Pearson v. Augusta, Georgia et al

Filing 193

ORDER denying Plaintiff's 54 Motion for Summary Judgment; granting Augusta, Georgia's 55 Motion for Summary Judgment; granting Fred Russell's 56 Motion for Summary Judgment; granting Bill Shanahan's 57 Motion for Summa ry Judgment; granting Sam Smith's 58 Motion for Summary Judgment; denying Plaintiff's 54 Motion for Partial Summary Judgment; terminating Plaintiff's 131 Motion for Extension of Time; denying Plaintiff's 138 Motion fo r Partial Summary Judgment; granting in part and denying in part Augusta, Georgia's 141 Motion for Summary Judgment; terminating Plaintiff's 185 Motion to Amend/Correct. Plaintiff's Title VII retaliation claim will proceed. Signed by Judge J. Randal Hall on 03/09/2017. (pts)

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IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION MELINDA BEASLEY PEARSON, * • Plaintiff, * • v. CV AUGUSTA, GEORGIA through its Mayor Hardie Davis, Jr., in his official capacity, and its * * * commission, in its official capacity et al., 114-110 * * * Defendants. * ORDER This case arises Defendant Augusta, out Georgia. of Plaintiff's employment with After over thirty years of service, Augusta demoted Plaintiff for violating workplace policies. It then, In according response, to Plaintiff Plaintiff, sued forced Augusta her and into three retirement. Augusta employees under a number of federal employment statutes and the Fourteenth Amendment. personnel But because department the Court assessing employment decisions," Flowers v. 803 F.3d 1327, 1338 (11th Cir 2015) does the not sit as prudence Troup Cty., Ga, a "super- of routine Sch. (citation omitted) (internal quotation marks omitted), most of Plaintiff's claims fail. her Title VII retaliation claim will proceed. Dist., Only I. Plaintiff she became Facilities duties, an working operations ("Parks for facilities. Augusta manager managed the And classified as for in and Recreation") Plaintiff responsible Act began Factual Background over day-to-day as an the in department. twenty Thus, she did not As of over supervisor, receive labor, part and of her and was sixty city Plaintiff was Fair Labor Standards overtime for working more than forty hours in a workweek. to Plaintiff, Parks, employees operations operations Eventually, Recreation, an exempt employee under the ("FLSA"). 1980. compensation But according she also performed a significant amount of manual which she believed entitled her to overtime pay under the FLSA. At some point, certain Parks and Recreation officials began allowing exempt employees to accrue "comp time" when they worked more than certain example, time. forty special hours events in a workweek. that ran late When into employees the worked night, for Parks and Recreation would allow them to record that The employees would later be permitted to use the comp time as paid time off from work. Plaintiff participated in this program. In 1999, Plaintiff asked her supervisor for permission to use some of her comp time. because, But Plaintiff's request was denied as an exempt employee, she was not permitted to accrue comp time. this (Doc. decision Plaintiff to to was an in in the PI. the use Specifically, Recreation, 31, Plaintiff the a time of human Plaintiff contested resources, had to the director director who allowed (Doc. accrued. human-resources been 83-86.) she letter 31-4.) of noted Parks that Plaintiff she was (Id.) because allowed But to he accrue determined the time, that "there [was] other option other than to compensate her for this time." Thus, Augusta and from accruing comp time because employee. had at director fact prohibited exempt Dep. permitted Plaintiff to use the time no (Id.) she had accrued. Following Recreation, comp time this Tom incident, Beck, the instructed on her payroll director Plaintiff records. (PI. of to Dep. Parks stop at and recording 87.) Mr. Beck told her that she was instead required to record only 7.5 hours, regardless of how many hours she worked in a day. Plaintiff disagreed with Mr. Beck's (Id. at instruction, implemented her own method for tracking comp time. so 89.) she (Id. at 89- 90. ) Employee timecards blue sheet, copy, Plaintiff would record the (Id. at 8 9.) sheet, the time white record. a at and a contained three yellow sheet. 7.5 hours she sheets — On was the a white required to This copy went to the payroll department. On the blue and yellow copies, Plaintiff would record the actual time she worked. her comp time, (Id. at 90.) she would fill out a request form and request her supervisor's approval.1 (Id. practice from 1999 until 2012, In 2000, Augusta policy an 31-5.) (See that July 2011, ordinance Doc. 31-7.) shall created an Augusta amended The 2011 only be version applicable (Doc. 31-8 at 20.) Plaintiff took a leave of for medical reasons. that In 2011, "comp time to non-exempt employees." In Plaintiff followed this when she was demoted. (Doc. manual. specifically provides at 93.) adopted employee policy manual. its And when Plaintiff wanted to use (PI. Dep. at 118-19.) absence from work She received leave with pay from early July until August 19, 2011. (Id. at 119.) But in August, (Id. at 120.) Plaintiff then purportedly 123.) (Id. attempted accrued to Her resources Plaintiff ran out of leave time. to use continue the her request was denied, department did not have comp leave however, a record time with pay. because of she (Id. the her had comp at human- time. at 128.) Because coworkers Plaintiff donated leave program. leave had to run her (Id. at 148-49.) out of sick leave, through Augusta's According to Plaintiff, of her catastrophic- Under this program, could request leave donations from other employees. 1 some employees But out-of- other exempt employees followed a similar practice. (PI. Dep. at 94.) But she was not certain of the other employees' exact practices because she was the only exempt employee in her division. (Id. at 94-95.) work employees they had were exhausted permitted all of to their catastrophic-leave pay (Id. returned to at 153.) She from make own these leave. September work on requests Plaintiff 9 through December only received December 5, if 2. 2011. (Id. immediately began at 154-55.) When having whom Plaintiff trouble she had returned working with previously to work, another had about Mr. Smith unproductive. the first day employee, issues. Plaintiff spoke with Dennis Stroud, she (See Sam id. This time, heated and argument, she returned, When she got home, Plaintiff and Mr. Plaintiff at with 160-61.) her supervisor at the time, but Two weeks later, she approached Mr. (Id. at 170-71.) Smith, left work. this proved Stroud again. Stroud got into a (Id. at 171-72.) Plaintiff called Mr. Stroud and asked to use her accrued comp time so she could have a few days to clear her head. days (Id. at 172.) off. (Id. Mr. Stroud agreed, at 178.) Notably, and Plaintiff took four while she was Plaintiff's timecard showed that she worked those days. out, (Id. at 180.) In the spring of 2011, the human-resources department began an investigation into Plaintiff's use of comp time. to Bill Shanahan, According the interim director of human resources and of the Parks and Recreation department, Lisa Hall, an employee from Parks to and Recreation, complained human resources about Plaintiff's use of comp time. Specifically, Mr. (Doc. 41-1, Shanahan Dep. Shanahan contends that Ms. at 18.) Hall questioned why Plaintiff was able to use comp time after returning to work when Plaintiff had previously requested catastrophic leave, only all available options. when an employee at 18.) Ms. (Id. has Hall exhausted denies that which is other she leave made this complaint and instead claims that others complained to her about Plaintiff's use of comp time. In any event, 2011 employees arrived at her Dep. at Hall Dep. Plaintiff learned about the February (PI. (Doc. 91-1, when 180.) Mr. Shanahan and at 26-27.) investigation in other human-resources office to review Plaintiff's Soon thereafter, Plaintiff records. spoke with Mr. Shanahan and explained her timekeeping process to him. (Id. at 187. ) As a result demoted to the of Mr. Shanahan's investigation, position of maintenance worker. Plaintiff was (Id. She began work in that position in early May 2011. 205.) Around demotion. the (Id. at same time, 190.) Plaintiff was Augusta's administrator. however, witnesses. Mr. granted Russell (Doc. 37-1, a As hearing (IcL did not Russell Plaintiff part of in at Dep. her process, Fred Russell, the hearing, Plaintiff to present 33-34.) Mr. Russell 194.) at appealed appeal front allow 190.) (Id. at 204- also the at of At claims that the appeal was an "administrative review" and that Plaintiff should witnesses at apparently have been afforded a prior hearing. unaware that an (Id. at Plaintiff opportunity 34.) had But Mr. not been to present Russell was given a prior until May hearing. Plaintiff 2011. worked (PI. Dep. as a worker At that time, at 213.) maintenance she with an injury. (Id. at 219.) for and in late 2012, over a year, (Id. at Augusta 223-25.) Not contacted Plaintiff work by January 2013. January, Augusta's and in long February human-resources meeting, Plaintiff options: (1) she could after she underwent back surgery. her surgery, requested at 225-26.) 2013, that that (Id. she was someone she from return to She did not return in Plaintiff office. claims went out of work Plaintiff remained out of work and (Id. 31, met with at 226.) During presented "retire and freeze [her] someone with in that three pension"; (2) she could retire and face a penalty for drawing from her pension early; or (3) she could choose not to act, in which case Augusta would choose for her. (Id. at 227.) Whether on purpose or not, Plaintiff apparently chose option three because she soon learned that Augusta had retired her without her permission.2 (Id. at 228.) 2 According to Plaintiff, her retirement was effective February 1, 2013. (PI. Dep. at 228.) If this is true, it is unclear from the record whether Augusta had already made its decision when Plaintiff met with the human-resources official in February or whether Augusta retirement effective retroactively. 7 chose to make her II. Procedural Background Plaintiff began this litigation in May 2014 when she filed suit against Smith. Augusta, In her Fred Russell, complaint, retaliated against in she Bill Shanahan, alleges violation of that: and she (1) Sam was the Family and Medical Leave Act ("FMLA")3; (2) she was retaliated against in violation of the FLSA; (3) she was denied due process; and (4) she was denied include all of the equal protection. Plaintiff's complaint, however, claims she intended to bring. a charge demotion of discrimination was the retaliation. second EEOC result (Doc. charge In November 2012, with of did not the race In 28-7.) alleging and April that EEOC alleging 2013, was 28-10.) Plaintiff did letters until January 2015. second In her lawsuit second discriminated violation of her based on against against Title VII; (Doc. Augusta complaint, not in August Plaintiff her (2) a disability; based on that Augusta (3) filed based first her on a her EEOC charge. right-to-sue So Plaintiff filed a 2015. alleges: her and fired receive 28-14.) her Plaintiff disability and in retaliation for filing her (Doc. that discrimination gender she Plaintiff filed (CV (1) race 115-123.) that and gender discriminated that Augusta Augusta in against retaliated against 3 Plaintiff explicitly withdrew her FMLA claims. (See Doc. 126 at 21.) The Court thus GRANTS Augusta's motion for summary judgment on those claims. her for filing her November 2012 EEOC charge; hostile work environment. At Plaintiff's cases. The second request, Court also discovery and file the case (CV 115-123, the allowed Doc. Court the ruling on the (4) a claim of 6.) consolidated parties dispositive motions before and on time the were already pending in the original case. to claims dispositive her two complete raised in motions that All of the parties' motions are now ripe for review. Ill. Summary genuine dispute entitled 56(a). the judgment to U.S. in 941 to judgment under Liberty Lobby, the party, is appropriate any as a material matter only fact of if "there and law." Fed. no movant the is is R. Civ. P. Facts are "material" if they could affect the outcome of suit view as Legal Standard the Inc., facts in Matsushita 574, [its] F.2d 587 governing 477 favor." 1428, law. Elec. U.S. 242, 248 light the (1986), substantive most favorable Indus. Co. (1986). v. v. The Court must to Zenith Anderson the non-moving Radio Corp., 475 and must draw "all justifiable inferences United States 1437 (11th v. Four 1991) Cir. Parcels (en of Real banc) Prop., (internal punctuation and citations omitted). The Court, motion. by moving party reference Celotex to Corp. has the initial materials v. on Catrett, burden file, 477 U.S. of the showing basis 317, 323 for the the (1986). How to proof carry at 1115 trial. (11th proof at of two this depends Fitzpatrick Cir. 1993) . trial, ways burden v. When on City the who of bears Atlanta, non-movant the movant may carry the — by negating an the 2 has burden F.3d the 1112, burden initial burden in essential element of of the of one non- movant' s case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. Clark, Inc., Court must can 929 F.2d 604, evaluate first the consider 606-08 (11th Cir. non-movant's whether See Clark v. Coats the 1991). response movant in has Before the opposition, met & its it initial burden of showing that there are no genuine issues of material fact and Jones v. that it meet F.2d at entitled to City of Columbus, (per curiam) . cannot is judgment 120 F.3d as 248, 254 a matter (11th Cir. A mere conclusory statement that the burden at trial is of law. 1997) the non-movant insufficient. Clark, 929 608. If — and only if — the movant carries its initial burden, the non-movant "demonstrat[ing] that precludes may avoid summary response summary judgment." negating Id. When the by If the movant presents a material fact, the 10 non-movant the non-movant must tailor to the method by which the movant initial burden. only that there is indeed a material issue of fact bears the burden of proof at trial, its judgment carried its evidence affirmatively non-movant "must respond with evidence sufficient to trial on the material 2 F.3d at 1116. material fact, If the withstand a directed verdict fact sought to be negated." the movant shows non-movant must an absence either at Fitzpatrick, of show motion evidence that the on a record contains evidence that was "overlooked or ignored" by the movant or "come forward withstand a with directed additional verdict motion alleged evidentiary deficiency." cannot carry repeating See burden conclusory Morris Rather, its v. the Ross, 1117. relying by sufficient trial at on the F.2d non-movant at Id. allegations 663 evidence contained 1032, must in the (11th with on the The non-movant pleadings 1033-34 respond based to or by complaint. Cir. affidavits 1981). or as otherwise provided by Federal Rule of Civil Procedure 56. In this action, the Clerk of the Court gave the parties notice of the motions for summary judgment and informed them of the summary-judgment rules, the other materials in opposition, (Docs. 59, Griffith v. curiam), 60, 139, 142.) Wainwright, to file affidavits or and the consequences of default. Thus, the notice 772 F.2d 822, 825 requirements (11th Cir. 1985) of (per are satisfied. IV. As noted, move right Discussion Plaintiff asserts a number of claims. for summary judgment on all of 11 Plaintiff's Defendants claims, and Plaintiff moves for summary judgment on two of the claims. Court addresses the parties' The arguments below. A. Race and Gender Discrimination Plaintiff contends that Defendants4 her based on her race and gender. claims under 42 U.S.C. § 1983 employment-discrimination Plaintiff's the same gender- facts, and the discriminated She asserts equal protection (and the Fourteenth Amendment) claims under Title race-discrimination Court against addresses VII. claims them and Because are based on together. And the Court analyzes Plaintiff's equal protection and Title VII claims together because under § 1983 is the facts Carroll, asserts "the analysis her F.3d 961, claims mixed-motive disparate treatment claims identical to the analysis under Title VII where on which the claims 529 of 970 both theory, and rely are the (11th under the Cir. a same." 2008). Also, single-motive Court Crawford v. addresses Plaintiff theory these and a theories separately below. 1. Plaintiff's single-motive theory In a disparate-treatment evidence, shifting Green, such as this framework 411 U.S. 792 one, derived (1973). case courts from based apply the McDonnell Under this on circumstantial familiar Douglas framework, burden- Corp. a plaintiff 4 Plaintiff brings her equal protection claims against Augusta against Mr. Shanahan and Mr. Russell in their individual capacities. brings her Title VII claims against Augusta. 12 v. and She must first establish a prima facie case of discrimination, requires group; that that (2) her she that she employer the job. (1) that suffered an treated of her class more 1997). show: See Holifield v. and Reno, under the of articulate actions. 1174 the (11th court reasons." omitted). a the fourth Brown Cir. v. 2010). that Id. it she was prong was Rather, shifts of "[t]he actually (citation a to 1562 be prima the (3) outside (11th Cir. "similarly Transp., by (internal nondiscriminatory reason for its actions, 597 for F.3d not the to its 1160, persuade proffered quotation employer case employer need motivated the facie reason employer omitted) once action; Id. Dep't But protected qualified for must nondiscriminatory Ala. a employees 115 F.3d 1555, burden legitimate, See situated successfully establishes discrimination, to employment (4) that situated in all relevant respects." If a plaintiff belongs adverse similarly favorably; Comparators she which marks articulates a then the burden shifts back to the employee to show that the reason was merely pretext for id. discrimination. This See burden-shifting analysis, however, is not "the sine qua non for a plaintiff to survive a summary judgment motion in Title VII F.3d 1327, quotation cases/' 1336 marks Flowers (11th Cir. omitted). v. Troup Cty., 2015) It 13 Ga. , Sch. (citation does not omitted) "relieve Dist., 803 (internal Title VII plaintiffs of their burden to discrimination," id. , and "[t]he made the is whether concerning omitted) the plaintiff employer's put forth critical has be triable intent," id. issue (citation (internal quotation marks omitted). a. Plaintiff case of has failed to establish this case: Defendants any protected class contend similarly identify situated who a prima facie discrimination. Only the fourth prong of the prima facie in a of that must decision "create[d] discriminatory evidence were that case is Plaintiff employees treated more contested has failed outside favorably. In of to her response, Plaintiff names a number of other employees who she claims were treated more favorably. Donnell Conley, Smith. These individuals, Plaintiff Houck are all disciplined. (2) Chris argues exempt In Plaintiff Scheuer, however, that Mr. (3) Ron Houck, names and (4) (1) Sam are not similarly situated. Conley, Scheuer, and Mr. who used comp time but employees an specifically were not affidavit, Mr. Mr. Conley stated that, even though he was an exempt employee, he accrued comp time while Mr. Shanahan that his was the interim coworkers did the same. in (See Doc. director Augusta's 68-1.) of Parks Athletic Mr. and Recreation Department and routinely Scheuer similarly testified that exempt employees in the Athletic Department were routinely permitted to accrue comp time, including while Mr. Shanahan was 14 the interim director. (See Doc. 114-1.) And Mr. Houck testified simply that he was aware that some exempt employees in the Parks and comp time. At Parks Recreation (See Doc. bottom, and comp comp And time were permitted to accrue 115-1.) evidence Recreation time. used this department some while shows department of Mr. these that had some been employees Shanahan was employees permitted may the have to in the accrue accrued and interim director of the department. But it does not show — nor does Plaintiff argue that is shows — that Mr. that he was used comp notably, aware time of while Shanahan approved of this any he specific was the individuals interim behavior or who accrued director. And or more Plaintiff has not shown that any of these individuals' timecards indicated that they were working when they were not. Plaintiff apt comparator. has likewise failed to show that Mr. Smith But situated Plaintiff has not employee ("When a was treated more favorably. pointed to any evidence Mr. 447 F.3d 1319, plaintiff he is who engaged in similar conduct as Plaintiff. Orange Cty., an Plaintiff contends that, because Mr. Smith was not disciplined for his violations of Augusta's policies, a similarly is 1323 (11th Cir. alleges that Smith See Burke-Fowler v. 2006) discriminatory (per curiam) discipline, determine whether employees are similarly situated, to we evaluate whether the employees are involved in or accused of the same or 15 similar conduct and (citation omitted) Rather, up argues employee's at his Plaintiff improperly that knowledge) work however, or used record that receive the different Mr. Smith and ways." he that time spent without several permission. Mr. (with Smith or ever without Mr. ever misrepresented whether he Furthermore, Smith improperly covered that argue or that he instead argues that Mr. not in hours comp was working on his timecard. the Mr. behavior during not, accrued Shanahan's bad home does disciplined (internal quotation marks omitted)). Plaintiff another hours are was not it is not clear from disciplined. Plaintiff Smith was not demoted — that is, he did same punishment as Plaintiff. Thus, Mr. Smith is not similarly situated to Plaintiff. b. Plaintiff has legitimate, failed to rebut nondiscriminatory Defendants' reason for demoting her. Even if Plaintiff discrimination, her failed that to show could claim establish would Defendants' pretext for discrimination. a prima facie case of still fail because she has reason for demoting her was Defendants argue that they demoted Plaintiff because she accrued and used comp time and submitted a timecard that fraudulently stated that she worked days that she did not. are pretext about what Plaintiff argues that Defendants' for discrimination because: triggered the (1) investigation 16 proffered Mr. into reasons Shanahan lied Plaintiff's practices; (2) employees had Shanahan and Mr. Shanahan previously Mr. Russell and Mr. Russell received did not comp knew that time; adequately certain and (3) determine Mr. whether Plaintiff knew she could no longer use comp time.5 To support her first Lisa Hall disputes Mr. the concern contends, he launch could Mr. an Plaintiff points Shanahan's position that Ms. surrounding Plaintiff argument, Plaintiff's Shanahan use of fabricated investigation into comp that out Hall that raised time. Thus, interaction Plaintiff's employment practices for the sole purpose of having Plaintiff demoted. there is is at no evidence that this is what happened. worst a discrepancy question that prompted the in the record investigation, to create a triable issue on pretext. 1339 be ("Allowing the plaintiff to inappropriate, for only a weak issue of example, fact about Instead, who which is so But there posed the insufficient See Flowers, 803 F.3d at survive summary judgment would if . . . the as to whether the plaintiff created employer's reason was untrue and there was abundant and uncontroverted independent evidence omitted) 5 she was that no discrimination had occurred." (citation (internal quotation marks omitted)). Plaintiff also repeatedly asserts that Mr. Smith replaced her after demoted. Evidence does indicate that Mr. Smith was promoted (to a different position than the one Plaintiff held) and that he assumed some of her responsibilities. But that evidence is insufficient to establish pretext. 17 As that, for second because Mr. employees known that not her were that Mr. Shanahan based violate had their was accrue acting and Mr. Shanahan Plaintiff arguments, Plaintiff contends Shanahan and Mr. Russell knew that some exempt Plaintiff Mr. third permitted to willingly that and any and read decisions in may policy. policy part on have She Russell 2011 time, they innocently. Russell Mr. the comp She known did example, certain even knowingly argues she for not manual, also that contends, were her should have that though they violating that manual.6 Plaintiff s the soundness decision did of Mr. actually demoted. But the are essentially Shanahan's to uphold her not guess arguments law "does the That not allow Id. at 1338. Indeed, its employees for "a good reason, erroneous action omitted) is Russell's she claims that she for which she was federal judgments, dispute courts to second- nor does it replace notions about fair dealing in the workplace with that of judges.'' on is, violations nondiscriminatory business employers' to investigation and Mr. demotion. commit attempts facts, not for (internal or a for no an employer is free to fire a bad reason, reason discriminatory quotation marks at all, reason." omitted). a reason based as long Id. as its (citation Thus, that 6 Plaintiff also argues that Mr. Shanahan and Mr. Russell should have informed the exempt employees that the purported policy allowing them to accrue comp time was no longer in effect 18 Defendants arguably differently or reached investigation pretext. they did is v. (11th 2010) it, not to the conclusion different believe Royal Atl. ("The employer's beliefs, about approached based create a situation triable on their issue on especially true when there is no evidence that honestly See Alvarez Cir. a have insufficient This is not should on that Plaintiff Developers, inquiry Inc., into acted 610 wrongfully. F.3d 1253, pretext centers not the employee's beliefs and, reality as it exists outside 1266 on the be blunt the of to decision maker's head."). 2. Plaintiff's mixed-motive theory Plaintiff survive also under a contends that, reasons, were discrimination. that mixed-motive even if they discriminatory argues discrimination theory. That is, claims Plaintiff Defendants acted in part based on lawful still Because intent, her motivated in part by unlawful Plaintiff has not produced evidence of Plaintiff's claims fail under this theory. "An employee can succeed on a mixed-motive claim by showing that illegal bias, such as bias based on sex or gender, was a motivating factor for an adverse employment action, even though other Thomas Cty. Sch. factors Dist., omitted) also motivated the action." 814 F.3d (internal 1227, quotation 1235 (11th marks 19 Quigg v. Cir. omitted). 2016) The (citations McDonnell Douglas burden-shifting analysis does cases. Instead, produced that courts sufficient "(1) the against the plaintiff; a motivating action." quotation at marks for 1239 533 F.3d 381, Court "must sufficient evidence of characteristic] omitted) On a jury could action adverse in White original) v. 2008)). the motivating Healthcare Put differently, jury has to that factor (alterations (internal Baxter plaintiff reasonable presented conclude, [her for Mr. the by a protected [an] in original) adverse (citation (internal quotation marks omitted). issue, Plaintiff and arguments that she relies heavily presented to those arguments are in effect demotion was employment on rebut the as unwarranted or unfair. same Defendants' nondiscriminatory reasons under her single-motive theory. again, has conclude employment defendant's evidence, Id. plaintiff [a protected characteristic] (quoting a a a adverse (alterations the decision." this evidence was an whether for apply in mixed-motive whether which (6th Cir. determine preponderance employment 400 (2) the omitted) Corp., from took and factor Id. evaluate evidence defendant not But, attempts to challenge her Plaintiff also argues that Shanahan and Sam Smith had a close relationship and that Mr. Smith thought he was smarter than Plaintiff. To the extent there is any evidence that Mr. Shanahan had a close relationship, 20 there is no Smith and Mr. evidence that they furthered against than their Plaintiff. Plaintiff is no or gender. that or whether irrelevant that Thus, race demote And is evidence relationship he gender animus Mr. unlawfully Smith because, thinks Plaintiff by that has thinks among because not he other of produced motivated discriminating is smarter things, there Plaintiff s evidence Defendants' race showing decision to her. In sum, Plaintiff s discrimination claims are based on what she perceives to be unfair treatment.7 any evidence Defendants that would demoted Accordingly, the support her Court the reasonable based GRANTS She has failed to offer on her Defendants' inference gender motions or for that race. summary judgment on these issues. B. Due Process Plaintiff alleges that Defendants violated due process in a number of ways. Although Plaintiff's arguments are not entirely clear to the Court, it has discerned that Plaintiff alleges: (1) that Augusta took away her right to accrue comp time without due process; (2) that Defendants8 failed to provide her with an adequate opportunity to dispute the allegations surrounding her 7 To the extent "class-of-one theory employment context." Plaintiff asserts that she was treated arbitrarily, of equal protection Engquist v. Or. does not apply Dep't of Agric, in the 553 U.S. a public 591, 598 her due (2008). 8 Similar to her discrimination claims, Plaintiff brings process claims against Mr. Shanahan and Mr. Russell individually and against Augusta. 21 demotion; (3) that Defendants failed to provide Plaintiff with adequate process before they terminated9 her employment; and (4) that Defendants decreased her salary by move summary an amount greater than was permitted. Defendants for judgment on Plaintiff's due process claims and argue essentially that Plaintiff received all the process she was due.10 Plaintiff also moves for summary judgment on these claims. 1. Plaintiff's claim that Defendants improperly Plaintiff of her right to accrue comp time In her complaint, process because Mr. deprived Plaintiff alleges that she was denied due Russell was biased against her, because Defendants did not provide her notice of the allegations against her or an opportunity to dispute lowered her pay by judgment, however, of her property without due too much. them, In and because her motion for 9 As retirement. interest process in her when it for two reasons: mentioned She summary Plaintiff contends that Augusta deprived her ability to amended its accrue policy above, argues (1) Plaintiff that this comp time manual preclude exempt employees from accruing comp time. claim fails Defendants to Plaintiff's she did not allege this claim claims that forced retirement she was forced into constituted a termination. At times, the Court refers to her retirement as the "termination" of her employment. In doing so, the Court does not make any finding or ruling on whether Plaintiff was actually fired. 10 On January 25, 2017, the Court informed Plaintiff that it was considering granting summary judgment on these claims for different reasons and provided Plaintiff with an opportunity to respond, which she did. 191, 192.) 22 (Docs. in her complaint; and (2) Augusta amended its policy manual through legislative action. First, as noted, complaint. Rather, Plaintiff did not plead this claim in her she asserted motion for summary judgment. claims at McDonald this the and summary Co., claim fails Even if however, 382 for this Plaintiff 1312, reason had the first time in her stage." 1314 Gilmor (11th Cir. v. Gates, 2004). Thus, this claim, alone. sufficiently pleaded it would still fail because Augusta changed its policy through a legislative act. not dispute, Augusta argues, and Plaintiff does that Augusta amended its policy manual through the passage of an ordinance. of for But a plaintiff may not "raise new judgment F.3d it commissioners on two Thus, the issue came before the board separate occasions, and members of the public were permitted to be heard about the ordinance. Government legislative or often acts in adjudicative. one When of a two capacities government body — acts through a legislative process, those affected "are not entitled to procedural due process." 338 F.3d 1288, 1294 75 Acres, (11th Cir. 2003). LLC v. Or, Miami-Dade Cty., viewed differently, "[w]hen the legislature passes a law which affects a general class of persons, those persons have all received procedural due process - (internal the legislative quotation marks process/' Id. omitted). When 23 (citation the omitted) government's conduct is adjudicative, entitled to has not additional adopted a however, process. bright-line affected See test id. for legislative and adjudicative actions. principal classes difference of is that individuals, of an may Eleventh Circuit distinguishing See id. at between 1296. But the affect and adjudicative actions See id. be general tend to affect at 1297-98. Augusta amended its policy manual through the passage ordinance. legislative fact, The capacity, policy manual In The legislative actions only those involved in the decision. Here, citizens applied Plaintiff board passed to of that commissioners, ordinance. everyone does not bound to actually claim also fails for this in a And the amended follow the manual. dispute amended the manual through a legislative act.11 Plaintiff's acting that Augusta Accordingly, reason. 2. Plaintiff's claims that Defendants failed to provide her with adequate notice and proper hearings Plaintiff also alleges that Defendants violated due process because she her a or did proper termination. provides liberty, not that receive hearing notice of before her the allegations demotion or her against alleged The Due Process Clause of the Fourteenth Amendment no state or property, shall "deprive any person of without due process of law." U.S. life, Const. 11 Rather, Plaintiff argues that it was Defendants' decision in May 2012 to enforce the policy against her that violated due process. But Plaintiff has not explained - and the Court cannot discern - how Defendants' application of the policy violated due process. 24 amend. XIV, § 1. To succeed on a procedural due process claim, a plaintiff must protected show property constitutionally F.3d 1336, A 1347 (1) a deprivation interest, inadequate (11th Cir. plaintiff has (2) of state process. a constitutionally action, Arrington and v. (3) Helms, a 438 2006). not been deprived of a constitutionally adequate process "^unless and until the state refuses to provide due process.''' 1994) not a suffered a 20 F.3d 1550, Burch 494 U.S. 113, 1562 123 (11th Cir. (1990)). In a plaintiff suffered a procedural deprivation that See for Cotton v. that mean violation. remedy Pate, (quoting Zinermon v. other words, does McKinney v. id. the at 1563. plaintiff's federal Jackson, due plaintiff Thus, suffered when deprivation, process 216 F.3d 1328, 1331 state that violation. a due law process provides plaintiff See id. (11th Cir. has at a not 1562-64; 2000) ("It is the state's failure to provide adequate procedures to remedy the otherwise interest procedurally that gives flawed rise to a deprivation federal of a procedural protected due process claim."). Here, Plaintiff complains that Defendants failed to give her proper notice of the allegations against her and that they failed to provide the allegations. her with an adequate opportunity to dispute More specifically, Plaintiff contends that Mr. Shanahan failed to provide her with notice and an opportunity to 25 respond before he demoted her, that Mr. Russell did not allow her to present witnesses and dispute the allegations against her at her appeal decisionmaker, hearing, and that that Mr. Defendants Russell was terminated a her biased employment without notice and an opportunity to respond. Plaintiff deprivations. has alleged that she suffered procedural But she has failed to establish that she suffered a procedural due process violation because an adequate state-law remedy existed to cure the deprivation. Under Georgia law, if no other remedy exists and a party has a clear right to have an act performed, O.C.G.A. the § 9-6-20; found that a writ party Cotton, may seek 216 of mandamus F.3d will a at writ of 1332. mandamus. And work to provide courts the See have process due to an employee who is deprived of an adequate hearing before her employment is terminated. 2:05-CV-0190-RWS, 2007); Cook v. 737514, at *6 2007 WL See Maddox v. City of Winder, No. 788925, City of Jackson, (M.D. Ga. Mar. at *3 (N.D. No. 5:05-CV-250 7, 2013). Thus, Ga. Mar. 13, (CAR), 2007 WL if Defendants deprived Plaintiff of an adequate opportunity to challenge her demotion (or her termination), and she was clearly entitled to such an opportunity — as she contends she was — then she could have sought a writ a mandamus to compel Defendants to provide her that opportunity. 26 3. Plaintiff's claim that "too much pay was taken" In her complaint, Plaintiff alleges that Defendants decreased her salary by an amount greater than Augusta's policy allowed. Specifically, arbitrary and Plaintiff capricious manner alleges too violation of City policy . . . ." much that "[i]n an was taken, in pay (Doc. 1 at 26.) According to Plaintiff, after her demotion, her salary was decreased by 50%. And Augusta's Plaintiff under policy, argues, an employee's salary could not be decreased by more than 15%. It that remains unclear Defendants to decreased the her Court whether salary Plaintiff without contends providing her an adequate chance to object to that action or whether she believes that Defendants were simply not permitted to lower her salary to the level they did. If her claim is based on the former, the Court's analysis above applies, writ of mandamus to compel and she could have sought a Defendants to provide opportunity to object to her salary decrease. is however, the latter, she is then her with an If her argument essentially seeking to assert a substantive due process claim. Substantive actions regardless implement them." (internal however, due of process the fairness McKinney, quotation protects marks prevents of "certain the 20 F.3d at 1556 omitted). only "those 27 government procedures used to (citation omitted) Substantive rights due process, that are fundamental . . . ." marks omitted). created only employment Id. "[A]reas by state law) are rights (citation are ^fundamental' not enjoy rights substantive the case to with only by the quotation are process sum, Plaintiff's alleged deprivation because she did deprivation law due and process Constitution." marks the Id. omitted). rights And and Constitution, protection." not occurred procedural of her plead as it a sufficient opportunities demotion and remedies were available; in they Id. at are do 1560. her process to accrue GRANTS was not Defendants' a be of a heard fail and and time on fails because legislative in because her fundamental motions comp complaint act; claim opposition adequate based salary fails because her right to her salary, one, claim based any her alleged failure to provide her with to termination due right result claims based on Defendants' had tort are substantive due state-created by rights substantive Clause because created due (internal quotation Plaintiff's claim that "too much pay was taken" fails. In the Process rights substantive is subject (internal employment not Thus, Due which (as created omitted) "[b]ecause in law not protection under the process (citation omitted) right. on to to state-law her loss of the extent she Accordingly, the for summary judgment on these and DENIES Plaintiff's motion for summary judgment. 28 her Court issues C. Disability Discrimination In her complaint, discriminated Disabilities against Act Plaintiff her ("ADA") in alleges violation when it of demoted that the her Americans in May when it terminated her employment in February 2013. Plaintiff both move for summary judgment on Augusta with 2012 and Augusta and Plaintiff's ADA claims. 1. Plaintiff's Although claim based on her demotion Plaintiff alleges in discriminated against her based on her, she reason: has effectively her that Augusta a disability when it demoted abandoned complaint that claim. And for good she did not timely file an EEOC charge alleging this act of discrimination. Under the ADA, a plaintiff must file a charge of discrimination with the EEOC within 180 days of the date of the discriminatory § 12117(a) act. See § 2000e-5 (e) (1) ; 42 U.S.C. (incorporating the procedures set forth in 42 U.S.C. § 2000e-5 into the ADA). reference 42 U.S.C. her discrimination. disability Plaintiff's first EEOC charge does not or any allegation of disability In her second charge, she states that "[she is] a person with a disability" and that she was terminated because she could not perform her job duties. did not file her second charge 29 (Doc. until April 28-10.) 4, 2013, But she which is almost a year after Plaintiff's demotion.12 Thus, Plaintiff failed to exhaust her administrative remedies for this claim. 2. Plaintiff's claims based on her termination Plaintiff also asserts that Augusta her based on her disability when it discriminated against forced her to retire. She contends that Augusta failed to accommodate her by not allowing her to transfer to a different position and by not granting her additional leave.13 Under the ADA, an employer may not "discriminate against a qualified individual on the basis of disability in regard to job application procedures, employees, employee compensation, conditions, and § 12112(a); Lucas (11th 2001) . Cir. the hiring, plaintiff must privileges v. W.W. To ^qualified individual' discriminated against job training, of "(1) on 13 Inc., a 257 claim 42 F.3d under when she was terminated, the (2) and (11th Cir. 2016). U.S.C. 1249, 1255 ADA, she was (3) on account of her disability." a a she was Frazier- A qualified It also fails to mention her demotion. Plaintiff also contends that Augusta violated the ADA because failed to engage in an interactive process. But and other terms, she is disabled, White v. Gee, 818 F.3d 1249, 1255 12 or discharge of employment." Grainger, succeed show that: advancement, See 29 C.F.R. it § 1630.2(o)(3). the law in the Eleventh Circuit is clear that "where a plaintiff cannot demonstrate 'reasonable accommodation,' the employer's lack of investigation into reasonable accommodation is unimportant." Willis v. Conopco, Inc., 108 F.3d 282, 285 (11th Cir. 1997). Accordingly, to the extent Plaintiff seeks to hold Augusta liable for failing to engage in an interactive process, her claim fails. 30 individual is someone who can perform the essential functions of the or 257 job with F.3d at A without reasonable accommodation. See Lucas, 1255. common form of discrimination under the ADA arises when an employer fails to reasonably accommodate a disabled employee. See be id. "An accommodation can qualify as required perform by the quotation the ADA, essential marks only if functions omitted). And it of the enables the ADA examples of reasonable accommodations: time or modified work schedules, position . . . ." a. Plaintiff position. Plaintiff's her to a 42 U.S.C. new reassignment. position [and] to that Indeed, job." lists employee Id. the to (internal following "job restructuring, as part- reassignment to a vacant request Augusta fails a transfer should because she have did to a new transferred not request An ADA plaintiff has the burden of identifying an accommodation and showing that the Frazier-White, the and thus § 12111(9) (B). failed argument reasonable, 818 "the duty F.3d to at provide 1255; a accommodation Lucas, reasonable 257 is F.3d reasonable. at 1255-56. accommodation is not triggered unless a specific demand for an accommodation has been made . . . ." F.3d 1361, 1363 Gaston v. (11th Cir. Bellingrath Gardens 1999). 31 & Home, Inc., 167 Plaintiff accommodate contends her because different position. summary judgment, was, and is, Plaintiff, that it Augusta did not several however, jobs to not has perform. offered admits that in [she] 29, have 33, been 37, 41 learned of in to (finding that 150 at she 9-10.) that she positions. In that "[t]here 2016" 5, 9, were that 13, were 17, 21, That these positions may Plaintiff retired is she requested reassignment to she could not have a a her motion for these April time not know about the jobs until 2016. 1256-57 transfer evidence 146-1 at 1, the show that which any affidavits (Doc. around She must a specific position, at to (Doc. any of (emphasis added).) available insufficient. to several available in 2012 and 2013. 25, her reasonably Plaintiff lists eleven jobs "she believes qualified" Plaintiff allow to In her brief in support of specifically requested transfer fact, failed done if she did See Frazier-White, plaintiff's claim 818 F.3d based on her employer's failure to reassign her could not prevail because she "did not position or provide any information that would have enabled Defendant to determine vacant ever request whether position Plaintiff has she to a could perform the given not reassignment her physical specific essential duties limitations"). produced any evidence — other of a Moreover, than her own belief - that shows that she was qualified for these positions. See id. (finding insufficient 32 a plaintiff's "conclusory statement that performed' there with were jobs she additional, ^believets] unspecified she could have accommodations" (alteration in original)). b. Plaintiff has additional failed to show that her request for leave would have been reasonable. Plaintiff's argument that Augusta discriminated against her when that it did not extend her additional essential leave functions leave would of her fails have job. because allowed As she her noted, it has to is not shown perform a the plaintiff's burden under the ADA to identify a specific accommodation and to show that 1255. it Thus, is reasonable. See Frazier-White, it is a plaintiff's burden to 818 F.3d at show that a proposed accommodation would allow the plaintiff to perform the essential functions of the job. See id. may accommodation, be a reasonable And although a leave of absence an indefinite leave of absence is not because "[t]he ADA covers people who can perform the essential immediate Cir. functions future." Wood of their jobs v. Green, 323 presently F.3d 1309, or in 1314 the (11th 2003). There is evidence that Plaintiff requested leave in December 2012 until her next doctor's appointment in March 2013. (See Doc. been 47-1.) capable of But there is no evidence Plaintiff would have returning to work doctor's appointment. Indeed, following her March 2013 she testified that as of August 33 2013, her tasks. tasks doctor (PI. in had Dep. August at still not 228-29.) 2013, then cleared her to perform physical If she could not perform physical she would returning to work in March 2013. not Thus, have been capable of this accommodation would not have allowed Plaintiff to perform the essential functions of the job. Rather, leave of absence, Wood, which is request was for an indefinite unreasonable as a matter of law. See 323 F.3d at 1314. Because position for Plaintiff's for Plaintiff which additional essential judgment she leave functions on this did was not qualified, would not of the issue is request have job, reassignment and because allowed her Plaintiff's DENIED, and to motion Augusta's her to a request perform the for summary motion for summary judgment is GRANTED. D. Hostile Work Environment Plaintiff also asserts a hostile-work-environment claim. To prevail on a hostile-work-environment claim, a plaintiff must show: (1) that he belongs to a protected group; (2) that he has been subject to unwelcome harassment; (3) that the protected harassment must characteristic of have the been based employee, on such a as national origin; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment discriminatorily abusive (5) that the employer and create a working environment; and is responsible for such environment under either a theory of vicarious or of direct liability. 34 Miller Cir. v. Kenworth 2002). must find Dothan, in both hostile an or abusive perceive [s] (alterations in original) marks omitted). the frequency (3) humiliating, of the an . . . to that a 1269, be the conduct the is that the Id. victim at courts evaluate: severity of the with person 1276 (internal quotation physically interferes (11th the "behavior abusive." (citation omitted) (2) 1275 reasonable environment or a mere offensive utterance; performance." conduct; threatening and (4) "(1) or whether the the employee's job her African-American Id. essence, Plaintiff coworkers would not She also and conduct; unreasonably superiors F.3d On the issue of severity, whether In 277 environment subjectively conduct Inc., To be considered sufficiently severe, result would of would claims argues that follow her instructions and that some of her not follow that one of her coworkers not want to work for a living in a "f [******] her disciplinary recommendations. stated that she "did white woman" and referred to Plaintiff as white neighborhood." (Doc. 163 at 12- 13. ) 14 In one of her briefs opposing summary judgment, Plaintiff references that she believes that Mr. Shanahan initiated his investigation as an attempt to "Portray Plaintiff As Creating A Hostile Work Environment, Including Racist." (Doc. 163 at 13.) It is unclear to the Court whether Plaintiff intends for this argument to support her hostile-work-environment claim. To the extent she does, the Court is unpersuaded. 35 The Court allegations work fails of were Plaintiff alleged not conduct insult . . . ." on this offered could any to how comments evidence by 277 that that the hostile Plaintiff's F.3d shows at 1277. that the or her Court workplace was ridicule intimidation, Accordingly, a threatening, physically establish Plaintiff's considered Miller, discriminatory Id. be alleged routine, enough with the however, utterance[s]." was severe "permeated motion And "mere has otherwise see, insubordination environment. coworker to and GRANTS Augusta's issue. E. FLSA Retaliation Plaintiff alleges violation of the retaliation for FLSA. that Augusta She retaliated against questioning whether she should have Plaintiff points to a complaint Second, that she First, that she made about her job she points to a 2005 she filed about her compensation. been Plaintiff relies on three complaints that she made about her FLSA classification. in 1999. in claims that Augusta demoted her in classified as exempt under the FLSA. duties her grievance that And third, Plaintiff contends raised an issue about her compensation during a March 2012 meeting with Mr. Shanahan. Under the FLSA, against employees See U.S.C. 29 employers are prohibited from retaliating who assert § 215(a)(3). their In 36 a rights under the statute. retaliation claim based on circumstantial Corp. evidence, v. Green, 411 courts U.S. 792 apply (1973), See Henderson v. City of Grantville, (N.D. Ga. an showing protected " (1) that: action." Cir. omitted) for the its 37 F. Supp. by the between Wolf v. 2000) employer actions. the 3d 1278, 1282 prima facie case proffer Id. at engaged employee] and employee's marks a prima a employer; alteration quotation to [the Coca-Cola Co., (second (internal establish (2) successfully establishes to Douglas burden-shifting framework. employee] act; action existed first [the [the] adverse connection (11th employee must under suffered adverse McDonnell 2014) . Thus, by the case, legitimate, 1343. If employee must then show pretext. the subsequently (3) a causal and F.3d 1337, original) omitted). facie activity activity 200 in in If 1343-44 (citation the employee the burden nonretaliatory employer the shifts reasons does so, the Id. first two complaints fail because she has not 1. Plaintiff's prima facie case Plaintiff's presented any evidence showing a causal connection between those complaints and her demotion.15 can establish between 15 Shanahan the causation "by statutorily In retaliation cases, a plaintiff showing protected close activity temporal and proximity the adverse The Court also questions whether Plaintiff's 2012 meeting with Mr. constitutes protected activity under the FLSA. But because Plaintiff's claim fails for other reasons, issue. 37 the Court will not address that employment 1361, action." 1363 however, (11th Cir. is a of delay she made significant demotion connection. complaint events Inc., curiam). the F.3d Without more, Id. "Thus, "very close." between 506 show causation, protected if expression the complaint of retaliation fails as a Id. Plaintiff complaints her (per other evidence tending to substantial law." Here, This Cooper Lighting, 2007) and the adverse action, matter v. temporal proximity must be in the absence of there Thomas alleges twelve temporal are too In fact, and that six remote, was years demoted before between without Plaintiff a she disparity is too remote but showing that has more, her her to show a that admitted of her Plaintiff's of demotion. complaints insists that "there are cause because and causal 1999 connecting demotion was Plaintiff's protected activity stemming from the 1999 complaint [because] Plaintiff continued complaining about being worked out of her job description and the amount of physical labor demanded of her from 1999 through 2005." (Doc. 126 at 9-10.) Even so, a six-year span between her complaint and her demotion, more, without is too remote. 2. Augusta's legitimate reasons and pretext Plaintiff's retaliation on her 2012 meeting with Mr. rebutted Augusta's claims, including her claim based Shanahan, fail because she has not legitimate, 38 nonretaliatory reason for demoting her — that she improperly accrued and used comp time. On this about she issue, pretext contends Plaintiff under that her should have violate any rule. VII claims, of respect to Thus, this known But, protection evidence that as Plaintiff her and Title that Plaintiff Mr. arguments VII Shanahan did not claims: and Mr. intentionally with her equal protection and Title has retaliation complaints, that is reasserts that is insufficient show pretext. Because case equal there Russell essentially and Augusta with because any of failed respect she has against establish to her failed her complaints, retaliated to to a in facie and 2005 1999 show pretext with failed to Plaintiff has her prima show violation of the FLSA. the Court GRANTS Augusta's motion for summary judgment on issue. F. Claims Against Sam Smith Plaintiff complaint. girlfriend practices. also named Mr. Smith as a Defendant caused the investigation into Plaintiff's comp-time More specifically, she contends that Mr. Smith and complained about Plaintiff's use after been Plaintiff Plaintiff's her Plaintiff basically alleges that Mr. Smith and his his girlfriend she in had argues, on catastrophic because position. they Indeed, leave. wanted Plaintiff Mr. of comp time They Smith contends Smith was part of a conspiracy to demote Plaintiff, 39 did this, to fill that "Sam so that he would get her job and would not have to deal with her attempts to discipline (Doc. 125 at him 4.) and And make him Plaintiff follow city believes that part of this conspiracy because he and Mr. policy . . . ." Mr. Shanahan was Smith were allegedly friends. A three an § 1983 elements: agreement (3) conspiracy an 1342, "(1) among a claim of Defendants the violation to actionable wrong." 1379 (S.D. requires Gibbons Ga. 2015) a [her] plaintiff federal violate v. such McBride, (citation to prove rights; (2) right; and a 124 F. omitted) Supp. 3d (internal quotation marks omitted). Here, explained show Plaintiff's claim against Mr. above, that could she not have constitutional Accordingly, she was has not denied engaged rights in if Smith fails because, sufficient produced as to a constitutional a conspiracy those rights to evidence right. Mr. violate were Smith Plaintiff's never violated. Plaintiff's claim against Mr. Smith fails, and the Court GRANTS his motion for summary judgment. G. Title VII Retaliation Finally, Plaintiff alleges that employment (by forcing her to retire) her 2012 retaliate EEOC charge. against employment practice. an Under Augusta 42 U.S.C. 40 her in retaliation for filing Title employee terminated for VII, it is opposing § 2000e-3(a). unlawful an to unlawful Similar to a retaliation claim under the FLSA, courts utilize Douglas analysis in Title VII retaliation cases, must first establish [the plaintiff] that (3) Thomas 2007) there v. prima is some curiam) omitted). case by suffered an adverse causal Cooper Lighting, (per facie relation Inc., 506 and a plaintiff showing: "(1) the 1363 (internal Transp., 2010). so, pretext. then the plaintiff must rebut events." legitimate, Dep't. of If the employer that reason and show has failed Id. Here, establish Plaintiff's Augusta a argues prima claim employment action. facie fails only that Plaintiff case.16 because And second, she First, did not it contends suffer an to that adverse Augusta argues that there is no casual connection between the filing of Plaintiff's EEOC charge and the end of her employment with Augusta. that and quotation marks Ala. (11th Cir. (2) (11th Cir. Brown v. 1181 then two nonretaliatory reason for its actions. 1160, may between a does that action; provide F.3d employer employment F.3d 1361, (citation omitted) The 597 McDonnel engaged in statutorily protected expression; [the plaintiff] that a the It is not disputed Plaintiff's filing of an EEOC charge constitutes protected activity. See 42 U.S.C. § 2000e-3(a) ("It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has made a charge, 16 It does not argue, for example, that legitimate, nonretaliatory reason for its actions. 41 Plaintiff testified, cannot rebut a assisted, or proceeding, participated in any manner in an investigation, or hearing under this subchapter."). 1. Plaintiff's adverse employment action Augusta employment however, argues action that Plaintiff because Plaintiff she did not suffer As already retired. disputes whether her an adverse mentioned, retirement was voluntary. To satisfy the adverse-employment-action prong, must show that Burlington (2006). show N. the & challenged action was Santa Fe Ry. Co. v. a plaintiff "materially adverse." White, 548 U.S. 53, 68 But showing material adversity requires a plaintiff to only that reasonable the worker discrimination." action from Id. "well making (citation might or have dissuaded supporting omitted) a charge (internal a of quotation marks omitted). Augusta she was contends unable Plaintiff to that Plaintiff return to work." disagrees and argues without her knowledge or consent. authority supporting Court unpersuaded is its "voluntarily (Doc. that Augusta at when 18-19.) But separated Plaintiff Thus, has without failed more, to evidence that she suffered an adverse employment action. 42 her And Augusta has not cited any position. that 141-1 retired the present 2 . Causation Augusta a causal also argues that connection between Plaintiff the has end of failed to her employment filing of an EEOC charge. As previously mentioned, a be retaliation proximity. case may Cooper Lighting, only a few months may be met by Inc., Ins. Co., causation 197 prong showing close sufficiently proximate to F.3d 1322, satisfied 1337 when temporal A gap of satisfy the See Farley v. Nationwide (11th Cir. seven and her causation in 506 F.3d at 1364. causation prong of a prima facie case. Mut. establish weeks 1999) had (finding the passed between the filing of an EEOC charge and a plaintiff's termination). Here, Augusta again without argues connection. that This is citing any Plaintiff so, authority cannot Augusta contends, on the issue, a causal establish because Mr. Shanahan stated in an affidavit that he did not make any "inquiries" into Plaintiff's charge.17 alone is more, the create facie a case 17 inquired employment (Doc. 141-3 S[ 10.) insufficient Court triable of status is to unable issue on based her filing of the But this self-serving statement warrant to on summary say that causation judgment. Plaintiff for has purposes of Without failed a to prima retaliation. Mr. Shanahan is referring to a December 2012 e-mail in which he about how long he would have to wait before filling Plaintiff's position with someone else. (Doc. 41-7.) 43 Because, is based on the sufficient claim should evidence survive arguments that asserted by Augusta, Plaintiff's summary Title judgment, VII there retaliation Augusta's motion for summary judgment on this issue is DENIED. V. In sum, 138) are Smith's Plaintiff's motions DENIED. motions Fred for GRANTED. Augusta, (doc. is 55) summary PART. Only Bill The Shanahan, Georgia's 141) and first motion GRANTED VII instructed Sam Smith as 56, for Georgia's is IN Plaintiff's motion to motion supplement to PART AND to TERMINATE (doc. 185). (doc. and Sam 58) are second motion retaliation Defendants extend 57, 54, summary judgment in 131); claim Fred IN will Russell, case. The which are now and Moreover, for DENIED this Clerk shall also TERMINATE the following motions, moot: (docs. Shanahan's, (docs. Title Plaintiff's is Bill judgment and Augusta (doc. Clerk for summary judgment Russell's, summary GRANTED, judgment proceed. Conclusion the Plaintiff's Clerk is instructed to CLOSE case number CV 115-123, ORDER ENTERED at Augusta, Georgia this ^^ ' ^day of March, 2017. HONORABtfi^U. RANDAL HALL unitedIstates DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 44

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