King v. McHugh

Filing 48

ORDER granting Defendant's 34 Motion for Summary Judgment; directing the Clerk to enter a final judgment in favor of the Defendant, to terminate all motions and deadlines and close the case. Signed by Judge J. Randal Hall on 05/05/2015. (jah)

IN THE UNITED
FOR THE

STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

JAMES E.

KING,

*
*

Plaintiff,

*
*
*

v.

CV

112-193

*

JOHN M.

McHUGH,

Secretary,

*

Department of

*

the Army,
*
*

Defendant.

0

R

D

E

R

This case comes before the Court on Plaintiff James E.

("Plaintiff"

reprisal.

or

"King")

allegations

of

racial

By Order dated February 14,

King's

discrimination

and

2014, this Court dismissed

all of King's claims save one: his retaliation claim regarding the
three
28.)

days

he

Now

was

charged Absent
the

before

Without

Defendant's

Court

is

Judgment as to that remaining claim.
stated herein,

(Doc.

("AWOL").

Motion

34.)

for

(Doc.
Summary

For the reasons

Defendant's motion is GRANTED.

I.

A.

Leave

BACKGROUND

King's Injury

King,
Services

a

at

police
Fort

officer

Gordon,

alia,

with

Georgia,

the

Directorate

filed

the

of

Emergency

instant

complaint

alleging,

inter

Peloquin")

retaliated against him for an August

that

Lieutenant

Richard

Peloquin

("Lt.

23,

Equal

2010

Employment Opportunity ("EEO") complaint.1
("FFC"),

Doc.

treated

at

("DDEAMC")

47,

the

Exs.

1-2,

Dwight

Emergency

diagnosed

with

8-9.)

David

Room

apprehending a suspect.2
was

at

(Fact-Finding Conference

On July 22,

Eisenhower

for

injuries

of

Material

bilateral

("PSMF") , Doc.
("Dr.

Bedno")

Facts

38,

knee

H 5.)

(DSMF H 6; PSMF U 6 .)
Dr.

Bedno

("DSMF"),

evaluated

recommended

King was

Center

sustained

he

Medical

while

(Id. at 11-12; Doc. 35, Exs. 3-4.)
contusions

injury and excused from work for one day.
St.

Army

2010,

Doc.

On July
King

for

a

Given King's
that

King

"return

a

left

35, Exs.

15;

2010,

PL's

on

duty

bed

DSMF

Bedno

assessment."

rest

swelling,

for

another

(DSMF H 7; PSMF K 7.)

so, King returned to work July 28 through July 30, 2010.
Ex. 6; DSMF t 8; PSMF H 8.)

3-4; Def.

Major Sheryl

to

thumb

Resp.

continued pain and

remain

three days until his next evaluation.

(Doc.

35,

27,

and

King

Even

(Doc. 35,

Still having problems with his knees

and thumb, King scheduled another return to duty assessment with
Dr. Bedno on August 17, 2010.

(Doc. 35, Ex. 5; FFC at 18-19.)

In

her Memorandum for Supervisor, Dr. Bedno stated:

[King]

will

treatment.

be

referred

At that time,

far as disposition.
I
work on patrol at this
light duty.
Light duty
of his consultation with

for

evaluation

and

possible

a determination will be made as

recommend that he not continue
time but if available, can do
needs to be defined at the time
Sports Medicine/Orthopedics.

1
Lt. Peloquin was King's immediate supervisor.
(FFC at 9.)
level supervisor was Chief Willie McClinton ("Chief McClinton") .

His second(Id.)

2
On the day of the injury, Lt. Peloquin completed a Form CA-1, Federal
Employee's Notice of Traumatic Injury and Claim for Continuation of
Pay/Compensation, on King's behalf.
(Doc. 35, Ex. 2.)
This form was
produced in connection with the "Office of Workers' Compensation Proqrams."
(Id.)

(Doc. 35, Ex.
did not

5.)

return

At this time,

to

work.

King went on "traumatic leave" and

(FFC at

20.)

King's

consultation

Sports Medicine was scheduled for September 1, 2010.

with

(Id. at 41.)

As King understood Dr. Bedno's Memorandum, he would remain on leave

until

Sports

Medicine/Orthopedics

filled

out

a

CA-17

Status Report) detailing his light duty requirements.
Following

Peloquin,

receipt

of

Dr.

Bedno's

August

at Chief McClinton's instruction,

17

form

(Duty

(FFC at 22.)

Memorandum,

Lt.

contacted Dr. Bedno to

find out the date of King's Sports Medicine appointment and whether

King could work as a blotter clerk or complete other desk duties in
the meantime.3

(Id. at 58,

to Dr. Bedno,

King

could

170.)

Lt. Peloquin made a second call

again at Chief McClinton's direction,

answer

a

touch

screen

responded in the affirmative.

phone,

(Id.

to

which

at 62-64.)

contacted King and reported that Lt.

to ask whether

Dr.

Dr.

Bedno

Bedno then

Pelqouin called to ask if

King's profile could be changed so that he could sit and watch the
blotter

clerk

work.

(icL

at

12.)

After

this

call,

King

purportedly researched federal privacy laws and called Dr. Bedno to
explain "to her that

[it]

profile just because [his]
watch

over

a

blotter

was

illegal

for her to change

[his]

supervisor wanted [him] to come in to

clerk."

(Id^

at

13.)

After

that

conversation, Dr. Bedno purportedly told King not to worry and that

3
According to Heather Grosvenor, a human resources representative, it is
not unusual for a supervisor to seek clarification on work restrictions from
a doctor.

(FFC at 261.)

she

would

not

change

his

profile.

(Id.)

King

incident to an EEO official on August 23, 2010.
B.

King called Lt.

3

at

September

33.)

1,

And

2 010,

not,

however,

September 3, 2010.

on September

Peloquin to tell him that he was not able to

although

King

(Doc. 35, Ex. 13 at 3; Doc.

King's

represents

doctor's

that

light duty assessment until September 2,
did

(Doc. 19, Ex. 13.)

consultation with Sports Medicine

work his scheduled shift that day.
Ex.

this

King's AWOL Charges

Following his

1st,

reported

forward

Lt.

he

did

2010.

Peloquin

(Doc. 35, Ex. 13.)

appointment

not

was

receive

(FFC at

this

47,

his

42.)

assessment

on

He
until

This light duty assessment

purportedly excused King from work on September 1,

2010,

but said

that he could return to light duty on September 2, 2010.4

(FFC at

196

(Chief McClinton's testimony that the light duty form told King

he could resume work on September 2, 2010).)

King did not return to work on September 2, 2010.
23; Doc. 47, Ex. 3 at 33.)

According to King, he sent Lt. Peloquin

an e-mail dated September 2,

work

on

September

7,

(FFC at 22-

2010.

2010 stating that he would return to

(Doc.

47,

Ex.

3

at

33.)

King

apparently was having difficulty getting in touch with Lt. Peloquin
regarding these absences after September 1,
contacted

a

co-worker

named

"Peterson"

and

2010,
asked

and so he also
him

to

relay

to

4
Neither party appears to have provided the Court with (1) the doctor's
September 2nd e-mail to King or (2) the CA-17 form.

Lt.

Peloquin

that

(FFC at 23.)
from

any

King would not

1st,

2nd,

official
and

6th

acknowledging

absences.

or

(Id.

at

ultimately marked as AWOL for those three days.
Lt.

the

7th.5

King acknowledges that he did not receive a response

management

September

return to work until

approving
24.)

King

his
was

(Doc. 35, Ex. 18.)

Peloquin's decision to mark King AWOL was purportedly due

to his and others'6 belief that King was in violation of the sick
leave policy.

Under Department of the Army policy, a federal employee

absent on sick leave for more than three consecutive days must furnish

a

doctor's

note.7

collective

(DSMF % 15;

bargaining

PSMF % 15;

Doc.

35,

agreement similarly

Ex.

10.)

provides

A
that

non-firefighter personnel with absences due to being sick for five or
more

consecutive

days

the absences.

(Doc.

interpretation

of

must

35,

the

provide

EJx.

11.)

a

medical

certificate

to

support

Much of this dispute centers on. the

Department

of

the

Army's

policy,

and whether

King was absent for three or more consecutive work days.

In the days leading up to Lt. Peloquin's decision to mark King

as

AWOL,

Lt.

Grosvenor,
5

After

a

Peloquin
human

the

7th

sent

resources

came

and

went,

a

number

of

representative,
King

again

e-mails
on

called

to

which

Peterson

Heather
King
because

was
he

could not get in touch with anyone from management and asked Peterson to
relay that he would return to work on September 10th.
(Id. at 24.)
6

As

decision

will

be

discussed

(FFC at 180);

a

below,

Chief

McClinton

affirmed

Lt.

Peloquin's

United States Army Time Attendance and Production

System ("ATAPS") representative agreed that King was AWOL (id. at 114-15); and
Human Resources agreed with the determination (id. at 178).
7

Defendant asserts that Exhibit 10 includes this Department of the Army

policy.

However,

the attached exhibit refers to periods of sick leave of

five or more consecutive days.

Because all parties appear to agree that the

Army policy was for three or more consecutive days, the Court assumes this to
be t r u e .

copied.8

(Doc. 35, Exs. 13, 16.)

Peloquin explained
some

sort

of

(1)

Throughout these e-mails, Lt.

his belief that King should have provided

documentation

from

his

doctor

in

order

to

remain

on

Leave Traumatic Injury (Id., Ex. 13 ("[F]or you to be out on Leave
Traumatic Injury (LT)

for 1 Sep, 2 Sep, or even later

[]

I would

need documentation from Sports Medicine/Orthopedics for any period
after
that

you

were

Dr.

Medicine
Bedno's

reevaluated by

Bedno's
visit

excuse

note

the

morning

on

excuse

them[.]"));

only could

only

(2)

applied

of

up

September

keep you out

on

his

understanding

through his
1,

2010

Sports
("Dr.

Traumatic

Leave

(Id.

Injury

(LT) until you were reevaluated by Sports Medicine/Orthopedics."));
and

(3)

with his
the

day

without
known
look

work.

his

light
of

his

that

that
at

opinion that King's doctors should have provided King

appointment

paperwork

you needed

your

...

duty determination and any other documentation on

x-rays

and

(Id.,
to

King

16

("[The

Ex.

return

that

that

day

to

so

work

that

I do not know if you did,

should

doctors]

and

you

not

that

could

have

left

should

have

they needed to
be

returned

to

but you could have pressed

them to . . . give you a light duty profile.")).

Lt.

Peloquin

Attendance

and

additionally contacted United

Production

advised on November

System

8th that

("ATAPS")

the AWOL

charge

States

Army

Time

and

was

consistent

with

personnel
was

8
In his various e-mails, Lt. Peloquin also references other phone calls
and e-mails between King and himself, during which King purportedly never
requested leave for September 2nd or September 6th.
(Doc. 35, Ex. 16 at 2
("In the other email that I sent you and on the voicemail that I left on your
cell phone's voicemail I asked you to call me if you wanted to request Leave
Holiday for 6 Sep. You never called me and you never properly requested Leave
Holiday or got it approved by me.").)

established

policy,

documentation Lt.
leave.

and

that

if

King

Peloquin could change

submitted
the

the

designation

proper
to

sick

(See FFC at 114-15.)9

Upon King's return to work on September 10, 2010, Lt. Peloquin
requested

which

a

doctor's

for

responded

King

excuse

"It's

only

doctor's note?"
I'll

go

back

and

47,

Ex.

get

the

doctor's

I changed my mind.

(Id. )

conversation
(Id.

one

day.

3 at 37.)
note

in

question,

Why I

to

need

a

King then said "Fine.
for

you

Monday [,]"

but

I'm not going to let you use your leave or give

not

because

bring
Lt.

charge AWOL

in

a

Peloquin

for

doctor's
"wasn't

those

note

going

three days."

following
to

reverse

this
it."

at 39.)

As

not

did

days

Peloquin said "[w]ell, Officer King,

I'm just going to

King

three

been

(Doc.

alleges that the next day Lt.

you leave.

the

to

the

receive

September 2nd absence,

the

proper

documentation

King maintains

regarding

the

that

he

did

scope

of

his

light duty until the afternoon of September 2nd,

and he was still

having

at

Thus,

9

trouble

with

his

knees

and

thumb.

(FFC

17,

21,

42.)

King intended to use his sick leave for September 2nd if Lt.

According

to

Chief

McClinton,

the proper way

to

receive

sick leave

would be to contact the manager — here, Lt. Peloquin — and request sick leave
by specifically referencing the dates requested.
(FFC at 180.)
King claims that upon his return to work, he was still compliant with
the sick leave policy because Lt. Peloquin had not given him a sick leave
slip.
According to King, on a number of occasions he called in sick to work
and Lt. Peloquin would then have the sick leave slip available upon his
return.
(Id. at 136.)
And while Lt. Peloquin's testimony supports this

general practice, he stated that King did not call in first and his e-mail
indicating that he would be out until September 7th did not indicate the
reason

for

his

absence,

whether

it

was

for

sick

leave

or

other

personal

reasons.
(Id. at 138.)
King countered that it was clear to everyone why he
was out — for his injury.
(Id. at 140.)

Peloquin would not carry over the traumatic injury leave.
29

("[F]or the 2nd I was

(Id. at

going to use my sick leave if he

going to let me be out on traumatic leave.").

As

wasn't

to September 6,

which was Labor Day,

King avers that he was never required to work

on

"you

that

day because

light duty."10

can't

work

on

holidays

while

you're

on

(Id. at 28 ("But when you're on light duty, you're

not — they don't

let

you

come

on because

that's

double

time

and

you're not going to get paid for that.").)

In

King's

questioning

of

Lt.

Peloquin

at

the

Fact

Finding

Conference, King appears to admit that Lt. Peloquin offered him an

opportunity to avoid the AWOL charge and utilize some other type of
leave:

King:

"You did not give me the opportunity to
use sick leave or any other leave."

Lt.

Peloquin:

"When

we

discussed

that

earlier,

I

had

asked you if there was any other way you
wanted to cover that period, and you said
no.

King:

You didn't have a doctors excuse -"

"True."

Lt. Peloquin:

"- and you didn't have any other way to
cover it.
do.
So I

Just do what I
walked back to

was going to
my office, I

thought about it,
I
filled out the
paperwork and I came back and presented

it to you."11

10
As evidence of this holiday leave policy, King provides the affidavit
of Leo V. Brit stating "[b]y regulations all officers have to be in a full

duty status to perform Law Enforcement duties at Fort Gordon."

(Doc. 37, Ex.

5.)

11

King testified that at all relevant times, he only had a few hours of

sick leave available,
annual leave.

but it was his understanding that he could use his

(FFC at 141-42.)

(FFC at 99-100.)

On September 11, 2010, Lt. Peloquin formally charged King AWOL
for the three absences.

(Doc. 35, Ex. 18.)

the AWOL charges on September 12,

King was notified of

2010 and appealed them to Chief

McClinton pursuant to union grievance procedures.

K 37; PSMF ^ 37.)

(FFC at 27; DSMF

Chief McClinton later rescinded the September 1,

2010 charge but upheld the other two.12

(Doc. 35, Ex. 19.)

In

rescinding the September 1, 2010 charge, Chief McClinton found that
King was not required to report to duty because he had a doctor's

appointment that morning and the CA-17 form stated that he would
not return until September 2, 2010.

(Id.)

According to King, he

had to take out a loan from his Thrift Savings Plan in order to pay
his bills as

49.)

a

result of these AWOL charges.

(Doc.

47,

Ex.

3 at

The three days AWOL apparently amounted to $850.00 in lost

wages.
C.

(Doc. 7 1 25.)

King's EEO Complaint

On August 23, 2010, King made his initial contact with an EEO
official

and

received

the

Notice

of

Right

to

File

Complaint of Discrimination on September 22, 2010.
13;

Doc.

received

35,
on

Ex.

21.)

October

2010,

King

alleged

that

Formal

(Doc. 19, Ex.

In his formal EEO complaint,
1,

a

Lt.

which was
Peloquin

violated his medical privacy and used it against him for reprisal.
(Doc.

12

35,

Ex.

20.)

King additionally alleged that "this was a

Chief McClinton testified that his decision was in agreement with that

of Human Resources.

(FFC at 178.)

continue [d]

reprisal

against

[him]

for

prior

EEO

complaint[.]"

(Id.)

The

EEO

Defendant's
Department

Administrative

favor
of

2012,

Department

Administrative

of

of

discrimination.

the

the

Army's

as

"material"

a

if

any

final

(Doc.

adopted

35,

action,

was

evidence

SUMMARY

Ex.

matter

U.S.

248

of

did

not

the

that

establish

a

unlawful

King then brought suit in this

JUDGMENT

fact

law."

law.

(1986) .

Zenith Radio Corp.,

justifiable inferences
Prop.,

the
On

that

and

STANDARD

and

the

Fed. R.

"there

movant

Civ. P.

is

is

no genuine

entitled

56(a).

Anderson v.

Liberty Lobby,

Facts

to
are

941

F.2d

Inc.,

4 77

The Court must view the facts in the light

most favorable to the non-moving party, Matsushita Elec.

Real

in

they could affect the outcome of the suit under the

substantive

v.

by

22.)

finding

appropriate

appropriate only if

material

governing

242,

was

judgment

2 012.

Summary judgment is

to

summary

which

2012.

decision

record

II.

judgment

hearing,

(Doc. 35, Ex. 23.)

Court on December 20,

as

granted

the Equal Opportunity Commission then affirmed

Judge's

preponderance

dispute

a

the Army on May 9,

September 27,

the

without

Judge

475 U.S.

in

[its]

1428,

574,

587

(1986),

favor."
1437

U.S.

(11th

Cir.

Indus. Co.

and must draw "all

v.

Four Parcels
1991)

(en

of

banc)

(internal punctuation and citations omitted).
The moving party has the initial burden of showing the Court,

10

by

reference

to

materials

Celotex Corp. v. Catrett,
this

burden depends

Fitzpatrick v.

on

on

file,

who bears

has

basis

for

the

477 U.S. 317, 323 (1986).

City of Atlanta,

When the non-movant

the

the

burden

2 F.3d 1112,

the burden of

of

1115

proof

at

motion.

How to carry

proof

at

trial.

(11th Cir.

1993).

trial,

the movant

may carry the initial burden in one of two ways — by negating an
essential element of the non-movant's case or by showing that there

is no evidence to prove a fact necessary to the non-movant's case.
See Clark v.

1991)

Coats

&

Clark,

Inc.,

929

(explaining Adickes v. S.H.

and Celotex,

4 77 U.S.

317).

has

met

its

initial

Kress & Co.,

606-08

398 U.S.

(11th Cir.

144

(1970)

Before the Court can evaluate the non-

movant' s response in opposition,
movant

F.2d 604,

it must first consider whether the

burden

of

showing

that

there

are

no

genuine issues of material fact and that it is entitled to judgment
as a matter of law.

(11th Cir.
the

1997)

non-movant

Clark,

Jones v.

City of

(per curiam) .

cannot

meet

the

Columbus,

120 F.3d 248,

254

A mere conclusory statement that
burden

at

trial

is

insufficient.

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

judgment."
trial,
which

the
the

a

Id.

material

of

fact

that

precludes

summary

When the non-movant bears the burden of proof at

non-movant
movant

issue

must

carried

tailor
its

its

initial

response
burden.

to

the
If

method by
the

movant

presents evidence affirmatively negating a material fact, the non-

11

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

absence of evidence on a material
show

that

ignored"

the

by

sufficient

record

the

contains

movant

or

to withstand a

1116.
fact,

If

forward

that

was

"overlooked

with

additional

directed verdict motion at

the alleged evidentiary deficiency."

shows

an

the non-movant must either

evidence

"come

the movant

Id.

at 1117.

or

evidence

trial based on

The non-movant

cannot carry its burden by relying on the pleadings or by repeating
conclusory allegations contained in the complaint.
Ross,

663

movant

F.2d

must

1032,

respond

1033-34

with

Federal Rule of Civil

In this action,

(11th Cir.

affidavits

or

1981).

as

See Morris v.

Rather,

otherwise

the

non-

provided by

Procedure 56.

the Clerk of

the Court gave Plaintiff notice

of the motion for summary judgment and informed him of the summary

judgment rules, the right to file affidavits or other materials in
opposition,
Therefore,
F.2d 822,

and

the

consequences

of

default.

(Doc.

36.)

the notice requirements of Griffith v. Wainwright,
825

(11th Cir.

1985)

(per curiam),

are

satisfied.

772
The

time for filing materials in opposition has expired, and the motion
is now ripe for consideration.

III.

DISCUSSION

To successfully set forth a claim of retaliation under Title

VII,

the

plaintiff

must

first

establish

12

a

prima

facie

case.

Qlmstead v.

If

this

arises

Taco Bell Corp.,

prima
and

the

legitimate,
action."

facie

case

burden

141 F.3d 1457,

is

shifts

non-retaliatory
Id.

If

met,

the

a

to

defendant

(11th Cir.

1998).

presumption

of

retaliation

defendant

to

"proffer

the

reason

1460

for
sets

the

adverse

forth

such

a

a

employment
reason,

the

presumption disappears and the plaintiff must show that the reasons

stated were merely a pretext.
F. Supp.

2d 1260,

"A prima

Id. ; Masso v. Miami-Dade Cnty.,

465

1264-54 (S.D. Fla. 2006).

facie

case

'first,

the

plaintiff

second,

the plaintiff

of

retaliation

engaged

in

contains

statutorily

suffered an adverse

three

elements:

protected

conduct;

employment action;

and

finally, the adverse action was causally related to the protected
[activity].'"

Williams

(11th Cir. .2002)

v.

Motorola,

is statutorily protected,
recognized

an

two

unlawful

opposition
assisted,
proceeding,
clause)."

categories

the

latter

or

(2)

participated

of

activity:

practice

xhe
in

has
any

by

made

manner

Clover v. Total Sys. Servs.,

-

1291

(quoting 42 U.S.C.

he

participated

this

employee

a
in

Inc.,

subchapter"

charge,
an

is

the

EEO

(the

testified,

investigation,

(the participation
176 F.3d 1346,

§ 2000e-3 (a) ).

with

13

"An

'he has opposed any practice

or hearing under this subchapter'

(11th Cir. 1999)

1284,

the Supreme Court and Eleventh Circuit

employment

clause)
or

F.3d

In determining whether activity

protected from discrimination if (1)
made

303

(quoting Farley v. Nationwide Mutual Ins. Co., 197

F.3d 1322, 1336 (11th Cir. 1999)).

have

Inc.,

in

1350

King relies on

reporting

Lt.

Peloquin's violation of privacy laws,

an act which in and of itself

King claims was retaliation.
A.

Prima

Facie Case

Defendant does not dispute that King meets the first and third

prongs of the prima facie case and the Court agrees.

King clearly

engaged in statutorily protected activity when he contacted an EEO
official with his complaint on August 23,

2010.

Napolitano,

(S.D.

2

Eastland v.

for

F.

Supp.

Tenn.

3d

Valley Auth.,

the proposition that

activity).

protected

1318,

Moreover,

activity

inference of causation.

704

F.2d 613,

Ga.
627

2014)

(citing

(11th Cir.

1983)

contacting an EEO counselor is protected

the

and

1345

See Wesolowski v.

close

AWOL

temporal

charges

is

proximity

sufficient

See Bechtel Constr.

Co.

v.

between

to

the

raise

an

Sec'y of Labor,

50 F.3d 926, 934

(11th Cir. 1995).13

Instead, Defendant makes just

one

King's

case:

challenge

AWOL

charge

to

was

not

a

prima

facie

materially

adverse

that

the

action

September

because

1st

it

was

rescinded on appeal.14
"The antiretaliation provision protects an individual not from

all

retaliation,

harm."

Burlington N.

(2 006).
13

but

from

retaliation

& Santa Fe Ry.

that

Co. v.

produces
White,

The Supreme Court has thus drawn a

This Circuit does,

however,

an

injury or

548 U.S.

53,

67

distinction between

recognize an exception to the general rule

that temporal proximity alone can raise an inference of causation where the
defendant presents unrefuted evidence that the decision maker was unaware of
the protected conduct.
Clover, 176 F.3d at 1355-56; see also Brungart v.
BellSouth Telecomms.,

no

evidence

Peloquin

has

knew

Inc.,

231 F.3d 791,

799

(11th Cir.

been presented one way or the

about

King's

August

EEO meeting.

other

2000)

to

(FMLA) .

address

Accordingly,

Here,

what

Lt.

the present

situation does not fall into the Clover exception.

14
Defendant does not challenge that the September 2nd and September 6th
AWOL charges are materially adverse actions.
14

"material

adversity"

and

"trivial

harms"

or

"normally

petty

slights, minor annoyances, and simple lack of good manners[.]"
at 68 (emphasis in original).
action,

"a plaintiff must

Id.

To qualify as a sufficiently adverse

show that

a reasonable

employee

have found the challenged action materially adverse,

would

which in this

context means it well might have dissuaded a reasonable worker from

making or supporting a

quotations and

charge

of discrimination."

citations omitted).

The

Id.

(internal

inquiry is necessarily a

fact-specific one, and the Supreme Court has intentionally phrased
"the

standard

given

act

in

of

retaliation

circumstances.

Here,

three

terms
will

because
often

Context matters."

King

employment
According

general

avers

action
to

King,

reasons:

(1)

that

when

he

the

he

AWOL

"King

Id.

at

are

required

upon

to

a

is

on

[King's]

position

or

file

a

[]

any

particular

materially

AWOL

for

take

a

(2)

adverse

three

materially

Thrift Savings Plan in order to pay his bills;"

AWOL has the potential to affect

the

of

69.

charged

charges

significance

depend

suffered

was

was

the

days.

adverse

loan

from

for
his

"the marking of

earning capacity since the AWOL

and may prevent him from getting a different

security

clearance;"

and

(3)

"the

difficulty

of

having to go through union procedures over 5 months to recover lost
income

would

complaint."

dissuade

a

reasonable

(Doc. 37 at 4-5.)

the AWOL charge,

worker

from

making

an

EEO

King alleges that as a result of

he lost $850.00 in wages,

although the portion of

that loss attributable to September 1st was reimbursed.

7 H 25.)

15

(See Doc.

The

defendant's

Defendant

today.

suspension

argument

There,

without

pay

the

was

in

Burlington

plaintiff

a

mirrors

alleged

materially

that

adverse

that

his

of

37-day

action.

The

defendant countered that "because Burlington ultimately reinstated

White

with

backpay"

significance!!.]"

his

suspension

Burlington, 548 U.S.

"lacked

at 71.

statutory

The Supreme Court,

in upholding the jury's determination that the defendant suffered a
materially adverse action,

found that "[m]any reasonable employees

would find a month without a paycheck to be a serious hardship."

Id. at 72.

Admittedly, one day without pay is a far cry from 37

days without income.

This Court finds,

however,

that King has

alleged a sufficient injury to create a genuine issue of material
fact.

Indeed,

[t]he

real

social

impact of workplace behavior

often

depends on a constellation of surrounding circumstances,
expectations, and relationships which are not fully
captured by a simple recitation of the words used or the
physical acts performed.
A schedule change in an
employee's work schedule may make little difference to
many workers, but may matter enormously to a young mother
with school-age children.
A supervisor's refusal to
invite an employee to lunch is normally trivial, a
nonactionable petty slight.
But to retaliate by

excluding an employee from a weekly training lunch that
contributes significantly to the employee's professional
advancement might well deter a reasonable employee from
complaining about discrimination.
Hence, a legal
standard that speaks in general terms rather than

specific prohibited acts is preferable, for an act that
would be immaterial

in some situations

is material in

others.

Id. at 69 (internal quotations and citations omitted) .

for

this

reimbursed,

Court
and

to

decide
the

that

difficulty

16

a

day

without

pay,

of

contesting

It is not

even
the

if
AWOL

determinations would not dissuade a reasonable person from engaging

in

protected

activity.

The

Court

thus

finds

that

King

has

set

forth a prima facie case of retaliation.
B.

Legitimate, Non-Discriminatory Reason

The

Court

legitimate,

similarly concludes

non-discriminatory

that

reason

Defendant's

for

King's

proffer

a

charges

AWOL

of

—

failure to comply with leave procedure — eliminates any presumption

of retaliatory intent.

to

produce

medical

Indeed, Lt. Peloquin repeatedly asked King

documentation;

he

sought

guidance

from

human

resources, although it apparently went unanswered; and he testified
that

it was his understanding that he

sick leave without a doctor's note.

reiterated

charges:

as

much

in

his

could not give an

(FFC at 122.)

memorandum

upholding

1 September 2010,

leave and have

leave approved for you."

therefore

Defendant's

finds

minimal

McDonell v. Gonzales,

curiam)

Chief McClinton

two

of

the

AWOL

"By your actions of failing to return to duty after your

appointment on

Court

employee

such

burden

151 F.

you failed to properly request

reasons
of

(Doc.

amply

production

App'x 780, 783

35,

Ex. 19.)

sufficient

at

this

to

stage.

(11th Cir. 2005)

(finding that the employer "articulated

legitimate,

discriminatory reasons" for its employment decision,

The
meet
See

(per

non

including the

employee's "failure to comply with leave request procedures").
C.

Pretext

As alluded to above,

in order "to avoid summary judgment [the

plaintiff] must introduce significantly probative evidence showing
that the asserted reason is merely a pretext for discrimination."

17

Clark,

990

F.2d

is

clear:

Circuit

at

1228

(citation

"A reason

the

reason."

Burgos-Stefanelli v. Sec'y,

F.

Comm'n

App'x
of

243,

247

Jefferson

false,

(11th

Cnty.,

and that

2011)

(same) .

law

Cir.

2011)

Ala.,

446

it

of

is

retaliation was

U.S.

this

shown

the

real

Dep't of Homeland Sec,

(citing

F.3d

2006)); Morrison v. City of Bainbridge,
(11th Cir.

The

is not pretextual unless

both that

410

reason was

omitted).

1160,

Ga.,

432

Brooks
1163

v.

Cnty.

(11th

Cir.

F. App'x 877,

881

"A plaintiff does not demonstrate pretext

by showing that the defendant had a mistaken belief about the facts
that

formed

the

basis

for

the

alleged

non-retaliatory

reason.

Instead, the plaintiff must present evidence that the defendant did

not

honestly

believe

non-retaliatory reason."

the

facts

Smith v.

on
Constr.

Supp. 2d 1226, 1239 (N.D. Ala. 2012)

which

it

Datafax,

based
Inc.,

its

871

F.

(internal citations omitted).

To do so, King "must demonstrate such weaknesses, implausibilities,
inconsistencies,

proffered

incoherencies, or contradictions in the employer's

legitimate

reasons

for

its

action

that

factfinder could find them unworthy of credence."

Atl.

Developers,

Inc.,

610

F.3d

1253,

1265

a

reasonable

Alvarez v. Royal

(11th

Cir.

(internal quotations omitted).

A plaintiff is not allowed to recast an employer's
proffered nondiscriminatory reasons or substitute his
business judgment for that of the employer.
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 the employee cannot succeed by

simply quarreling with the wisdom of that reason.

Chapman v. Al Transp., 229 F.3d 1012, 1030 (11th Cir. 2000).

18

2010)

King makes only one argument in regard to pretext: He did not
violate

the

leave

policies

and

therefore

Defendant's

reason

is

pretextual.15

As discussed above, an employee must submit medical

documentation

to

three

or more

use

sick

consecutive

leave

where

days.

King

that

employee

maintains

is
he

that

out

for

did not

violate these policies, as he only used sick leave for one day.16
Thus,

"[w]ithout a

violation of the

no justification for making Mr.
2 010

and Mr.

King

[sick leave policies]

King AWOL on September 1, 2,

can demonstrate that

Defendant is a pretext."

there is

the

and 6,

reason offered by the

(Doc. 3 7 at 9.)

Even assuming that Defendant's stated reason is false and that

King was in fact compliant with all applicable leave policies, King

does nothing more than quarrel with his superiors'

interpretation

of

to

the

policy,

conclusion

Court

does

that

not

offering

no

retaliation

doubt

argument

was

King's

the

whatsoever

true

beliefs

reason.

are

And

sincerely

support
while

held,

a
the

the

15
King's brief provides just two paragraphs of argument explaining the
Army policy and why King did not violate it.
In addition, King provides a
table showing the days he was absent from work and the reasons for those
absences.
In the Statement of Facts of King's response, King additionally
asserts that he "is the only person that Lt. Peloquin has ever marked AWOL."
(Doc. 37 at 4.)
The Court finds that this one-sentence statement does not

give rise to a factual dispute.
King fails to provide any citation to the
record for this proposition, and similarly provides no argument regarding
similarly situated comparators.

16
It appears to be Lt. Peloquin's and Defendant's belief that September
1st, 2nd, and 6th constitute the three consecutive days under the policy.
King, however, maintains that he only used one day of sick leave - the 2nd and thus fell outside the policy's requirements.
still

covered under his

traumatic

received his light duty profile.

According to King,

injury leave on the 1st,

As to the 6th,

he was

as he had not

King maintains that Army

policy prohibits light duty on holidays. This is the precise sort of factual
dispute that ordinarily must go before a jury. However, as detailed above,
King must show both that the stated reason was false and that retaliation was
the

true

reason.

Thus,

even

though

King's

interpretation of

the

policy

could, if believed by a jury, suffice to show that the reason was false, it
does nothing to address whether retaliation was the true reason.
19

"pretext

inquiry

perception .
A.B.E.L.

The

.

.

,

not

Servs.,

undisputed

is
the

Inc.,

the

AWOL

was

diligence,

the

shows

King

that

for

received

correct

1318,

an

no

employer's
Standard v.

1332-33

Lt.

(11th

e-mail
In

from

the

evidence

ATAPS

face

that

Cir.

Peloquin

clarification on his

charge.

presents

the

beliefs."

own

F.3d

evidence

policy and

with

employee's

161

contacted human resources

of

concerned

repeatedly

interpretation

confirming

of

Lt.

1998).

Lt.

that

Peloquin's

Peloquin's

true

motivation was reprisal for the August 23rd EEO complaint.17
Simply put, King does not make the critical connection between
the

allegedly

subjective

incorrect

intent

to

application

retaliate.

of

See

the

Jones

leave
v.

policy

Gerwens,

and

874

a

F.2d

17
King did submit his own affidavit in response to Defendant's motion for
summary judgment, although he does not reference it in his argument, instead
only relying on it for his recitation of the facts.
(Doc. 37, Ex. 1.)
In
that affidavit, he makes the following statements in regard to the August 23,
2010 EEO complaint:

1. "On September 12, 2010, Lt. Peloguin retaliated against me again
because I had complained on August 23, 2010 and filed an EEO
complaint about Lt. Peloquin attempting to change my doctor's
opinion and marked me AWOL September 1st, 2nd, and 6th."
(Id.
11 5.)
2. "To the best of my knowledge and belief Lt. Peloquin never

requested a physician clarification for other officers in our
unit that Lt. Peloquin supervised[.] "
(Id. 1 10.)
3. "Lt. Peloquin retaliated against me for my prior EEO involvement
and complaints about his improper interference with my physician

by changing his mind and marking me AWOL[.]"

(Id. H 13.)

4. "Who would mark a police officer AWOL for an injury he incurred

while performing their
personal matter to him."

police duties?
(Id. 1 14.)

Obviously

this

was

a

With the exception of Paragraph 10,

each of these statements does nothing

more

make

than

King

did

in

his

brief:

conclusory

allegations

that

Lt.

Peloquin acted out of retaliation.
As to Paragraph 10, King presents no
argument regarding similarly situated comparators who were not marked AWOL
under similar circumstances.

Because King failed to raise any such argument,

the Court declines to address it sua sponte.

See United States v. Nuckles,
No. l:14-cr-218, 2015 WL 1600687, at *21 (N.D. Ga. Apr. 7, 2015) (listing
cases for the proposition that a party abandons claims not argued in briefs).
20

1534,

154 0

(11th

Cir.

1989)

(holding

that

even

if

employer

incorrectly believed that the employee violated employer's policy,

if

employer

acted

discrimination);

(11th Cir.

on

this

Smith v.

1987)

belief,

it

Papp Clinic,

("[I]f the

is

not

P.A.,

guilty

of

808 F.2d 1449,

racial
1452-53

employer fired an employee because it

honestly believed that the employee had violated a company policy,
even

if

it

was

mistaken

"because of race'

in

such

the

discharge

is

not

and the employer has not violated § 1981."); Nix

v. WLCY Radio/Rehall Commc'ns,

("The employer

belief,

may

fire

an

738 F.2d 1181,

employee

for

1187

a

(11th Cir.

good

reason,

1984)

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.").

Indeed, to find an employer violated Title VII simply because the

employer

incorrectly believed

procedure - without

any

discrimination - would

an employee

other

only

evidence

make

this

did

not

of

Court

comply with

retaliation
a

or

"super-personnel

department that reexamines an entity's business decisions," which
it will not do.
1470

(11th Cir.

See Elrod v. Sears,

Roebuck & Co., 939 F.2d 1466,

1991).

Finally, and while not argued by King, the temporal proximity
between the protected activity and adverse action would not save
his

claim.

pretext."

Indeed,

"temporal

proximity

alone

does

not

show

Gerard v. Bd. of Regents of State of Ga., 324 F. App'x

818, 827 (11th Cir. 2009)

(per curiam); Jackson v. Hennessy Auto,

190 F. App'x 765, 768 (11th Cir. 2006)

21

(per curiam)

("Although a

plaintiff

can

use

temporal

proximity

to

show

a

defendant's

proffered reason for termination was pretextual, temporal proximity
alone does not establish pretext.").

IV.

Based
Judgment
enter

upon

(doc.

FINAL

the

34)

is

JUDGMENT

CONCLUSION

foregoing,

Defendant's

hereby GRANTED.
in

favor

of

The

Motion
Clerk

Defendant.

is

The

for

Summary

DIRECTED
Clerk

to

shall

terminate all deadlines and motions and CLOSE the case.

ORDER

ENTERED

at

Augusta,

Georgia,

this

•"""

day

2015,

HONQkABSETJ.

RANDAL HALL

UNITED J6TATES DISTRICT JUDGE
DISTRICT

22

OF

GEORGIA

of

May,