Rice v. James

Filing 73

ORDER granting in part and denying in part Defendant Harry B. James III's 55 Motion for Summary Judgment; denying Defendant City of Augusta, Ga's 59 Motion for Summary Judgment. This case shall proceed to trial in due course. Signed by Chief Judge J. Randal Hall on 08/29/2019. (jlh) Modified on 8/29/2019 (jlh).

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

ANGELA RICE,

*
*

Plaintiff,

*
*

V.

*

CV 117-039

•k

HARRY B. JAMES, III,

*

Individually and in his
Official Capacity as Judge of
Richmond County Probate Court,

*
*
*

and CITY OF AUGUSTA, GA,

*
*

Defendants.

*

ORDER

This employment discrimination case arises from Plaintiff
Angela Rice's employment at the Richmond County Probate Court.

Plaintiff alleges race discrimination, hostile work environment,
and retaliation in violation of Title VII, 42 U.S.C. §§ 2000e, et

seq.) 42 U.S.C. § 1981; and 42 U.S.C. § 1983.

Before the Court

are Defendants' motions for summary judgment.

(Docs. 55, 59.)

For the reasons set forth in detail below. Defendant Harry B. James

Ill's motion for summary judgment is GRANTED IN PART and DENIED IN
PART

and

Defendant

judgment is DENIED.

City

of

Augusta,

GA's

motion

for

summary

I. BACKGROUND

On January 1, 2013, Judge Harry B. James III ('"Judge James")

began his term as the duly elected Chief Judge of the Richmond
County

Probate

Court

(the

"Probate

Court").

(Def.

James's

Statement of Material Facts ("Def.'s SOME"), Doc. 55-1, SI 1.)

At

the time. Plaintiff Angela Rice, a white woman, was serving as
Director of the Probate Court and Felicia Bray, a black woman, was

serving as the Operations Manager, a supervisor position below the
Director.
141-43.)
informed

observe

(See Dep. of Angela Rice ("Rice Dep."), Doc. 56-4, at
Upon assuming his position. Judge James, a black man,
the staff that

for

he

approximately

would

six

maintain

months

to

the

see

status

how

quo

the

and

office

functioned before making any long-term personnel changes.

(Aff.

of Harry B. James III ("James Aff."), Doc. 56-1, SI 11; Aff. of
Lacey Grantham ("Grantham Aff."), Doc. 56-2, SI 5.)
six

months.

Plaintiff

supervisor roles.

and

Bray

continued

in

During these

their

respective

(Rice Dep., at 104.)

A. Chief Clerk Position

On July 31, 2013, Judge James held a staff meeting to announce
that he was reorganizing the Probate Court to align its structure
with other probate courts in Georgia.

(Def.'s SOMF, SI 16.)

Judge

James eliminated the Director and Operations Manager positions and
replaced them with Chief Clerk and Deputy Chief Clerk.

(Id. SISI

17-18.)

The Chief Clerk position was substantially similar to the

Director position, save for handling budgetary responsibilities.
(Aff. of Angela Rice (""Rice Aff.''), Doc. 63-2, SI 42.)

Judge James

then announced that Felicia Bray was being promoted to Chief Clerk
because of her twenty-seven years of experience at the Probate
Court

and

because

Judges

James

considered

Bray

competent and well-respected among the staff.

to

be

highly

(James Aff., SI 9.)

Plaintiff recalls Judge James stating at this meeting that
his selection of Bray was not a reflection of Plaintiff's work and

that he was pleased with her performance.

(Rice Dep., at 121.)

However, Judge James remembers advising Plaintiff at a separate

meeting the day after Bray's promotion, August 1st, that he did
not approve of her attitude in the workplace, she should improve
her ^^tone and demeanor towards coworkers and the public" or risk

losing her job, and he believed team work was crucial to the
success of the Probate Court.

(James Aff., SISI 12, 15.)

During

this August 1st meeting. Judge James commented that he was aware
of

the

"black

and

white

cliques"

in

the

office

reorganization was an attempt to address that issue.

and

his

(Rice Aff.,

SI 48; Rice Dep., at 145-47.)

In a September 23, 2013 letter from Judge James to the Human

Resources ("HR") Department for Defendant City of Augusta, GA (the

"City")^ explaining his reasons for making personnel changes, Judge
James cited Plaintiff s inability to supervise other staff members

as the reason the Director position was abolished and Plaintiff
was not appointed as Chief Clerk.
63-13.)

(Sept. 23, 2013 Letter, Doc.

That letter also noted Judge James's desire to make the

Probate Court's positions consistent with other probate courts in
the state.

(Id.)

The qualifications for the Chief Clerk position were a high
school diploma, five years' experience working for the courts or

ten

years in

functions,

the legal field, familiarity

and

good

interpersonal

and

(Chief Clerk Job Description, Doc. 63-5.)

with

Probate

communication

Court

skills.^

Plaintiff met many of

these requirements as she was a Certified Clerk, had an Associate's
degree in

business technology,

a

paralegal certification,

and

fourteen years' experience in the Probate Court, including five as
Director.

(See Rice Dep., at 51-52, 144-45, 225-26.)

Although

Bray had less education than Plaintiff, she had nearly double the
experience at the Probate Court and previously served as Operations
Manager.

(See James Aff., f 9.)

^ The City of Augusta and Richmond County are controlled by a consolidated
government.
Plaintiff named the City of Augusta, GA as a Defendant in this
case, but is referring to the Augusta-Richmond County consolidated government.
2 The job qualifications for Chief Clerk substantially mirrored
the
qualifications for the eliminated Director position, except the education
requirement for Chief Clerk was lowered from a Bachelor or Associate's degree
to a high school education.

(Rice Aff., 5 43.)

Following the reorganization. Plaintiff was reassigned as an
Administrative Clerk and had her salary reduced by approximately
$15,000.00.

(Rice Dep., at 139-40.)

It took approximately two

months for Plaintiff's paycheck to reflect the salary reduction,
an

issue

Judge

James

blames

the

City's

HR

Department

for

considering he executed a Request for Personnel Action (^^RPA") on
August 7th.

finally

(Id.; James Aff., SI 22.)

adjusted

Plaintiff's

pay,

it

When the HR Department

applied

the

decrease

retroactively causing a substantial reduction in her October 4th
paycheck.

(Rice Aff., SI 74.)

Plaintiff's annual salary decreased

from approximately $65,000.00 to $50,000.00.
40.)

(Rice Dep., at 139-

Judge James also executed an RPA on August 7th to give Bray

a $10,000.00 raise.

(Rice Aff., SI 45.)

B. Deputy Chief Clerk Position

Within a few days of promoting Bray to Chief Clerk, Judge

James encouraged all employees to apply for the Deputy Chief Clerk
job because he wanted to promote from within the Probate Court.
(James Aff., SI 16.)

Plaintiff, Lacey Grantham, a white woman, and

Joy Daniels, a black woman, applied for the job.

(Id. SI 17.)

Judge James authorized Bray to make the selection for Deputy Chief
Clerk because of the close working relationship between the two
supervisory positions.

(Id.)

The Deputy Chief Clerk position required a high school diploma
and three to five years' experience in a similar role.
Chief Clerk Job Description, Doc. 63-6.)

(Deputy

Daniels was a former

Army computer technician who served in the First Gulf War, held an
Associate's degree in computer science, and had fifteen years'

experience in the Probate Court.
10; James Aff., SISI 18-19.)

to Deputy Chief Clerk.
Plaintiff

""difficult

describing

to

""significant

deny"

(Daniels Application, Doc. 63-

On August 5th, Bray promoted Daniels

(Rice Aff., SI 56.)
her

her

contributions

non-selection

the
to

promotion
the

Doc. 63-9.)

noted

based

Probate

Plaintiff's ""work has been first rate."

Bray's letter to
that

on

Court"

it

was

Plaintiff's
and

that

(Aug. 5, 2013 Letter,

After Daniels's promotion. Judge James increased her

salary by approximately $15,000.00 between two raises given in
August and September.

(Rice Aff., SI 57.)

after the raises was $48,000.00.

Daniels's annual salary

(Id.)

C. Plain-biff's Discrimination Complaints

Shortly after Daniels was promoted. Plaintiff reached out to

the City's Equal Employment Office (""EEO")^ Director, Jacquelyn
Humphrey, to make a discrimination complaint regarding the Chief
Clerk

and

Deputy

Chief

Clerk

decisions.

(Rice

Aff.,

SI

62.)

3 The City's EEC is an internal department for handling discrimination complaints
and is not related to the federal government's Equal Employment Opportunity
Commission.

Plaintiff and

Humphrey met three times including once at the

Probate Court to discuss the alleged discrimination.

(Id. SI 65.)

Consequently, it was ''well-known in the office from as early as

August

2013" that

against Judge James.

Plaintiff

made

a

discrimination

(James Aff., SI 20.)

complaint

Humphrey encouraged

Plaintiff to file an official complaint with the Equal Employment

Opportunity Commission ("EEOC"), which Plaintiff did on August
22nd.

(Rice Aff., SISI 66-67.)

Although the City's HR Department

received notice of Plaintiff's EEOC complaint on September 9th, it

is

unclear

exactly

when

or

if

Judge

James

received

notice.

Humphrey's sworn statement contends she "would have forwarded" the
EEOC s September 9th notice to Judge James, consistent with her
usual custom.

(Aff. of Jacquelyn Humphrey ("Humphrey Aff."), Doc.

63-12, SI 57.)

In

early

October,

Commissioners,
decrease

Bill

and

Plaintiff

Lockett,

discrimination

met

with

regarding
claims.

one

her

of

the

City's

retroactive

(Rice

Aff.,

SI

pay
75.)

Commissioner Lockett told Plaintiff that he would speak to the HR

Department and with Judge James regarding the issues.
November

13th,

Plaintiff

officially

submitted

her

(Id.)

EEOC

On

charge

alleging race and age discrimination^ for the Chief Clerk and
Deputy

Chief

Department

Clerk

was

decisions.

notified

(Id.

of the

charge

SI
by

76.)
a

December

'' Plaintiff makes no age discrimination claims in this suit.
7

The

City's
10,

HR

2013

letter, but, again, there is no evidence to show that Judge James
also received

notice at that time.

(Id.

II

80.)

Judge

James

contends he did not receive a copy of Plaintiff s EEOC charge until
early March 2014.

(James Aff., ^ 29.)

D. Probate Court Under Judge James

Even before the office reorganization. Plaintiff and other

white

employees

received

felt '"targeted"

harsher

criticism

or

compared to black employees.

by

Judge

James

disproportionate

because

they

workloads

as

(See Rice Dep., at 205-06; Aff. of

Shelly Blake Howard ("Howard Aff."), Doc. 63-2, SlSl 49-50; Aff. of
Sarah

Hall

Watts

("Watts

Aff."),

Doc.

63-2,

31-32.)

They

contend black employees encouraged Judge James to target white

employees and that Judge James had a different relationship with
black employees.
Before

Judge

Daniels,

(See Watts Aff., SISl 26, 30; Howard Aff., SI 49.)

James began

Bray,

and

his tenure at the

Judge

James's

Braxton, went on a cruise together.
In

the

months

after

personal

Probate Court, he,

secretary,

Carrie

(Rice Dep., at 206-08.)

Plaintiff's

August

discrimination

complaint. Judge James and Bray changed Plaintiff's job duties and
work location multiple times.

(Rice Aff., SISI 78, 81.)

Plaintiff

also accuses Judge James of deliberately withholding the exact
details of her pay decrease to force her resignation.

(Id. SI 73.)

One day in December 2013, Plaintiff took a phone call at her
desk and could not hear the conversation due to the noise level of

her nearby coworkers.

(Rice Dep., at 192.)

She decided to record

her coworkers using her cell phone and subsequently complained to

Bray about the noise level by playing the recording.

(Id.)

Bray

promised to address the noise issue at the next staff meeting but
instructed Plaintiff to not record her coworkers without Judge

James or Bray's permission.

(Id.;

James Aff., 1 26.)

When

informed of the incident. Judge James was displeased with Plaintiff
and instructed Bray to advise Plaintiff '^that she would have to
stop tattle-telling on her coworkers."
James

also

contends

this

terminate Plaintiff.

incident

(James Aff., f 26.)

convinced

him

of

the

Judge

need

to

(Id.)

On January 14, 2014, Plaintiff was provided a poor performance

review and written reprimand, which documented numerous mistakes
she made in Probate Court orders, discussed two scheduling errors

that embarrassed Judge James in court, and warned Plaintiff that
her

poor

improve.

attitude

towards

coworkers

(James Aff., Ex. B.)

and

the

public

to

Plaintiff, Judge James, Bray, and

Daniels met that same day to discuss those issues.
^ 91.)

needed

(Rice Aff.,

During the meeting. Judge James counseled Plaintiff on her

office demeanor, unwillingness to be a ^^team player, and habit of
"
attempting to get her coworkers in trouble.

(James Aff., SI 28.)

Plaintiff disagreed with the reprimand and became defensive about

the mistakes she was accused of.

(Id.; Rice Aff., SI 92.)

After

the meeting, Judge James became even more convinced that he needed
to

terminate

Plaintiff and

asked

recommendation to that effect.

Bray

to

prepare

a

letter

of

(James Aff., SI 28.)

Bray's letter documented at length incidents that occurred
during Plaintiff's time as Director where Plaintiff favored white
employees

in

promotions,

raises,

assignment

discipline, and attending training seminars.

of

office

duties,

(James Aff., Ex. C.)

The letter also blamed Plaintiff for causing four employees to

quit or
created.

retire

because

(Id.)

Bray

of the

stressful

referenced

some

work

environment

of the

incidents

she
that

occurred after the Probate Court's reorganization including the

recording

incident,

the

January

14th

performance

review,

and

Plaintiff's refusal to improve her working relationship with other
staff even after being counselled on the problem.

(Id.)

Finally,

Bray noted that Plaintiff filed a discrimination claim against
Judge

James

and

rhetorically asked "what

disrupt this office."

she

will

do

next

to

(Id.)

In early March, Judge James received a copy of Plaintiff's
EEOC charge.

(James Aff., f 29.)

On March

4th, he called a

meeting with the entire staff at which he read the contents of
Plaintiff's EEOC charge.

(Id.)

Judge James contends he wanted to

address the issue openly because of the tension it was causing in
the Probate Court.

(Id.)

However, after reading from Plaintiff's

10

charge Judge James began ''shaking his finger at" Plaintiff and
instructed her to not speak with him or go into his office and
that he did not trust her.

explicitly

instructed

(Rice Dep., at 219.)

the

staff

not

to

Judge James also

retaliate

against

Plaintiff, yet he also stated, "a change is going to come about
real soon" and canceled the office's monthly breakfast meetings

until the staff became "more trustworthy and cohesive."

Aff.,

94, 97.)

(Rice

After this incident, both black and white

employees avoided talking to Plaintiff.

(Id. 1 98.)

On March 17th, Judge James terminated Plaintiff from the
Probate Court.

(James Aff., SI 30.)

Plaintiff's termination letter

noted the end of her employment was "necessary due to your poor

interpersonal relationships with fellow co-workers, your negative
disposition in the office and your substandard work performance."
(Id. Ex. D.)

Plaintiff subsequently amended her EEOC charge to

reflect her termination and added a claim for retaliation.

(Rice

Aff., SI 76.)

E. Procedural History

On

April

discrimination

6,
case

2017,
against

Plaintiff
Judge

filed

James

and

receiving a right-to-sue letter from the EEOC.

Complaint

brings

claims for

race

this
the

employment
City

after

Plaintiff's Amended

discrimination,

hostile

work

environment, and retaliation under Title VII against Judge James

11

in his official capacity and against the City.

23, SISI 162-96.)
work

(Am. Compl., Doc.

She also alleges race discrimination and hostile

environment

under

42

U.S.C.

§

1981

and

42

U.S.C.

§

against the City and Judge James in his individual capacity.
197-230.)

1983

(Id.

Next, Plaintiff alleges a violation of her equal

protection rights under the Fourteenth Amendment against the City
and Judge James in his individual capacity.

Finally,

she

includes

a

state

law

(Id. SISI 231-43.)

intentional

infliction

of

emotional distress claim against Judge James in his individual
capacity.

(Id.

244-50.)

On May 10, 2018, the Court denied Judge James's motion to
dismiss, finding that Plaintiff's Amended Complaint sufficiently

plead Title VII and § 1983 claims against Judge James.
of May 10, 2018, Doc. 39, at 15.)

(See Order

In that Order, the Court stated

that Plaintiff pleaded sufficient facts to treat Judge James and
the City as a single employer, but that ''aggregation is a factspecific inquiry that is often better left to summary judgment."
(Id.

at

11.)

Further,

the

Court

stated, "[t]aking

the

facts

alleged by Plaintiff as true, the Court cannot conclude that Judge
James is protected by qualified immunity."

(Id. at 13.)

Finally,

the May 10th Order held that the City could not be liable under §

1983 for the actions of Judge James and those claims against the
City were dismissed.

12

Both Defendants have now filed motions for summary judgment.

(Docs. 55, 59.)

The City's sole contention is that it cannot be

aggregated with the Probate Court for the purposes of Title VII,

and therefore, the remaining Title VII claims against the City
fail as a matter of law.

Judge James moves for summary judgment

on numerous grounds, arguing Plaintiff's Title VII claims fail
because there can be no aggregation

with the City, or, in the

alternative. Plaintiff cannot prove an essential element of each
claim.

As to the § 1981 and § 1983 claims. Judge James contends

the statute of limitations has run and he is entitled to sovereign

and qualified immunity.

II. LEGAL STANDARD

Summary judgment is appropriate only if ''there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law."

Fed. R. Civ. P. 56(a).

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."
242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

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."

13

United States v. Four Parcels of Real Prop. ^

941 F.2d 1428, 1437

(11th Cir. 1991) (en banc) (internal punctuation and citations
omitted).

The Court should not weigh the evidence or determine

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.

Id. at 323.

''When the

moving party has the burden of proof at trial, that party must

show affirmatively the absence of a genuine issue of material fact:
it 'must support its motion

with credible evidence that would

entitle it to a directed verdict if not controverted at trial.
'"

Four Parcels of Real Prop., 941

F.2d at 1438 (quoting Celotex

Corp., 477 U.S. at 331 (Brennan, J., dissenting)).

"If the moving

party makes such an affirmative showing, it is entitled to summary
judgment unless the nonmoving party, in response, 'comes forward
with significant, probative evidence demonstrating the existence
of a triable issue of fact.
'" Id. (quoting Chanel, Inc. v. Italian
Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir. 1991)).

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

14

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 (11th

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.
affirmatively

For example, if the movant presented evidence

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 (11th Cir. 1993).
On the other hand, 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 "come forward with additional evidence sufficient to withstand

a directed verdict motion at trial based on the alleged evidentiary
deficiency."

Id. at 1117.

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,
15

1033-34 (11th Cir. 1981).

Rather, the non-movant must respond

with affidavits or as otherwise provided by Federal Rule of Civil
Procedure 56.

The Clerk of Court gave
Defendants'

summary

judgment

Plaintiff timely notice of both
motion

and

the

summary

judgment

rules, of the right to file affidavits or other materials in
opposition, and the consequences of default.

(Docs. 57, 60.)

Therefore, the notice requirements of Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985) (per curiam), have been satisfied.

III. DISCUSSION

Defendants raise several grounds for summary judgment.

As to

Plaintiff's § 1981 and § 1983 claims. Judge James argues that the
statute of limitations has run, or, in the alternative, that he is

entitled to sovereign and qualified immunity for those claims.
Plaintiff's

Title

VII

claims,

the

City

maintains

Plaintiff's employer under the statutory definition.
Judge

James

argues

the

Probate

Court

did

not

it

is

On
not

Similarly,

employ

enough

employees to be subject to Title VII and the Probate Court cannot

be aggregated

with the

City to meet the employee requirement.

Judge James also contends that Plaintiff cannot raise a genuine
issue of material fact on her race discrimination, hostile work

environment, or

retaliation

claims, and thus, summary judgment

should be granted on those claims.

16

Finally, Judge James asserts

that Plaintiff cannot prove the essential elements of her claim
for intentional infliction of emotional distress.

A. Statute of Limitations

Judge James first argues that Plaintiff's § 1983 claims are
barred by a two-year statute of limitations applicable to tort
actions in Georgia.
include

race

Plaintiff's § 1983 claims against Judge James

discrimination

and

hostile

work

environment

under

§ 1981 and violation of Plaintiff's equal protection rights under
the Fourteenth Amendment.^

Plaintiff uses § 1983 as a procedural vehicle to bring § 1981
claims for race discrimination and hostile work environment.

Butts

V.

Cty.

of Volusia, 222

F.3d

891, 893 (11th

Cir.

See

2000)

(§ 1983 is the exclusive damages remedy for violation of rights

guaranteed by § 1981).

Section 1981 was enacted as part of the

Civil Rights Act of 1866 and seeks to ensure equal rights under
the law. In 1991, § 1981 was amended by expanding the definition
of "make and enforce contracts," thereby allowing plaintiffs to
bring

employment

discrimination

actions,

such

as

race

^ It is unclear from the Amended Complaint and the parties' summary judgment
briefs
whether
the
equal
protection
claim
is
for
retaliation,
race
discrimination, or both. Judge James assumed for the purposes of his summary
judgment motion that Plaintiff was claiming retaliation pursuant to both § 1983
and Title VII.
However, the Court previously held, on Plaintiff's motion to
amend her complaint, that she could not add a § 1983 claim for unlawful
retaliation.
(Order of Oct. 5, 2017, Doc. 22, at 6.)
Further, the general
rule it that a retaliation claim ''simply does not implicate the Equal Protection
Clause."
the

Court

Watkins v. Bowden, 105 F.3d 1344, 1354-55 (11th Cir. 1997).
will

consider

Plaintiff's

§

1983

claim

Amendment to be for racial discrimination only.
17

based

on

the

Thus,

Fourteenth

discrimination, harassment, and retaliation, based on existing

employment relationships.

See Jones v. R.R. Donnelley & Sons Co.,

541 U.S. 369, 373-74 (2004).

Section 1981 does not include its

own statute of limitations provision, instead 28 U.S.C. § 1658

provides a catch-all four-year statute of limitations for actions
arising under federal statutes enacted after December 1, 1990.
See id.

Thus, if Plaintiff's § 1981 claims arise under the 1991

amendment to the statute, they are subject to § 1658's four-year
statute of limitations.

If Plaintiff's § 1981 claims arise under

the pre-1991 version of the statute, they are subject to state law
statute of limitations used for § 1983 claims.
It is

See id. at 378.

well established that the 1991 amendment to § 1981's

definition of ''make and enforce contracts" made it possible to

bring race discrimination and hostile work environment claims.
See id. at 383 (hostile work environment, wrongful terminations,
and failure to transfer claims arise under 1991 amendment).

As

such, those claims are subject to § 1658's four-year statute of
limitations.

There is some dispute as to what type of claim applies to
Plaintiff not receiving
positions.

the

Chief Clerk or

Deputy Chief Clerk

Plaintiff characterizes her claim regarding the Chief

Clerk job as a demotion and points to the similarities between
that position and
Court.

her previous job as

Director of the Probate

Prior to Bray's promotion to Chief Clerk, Plaintiff was

18

the highest-ranking staff member in the Probate Court.

Viewing

the facts in the light most favorable to Plaintiff, the Court

agrees with Plaintiff's characterization that she was demoted, and
thus, that claim arises from the 1991 amendment to § 1981 and is

subject to a four-year limitations period. Because Plaintiff filed
this case on April 7, 2017, and the date of the demotion was July
31, 2013 — less than four years earlier — her § 1981 demotion claim
is timely.

Similarly, most, if not all, of the alleged harassment

Plaintiff relies on for her hostile work environment claim occurred

after her demotion on July 31, 2013.

Consequently, Plaintiff's

§ 1981 hostile work environment claim is also timely.

Plaintiff characterizes her claim for the Deputy Chief Clerk

job not as a demotion, but as a failure to promote.

That type of

claim may arise under the pre-1991 version of § 1981 when the

promotion

would

relationship.

create

a

"'new

and

distinct"

employment

See Edwards v. Nat'l Vision Inc., 568 F. App'x 854,

859-60 (2014) (quoting Patterson v. McLean Credit Union, 491 U.S.
164, 179 (1989), superseded by statute as stated in Jones, 541

U.S. at 383).

If the promotion would have created a new and

distinct relationship, then the failure to promote claim arises
from

the

pre-1991

version

of

§

1981

and

is

subject

to

the

applicable state statute of limitations, which in Georgia is two
years.

See Jones, 541 U.S. at 382.

19

It is hard to see how Deputy Chief Clerk would have been a

new position for Plaintiff considering she served as Director, a
position that was essentially the same as Chief Clerk,® for the
previous five years, including during the first six months of Judge
James's tenure.

Comparing the job descriptions for the former

Director position and the Deputy Chief Clerk position shows a
substantial overlap in duties.

(Compare Director Job Description,

Doc. 63-3, with Deputy Chief Clerk Job Description, Doc. 63-6.)

Moreover, the Deputy Chief Clerk decision came on August 5th, just
six days after Plaintiff's demotion, and was part of the same

reorganization
position.
have

that

caused

Plaintiff

to

lose

her

Director

Accordingly, the Deputy Chief Clerk position would not

created

a

new

and

distinct

employment

relationship

for

Plaintiff, and thus, her failure to promote claim arises under the
1991

amendment

to

§

1981.

To

summarize.

Plaintiff's

§ 1981

demotion, failure to promote, and hostile work environment claims
brought under § 1983 are subject to § 1658's four-year statute of
limitations.

Plaintiff's § 1983 claim for violation of her equal protection
rights under the Fourteenth Amendment, however, is subject to a
two-year

statute

of

limitations.

"In

Georgia,

the

proper

limitations period for all § 1983 claims is the two-year period

® In fact, the Job Description for the Director of the Probate Court position
lists the job's official title as "Clerk of the Probate Court." (Director Job
Description.)
20

set forth in O.C.G.A. § 9-3-33 for personal injury."

Inman v.

State Bar of Ga., 611 F. App'x 579, 581 (11th Cir. 2015) (citing
Williams v. City of Atlanta, 794 F.2d 624, 626 (11th Cir. 1986)).
Unlike

the

§

1981

claims

discussed

above.

Plaintiff's

equal

protection claim does not arise under an Act of Congress enacted
after December 1, 1990.

Both the Fourteenth Amendment and § 1983

were enacted shortly after the Civil War.

two-year statute of limitations applies.
alleged

discrimination

occurred

when

Therefore, Georgia's

Because the last act of
Judge

James

terminated

Plaintiff on March 17, 2014, the statute of limitations had run by
the time she filed her initial complaint on April 7, 2017, more

than three years later.

to

Judge

James

on

As such, the Court grants summary judgment

Plaintiff's

Fourteenth

Amendment

equal

protection claim brought under § 1983, styled as '"Count III" in
the Amended Complaint.
B. Immunity

Next, Judge James argues he is entitled to both sovereign
immunity and qualified immunity on

Plaintiff's § 1981 claims

brought under § 1983. When a state official is sued in his official
capacity under § 1983 the only immunities available to him "are
those that the governmental entity possesses," such as sovereign

immunity under the Eleventh Amendment.
21, 25 (1991).

Hafer v. Melo, 502 U.S.

However, where the state official is sued under

21

§ 1983 in

his

individual

immunity defense.

capacity,

he

may

assert

a

qualified

Here, Plaintiff asserts § 1981 claims brought

under § 1983 against Judge James in his individual capacity, while
Plaintiff's

Title

official capacity.

VII

claims

are

against

Judge

James

in

his

Thus, Judge James may assert only qualified

immunity, and not sovereign immunity, because he is sued in his
individual capacity on Plaintiff's claims brought under § 1983 for
race discrimination arising from the selection of Chief Clerk and

Deputy Chief Clerk and for hostile work environment.''
Under the qualified immunity doctrine, ''government officials
performing discretionary functions generally are shielded from
liability for civil damages insofar as their conduct does not

violate clearly established statutory or constitutional rights of
which a reasonable person would have known." Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982).

Qualified immunity protects "all but

the plainly incompetent or those who knowingly violate the law."
Malley v. Briggs, 475 U.S. 335, 341 (1986).
The Government official bears the initial burden to show the

alleged constitutional violation occurred while he was performing
a discretionary function.

Lee v. Ferraro, 284 F.3d 1188, 1194

Judge James also asserts qualified immunity for Plaintiff's § 1983 claim for
retaliation for conduct prohibited by the Fourteenth Amendment's equal
protection rights. However, as previously discussed, Plaintiff cannot make a
§ 1983 claim for retaliation.

In addition. Plaintiff's Fourteenth Amendment

equal protection claim brought under § 1983 is barred by the statute of
limitations. See supra Section III.A. It is therefore unnecessary to consider
Judge James's immunity on a § 1983 retaliation claim.
22

(llth Cir. 2002} .

Here, the parties do not dispute that Judge

James was acting within his discretionary authority at all relevant
times.

The burden then shifts to the plaintiff to show that the
defendant

violated

a

constitutional

right

and

that

right

clearly established at the time of the alleged violation.
Pearson v. Callahan, 555 U.S. 223, 232 (2009).

be

clearly

established,

the ''contours

of

the

was

See

For the right to

right

must

be

sufficiently clear that a reasonable official would understand

that what he is doing violates that right." Anderson v. Creighton,
483 U.S. 635, 640 {1987).

The Court previously recognized, and

the parties do not dispute, that the right to be free from race
discrimination
established.

and

harassment

in

public employment

is

clearly

See Brown v. City of Fort Lauderdale, 923 F.2d 1474,

1478-79 (llth Cir. 1991).

On the issue of Plaintiff s demotion and Bray being selected

for Chief Clerk, Judge James argues there is no evidence that his
decision was based on discrimination.

In other words. Judge James

essentially claims that it was objectively reasonable under the
circumstances to

select

Bray for

the

position

over

Plaintiff.

Judge James proffers several reasons as to why he selected Bray,
including his opinion that she was reliable, experienced, and wellrespected.

Judge James also cites his opinion that Plaintiff could

23

not competently manage staff and that she displayed a poor attitude
towards co-workers and the public.
It is well established that ^'state officials can be motivated,

in part, by a dislike or hostility toward a certain protected class
to

which

a

citizen

belongs

and

still

act

lawfully."

Foy

v.

Holston, 94 F.3d 1528, 1534 (11th Cir. 1996); see also Rioux v.
City of Atlanta, 520 F.3d 1269, 1283 (11th Cir. 2008).

A defendant

is generally entitled to immunity if he can show ""adequate lawful
reasons" to support the challenged act.

Foy, 94 F.3d at 1534-35.

As the Eleventh Circuit explained:

At least when an adequate lawful motive is present, that
a discriminatory motive might also exist does not sweep
qualified immunity from the field even at the summary

judgment stage. Unless it, as a legal matter, is plain
under the specific facts and circumstances of the case
that

the

defendant's

conduct

—

despite

his

having

adequate lawful reasons to support the act — was the
result of his unlawful motive, the defendant is entitled
to immunity. Where the facts assumed for summary

judgment purposes in a case involving qualified immunity
show mixed motives (lawful and unlawful motivations) and

pre-existing law does not dictate that the merits of the
case must be decided in plaintiff's favor, the defendant
is entitled to immunity.

Id. (emphasis in original).
Thus, even assuming Judge James harbored some discriminatory
motive,

the

immunity

question

turns

on

whether

""the

record

indisputably establishes that the defendant in fact was motivated,
at least in part, by lawful considerations."
Dalton,

219

original).

F.3d

1280,

1296

(11th

Cir.

Stanley v. City of
2000)

(emphasis

in

The record before the Court clearly establishes that
24

Judge James had lawful motivations to demote Plaintiff.

Judge

James observed both Plaintiff and Bray in supervisory roles for

six months before he promoted Bray to Chief Clerk.

During this

time, Judge James formed opinions on each candidate's skills and
potential then

opinions.

made

his decision, at least in

part, on those

Therefore, Judge James is entitled to qualified immunity

on Plaintiff's § 1983 race discrimination claim regarding the Chief
Clerk position.

Similarly, Judge James is entitled to qualified immunity for
Plaintiff's § 1983 race discrimination claim arising from her nonselection for Deputy Chief Clerk.

Judge James argues that because

he gave Bray the authority to select the Deputy Chief Clerk, there
is

no evidence that he discriminated

against

Plaintiff.

Even

assuming Judge James was involved in the selection of Joy Daniels
for Deputy Chief Clerk,® and the decision to not promote Plaintiff
was motivated, in part, by unlawful considerations. Judge James is
still entitled to qualified immunity because the record shows he

had significant lawful considerations to not promote Plaintiff.
His

sworn

statement

accommodating,

and

notes

Daniels

responsive"

experience in the Probate Court.

and

was
she

''capable,
held

friendly,

fifteen

(James Aff., II 19.)

years'
Further,

Judge James did not think that Plaintiff could effectively manage

® Judge James admits he decided Daniels's salary for her new position.
Aff., 5 17.)

25

(James

staff and that she was not a good candidate for Chief Clerk.

These

opinions are also relevant to the Deputy Chief Clerk position and

provide lawful motivations for denying Plaintiff the promotion.
Finally, with respect to Plaintiff's hostile work environment
claim, Judge James is entitled to qualified immunity.

more fully below, any alleged
severe

or

pervasive

to

Plaintiff's employment.

As discussed

harassment was not sufficiently

alter

the

terms

and

conditions

of

See infra Section III.E.

Perhaps most fatal to Plaintiff's § 1983 claims is that she
makes no attempt to carry her burden to show that her clearly
established constitutional rights were violated.

Plaintiff's only

specific argument regarding qualified immunity is that the Court
previously held, on a motion to dismiss.
entitled to the defense.

Judge James was not

Setting aside that Plaintiff's argument

fails to carry her burden, her contention that the Court's prior
decision controls here is unavailing.

the

Court

determined

that

Plaintiff as true" Judge
immunity.

by

In its May 10, 2018 Order,

^^[t]aking

James

was

the

facts

not entitled

(Order of May 10, 2018, at 12-13.)

alleged

by

to qualified

Unlike on a motion

to dismiss for failure to state a claim, a motion for summary

judgment

allows

complaint.

the

Court

to

consider

evidence

outside

the

It is this evidence, notably the sworn statements and

documents submitted by Judge James, that shows he was motivated,

at least in

part, by lawful considerations.
26

Accordingly, the

Court's

determination

that

Judge

James

was

not

entitled

to

qualified immunity at the motion to dismiss stage does not preclude
the opposite conclusion on summary judgment.

To

recap,

Judge

James

is

owed

qualified

immunity

on

Plaintiff's § 1981 claims for her demotion from Director, her non-

selection for Deputy Chief Clerk, and hostile work environment.
Plaintiff's § 1983 claim pursuant to the Fourteenth Amendment is

barred

by

the

statute

of

limitations.

Finally,

the

Court

previously determined that the City could not be held liable under
§ 1983 for Judge James's action.
13-14.)

(See Order of May 10, 2018, at

Therefore, none of Plaintiff's § 1981 claims brought under

§ 1983 or her equal protection claim brought under § 1983 against
Judge James and the City^ survive summary judgment.
C. Aggregation Under Title VII

The Court will next turn to Plaintiff's Title VII claims.

A

threshold issue for Title VII is whether the defendant meets the

statutory definition of "employer."

Under Title VII, an employer

includes a government agency with fifteen or more employees for
the

requisite statutory period.

42 U.S.C. § 2000e(b).

afford a liberal construction to the term "employer."

Courts

See Virgo

V. Riviera Beach Assocs., Ltd., 30 F.3d 1350, 1358 (11th Cir. 1994)

(en

banc).

For

that reason,

courts "look

beyond

the

nominal

^ These claims are styled as "Count II" and "Count III" in Plaintiff's Amended
Complaint.
27

independence of an entity and ask whether two or more ostensibly
separate

entities

should

be

treated

as

a

single,

integrated

enterprise when determining whether a plaintiff's ^employer' comes
within the coverage of Title VII."

Lyes v. City of Riviera Beach,

166 F.3d 1332, 1341 (11th Cir. 1999).

The Eleventh Circuit has

identified three situations where it is appropriate to aggregate

multiple entities: (1) where two entities are highly integrated
with respect to ownership and operations; (2) where two entities
contract with each other and one entity has sufficient control
over the terms and conditions of employment of the other company's

employees; and (3) where an employer delegates sufficient control
over its employees to a third party.

Id.

In this case, it is undisputed that the Probate Court had

less than fifteen employees, thus it is necessary to determine
whether the Probate Court and the City can be treated as a single

employer under Title VII.

be aggregated,

neither

If the Probate Court and the City cannot

will meet the

''employer" under Title VII.

statutory definition of

Most relevant here is the first

situation discussed above, often called the single employer test.

In Lyes, the Eleventh Circuit laid out the single employer
test as it relates to state or local government entities.
1345.

Id. at

Where a state's lawmaking body determines that two or more

governmental entities are "separate and distinct" under state law,
federal courts should "accord substantial deference" motivated by

28

concerns

of

federalism

and

comity.

Id.

at

1343-44.

The

presumption thereby created may be rebutted by showing the purpose
of maintaining separateness is to elude Title VII.

Id. at 1344.

Absent an evasive purpose, a court may aggregate where, under the

totality of the circumstances, "the public entities are so closely
interrelated with respect to control of the fundamental aspects of

the employment
overcome."

relationship" that the

presumption is

Id. (emphasis in original).

clearly

The Eleventh Circuit

stressed that it is not enough for a fact finder to reasonably

conclude the presumption is rebutted, rather the use of the word
^clearly' is intended to be a "thumb on the scale."

Id.

First, the Court must consider whether the presumption of

distinctness

Georgia,

the

applies

to

judge

the

of

Probate

the

county

constitutionally elected officer.

III.

Court

and

the

probate

City.

court

is

In

a

Ga. Const, art. 9, § 1, para.

The Georgia Supreme Court recognizes that "[o]rdinarily,

employees of constitutionally elected officers of a county are
considered employees of the elected officer and not employees of
the

county."

Further,

Boswell

Georgia

law

v.

Bramulett,

provides

that

274

Ga.

probate

50,

court

51

(2001).

judges "may

appoint one or more clerks, for whose conduct they are responsible,
who hold their offices at the pleasure of the judge.

The judges

Plaintiff makes no attempt to show Georgia lawmakers intended to evade Title
VII in forming county probate courts.
29

of the probate courts shall also have the authority to appoint one
of

their

clerks

as

chief

clerk."

O.C.G.A.

§

15-9-36(a).

Consequently, under Georgia law, the county probate courts and the
county governing body are separate and distinct entities.
Therefore, for Title VII to apply. Plaintiff must overcome

the presumption of distinctness between the Probate Court and the

City.

Several

presumption

is

factors
clearly

guide

the

analysis

outweighed.

These

of

whether

include:

the

(1)

the

authority to hire, transfer, promote, discipline, or discharge;
(2) the

authority to

establish

work

schedules

or

direct

work

assignments; (3) the obligation to pay or the duty to train the
charging party; and (4) the interrelationship of operations and
centralized control of labor operations.

See Ballard v. Chattooga

Cty. Bd. of Tax Assessors, 615 F. App'x 621, 624 (11th Cir. 2015)
(citing Lyes, 166 F.3d at 1345).
Under the first factor. Plaintiff does not dispute that Judge

James had the authority to hire, promote, or discharge Probate

Court

employees.

However,

in

February

2014,

Judge

James

voluntarily adopted, in part, the City's Personnel Policies and
Procedures Manual (^^PPPM") as the official policy of the Probate
Court.

(Feb. 5, 2014 Letter, Doc. 63-2.)

Although Judge James

excluded Section 100 covering attendance and leave policy, Section

Prior to February 5, the Probate Court operated under the election of Judge
James predecessor. {Humphrey Aff., f 27.)
30

300 covering grievances and discipline, and Section 500 covering

compensation, he opted into Section 200 covering discrimination
complaints and investigations by the City's EEO.
Under

Section

200,

the

EEO

is

(Id.)

authorized

to

investigate

allegations of race discrimination and recommend corrective action
to the City's Commission.

(PPPM, Doc. 63-11, at 8-13.)

Further,

during an EEO investigation, the City may transfer the employee,

change her shift schedule, or modify her position, which may be
made permanent if appropriate under the circumstances.

10.)

(Id. at

Thus, under Judge James's own adopted policies, the City

could transfer Plaintiff.

right,

it

does

Plaintiff's

show

the

employment.

Although the City never exercised this

City
See

maintained

Hall

v.

some

Franklin

control
Cty.,

over

2015

WL

5769232, at *7 (M.D. Ga. Sept. 30, 2015) (''[The County Manager]

had the authority to find Plaintiff another position within the
County, and although he ultimately did not exercise that power,
his authority to transfer Plaintiff indicates some County control
over Probate Court employees.").

The City also required Judge James to seek its approval for
certain

employment

salaries.

3, 1 10.)

decisions,

such

as

changes

in

employee

(See Aff. of Donna Williams ("Williams Aff."), Doc. 59-

The record includes multiple examples of the City's

approval powers, such as a September 23, 2013 letter from Judge
James to the City's HR Department seeking review and approval of

31

the

Probate

Plaintiff,

Court's

reorganization

Daniels, and Bray's pay.

and

associated

changes

to

(Sept. 23, 2013 Letter.)

Judge James also submitted RPAs to the City's HR Department to
decrease Plaintiff's pay following her demotion and to increase

Bray's pay following Plaintiff's termination.

Yet, approval power

is a step removed from the power to make the actual decision and
does not necessarily show a high level of integration between the
two entities.

See Bobbins v. Chatham Cty., 863 F. Supp. 2d 1367,

1375 n.4 (S.D. Ga. 2012); see also Peppers v. Cobb Cty., 835 F.3d

1289, 1301 (11th Cir. 2016); b^ s^ Hall, 2015 WL 5769232, at *7
("[A] separate entity's power to review [employment] decisions
constitutes some evidence against the presumption.")
At the same time, the City included Probate Court employees
in its annual raises.

(Jan. 26, 2012 Email, Doc. 63-14.)

There

is also some evidence to show the City's HR Department was involved

in

classifying

adjusting
grades.

Probate

certain

Court

employee's

employees'
compensation

pay

grades

based

on

and
those

then
pay

(See July 23, 2013 Email, Doc. 63-15.)

Perhaps most importantly, courts in the Eleventh Circuit
recognize that a separate entity's investigation of an employee's

discrimination

complaint is evidence

that shows

a ''sufficient

degree of interrelationship between the respective entities" to
find "that there is at least a jury question" on the issue of
aggregation.

See Mack v. Ala. Dep't of Human Res., 201 F. Supp.
32

2d 1196, 1203 (M.D. Ala. 2002); Hall, 2015 WL 5769232, at *7.

Here,

the

City's

EEO

Director,

Jacquelyn

Humphrey,

met

with

Plaintiff multiple times in August 2013 to discuss Plaintiff's

complaint of race discrimination regarding the Chief Clerk and
Deputy Chief Clerk positions.
ff 64-65.)

{Humphrey Aff., SIS[ 40-42; Rice Aff.,

Plaintiff also met

with

City Commissioner Lockett

regarding her discrimination claims; Commissioner Lockett even

promised to discuss the issues with Judge James.
245-46; Rice Aff., SI 75.)

(Rice Dep., at

Humphrey also advised Plaintiff to file

a complaint with the EEOC regarding the Chief Clerk and the Deputy

Chief Clerk positions, which Plaintiff did on August 22, 2013.
(Rice Aff., SISI 66-67.)
EEO

Director

and

The significant involvement of the City's
Commissioner

Lockett

with

Plaintiff's

discrimination complaints supports the conclusion that a

jury

question exists on the issue of aggregation.
On the second factor, authority to establish work schedules

and

direct

authority
evidenced

work

to

direct

by

his

responsibilities.
32.)

assignments.

Further,

work

Judge

duties

decisions

to

James

within

the

change

the

Probate

multiple

exclusive
Court

as

employees'

(See, e.g.. Watts Aff., SISI 12-18; Rice Aff., ^
Judge

James

granted

Probate

requests for administrative or sick leave.
110.)

held

Court

employees'

(See Rice Dep., at

Requests for overtime were also decided by Judge James, so

long as the Probate Court budget had the necessary funds to cover
33

the

additional

wages.

(See

Feb.

6,

2014

Email,

Doc.

65-1.)

However, Plaintiff testified that the Probate Court followed a

daily work schedule of 8:30 a.m. to 5:00 p.m., as required by the
City's PPPM.

(Rice Dep., at 227.)

The City also set the holiday

work schedule followed by the Probate Court.

Thus, while Judge

James retained control over leave requests and overtime, there is
evidence to show the City controlled other aspects of Probate Court
employees' work schedules.

With respect to obligation to pay, the City handled payroll

and employee benefits for the Probate Court.

The City also paid

workers compensation and unemployment benefits for Judge James's

employees.

Further, Georgia law requires the City to create and

approve the Probate Court's overall budget, but Judge James had
the

authority

(Williams Aff.,

to

spend
7-10.)

the

allocated

funds

as

he

saw

fit.

Yet, Judge James could not increase the

Probate Court's overall spending on wages and benefits without
approval from the City.

(Id. f 10.)

Finally, there was a significant degree of interrelatedness
of operations between the City and the Probate Court.

The City's

HR Department maintained personnel files, conducted new employee
orientation and drug screening, and advertised some job openings
in the Probate Court.

City's hiring paperwork.

Additionally, the Probate Court used the

For example, the New Hire Checklist for

Probate Court employees was required to be completed only by HR
34

staff. Probate Court applicants used the City's application form,
and an offer letter to a new Probate Court employee in the record

states: ""The City of Augusta/Richmond County is pleased to offer
you the position of Deputy Clerk I with the Probate Court."
Dep., Ex. 15.)

(Rice

While these facts show the operations of the

Probate Court and the City were intertwined, other courts have
held

that

simply

providing

administrative

overcome the presumption of distinctness.

services

does

not

See Ballard, 615 F.

App'x at 625; Robbins, 863 F. Supp. 2d at 1375.
Nevertheless, viewing the facts in the light most favorable
to Plaintiff, a reasonable fact finder could conclude, under the

totality of the circumstances, that the Probate Court and the City
were

so

closely

interrelated

with

respect

to

control

of

the

fundamental aspects of Plaintiff's employment that the presumption
of distinctness is clearly overcome.

Most notable among the facts

in the record, is the investigation by the City's EEC Director and

a

City

Commissioner

of

Plaintiff's

discrimination

complaints.

Because the Court concludes that genuine issues of material fact
remain on the issue of aggregation. Judge James and the City's
motions for summary judgment on this issue must be denied.
D. Race Discrimination Claims

Having addressed Defendants' threshold issues of statute of
limitations, aggregation, and immunity, the Court now turns to the

35

merits of Plaintiff's individual claims

Title VII.
claims:

of discrimination

under

To review, Plaintiff brings two race discrimination

Plaintiff's demotion

when Bray

was selected

for

Chief

Clerk, and Plaintiff's non-selection for the Deputy Chief Clerk
position.

Title

VII

prohibits employers from discriminating on

basis of an employee's race.

42 U.S.C. § 2000e-2(a)(1).

the
A

plaintiff may prove discrimination with direct or circumstantial
evidence.

83 (11th

Harris v. Shelby Cty. Ed. of Educ., 99 F.3d 1078, 1082-

Cir.

evidence,

1996).

courts

For claims supported

employ

the

by circumstantial

burden-shifting

framework

from

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

First, the plaintiff must establish a prima facie case of
discrimination.

2008).

McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir.

Once the plaintiff meets that requirement, the burden

shifts to the employer to provide "a legitimate, nondiscriminatory
reason for their action." Id. (citing Burke-Fowler v. Grange Cty.,

447 F.3d 1319, 1323 (11th Cir. 2006)).

If the employer carries

that burden, the plaintiff must then prove that the employer's

12 Each of these claims are made pursuant to Title VII, § 1981, and § 1983;
however, all § 1981 and § 1983 claims have been dismissed, are barred by the

statute of limitations, or Judge James is entitled to qualified immunity
thereon. See supra Sections III.A; III.B.
Regardless, all three provisions
employ the same analytical framework. See Standard v. A.B.E.L. Servs., Inc.,
161 F.3d 1318, 1330 (11th 1998); see also Koch v. Rugg, 221 F.3d 1283, 1297

n.31 (11th Cir. 2000).
Thus, granting or denying summary judgment on
Plaintiff's Title VII claims would necessarily be an adjudication of the § 1981
and § 1983 claims.

36

reasons are pretextual.
Crab/

Id.; see also E.E.O.C. v. Joe^s Stone

Inc., 220 F.3d 1263, 1286-87

{11th Cir. 2000) (providing

comprehensive overview of Title VII discrimination claims).
1. Chief Clerk Position

To establish a prima facie case of discrimination for her
demotion, a plaintiff must show (1) she is a member of a protected
class; (2) she was qualified for the job; (3) she suffered an

adverse

employment

action

by

being

demoted;

and

replaced by someone outside her protected class.

(4)

she

was

See Hinson v.

Clinch Cty. Bd. of Educ., 231 F.3d 821, 828 (11th Cir. 2000).
Plaintiff

concedes

circumstantial,
framework.

prove

her

her

thereby

evidence

implicating

of

discrimination

the

McDonnell

is

Douglas

Judge James makes no attempt to argue Plaintiff cannot

prima

facie

case^^ and moves

directly to

providing

legitimate, nondiscriminatory reasons for the demotion.
Judge James puts forth several reasons for demoting Plaintiff
including

his opinion

that she

was

unreliable

and lacked the

ability to get along with other staff and the public, she was not
competent to handle a managerial role, she had a poor attitude
towards others, and the quality of her work was subpar.
Aff., SISI

9, 12-13, 15.)

(James

Further, Bray had significantly more

It is clear that Plaintiff can prove her prima facie case considering she was
demoted from Director, which was essentially the same job as Chief Clerk, and
Bray, a black woman outside Plaintiff's class, received the position,
37

experience

than

Plaintiff at the

Probate

Court,

was the

most

reliable candidate, was highly competent, and had the respect of
her fellow employees.

(Id.

9, 13.)

Judge James thought that

promoting Bray would improve the Probate Court's services to the
public and improve office morale.

(Id. ^ 10.)

Finally, Judge

James demoted Plaintiff as part of an effort to reorganize the
Probate Court by eliminating the Director and Operations Manager

positions and creating a Chief Clerk and a Deputy Chief Clerk,
thereby bringing the court in line with Georgia law and other
probate courts.

(Id. SlSl 8, 10.)

To rebut Judge James's proffered reasons. Plaintiff makes
essentially four arguments.
between

her

First, she contends the disparity

qualifications and

Bray's

qualifications makes it

clear that Judge James was motivated by discriminatory intent.
Plaintiff correctly points out that she held superior educational

qualifications, having earned two Associate's degrees, a paralegal
certification, and was a Certified Clerk versus Bray's high school

diploma.

However, it is equally true that Bray had twice as much

experience at the Probate Court.
seven

years

of experience

as

Judge James cited Bray's twentyone

of the

primary reasons

for

selecting Bray.

To

prove

pretext

using

disparities in

qualifications,

^'a

plaintiff must show that the disparities between the successful

applicant and [her] own qualifications were of such weight and
38

significance

that

no

reasonable

person,

in

the

exercise

of

impartial judgment, could have chosen the candidate selected over
the plaintiff."

Springer v. Convergys Customer Mgmt. Grp., Inc.,

509 F.3d 1344, 1349 (11th Cir. 2007) (internal quotation omitted).

Here,

the

disparity

in

educational

qualifications

is

not

so

significant that no reasonable person could have chosen Bray over

Plaintiff, particularly in light of Bray's substantial experience
advantage.

See Keaton v. Cobb Cty., 545 F. Supp. 2d 1275, 1293-

94 (N.D. Ga. 2008) (holding, in failure to promote claim for Clerk

of Court position, the plaintiff did not show pretext with job
qualifications

where

she

held

a

four-year

degree

versus

the

selected candidate's high school diploma but had fourteen years

less experience at the court).

Further, although Plaintiff had

five years of managerial experience as Director, Bray also had
significant experience in

a

management role from

her time

as

Operations Manager.

Moreover, ^^a plaintiff cannot prove pretext by simply arguing
or

even

showing

that

[she]

was

better

qualified

[candidate] who received the position [she] coveted.

than

the

A plaintiff

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

by race."

Brooks V. Cty. Comm'n of Jefferson Cty., 446 F.3d 1160, 1163 (11th

Cir.

2000).

This

requirement

implicates

Plaintiff's

second

argument to show pretext, which focuses on a comment made by Judge

39

James following Bray's promotion.

When Plaintiff met with Judge

James the day after her demotion, he acknowledged the office had
"black and white cliques" and that the situation would not improve
in its current state.

later,

during

performance.

a

Judge

(Rice Aff., ff 46-48.)

meeting

James

regarding

About a month

Plaintiff's

identified

the

"white

poor

work

clique"

as

Plaintiff, Lacey Grantham, and Sarah Hall Watts, and then remarked
that other white employees had already quit, retired, or been
fired.

(Rice Dep., at 147; Am. Compl., SI 97.)

Given the multiple other reasons proffered by Judge James,
this lone comment does not rebut Judge James's legitimate reasons

for selecting Bray over

Plaintiff.

Judge

James observed the

Probate Court under Plaintiff's supervision for six months and

concluded she was not competent to handle the position.

It was

during Plaintiff s time as Director that Judge James observed

ongoing issues with office cliques and overall morale, and he did
not think continuing to have Plaintiff manage the staff would solve

1'' According to Plaintiff's Affidavit, this comment accompanied Judge James's
reassurance to Plaintiff that he was pleased with her work and that she had

nothing to fear regarding her continued employment at the Probate Court.
Aff., 51 46-47.)

(Rice

However, during her deposition. Plaintiff testified that the

clique comment occurred while Judge James ^Verbally chastised" her for being
unhelpful to coworkers. (Rice Dep., at 145-46.)
Sarah Hall Watts, a white woman, quit the Probate Court on May 30, 2013,
because she felt the office staff and Judge James were discriminating against
her. (Watts Aff., 1 41.) When Watts attempted to address the issue with Judge
James, he "dismissed" her complaint and "found it humorous" that she would

complain of race discrimination. (Id. 51 31-33.)

Prior to Watts's resignation.

Shelly Blake Howard, also a white woman, was terminated because of a Facebook
post in which she complained about her coworkers being lazy and overpaid.
(James Aff., 5 5; Howard Aff., 5 38.)
40

those problems.

Further, Judge

office's

with

problem

cliques

James's acknowledgement of the

is

consistent

with

one

of

his

proffered reasons for promoting Bray, to improve office morale.

Both

Grantham^®

improvement

in

and

Judge

office

James's

morale

Affidavits

under

Bray's

particularly after Plaintiff was terminated.

describe

leadership

an
and

(See James Aff., SISI

18, 27; Grantham Aff., SISI 5-6.)

Next, Plaintiff points to her years of service at the Probate

Court

without

any

poor

performance

evaluations

or

written

reprimands to rebut Judge James's claim that she was not competent
to handle the Chief Clerk position.
Plaintiff's

contention,

she

While the record supports

overlooks

the

fact

that

all

her

performance evaluations occurred under Judge James's predecessor.

Judge

Isaac

Jolles,

with

professional relationship.

whom

Plaintiff

had

longstanding

Plaintiff worked at Judge Jolles's law

firm prior to his election to the Probate Court.
225-26.)

a

(Rice Dep., at

Indeed, the only reason Plaintiff joined the Probate

Court in the first place was because Judge Jolles wanted to bring
her along when he was elected.

(Id.)

Judge Jolles later promoted

Plaintiff to Director of the Probate Court.

record

shows

that

Judge

Jolles

found

(Id. at 243-44.)

Plaintiff

to

be

a

The

good

In 2015, Bray retired, Daniels was promoted to Chief Clerk, and Grantham was
promoted to Deputy Chief Clerk. (Grantham Aff.,
2, 4.)
Plaintiff also helped Judge Jolles during his campaign for judge of the
Probate Court. (See Rice Dep., at 33.)
41

employee whom he trusted,^® however, Judge James came to a different
conclusion

after

observing

Plaintiff

for

six

months.

Such

subjective evaluations are permitted under Title VII, and, so long
as this conclusion was not motivated by race discrimination, the
Court will not reexamine the wisdom of personnel decisions.

See

Chapman v. AI Transp., 229 F.3d 1012, 1030, 1033 {11th Cir. 2000)
("Federal courts do not sit as a super-personnel department that

reexamines an entity's business decisions." (internal quotations
omitted)).

In addition, concerns over personal qualities are especially

potent when selecting a supervisor position.

See Denney v. City

of Albany, 247 F.3d 1172, 1186 (11th Cir. 2001) ("Traits such as

common sense, good judgment, originality, ambition, loyalty, and
tact often must be assessed primarily in a subjective fashion, yet

they are essential to an individual's success in a supervisory or
professional
omitted)).

position."

(internal

citations

and

quotations

Without proof that subjective measures were a mask for

discrimination, "the

fact that

an

employer

based

a

hiring

or

promotion decision on purely subjective criteria will rarely, if
ever, prove pretext."
Plaintiff

and

Bray's

Id. at 1185.
personal

Judge James's opinion on

qualities,

such

as

leadership

ability, competence, interpersonal skills, and trustworthiness.

Plaintiff and Judge Jolles's relationship mirrors Judge James and Bray's
relationship in that each Judge had an employee whom they knew before taking
office and trusted as their second-in-command.

42

significantly influenced his decision.

These subjective criteria

were important when selecting a supervisor for the entire Probate
Court

staff,

particularly

in

light

of

improving the Probate Court's low morale.

Judge

James's

goal

of

Moreover, being a newly-

elected constitutional officer, it is reasonable for Judge James

to

appoint

someone

whom

he

trusted

and

had

a

pre-existing

relationship with to manage the staff of the Probate Court.

such. Plaintiff's prior satisfactory performance

As

history under

Judge Jolles does not establish pretext.

Finally,

Plaintiff

argues

that

Judge

James's

reasons for

demoting her have shifted since the decision was made.

Plaintiff

cites Judge James's September 23, 2013 letter to the City's HR
Department explaining

Court.

his

reason for

(Sept. 23, 2013 Letter.)

reorganizing

the

Probate

Judge James stated he abolished

the Director position because the ^^top staff position in any court
is the chief clerk."

(Id.)

He further remarked: "Angela Rice, in

my office, served as Director, until the position was abolished
due to her inability to supervise other staff members."

(Id.)

Inconsistencies in an employer's testimony can be evidence of
pretext; however, an additional, but undisclosed, reason for an

employment decision does not establish pretext in and of itself.
See Tidwell v. Carter, 135 F.3d 1422, 1428 (11th Cir. 1998).

The

September 23rd letter does not show any inconsistencies in Judge
James's

reasons

for

demoting

Plaintiff.
43

Rather,

Plaintiff's

''inability to supervise other staff" is perfectly consistent with
Judge James's other reasons for the decision, such as Plaintiff
not being competent to handle the position or that she could not

get along with her coworkers.

Further, Judge James reaffirmed in

the September 23rd letter that a desire to bring the Probate
Court's positions in line with other probate courts in the state,

in part, motivated the reorganization.
The ultimate takeaway from Judge James's proffered reasons is
that he thought Plaintiff was unable to effectively manage staff
for a variety of reasons.

He viewed Bray as the more reliable

candidate because she had both the experience and the respect of

her coworkers.

These opinions are consistent with Judge James's

preference for team work and cooperation in the Probate Court's
small office environment.

(See James Aff., SISI 14-15.)

Plaintiff

has not rebutted this reason, rather her arguments simply quarrel
with the wisdom of it, which does not establish pretext.

Chapman, 229 F.Sd at 1030.

See

Accordingly, the Court finds that

Plaintiff cannot rebut the legitimate, nondiscriminatory reasons

why Judge James demoted her and selected Bray for Chief Clerk.
Judge

James

is,

therefore,

entitled

to

summary

judgment

Plaintiff's race discrimination claim for her demotion.

44

on

2. Deputy Chief Clerk

To establish a prima facie case of discrimination for failure
to promote, a plaintiff must prove (1) she belongs to a protected

class; (2) she applied for and was qualified for a promotion; (3)
she was not selected despite her qualifications; and (4) other

equally

or

promoted.

less-qualified

employees

outside

her

class

were

Brown v. Ala. Dep^t of Transp., 597 F.3d 1160, 1174

(11th Cir. 2010).

As in Plaintiff's demotion claim. Judge James

makes no attempt to refute Plaintiff s prima facie case and moves
directly to offering legitimate, nondiscriminatory reasons for her
non-selection.

Judge James contends he allowed Bray to decide who should be
promoted to Deputy Chief Clerk because the two positions required
a close working relationship.

(James Aff., SI 16.)

However, even

if Judge James did delegate the decision, it is unlikely he would
have

allowed

Bray

to

promote

someone

he

did

not

approve

of,

especially considering the substantial role the Deputy Chief Clerk
served in the Probate Court.

In fact, Daniels appeared to meet

Judge James's criteria for a leadership position based on his
observations that she was ^^capable, friendly, accommodating, and

responsive

when

she

interacted

with

the

public,"

displayed

competence, and had fifteen years of experience at the Probate
Court.

(Id.

SI

19.)

Judge

James's

opinion

detailed above, was essentially the opposite.
45

of

Plaintiff,

as

Moreover, Judge

James's reasons for not selecting Plaintiff to the Chief Clerk

position apply with equal force to the Deputy Chief Clerk position.
If Judge James did not think Plaintiff could effectively manage
staff,

it

would

make

little

sense

to

promote

her

to

another

supervisory role, even if that position carried less authority
than Chief Clerk.

Plaintiff invokes what the Eleventh Circuit calls the ""cat's

paw theory" of causation.

See Stimpson v. City of Tuscaloosa, 186

F.3d 1328, 1332 (11th Cir. 1999).

According to Plaintiff, Bray

was a racially biased recommender that corrupted the decisionmaking process because Judge James merely signed off on her choice.
To

support

her

contention

that

Bray

harbored

racial

animus.

Plaintiff cites a single comment Bray made in 2012, in which Bray

expressed that she had an issue with ""white authority."
Dep., at 159.)

(Rice

During her deposition. Plaintiff was unable to

provide the context of this comment beyond the fact that she
thought it was directed at her leadership.

(Id. at 159-61.)

This single comment does not establish that Bray based her
recommendation

provides,

of

at most,

Daniels

a

over

Plaintiff

mere ""scintilla

on

racial

U.S.

at

252.

Moreover,

while

It

of evidence" to support

Plaintiff's argument that Bray harbored racial bias.
477

bias.

discussing

See Anderson,

Bray's

comment.

Plaintiff admitted that she ""knew Felicia [Bray] did not like me"
and ""assume[d] that most of it was because that I had advanced in

46

the Probate Court."

(Id. at 162.)

Further, Plaintiff interpreted

Bray's comment as being directed at her leadership abilities, not
at the leadership of white people in general.
60.)

Overall,

Plaintiff

has

not

rebutted

(See id. at 159the

legitimate,

nondiscriminatory reasons why Bray did not recommend her for Deputy
Chief Clerk or why Judge James ultimately approved of Daniels.
Accordingly,

Judge

James

is

granted

summary

judgment

on

Plaintiff's failure to promote claim.

E. Hostile Work Environment

A hostile work environment claim under Title VII requires an

employee

to

show

discriminatory

that

''the

intimidation,

workplace

ridicule,

is

and

permeated
insult,

that

with
is

sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment."
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (quoting
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986)).

establish

a

prima

facie

case,

the

employee

must

prove

following:
(1) that [she] belongs to a protected group; (2) that
[she] has been subject to unwelcome harassment; (3) that
the harassment was based on a protected characteristic
of the employee . . . (4) that the harassment was
sufficiently severe or pervasive to alter the terms and
conditions of employment and create a discriminatorily
abusive working environment; and (5) that the employer
is responsible for such environment under either a
theory of vicarious or of direct liability.

47

To

the

Bryant v. Jones^

575 F.3d 1281, 1296 {11th Cir. 2009) (quoting

Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir.
2002)).

On

the

fourth

element,

the

employee

must

''subjectively

perceive" the harassment as sufficiently pervasive to alter the
terms and conditions of employment.

Mendoza v. Borden, Inc., 195

F.3d 1238, 1246 (11th Cir. 1999) (quoting Harris, 510 U.S. at 2122).

The conduct must also be objectively severe and pervasive

enough to alter the terms and conditions of employment, considering
all the circumstances.

Id.

Under this objective, "fact intensive"

inquiry, courts consider four factors: "(1) the frequency of the
conduct; (2) the severity of the conduct; (3) whether the conduct

is physically threatening or humiliating, or a mere offensive
utterance; and

(4)

whether the conduct

with the employee's job performance."

unreasonably interferes

Id.

Judge James attacks Plaintiff's ability to prove the fourth
element of her claim by arguing that the alleged harassment was

not

severe

employment
environment.

enough

or

to

create

alter

a

the

terms

and

discriminatorily

conditions

abusive

of

her

working

In Judge James's view. Plaintiff's complaints are

typical workplace issues, none of which reveal racial animosity
towards white people nor are severe enough to alter the terms and
conditions of Plaintiff's employment.

48

Plaintiff's briefs make no

attempt to

refute

Judge

James's arguments

or even

address the

evidence supporting her hostile work environment claim.

Guided

by

the

four

factors

mentioned

above,

the

Court

concludes that the alleged harassment does not rise to the level
of severity necessary to survive summary judgment.

The record is

largely

intimidation,

devoid

ridicule,

or

of

evidence

insult

that

permeated

discriminatory

the

Probate

Court.

Regarding

Plaintiff, Shelly Blake Howard heard Judge James state: ''I don't
care if she doesn't like me, I don't like her either."

Aff., ^ 46.)

(Howard

Also, Plaintiff's sworn statement contends that at

the January 14th meeting about her work performance. Judge James
told Plaintiff that nobody in the office liked her and ""suggested"
she should quit.

(Rice Aff., SI 93.)

These statements may be

discouraging to an employee, but do not rise to the level of
severity necessary to show a hostile work environment.

they

are

more

utterances"

employment.

appropriately

that

do

not

characterized

alter

the

terms

as ""mere
and

Instead,

offensive

conditions

of

Title VII is not a ""general civility code" that

imposes liability for every offensive remark.
Boca Raton, 524

Faragher v. City of

U.S. 775, 788 (1998) (noting ""sporadic use of

abusive language" and ""occasional teasing" are not the type of
conduct that alters the terms and conditions of employment).

Although Plaintiff does not point to any evidence or make any arguments, the
Court will consider some of the evidence she placed into the record that could
be relevant to her hostile work environment claim.

49

Moreover, beyond the simple fact that Judge James is black
and

Plaintiff

is

white,

there

is

nothing

connecting

these

statements or Judge James's attitude towards Plaintiff to her race.
Rather, Judge James thought Plaintiff was not effective in her

job, displayed a poor attitude towards coworkers and the public,
and consistently made mistakes in her work.

9, 12-13, 15.)

(See James Aff., SlSl

Said another way. Judge James's apparent dislike

of Plaintiff was based on his opinion of her work performance and
inability to get
Further,

his

along

with

statements

others,

fall

not because

well

short

of

of
the

her

race.

type

of

discriminatory intimidation, ridicule, or insult that supports a
hostile work environment claim.

See Barrow v. Ga. Pac. Corp., 144

F. App'x 54, 57-58 (11th Cir. 2005) (finding supervisors' use of
inflammatory racial slurs on at least five occasions and threats

of violence for looking at "that white girl," as well as displays

of the rebel flag, the letters "KKK," and a noose did not show
"that

the

workplace

was

permeated

with

discriminatory

intimidation, ridicule, and insult that is sufficiently severe or

pervasive

to

alter

the

conditions

of

[the

plaintiff's]

employment." (internal quotations omitted)).
There

are

only

three

statements

in

the

record

conceivably be interpreted as racially motivated.
comment to

authority."

Plaintiff in

2012 that she

(Rice Dep., 159-60.)

50

had

an

that

can

First, Bray's

issue

with "white

Second, while discussing the

Trayvon Martin verdict, Judge James's secretary Carrie Braxton^o
said, "I

couldn't

cracker."

have

expected

(Id. at 209.)

anything

else

out

of

a

white

Finally, Judge James's comment that he

was aware of the black and white cliques in the office and he
wanted that to change.

(Id. at 145.)

None of these comments are sufficient to show discriminatory
intimidation, ridicule, or insult permeated the workplace.

See

Adams v. Austal, U.S.A., L.L.C., 754 F.3d 1240, 1254 (11th Cir.

2014)

(holding

that

conduct

was

not

sufficiently

severe

or

pervasive where an African-American plaintiff "saw his coworkers
wear the Confederate flag on a regular basis," saw racist graffiti
in the men's restroom on a daily basis, "heard people say the slur

^nigger,' but only a ^few times,'" and heard about a noose being
left in the breakroom, though he did not personally see it); see
also Harris, 510 U.S. at 21 ("[M]ere utterance of an epithet which

engenders offensive feelings in an employee does not sufficiently
affect

the

(internal

conditions

citation

of

employment

omitted)).

to

Moreover,

implicate
Bray's

Title

VII."

comment

about

"white authority" occurred before Judge James was elected to the
Probate

Court.

Also,

Judge

James's

"cliques"

comment

could

reasonably be interpreted to mean that he was trying to reduce
perceived racial divides among the staff.

20 Braxton is a black woman.

51

It is certainly possible to support a hostile work environment
claim

with

evidence

supervisors.

other

than

comments

by

Plaintiff's testimony and other

coworkers

or

white employees'

sworn statements repeatedly argue that they felt '"targeted" by

Judge James based on their race.
SI 4 9; Rice Dep., at 168.)

(Watts Aff., SI 30; Howard Aff.,

However, each largely fails to provide

examples that support their conclusory allegations.

See Josendis

V. Wall to Wall Residence Repairs, Inc., 662 F.Sd 1292, 1318 (11th

Cir. 2011) ("Unreliable conjecture . . . presented as a 'belief

without any basis in ascertainable fact, was not the type of
admissible

evidence

required

to

survive

a

motion

for

summary

judgment.").

For example. Plaintiff testified that black employees were

given more administrative leave time than white employees.

(Rice

Dep., at 110.) However, Plaintiff could not cite an instance where

Judge James denied leave to a white employee.
167-68.)

(Id. at 110-12,

In fact. Judge James gave Lacey Grantham administrative

leave for an "extended time" because of a medical condition, even

after she ran out of sick days.
statement

contends

employees

to

Judge

submit

a

(Id. at 110.)

James

written

did

not

leave

Plaintiff's sworn

always

require

black

request,

whereas

white

employees were not extended the same courtesy.

(Rice Aff., SI 21.)

However, during her deposition. Plaintiff stated she did not know

52

whether black employees applied for administrative leave.

(Rice

Dep., at 112.)

Much of the other evidence that could conceivably support the

'"targeting"

of

white

employees

—

changing

work

assignments,

criticism of job performance, disparities in pay — suffers from
the

same

shortcomings,

allegations made

namely

that

they

are

all

conclusory

without any tangible evidence or examples to

support the allegation.

Where there is some evidence to support

the allegation, such as that black employees were given raises
over white employees, there is a non-discriminatory explanation.
Regarding pay disparities, the record shows that Bray and Daniels's
pay increased and Plaintiff's pay decreased, but that was due to
Bray

and

Daniels

being

promoted

responsibilities

whereas

Plaintiff

responsibilities

significantly

and

was

reduced.

given

demoted
Even

increased

and
so,

had

her

after

the

initial pay adjustment and a subsequent second raise given to
Daniels a month after her promotion. Plaintiff earned an annual

salary of about $2,000.00 more than Daniels, even though Plaintiff
held a lower position.

(See Rice Aff., 1 57, 72; Rice Dep., at

140.)

This leaves only the March 4th staff meeting where Judge James
read from Plaintiff's EEOC charge.

Although Plaintiff may have

felt embarrassed by the situation, this single incident was not so
objectively

humiliating

as

to

alter

53

the

terms

of

Plaintiff's

employment given the circumstances in

which it occurred.

The

entire staff knew since August of 2013 that Plaintiff made a race
discrimination complaint against Judge James, and Plaintiff openly
shared her discrimination allegations with at least two other staff
members.

(See James Aff., SI 20; Rice Dep., at 44-45.)

Moreover,

Judge James reading Plaintiff's EEOC charge to the staff is not
harassment

based

on

a

protected

characteristic

of

Plaintiff,

rather it is based on her engaging in protected speech under Title
VII.

Thus, the March 4th incident is more appropriately considered

evidence supporting Plaintiff's retaliation claim than her hostile
work environment claim.

All

told.

Judge

James

carried

his

burden

to

show

that

Plaintiff cannot prove the alleged harassment was sufficiently

severe and pervasive to alter the terms and conditions of her
employment.

There is also a lack of evidence connecting the

alleged harassment to a protected characteristic.

In response.

Plaintiff puts forth no arguments nor cites any evidence in the
record to support her hostile work environment claim.

Therefore,

she has not carried her burden, and Judge James is entitled to

summary judgment on Plaintiff's hostile work environment claim.
F. Retaliation

Plaintiff began engaging in protected activity when she first
made complaints of discrimination to Jacquelyn Humphrey in August

54

2013.

She later filed a complaint with the EEOC on August 22nd

and a formal charge of discrimination on November 13th.
alleges that because
James changed

disciplined

she

made discrimination

her job duties

her

more

harshly

and

than

Plaintiff

complaints,

Judge

desk location several times,

other

employees,

eventually

terminated her, and later marked her as ineligible for rehire with

the City.

(Rice Aff., SISI 77-78, 81, 97, ICQ.)

Title

VII

makes

it

unlawful

to

discriminate

against

any

individual for engaging in a statutorily protected activity, such

as filing a charge of discrimination with the EEOC or using an
employer's internal grievance procedure.

42 U.S.C. § 2000e-3(a);

see also Rollins v. State of Fla. Pep't of Law Enf't, 868 F.2d

397,

400

(11th

Cir.

1989).

Where,

as

here,

the

plaintiff's

evidence of retaliation is based on circumstantial evidence, the

Court

employs

the

McDonnell Douglas.

familiar

burden

shifting

framework

from

Bryant, 575 F.3d at 1307-08.

A prima facie case requires a plaintiff to prove that (1) she
engaged in a statutorily protected activity; (2) she suffered an
adverse employment action; and (3) there is a causal link between
the two.

Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008).

Judge James first argues that Plaintiff cannot prove the causation
element of her claim because he was not aware of her EEOC charge

until

early

March

2014.

So,

according

to

Judge

James,

any

materially adverse disciplinary actions taken before then, such as
55

the

January

14th

retaliation.

written

reprimand,

cannot

be

used

to

prove

Yet, Judge James admits that it "was well-known in

the office from as early as August 2013, Plaintiff had made a

complaint about not getting the positions that had been filled by
Ms. Daniels and Ms. Bray." (James Aff., SI 20.)

An employee making

a complaint of discrimination to her employer's internal review
office, such as the City's EEO, is protected speech under Title
VII.

See E.E.O.C. v. Total Sys. Servs., Inc., 240 F.3d 899, 903-

04 (11th Cir. 2001).

Thus, Judge James admits he was aware that

Plaintiff engaged in protected activity in August 2013.
To

prove

causation,

a

retaliatory

animus

was

one

decision."

Brown, 597

F.3d

plaintiff
factor

in

at 1182.

need
the

only
adverse

show

"that

employment

Further, the "burden

of

causation can be met by showing close temporal proximity between
the

statutorily

action."

protected

and

the

adverse

employment

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364

(11th Cir. 2007).
must be

activity

"But mere temporal proximity, without more,

^very close.
'"

Id. (quoting Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001)).

Disparities of three or four

months are not enough; the employee's termination must usually be

within two weeks to provide circumstantial evidence of a causal
connection.

Id.; Jefferson v. Sewon Am., Inc., 891 F.3d 911, 926

(11th Cir. 2018).

56

The

two-week

proximity

between

Judge

James

receiving

Plaintiff's EEOC charge, reading the contents of the charge to the
entire staff on March 4th, and Plaintiff's termination on March

17th precludes summary judgment.

Although Judge James instructed

the staff to not retaliate against Plaintiff at the March 4th

meeting, he also stated, ''a change is going to come about real
soon" and canceled the office's monthly breakfast meetings until
the staff became ''more trustworthy and cohesive."
94, 97.)

(Rice Aff.,

Further, Plaintiff testified that after reading from

the charge Judge

James began "shaking

his finger at" her and

instructed Plaintiff to not speak with him or go into his office
and that he did not trust her.
later he terminated Plaintiff.

(Rice Dep., at 219.)

Two weeks

This sequence of events creates a

genuine issue of material fact as to whether retaliatory animus
was a motivating factor in terminating Plaintiff.

Next,

Judge

James

offers

a

legitimate,

nondiscriminatory

reason for terminating Plaintiff: she failed to alter the behavior

or improve the tone of her interactions with coworkers and the
public after Judge James counseled her multiple times.

In support,

he cites the December 2013 recording incident as the turning point
that

made

him

decide

to

terminate

Plaintiff.

Plaintiff's

contentious conduct at the January 14th meeting further convinced
Judge James of the need to terminate Plaintiff.

57

Plaintiff

successfully

establishes

a

genuine

material fact on whether these reasons are pretextual.

issue

of

First, if

Judge James decided to terminate Plaintiff in December 2013 it
would

make

decision.

little

sense

to

wait

four

months

to

execute

that

It would make even less sense to prepare a written

reprimand that suggests corrective actions to improve Plaintiff's
work performance and states:
suspension without pay."
(emphasis added).)

Future infractions may result in

(Jan. 14 Letter of Reprimand, Doc. 56-1

Second, the proximity between

Judge

James

receiving the EEOC charge and terminating Plaintiff provides a
more plausible reason for her firing.

This is further supported

by Judge James's aggressive tone at the March 4th staff meeting
and the fact that he read directly from Plaintiff's charge to the
entire staff.

All told, a reasonable fact-finder could conclude,

under the totality of the circumstances, that Judge James's reasons

are pretextual.

As such, summary judgment must be denied.

G. Intentional Infliction of Emotional Distress

Finally,

Judge

James

moves

for

summary

judgment

on

Plaintiff s state law intentional infliction of emotional distress

claim.

Georgia

has

long

recognized

a

cause

intentional infliction of emotional distress.

of

action

for

Thompson-El v. Bank

of Am., N.A., 327 Ga. App. 309, 312 (2014) (quoting Blue View Corp.
V. Bell, 298 Ga. App. 277, 279 (2009)).

58

Yet, a plaintiff's burden

on such a claim ''is a stringent one."

must

prove:

intentional

"(1)
or

the

conduct

reckless;

(2)

Id.

giving
the

To prevail, a plaintiff

rise

to

conduct

the

was

claim

was

extreme

and

outrageous; (3) the conduct caused emotional distress; and (4) the
emotional distress was severe."

Id.

With respect to the second element, the "conduct must be so
extreme in degree, as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a
civilized community."

Id.

"Conduct that can be characterized as

merely vulgar, tasteless, rude, or insulting will not support a
claim for intentional infliction of emotional distress.
the

conduct

distress

on

claim

which
is

an

based

intentional
must

be

so

infliction
abusive

or

of

Rather,

emotional

obscene

that

reasonable people would naturally assume that the target of such

conduct

would

experience

intense

feelings

embarrassment, fright, or extreme outrage."

of

humiliation,

Howerton v. Harbin

Clinic, LLC, 333 Ga. App. 191, 205-06 (2015) (internal quotations
and citations omitted).

Whether the alleged conduct rises to the

requisite level of outrageousness is a question of law governed by
an objective standard.

Id.

For intentional infliction of emotional distress claims in

employment discrimination cases, "Georgia courts have held that an
employer's termination of an employee — however stressful to the
employee — generally is not extreme and outrageous conduct." Clark
59

V.

Coats

&

Clark,

Inc.,

990

F.2d

1217, 1229 (llth

Cir.

1993)

{quoting ITT Rayonier, Inc. v. McLaney, 204 Ga. App. 762, 764
(1992)); see also Kornegay v. Mundy, 190 Ga. App. 433, 435 (1989)
(''An employee's ongoing frustration in the work place, born of a

personality conflict with a co-employee, does not give rise to an
action for intentional infliction of emotional distress.")).

Here, Judge James's conduct towards Plaintiff was not extreme

and outrageous.

While Judge James admits that .his actions "could

be construed as boorish and offensive," (Def.'s Br., Doc. 55-2, at

26) no reasonable person would consider them atrocious or utterly
intolerable.

Plaintiff argues Judge James reading her EEOC charge to the

staff supports her intentional infliction of emotional distress
claim.

While

Judge

James's

conduct

was

perhaps

"rude[]

or

insulting," it was not so outrageous that reasonable people would
naturally assume that Plaintiff would feel "intense feelings of
humiliation, embarrassment, fright or extreme outrage."

Howerton,

333 Ga. App. at 206 (emphasis added); see also Ashman v. Marshall's
of MA, Inc., 244 Ga. App. 228, 229 (2000) ("Actionable conduct
does not include insults, threats, indignities, annoyances, petty

oppressions, or other vicissitudes of daily living but must go
beyond all reasonable bounds of decency.").
Moreover, the Court already determined that Judge James's
conduct was not sufficiently severe or pervasive to alter the terms
60

and

conditions

finding

under

standard.

judgment

of

the

Plaintiff's

more

stringent

Consequently,

on

Plaintiff's

employment,

Judge

which

''extreme

James

intentional

is

precludes

and

outrageous"

entitled

infliction

a

to

of

summary

emotional

distress claim.

IV. CONCLUSION

Based on the foregoing. Defendant Harry B. James Ill's motion

for summary judgment (Doc. 55) is GRANTED IN PART and DENIED IN
PART

and

Defendant

City

of

judgment (Doc. 59) is DENIED.

Augusta,

GA's

motion

for

summary

This case shall proceed to trial in

due course.

/

ORDER ENTERED at Augusta, Georgia, this

day of August,

2019.

J. R^DA^HALL, CjiWEF JUDGE

UNITeV^ATES DISTRICT COURT
DISTRICT OF GEORGIA

61