Pearson v. Augusta, Georgia
Filing
17
ORDER CLOSING case number CV115-123. Signed by Judge J. Randal Hall on 03/09/2017. (pts)
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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