Wiggins v. University Hospital et al

Filing 68

ORDER denying 47 Plaintiff's Motion for Summary Judgment; granting 49 Defendant's Motion for Summary Judgment. The Court dismisses Plaintiff's disability discrimination claim for failure to exhaust administrative remedies and closes this case. Signed by Chief Judge J. Randal Hall on 09/06/2018. (maa)

IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION

MACHELLE WIGGINS,

Plaintiff,
CV 117-026
V.

UNIVERSITY HOSPITAL,
Defendant.

ORDER

Before

motions

the

for

alleges

Court

summary

that

discriminated

are

judgment.

Defendant
against

Plaintiff's

{Docs.

violated

her

and

because

47,

Title
of

Defendant's

her

49.)

VII

Plaintiff

when

race,

cross

it

(1)

color,

and

disability and (2) retaliated against her for complaining of
discrimination.

Defendant

argues

Plaintiff's

disability-

discrimination claim is barred because she failed to exhaust her
administrative

remedies

and

Plaintiff s

discrimination

and

retaliation claims fail because Plaintiff did not demonstrate a

prima facie case.
summary

judgment

j udgment.

The Court GRANTS Defendant's motion for
and

DENIES

Plaintiff's

motion

for

summary

I. BACKGROUND^

Plaintiff, an African American, began working for Defendant

in 1989 as a daycare employee.

began work as a unit clerk.

(Doc. 51, at 17.)

(Id.)

In 1990 she

As a unit clerk. Plaintiff

was responsible for completing paperwork, answering call lights,

stocking items on the floor, assisting patients with blankets,

providing juice or water, and escorting patients out of the
hospital upon discharge.
Over

the

course

(Id. at 17-18.)

of Plaintiff's

employment.

Plaintiff was

placed on probation three times, and received seven written
warnings, one verbal warning, and two final written warnings.
(Id. at 25-36.)

On May 27, 2016, Plaintiff received the second

of her final written warnings from her immediate supervisor,
Danette Thomas.

(Doc. 51-1, at 35.)

Thomas claimed to issue

the final written warning because Plaintiff had been tardy three

days between April 24, 2016, and May 10, 2016, and another
supervisor had observed Plaintiff not wearing her name badge at
the hospital.
warning.

(I^ at 35-39.)

Plaintiff

became

denied, a raise in 2016.
On

October

23,

As a result of the final

ineligible

for,

and

was

in

fact

(Doc. 51, at 152; Doc. 63, at 2-3.)

2016,

Kristie

Connor,

a

charge

nurse,

alleged that she found Plaintiff asleep in a patient's room.

^ Both Plaintiff and Defendant have moved for summary judgment.
Because the Court GRANTS Defendant's motion for summary judgment, the

Court provides only one recitation of the facts detailed in a light
most favorable to Plaintiff.

room 1043, during Plaintiff's shift.

(Doc. 51-1, at 86.)

The

hospital had already assigned a sitter to the patient in room
1043, and the sitter, Calandra Harris, was present when Connor
found

Plaintiff

in

the

room.

(Doc.

51,

at

85,

92.)

Connor

notified Thomas, and Thomas notified Defendant's Human Resources

Department.

(Doc. 53, at 2.)

Vita Mason, an Employee Relations Specialist, commenced an

investigation of the incident.

(Doc. 53, at 2.)

During the

investigation. Mason gathered statements from Connor and two

additional eyewitnesses.

(Id.)

Micah Long, a registered

nurse, stated that he found Plaintiff asleep on the couch of
room 1043 the night of October 23, 2016.

(Doc. 51-1, at 83-84.)

Jamie Chafin, a nurse, stated that she saw Plaintiff sitting in
the chair of room 1043 covered by a blanket on the night of

October 23, 2016.

(Id. at 85.)

Mason ""concluded that Plaintiff

had gone into a patient's room to go to sleep and that Plaintiff
had no reason to be in the patient's room."

(Doc. 49-2, at 5.)

Plaintiff testified that while to her knowledge she did not fall

asleep, she had ""maybe been dozing." (Doc. 51, at 89.)
At the conclusion of the investigation, Thomas asked that
Plaintiff not be terminated.

(Doc. 54, at 2.)

Mason, however.

^ Plaintiff argues in her response to Defendant's motion for
summary judgment that that ""she did not go into the patient s room
with the intent to sleep."

(Doc. 64, at 13.)

The Court, however,

disregards this argument because it is not supported by any evidence
in the record.

Fed. R. Civ. P. 56(c) (""A party asserting that a

fact cannot be or is genuinely disputed must support the assertion by
. . . citing to particular parts of materials in the record.").

recommended termination because sleeping in a patient's room is
a severe violation of hospital policy and Plaintiff had already
received a final written warning on May 21, 2016.

3.)

(Doc. 53, at

On October 27, 2016, at the recommendation of Mason, Thomas

terminated

Plaintiff's

employment.

(Doc.

Thomas and Mason are African-Americans.

54,

at

2.)

Both

(Doc. 53, at 1; Doc.

54, 1.)

On

November

Questionnaire

21,

2016,

Plaintiff

("Questionnaire")

Opportunity Commission ("EEOC").

to

submitted

the

Equal

an

Intake

Employment

(Doc. 51-1, at 77-81.)

Two

days later, on November 23, 2016, Plaintiff submitted a Charge
of Discrimination ("Charge") to the EEOC.

(Doc. 1, at 11.)

The

Charge alleged:

On and about May 15, 2016, I was removed from a shift and
the shift was given to a Unit Clerk who [was] of a lighter

complexion than me. On May 27, 2016, I told my immediate
Supervisor, Danette Thomas, that I felt I was treated
differently.

On October 27, 2016, I was discharged.

Ms.

Thomas told me that I was discharged for violating company

policies.
I believe that I have been discriminated
against because of my color (dark skin complexion), in
violation of Title VII.

(Id.)

On

December

6,

2016,

the

EEOC

issued

Plaintiff

a

Dismissal and Notice of Rights (the "Notice") granting Plaintiff

the right to sue within 90 days of receipt of the Notice.
at 9.)

(Id_^

Plaintiff filed suit in this Court on March 2, 2017.

(Id. at 1.)

II. STANDARD OF REVIEW

Summary

genuine

judgment

dispute

is

as to

appropriate

any

only

material fact

and

entitled to judgment as a matter of law."

56(a).

if

^^there

the

is

no

movant

is

Fed. R. Civ. P.

Facts are ''material" if they could affect the outcome of

the suit under the governing substantive law, and a dispute is

genuine "if the evidence is such that a reasonable jury could
return a verdict for the non-moving party."

Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v. Liberty

The Court must view

factual disputes in the light most favorable to the non-moving

party, Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986), and must draw "all justifiable inferences
in [the

non-moving party's] favor."

United States v.

Four

Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en

banc) (internal punctuation and citations omitted).

should

not

weigh

the

evidence

or

determine

The Court

credibility.

Anderson, 477 U.S. at 255.

The moving party has the initial burden of showing the

Court, by reference to materials on file, the basis for the
motion.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Because the standard for summary judgment mirrors that of a

directed verdict, the initial burden of proof required by either

party depends on who carries the burden of proof at trial.
at 323.

•

When the movant does not carry the burden of proof at

trial, it may satisfy its initial burden in one of two ways — by

negating an essential element of the non-movant's case or by
showing that there is no evidence to prove a fact necessary to
the non-movant's case.

See Clark v. Coats & Clark, Inc.^

929

F.2d 604, 606-08 (llth Cir. 1991) (citing Adickes v. S.H. Kress

& Co., 398 U.S. 144 (1970) and Celotex Corp., 477 U.S. 317).
The movant cannot meet its initial burden by merely declaring

that the non-moving party cannot meet its burden at trial.

Id.

If — and only if — the movant carries its initial burden,
the non-movant must ''demonstrate that there is indeed a material

issue of fact that precludes summary judgment."

Id.

When the

non-movant bears the burden of proof at trial, the non-movant

must tailor its response to the method by which the movant
carried its initial burden.

If the movant presented evidence

affirmatively negating a material fact, the non-movant "must

respond with evidence sufficient to withstand a directed verdict
motion at trial on the material fact sought to be negated."

Fitzpatrick v. City of Atlanta, 2 F. 3d 1112, 1116 (llth Cir.
1993).

If the movant shows an absence of evidence on a material

fact, the non—movant must either show that the record contains
evidence that was "overlooked or ignored" by the movant or

forward

directed

with

additional

verdict

motion

evidentiary deficiency."

evidence

at

sufficient

trial

Id^ at 1117.

based

to

on

come

withstand

the

a

alleged

The non-movant cannot

carry its burden by relying on the pleadings or by repeating
conclusory allegations contained in the complaint.

See Morris

V. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).

Rather, the

non-movant must respond with affidavits 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 right to file affidavits or
other materials in opposition, and the consequences of default.

(Docs. 48, 55.)

Therefore, the notice requirements of Griffith

V. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam),
are satisfied.

The time for filing materials in opposition has

expired, and the motion is now ripe for consideration.

III. DISCUSSION

Title

VII

prohibits

employers

from

''discriminat[ing]

against any individual with respect to his compensation, terms,
conditions,

or

privileges

of

employment,

because

of

such

individual's race, color, religion, sex, or national origin.
42 U.S.C. § 2000e-2(a)(1); see

(employment

actions

national origin

was

where
a

race,

also 42 U.S.C. § 2000e-2(m)

color,

motivating factor

religion,

sex,

or

are

unlawful, even

though other factors also motivated the action).

Title VII also

prohibits an employer from ^^discriminat[ing] against any of his
employees or applicants for employment . . . because [the
employee or applicant] has opposed any practice made an unlawful
employment practice by [Title VII], or because [the employee or

applicant]

has

made

a

charge,

testified,

assisted,

or

participated in any manner in an investigation, proceeding, or
hearing under [Title VII].''
Title

VII

does

42 U.S.C. § 2000e-3(a).

not,

however,

allow

federal

courts

to

second-guess an employer's nondiscriminatory business judgment,

nor does it replace an employer's notions about fair dealing in

the workplace with that of judges.

Flowers v. Troup Cty., Ga.,

Sch. Dist., 803 F.3d 1327, 1338 (Ilth Cir. 2015).

are

not

a

prudence

''super-personnel

of

routine

department"

employment

that

decisions,

medieval, high-handed, or mistaken."

The courts

assesses

no

"the

matter

how

Id. (citing Alvarez v.

Royal Atl. Developers, Inc., 610 F. 3d 1253, 1266 (Ilth Cir.
2010)).

Employers are free to make adverse employment decisions

against their employees for "a good reason, a bad reason, a
reason based on erroneous facts, or for no reason at all, as

long as its [decision] is not for a discriminatory reason."

Id.

(citing Nix v. WLCY Radio/Rahall Commc'ns, 738 F.2d I18I, 1187
(Ilth Cir. 1984)).

Defendant

disability

makes

three

discrimination

main

claim

arguments:

is

barred

(I)

because

Plaintiff's

Plaintiff

failed to allege this claim in either her Intake Questionnaire

or Charge; (2) Plaintiff has failed to demonstrate a prima facie
case

of

discrimination;

and

(3)

Plaintiff

demonstrate a prima facie case of retaliation.

has

failed

to

A. Disability

Defendant argues that Plaintiff may not proceed with her

disability-discrimination claim because she did not make that

allegation in her charge.

^""No action alleging a violation of

Title VII may be brought unless the alleged discrimination has
been

made

the

subject of a

timely-filed

EEOC charge.

EEOC

regulations provide that charges should contain, among other

things, ^ [a] clear and concise statement of the facts, including
pertinent dates, constituting the alleged unlawful employment

practices.'

A ^plaintiff's judicial complaint is limited by the

scope of the EEOC investigation which can reasonably be expected
to grow out of the charge of discrimination.'"
Fulton

County,

Ga.,

207

F.3d

1303,

1332

Alexander v.

(11th

Cir.

2000)

(quoting 29 C.F.R. § 1601.12(a)(3); and Mulhall v. Advance
Security, Inc., 19 F.3d 586, 589 n.8 (11th Cir. 1994)).

Because

Plaintiff's charge alleged only race and color discrimination,
the Court finds that the scope of the EEOC investigation could

not reasonably be expected to include discrimination based upon

a disability never alleged or identified in Plaintiff's charge.
See Gill v. Bank of America Corp., No. 2:15-cv-319-FtM-38CM,

2015 WL 4349935, at *4 (M.D. Fla. July 14, 2015) (holding that

the plaintiff's ''EEOC charge contains no allegations that would
have allowed the EEOC to infer and investigate a claim of color
discrimination"

even

though

discrimination in her charge).

the

plaintiff

alleged

race

Accordingly, any allegations of

disability discrimination are outside the scope of Plaintiff s
complaint.

Plaintiffs failure to include a disability discrimination

claim, however, is merely a failure to exhaust administrative
remedies.

Administrative

exhaustion

is

a

matter

unrelated to the merits of the underlying claim.

of

abatement

See Duble v.

FedEx Ground Package Sys., Inc., 572 F. App'x 889, 892 (llth
Cir. 2014) (''Exhaustion of administrative remedies is a matter
in abatement that should be raised in a motion to dismiss, or

treated as such if raised in a motion for summary judgment."

(citing Bryant v. Rich, 530 F.3d 1368, 1374-75 (llth Cir.
2008))).
but

Accordingly, the Court will not grant summary judgment

will

instead

only

dismiss

Plaintiffs

disability

discrimination claim.

B. Race and Color Discrimination

When

a

plaintiff

uses circumstantial evidence

to

prove

disparate treatment based upon race or color, courts apply the
McDonnel Douglas analysis.

Burke-Fowler v. Orange Cty, 447 F.3d

1319, 1323 (llth Cir. 2006).

This analysis uses three steps to

sift through the validity of a plaintiffs claim.

plaintiff
treatment.

must
Id.

establish

a

prima

facie

case

First, the

of

disparate

"To establish a prima facie case for disparate

treatment in a race discrimination case, the plaintiff must show

that: (1) she is a member of a protected class; (2) she was
10

subjected

to an

adverse employment action; (3) her employer

treated similarly situated employees outside of her protected
class

more

favorably than

qualified to do the job."
facie

case,

the

she

was

Id.

defendant

treated;

and

(4)

she

was

If a plaintiff proves a prima

^^must

show

a

legitimate,

discriminatory reason for its employment action."

Id.

non-

If the

defendant makes such a showing, the plaintiff must then prove

that

the

reason

discrimination."

In

her

offered

is

^^merely

pretext

for

unlawful

Id.

complaint.

Plaintiff makes three

discrimination based upon race or color.

allegations of

First, she alleges

that Defendant discriminated against her when Thomas removed her

from a shift and gave the shift to ^^a Unit Clerk who is of

lighter complexion than [Plaintiff]." (Doc. 1, at 11.)
she

alleges

that

Defendant

discriminated

against

Second,
her

when

Defendant terminated her but did not terminate other employees
who committed similar offenses.

(Id.)

Third, she alleges that

Defendant discriminated against her when Thomas gave her a final
written warning on May 27, 2016.

(Id.)

Defendant argues that Plaintiff has failed to make a prima
facie case of race or color discrimination with regard to any of
h027 claims.

Defendant concedes that Plaintiff is a member of a

protected class and was qualified to do the job.
10.)

Defendant

argues,

however,

that

(Doc. 49—1, at

neither

Plaintiff's

removal from a shift on May 15, 2016, nor the final warning
11

issued

Plaintiff

on

May

27,

2016,

were

^^adverse

action[s]."

Burke-Fowler, 447 F.3d at 1323.

argues

Plaintiff

that

cannot

show

that

employment

Defendant also

Defendant

''treated

similarly situated employees outside of her protected class more

favorably than she was treated."

Bur ke-Fowler, 447 F.3d at

1323.

1. Removal From Shlfb on May 15, 2016

"[T]o prove adverse employment action in a case under Title
VII's

serious

anti-discrimination

and

material

clause,

change

in

an

the

employee

terms,

must

show

conditions,

a

or

privileges of employment. Moreover, the employee's subjective
view of the significance and adversity of the employer's action
is not controlling; the employment action must be materially
adverse as viewed by a reasonable person in the circumstances.

Davis V. Town of Lake Park, Fla., 245 F.3d 1232, 1239 {11th Cir.

2001) (emphasis in original).

opportunities

affect[]

Because overtime and comp time

compensation,

a

denial

of

opportunities could constitute an adverse action.

such
—Yjl

Dekalb Cty. Gov't, 503 F. App'x 781, 788 (11th Cir. 2013).
Nevertheless, when a plaintiff "consistently receiv[es] overtime

and comp time benefits, [] the occasional denial of additional
[does] not constitute a serious and material change in

[her] employment."

I^ at 789.

Here, between January 1, 2016,

and October 24, 2016, Plaintiff worked a total of 3,181.50

hours,

including

1,381

overtime
12

hours.

Thus,

the

Court

concludes that being removed from a single shift on a single day
does

not

constitute

employment.

a

See id.

serious

and

material

change

in

her

Therefore, Plaintiff has not made a prima

facie case of discrimination with regards to her removal from

the shift on May 15, 2016.^
2. Final Warning on May 27, 2016

Assuming, arquendo, that the final warning was an adverse

employment

action.

Plaintiff

has

failed

to

establish

that

Defendant treated similarly situated employees outside of her

protected class differently than her.

"When a plaintiff alleges

discriminatory discipline, to determine whether employees are

similarly situated, [courts] evaluate 'whether the employees are
involved in or accused of the same or similar conduct and are

disciplined in different ways.'"

Burke-Fowler, 447 F.3d at 1323

(quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.
1999)).

To be similarly situated, the Eleventh Circuit requires

"'that the quantity and quality of the comparator's misconduct

be

nearly

identical

employer's

reasonable

oranges.'"

Id.

^

of

prevent

decisions

courts

and

from

second-guessing

confusing

apples

with

"If a plaintiff fails to show the existence of

Plaintiff's

instances

to

filings

discrimination

appear
related

to
to

make

reference

Plaintiff's

to

work

multiple
schedule.

Plaintiff's complaint, however, alleges only the single instance of
discrimination on May 15, 2016, and Plaintiff has not moved to amend

her complaint to include any additional instances of discrimination.
Accordingly, the Court will not consider any additional instances now.
Fed. R. Civ. P. 15(a)(2) ("[A] party may amend its pleading only with

the opposing party's written consent or the court's leave.").
13

a similarly situated employee, summary judgment is appropriate
where

no

other

evidence

of

discrimination

is

present."

Holifield v. Reno, 115 F.3d 1555, 1562 {11th Cir. 1997).
Plaintiff

Hatcher,

an

identifies

two

African-American

potential

with

a

comparators:

lighter

Laverene

complexion

Plaintiff, and Alba Cull, who is not an African-American.

64, at 17.)

than
(Doc.

Plaintiff asserts that Hatcher, like Plaintiff, was

given a final written warning for time and attendance violations
but

received

a

raise

in

2016

nevertheless.

(Id.

at

9.)

Plaintiff asserts that Cull was ''repeatedly late for her tour of

duty."

(Id. at 17.)

Finally, Plaintiff asserts that she

"received harsher punishment than Ms. Hatcher and Ms. Cull R.N."
(Id. at 11.)

The

Court

comparators.

concludes

neither

Hatcher

nor

Cull are

valid

First, Hatcher is also an African—American and

disqualified as a comparator for Plaintiff's race—discrimination
claim.

Second, Hatcher also received a final written warning.

(Doc. 63, at 3.)

Third, the time and attendance problems

Plaintiff cites for Cull are years old.

194.)

(Doc. 64-1, at 183-

Many of the documents cited by Plaintiff date to the

early 2000s and the latest time and attendance issue cited by
Plaintiff is January 2011 — more than 5 years before Plaintiff
received her written

warning.

See Wilson

v. B/E Aerospace,

Inc., 376 F.3d 1079, 1091 ("The plaintiff and the employee she
identifies as a comparator must be similarly situated in all
14

relevant respects.
added)).

(citations and quotations omitted)(emphasis

Additionally,

many of the

documents

Plaintiff does

cite confirm that Cull was put on probation as a result of her
time

and

attendance

issues.

Thus,

the

Court

finds

that

Plaintiff has not pointed towards any evidence that Hatcher or
Cull are valid comparators.

The

Court further

concludes that

Plaintiff

has

shown

no

other evidence of discrimination with regards to her written

warning.

Plaintiff alleges that Thomas treated Hatcher and Cull

better because Hatcher was related to Thomas's boss and Cull was

a registered nurse, but neither of these allegations qualify as
evidence of discrimination.

See Wilson, 376 F.3d at 1091 (''A

plaintiff must show not merely that the defendant's employment
decisions were mistaken but that they were in fact motivated by

[race

or

color].").

Additionally,

Plaintiff

although she and Hatcher both received a
Defendant gave Hatcher a raise.

alleges

that

written warning.

Raises in 2016, however, were

denied to all employees who received a written warning on or

after January 1, 2016.

(Doc. 63, at 2.)

written warning on December 13, 2015.

Hatcher received her

(Id.)

her written warning on May 27, 2016.
raise is no evidence of discrimination.

(Id_^)

Plaintiff received
Thus, Hatcher s

See Flowers, 803 F.3d

1327 (''Title VII does not allow federal courts to second-guess
nondiscriminatory

business

judgments,

nor

does

it

replace

employers' notions about fair dealing in the workplace with that
15

of judges.").

Furthermore, Plaintiff does not deny that she had

a recent history of being tardy (doc. 51, at 123) nor that she
failed to wear her ID badge (id. at 57).

Accordingly, summary

judgment is appropriate with regards to Plaintiff s claim of
discrimination based upon her written warning.
3. Termination of Employment

Plaintiff identifies three
that

Julia

Defendant

Hancock,

discriminated

Callie

potential comparators to

in

Elliot,

terminating

and

Mary

her

show

employment:

Jackson.

None

of

Plaintiffs comparators, however, are similarly situated.
Plaintiff claims that Julia Hancock, a Caucasian employee,

was given a final written warning, placed on administrative
leave, and found sleeping on the job, yet is still employed by
Defendant.

(Doc. 67, at 6.)

First, Plaintiff provides no

citations which support her assertions.^

Defendant, moreover,

has provided evidence that Hancock not on final written warning
at the time she fell asleep.

(Doc. 53, a.t 4.)

Further, when

Hancock fell asleep, she was acting as a sitter and fell asleep

in part because the patient had asked Hancock to turn the lights
Plaintiff cites broadly to "exhibit 2," a 74 page attachment to

her reply brief, but fails to specifically locate the evidence
supporting her assertion.
(Doc. 67, at 6.)
Additionally, the
0vidence cited to support this assertion in her Statement of Material
Facts does not support her assertion. Plaintiff cites to Exhibit 23
attached to her Statement of Material Facts.
(Doc. 64, at 7.)
Exhibit 23, however, is the final written warning given to Hancock ^
a result of Hancock falling asleep on the job. (Doc. 64-1, at 196-

98.)

Thus, Plaintiffs cited evidence in her other filings contain no

evidence

that Hancock was on final written

asleep in a patienfs room.
16

warning

when she fell

and television off.

Thus, Hancock is not a valid comparator for

Plaintiff's race or color discrimination claims.

Plaintiff claims that Callie Elliot, a lighter complexioned

African-American employee, fell asleep at her desk, cursed on

the job, and cursed at a co-worker but was not terminated.
(Doc. 67, at 6.)

First, Elliot is an African American and thus

disqualified as a comparator for Plaintiff s race discrimination
claim.

Second, Plaintiff has not pointed to any evidence that

Elliot was on a final warning at the time she fell asleep.

Third, Defendant's investigation of Elliot determined that she

was not asleep at her desk.
not

a

valid

comparator

(Doc. 53, at 4.)
for

Plaintiff's

Thus, Elliot is
race

or

color

discrimination claims.

Plaintiff

complains

that

Mary

Jackson,

a

lighter

complexioned African-American employee, allowed a patient under
her charge to escape from University Hospital while she was

acting as sitter.

First, Jackson is an African American and

thus

as

disqualified

discrimination claim.

a

comparator

for

Plaintiff's

race

Second, once again. Plaintiff provides no

specific citations to evidence supporting her assertions.^

^ In her reply brief. Plaintiff cites to "'exhibit 3" to support
this assertion, but only two exhibits are attached to her brief.

(Doc. 67, at 6.)

Additionally, Plaintiff's Statement of Material

Facts mentions Jackson, but says nothing about Jackson allowing a

patient to escape.

(Doc. 64, at 7.)

Further, Plaintiff's reference

to Jackson in her motion for summary judgment states only "In the
Matter of: Machelle Wiggins v. University Hospital Deposition of Mary
Jackson December 20, 2017. Please see page 5 lines 1-25, page 6 lines
17

Third, Plaintiff makes no assertion, and provides no evidence,
that

Jackson

was

on

a

final

allegedly fell asleep.

written

warning

when

Jackson

Fourth, Defendant's investigation of

Jackson revealed that the patient did not escape because Jackson

was sleeping on the job.

(Doc. 53, at 4.)

Rather, Jackson

followed the patient when the patient left her room, but Jackson
was forced to leave the patient to obtain help from another

hospital

employee.

(Id.)

Thus,

Jackson

is

not

a

valid

comparator for Plaintiff's race or color discrimination claims.
The

other

Court further

evidence

termination.

of

concludes that

discrimination

Plaintiff

with

has shown

regards

no

to

her

Plaintiff alleges that she did not receive

due

process" during Defendant's investigation of her misconduct.
(Doc. 67, at 6.)

Specifically, Plaintiff argues that (1)

Defendant conducted a more thorough investigation of Hancock and
Elliot's

misconduct

(doc.

67,

at

4),

(2)

the

eyewitnesses

Defendant relied on were all Caucasian nurses (id. at 1), and

(3) Defendant failed to obtain statements from other employees
who worked the night of October 23, 2016, including Calandra

1-25, page 7 lines 6-25, and page 8 lines 1-19." (Doc. 47, at 2.)
Plaintiff says nothing about what those cited excerpts will tell the
Court or why the Court should look at them. (Id.) Plaintiff, even
though she is pro se, has the burden of clearly identifying the
evidence she uses to support her assertions and the Court will not dig

through her filings to attempt to find evidence for her.

See Little

V. Cox's Supermarkets, 71 F.3d 637, 641 (7th Cir. 1995) r[A] party

contesting summary judgment has a responsibility . . . to highlight
which factual averments are in conflict as well as what record
evidence there is to confirm the dispute. . . . A court need not make

the lawyer's case." (internal quotations and citations omitted)).
18

Harris

(id, at 2).

Defendant's

color.

These allegations, however, do not show

employment

Defendant

decisions

gathered

were

three

motivated

eyewitness

by

race

statements

or

that

Plaintiff was asleep or appeared to be asleep in room 1043 on
October

23,

2016,

and

Plaintiff

herself

admitted

deposition that she had ''maybe been dozing."

in

her

Plaintiff has

produced no evidence, other than her own ambiguous testimony,
indicating that the three eyewitnesses were lying.

Neither has

Plaintiff offered any evidence rebutting Defendant's assertion

that it attempted to collect a statement from Carrie Harden, who

it says was the sitter in the room with Plaintiff the night of
October 23, 2016.

(Doc. 63, at 2.)

appropriate

regards

with

to

Thus, summary judgment is

Plaintiff s

race

and

color

discrimination claim based on her termination.

C. Retaliation

A claim for

retaliation

circumstantial evidence

shifting analysis.
1160,

1181

(11th

under

follows the

Title

VII that relies on

McDonnell

Douglas burden-

Brown v. Ala. Dept. of Transp., 597 F.3d
Cir.

2010).

Under

the

McDonnell

Douglas

framework, "[t]o make a prima facie case for retaliation, the

plaintiff must show: 1) a statutorily protected expression; 2)
an adverse employment action; 3) a causal link between the

protected expression and the adverse action."

Sullivan v. Nat'l

R.R. Passenger Corp., 170 F.3d 1056, 1059 (11th Cir. 1999).
19

If

a plaintiff establishes a prima facie case, then the finder of
fact must presume retaliation and the defendant has the burden
to

produce

action.

a

Id.

legitimate

reason

for

the

adverse

employment

''If the defendant offers legitimate reasons, the

presumption of retaliation disappears," and the plaintiff must
show

that

the

retaliation.

proffered

Id.

reasons

were

merely

pretext

for

If the plaintiff offers sufficient proof of

pretext, she is entitled to a jury trial if she has provided
enough evidence by which

a rational jury could conclude the

defendant retaliated against her.

See Chapman v. AI Transport,

229 F.3d 1012, 1025 n.ll {11th Cir. 2000).

Defendant argues that Plaintiff has failed to show a prima
facie case.

Defendant concedes that Plaintiff's termination was

an adverse action.

Defendant argues, however, that Plaintiff's

complaint to Thomas on May 27, 2016, was not a protected activity
and that Plaintiff has failed to identify a causal connection

between the protected activity and the adverse action.
1. Protected Activity

"[T]o

opposition
VII.]'"

qualify

as

'protected

must

to

a

be

'practice

activity,'

made

a

plaintiff's

unlawful

by [Title

Bush V. Sears Holding Corp., 466 F. App'x 781, 786

(11th Cir. 2012) (citing 42 U.S.C. § 2000e-3(a)).

"A plaintiff

can show participation in a protected activity by demonstrating
that she had a subjective, good-faith belief that her employer

was engaged in unlawful employment practices and that her belief
20

was

objectively

presented."
{11th

reasonable

in

light

of

the

facts

and

record

Brown v. City of Opelika, 211 F. App'x 862, 863

Cir.

2006).

'"It

is

critical

to

emphasize

that

a

plaintiff's burden under this standard has both a subjective and

an

objective

component.

A

plaintiff

must

not

only

show

that

[she] subjectively (that is, in good faith) believed that [her]
employer was engaged in unlawful employment practices, but also
that [her]

belief

was

objectively reasonable

facts and record presented."

in light of the

Little v. United Techs., Carrier

Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997).

Defendant argues that Plaintiff s complaint to

Thomas was

not a protected activity because Plaintiff did not object to a

practice made unlawful under Title VII.
''to

the

extent

that

Plaintiff

alleges

Defendant claims that
any

conduct

that

could

arguably be protected, it would be for expressing her unhappiness
with the 'unfairness' of Laverene Hatcher and Alba Cull not being

given a final warning for attendance when Plaintiff was given one
on May 27, 2016."
because

the

(Doc. 66, at 11.)

complaint

to

Thomas

was

According to Defendant,
based

upon "nepotism

and

favoritism" and not an "unlawful employment practice," it was not

a protected activity.

(Doc. 49-1, at 15.)

First, Plaintiff has not pointed the Court to any evidence
that

she

treated

ever

complained

unfairly

because

to
of

Thomas,
her

or

race

anyone,
or

about

color.

being

Second,

Plaintiff admitted in her deposition that she believed that: (1)
21

Thomas
first

better

gave

Hatcher

cousin

was

because

preferential

Thomas's

Cull was a

registered nurses better.
twice

asked

boss;

Plaintiff

"exactly" she told

treatment
and

registered

(2)

because

Thomas

nurse

explain

Thomas, but

what

Plaintiff

treated

Cull

and Thomas treated

(Doc. 51, at 126.)
to

Hatcher's

Opposing counsel

^'specifically"

and

never testified that

she complained about race, color, or disability discrimination:
Q.
All right. You go on in your EEOC charge to say on
May 27th, 2016 I told my supervisor Danette Thomas that I
was treated differently.
What specifically did you tell
Danette Thomas?

A.

I told her I was treated unfair. I said, Danette —

on the 27th, I told her, I say, if you going to give me
the writeup, I say, bring all your employees in here and
give them the same one. And I just start naming names. I
just start naming names. I say, you got to be fair to me.
I say, you got your 6 North South staff, they have time
and attendance, I say, by the way, I
have perfect
attendance. I say, and you bring them in here, and I say,
you be fair to me what you're giving me writeups on. All I
asked her, I told her I just want to be treated fairly.

Q.
That day that you're referring to in your EEOC
charge.
You say on May 27th, 2016 I told immediate
supervisor Danette Thomas that I felt I was treated
differently. And my question is, what exactly did you say
to her?

A.

To

Danette?

Q.

Yes.

A.
I just told her get all her staff time and
attendance, I say bring all of us in here, and I say,
let's do it fair. I say, when you bring all your staff in
here with time and attendance, I say, and give them the
same punishment that you give me, then I'll sign those
papers.

22

(Id. at 121-24.)

Third, even Plaintiff's filings in this Court

fail to allege that she complained to Thomas of race or color

discrimination.®

Thus, Plaintiff has cannot establish that her

May 27, 2016, complaint

211

F. App'x at

64

was a

protected activity.

(finding the

plaintiff

See Brown,

never engaged in

protected activity because she ^'never mentioned the word

a

^race'

when she complained" and "never voiced a complaint that the city
was engaged in an unlawful employment practice").
2. Causal Relation

But, even if Plaintiff's May 27 complaint were considered a

protected activity, she would still have to establish that her
protected activity was casually related to her termination.
establish

a

causal connection,

decision-makers

the

protected

®

None

were

aware

activity and

of

a

of

plaintiff must show

the

the

protected

adverse

Plaintiff s filings allege

that the

conduct,

action

were

that she

"To

and

not

that

wholly

complained

to

Thomas of an "unlawful employment practice" on May 27, 2016.
Plaintiff's complaint filed in this case states that after Thomas gave
her "three write up [sic] in one day," Plaintiff "called Human
Resource Coordinator (Vita Mason) and told her
fear for my job of
27 years.'"
(Doc. 1, at 7.)
Similarly, Plaintiff's charge states
only that "[o]n May 27, 2016, I told my immediate Supervisor, Danette
Thomas, that I felt I was treated differently."
(Id. at 11.)
Plaintiff's
response to
Defendant's motion for summary judgment
similarly fails to identify any objection to an unlawful employment
practice:
"Plaintiff was unhappy with unfairness of Lavern Hatcher
and Alba Cull not been [sic] given a final written warning of
attendance when plaintiff was given on May 27, 2016.
Plaintiff
however

contends

the

different

treatment'

based upon related [sic] to Title VII."
reference

to

Title

VII

as

related

to

of

Hatcher

and

(Doc. 64, at 19.)
the

reason

for

her

treatment" is as close as Plaintiff comes to alleging
complained to Thomas about an unlawful employment practice.

23

Cull

was

This vague
"different

she

ever

unrelated.
intent,

Discrimination is about actual knowledge, and real

not

constructive

knowledge

and

assumed

intent.

When

evaluating a charge of employment discrimination, then, we must
focus

on

the

actual

knowledge

and

actions

of

the

decision-

maker." Brown, 211 F. App'x at 863-64.

"The burden of causation can be met by showing close temporal

proximity

between

the

statutorily

adverse employment action.

protected

activity

and

the

But mere temporal proximity, without

more, must be very close.

A three to four month disparity between

the statutorily protected expression and the adverse employment
action is not enough.

Thus, in the absence of other evidence

tending to show causation, if there is a substantial delay between

the protected expression and the adverse action, the complaint of
retaliation fails as a matter of law."

Thomas v. Cooper Lighting,

Inc., 506 F.3d. 1361, 1364 {11th Cir. 2007).

Finally, "
[a] plaintiff making a Title VII retaliation claim
must establish that his or her protected activity was a but-for

cause of the alleged adverse action by the employer."
of

Fort

Pierce,

Fla.,

565

F.

App'x

774,

778

(11th

Smith v. City
Cir.

2014).

"Although contesting an unlawful employment practice is protected
conduct,

the

anti-discrimination

employee

from

discipline

for

disrupting the workplace."
F.3d

1131,

1136

(8th

Cir.

statutes

violating

do

the

not

insulate

employer's

rules

an

or

Kiel v. Select Artificials, Inc., 169
1999).

24

Thus, "an

intervening

act

of

misconduct"

can

^'diminish[]

any

inference

of

causation."

See

Henderson v. FedEx Express, 442 F. App'x 502, 507 (11th Cir. 2011).
Plaintiff
between

her

Plaintiff

has

failed

protected

has

to

establish

activity

offered

no

and

evidence

any

her
that

causal

termination.
Mason

or

aware Plaintiff had engaged in protected conduct.

time

between

connection

Plaintiff's receipt of her final

First,

Thomas

were

Second, the

warning and

her

termination was nearly five months, and Plaintiff has offered no

evidence

tending

to

show

causation.

Third,

Plaintiff

has

offered no evidence otherwise showing that her May 27 complaint
was the '^but-for cause" of her termination.
Plaintiff

was

misconduct

sleeping

and

cause

on

for

the

job

—

termination

an

from

Defendant alleges
intervening

time

act

immemorial.

of
See

Henderson, 442 F. App'x at 507 (holding that the falsification
of a time card two weeks after Plaintiff complained of protected

activity was enough to destroy inference of causation created by

temporal

proximity).

Defendant

conducted

an

investigation

in

which it interviewed Plaintiff and three eyewitnesses, concluded

that Plaintiff was not only sleeping in room 1043 but had the
intent to

was

sleep

appropriate

final warning.

otherwise,

in

room

given

1043,

and

determined

that Plaintiff

was already on

at

that

1327

a

written

Plaintiff offers no evidence, circumstantial or

Defendant

fired

her

as

a

result

other than her intervening act of misconduct.
F.3d

that termination

("Put

frankly,

employers

25

are

of

anything

See Flowers, 803

free

to

fire

their

employees for

a

good

reason,

a

bad

reason,

a

reason

based

on

erroneous facts, or for no reason at all, as long as its action

is

not

for

quotations
evidence

a

discriminatory

omitted)).

tending

to

Thus,
show

reason."

(citations

Plaintiff

causation

and

has
has

and

failed
not

internal

to

present

established

a

prima facie case of retaliation based upon color or race.
III.

CONCLUSION

In sum. Plaintiff has failed to provide evidence such that

a reasonably jury could find she established a prima facie case
of either discrimination or retaliation pursuant to Title VII.
Additionally,
discrimination

Plaintiff
claim

cannot

because

claim in her Charge.

assert

she

failed

her

to

disability-

include

any

such

Accordingly, the Court GRANTS Defendant's

motion for summary judgment on

all but

Plaintiffs disability-

discrimination claim, and DENIES Plaintiff s motion for summary
judgment.

The

discrimination
remedies.

The

Court

claim
Clerk

for

DISMISSES
failure

Plaintiff's
to

exhaust

shall ENTER JUDGMENT in

disability-

administrative

favor

of

Defendant

and against Plaintiff and CLOSE this case.
ORDER

ENTERED

at

Augusta,

Georgia,

this

day

September, 2018.

J. RANDAL HALL,-^ CHIEF JUDGE
UNITEjy STATES DISTRICT COURT
SOUTHERN

26

DISTRICT

OF GEORGIA

of