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