allegations to the contrary. Thus, to the extent Plaintiff
suffered harassment, it was not based on her race.

41

of hostile work environment; rather, to sustain such a claim
based solely on racial comments, the comments "must be so
commonplace, overt and denigrating that they created an
atmosphere charged with racial hostility." Hudson v. Norfolk
S.

Ry. Co., 209 F. Supp. 2d 1301, 1325 (N.D. Ga. 2001)

(quoting EEOC v. Beverage Canners, Inc., 897 F.2d 1067, 1068
(11

Cir. 1990)); see also Rojas, 285 F.3d at 1344 ("[A]

plaintiff must show that the workplace is permeated with
discriminatory intimidation, ridicule, and insult . . .
(quoted source omitted))
In short, the sporadic comments to which Plaintiff refers
did not create a racially charged atmosphere or permeate the
workplace. That is, Plaintiff has utterly failed to show that
aside from the pressure of putting out the FYI magazine on
time, she was subjected to racially charged conduct
sufficiently offensive to constitute objectively unreasonable
behavior. Thus, any racially hostile work environment claim
surviving Defendant's exhaustion challenge fails as a matter
of law, and Defendant is entitled to summary judgment on such
claim.

IV. CONCLUSION
Upon the foregoing, Defendant's motion for summary
judgment (doc. no. 59) is GRANTED.

42

The Clerk is instructed to

CLOSE this case and ENTER JUDG}NT in favor of Defend nt.
ORDER ENTERED

at Augusta, Georgia, this

October, 2012.

43

day of