Howard v. Ross et al

Filing 25

ORDER granting 18 Motion to Dismiss. Plaintiff's claims against Defendant are dismissed with prejudice and the case stands closed. Signed by Chief Judge J. Randal Hall on 9/11/2018. (pts)

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

*

LORI ANN HOWARD,

5
5

Plaintiff,

*

*

V.

CV 117-080

*

THE CITY OF AUGUSTA RICHMOND

*

COUNTY GEORGIA COMMISSION,

*

Defendant.

ORDER

Plaintiff

Lori

Ann

Howard

brought

this

action

alleging

employment discrimination under Title VII of the Civil Rights
Act of 1964.
dismiss

Presently pending before the Court is a motion to

filed

by

Defendant

Augusta,

Georgia

improperly identified as the City of Augusta

Georgia Commission.^

('"Defendant"),
Richmond County

Plaintiff has not filed any response to

this motion during the ten months it has been pending before the
Court.

As such, the Court now deems the motion unopposed.

L.R.

7.5, SDGa. ("[E]ach party opposing a motion shall serve and file
a

response

within

motion . . . .

fourteen

(14)

Failure to respond

days

of

service

of

the

within the applicable time

^ Augusta, Georgia is a consolidated government under Georgia law, combining
the former City of Augusta and Richmond County governments. The legislative
act creating the consolidated government, as amended, requires that any tort
liability "of Augusta-Richmond County shall follow the law and rules of tort
liability applicable to counties in Georgia." 1996 Ga. Laws p. 3607.

period

shall

motion.").

indicate
For

the

that

reasons

Defendant's Motion to Dismiss.

I.

This

case

arises

there

is

stated

no

opposition

below,

the

Court

to

a

GRANTS

(Doc. 18.)

BACKGROUND

out

of

Plaintiff

Lori

Ann

Howard's

employment at the Richmond County Board of Tax Assessors ('"Board
of

Tax

Assessors").

Plaintiff

alleges

that

during

her

employment as a Senior Commercial Appraiser, she was subject to
sexual harassment, disability discrimination,

superiors, and wrongful termination.

retaliation from

(Compl., Doc. 1, at 7).

In substance. Plaintiff alleges that her supervisor. Chief

Appraiser Alveno Ross, made sexually derogatory comments to her
and subjected her to "humiliation and harassment" for refusing
to contribute to an "office fund," thereby creating a hostile
work

environment.

(Id.)

Around

March

2016,

Ross

began

exaggerating Plaintiff's leave from work, falsifying reports to

deprive Plaintiff of accrued time off, and withholding pay that
Plaintiff was entitled to while on sick leave.

On

December

5, 2016,

Plaintiff submitted

(Id. at 8.)

a

leave

request

for two weeks off work between December 26th and January 13th.

(Id.

at

9.)

Plaintiff

needed

the

time

off to

care for

her

daughter, who was scheduled to give birth during a high risk
pregnancy.

(Id.)

When Plaintiff returned to work in January,

Ross

suspended

her

for

three

days

and

eventually

Plaintiff's employment on January 23, 2017.

(Id.)

terminated
The reason

provided for the termination was violation of the policy against
employee absence without leave.

Thereafter,

Plaintiff

(Id.)

filed

a

charge

Employment Opportunity Commission ("EEOC").

with

the

Equal

The EEOC issued a

right to sue notice and Plaintiff, proceeding pro se, timely
filed this suit on July 12, 2017, initially naming the City of
Augusta Richmond County Georgia Commission and Alveno Ross as
Defendants.

(Id. at 10.)

Upon filing. Plaintiff's complaint

was screened by the United States Magistrate Judge pursuant to
28 U.S.C.

§§ 1915(e)(2)(B).

The

Magistrate

Judge,

liberally

construing Plaintiff's pro se complaint as a Title VII claim,
dismissed

Defendant

Ross

from

the

case

subject to liability under Title VII.
4-5.)

as

an

individual

not

(R. & R., Doc. 8, at

Subsequently, Defendant Augusta, Georgia filed a motion

to dismiss arguing that it is not Plaintiff's employer, and
therefore not liable, because the Board of Tax Assessors is a

distinct entity with sole authority over its employees under
Georgia law.

II. LEGAL STANDARD

A motion to dismiss under

Federal Rule of Civil Procedure

12(b)(6) does not test whether the

plaintiff

will ultimately

prevail on the merits of the case.

sufficiency of the complaint.

Rather, it tests the legal

Swierkiewicz v. Sorema N.A., 534

U.S. 506, 511 (2002) (quoting Scheuer v. Rhodes, 416 U.S. 232,
236 (1974)).

Therefore, the court must accept as true all facts

alleged in the complaint and construe all reasonable inferences
in the light most favorable to the plaintiff.

See Hoffman-Puqh

V. Ramsey, 312 F.3d 1222, 1225 (11th Cir. 2002).

The court, however, need not accept the complaint's legal
conclusions

as

true,

only its

Iqbal, 556 U.S. 662 (2009).

well-pled

facts.

Ashcroft

v.

A complaint also must ''contain

sufficient factual matter, accepted as true, 'to state a claim

to relief that is plausible on its face.'"

Id. at 678 (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

The

plaintiff is required to plead "factual content that allows the
court to draw the

reasonable inference that the

liable for the misconduct alleged."

probability

requirement

at

the

1^.

defendant is

Although there is no

pleading

stage,

beyond . . . mere possibility . . . must be alleged."

"something
Twombly,

550 U.S. at 556-57 (citing Durma Pharm., Inc. v. Broudo, 544
U.S. 336, 347 (2005)).

III.

DISCUSSION

Defendant's primary contention in its motion to dismiss is
that

it

is

not

Plaintiff s

employer

and

therefore

cannot

be

liable under Title VII.^

Under Title VII, an ''employer" is a

person engaged in an industry affecting commerce who has fifteen
or more employees for each working day in each of twenty or more
calendar weeks.

42 U.S.C. § 2000e(b).

employer . . . to
discriminate

discharge

against

any

any

It is unlawful for "an

individual,

or

individual . . . because

otherwise
of

such

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

proceeding

under

Thus, it is axiomatic that a plaintiff

Title

VII

must

name

her

employer

as

a

defendant.

In Georgia, a county board of tax assessors is a separate

and

independent

entity

governing authority.

from

the

county

commission

or

other

Georgia law established a comprehensive

system for the equalization of property taxes by creating a
uniform statewide administrative scheme executed by a board of

tax assessors in each county.

O.C.G.A. §§ 48-5-260(1), -290(a).

Under this framework, the Georgia Supreme Court held that "in

all matters dealing with county tax appraisers it is the board
of tax assessors and not the board of commissioners which acts

as 'the governmental board [which] has the authority to act for
the county.'"

Chambers v. Fulford, 495 S.E.2d 6, 7 (Ga. 1998)

^ To the extent that Plaintiff's pro se complaint could be construed as also

bringing a discrimination claim under 42 U.S.C. § 1983, the analysis for that
claim would mirror the analysis under Title VII because the elements for the
two causes of action are the same.
801, 805 (11th Cir. 1995).

Richards v. Leeds Police Dep't, 71 F.3d

{quoting Spell v. Blalock, 254 S.E.2d 842, 844 (Ga. 1979)); see
also Ballard v. Chattooga Cnty. Bd. of Tax Assessors, 615 F.

App'x 621, 623 n.l (11th Cir. 2015) (per curiam) (''The boards of
assessors
level,

are

subject

but

little

to

to

extensive
no

controls

control

by

from

the

the

state

local

county

government.").

A board of tax assessors's authority naturally extends to

employment

matters

with

its

tax

appraisers.

Georgia

law

provides that the board of tax assessors has the authority to
hire and fire tax appraisers and enter into contracts with them.
O.C.G.A. § 48-5-298(a)

Chambers, 495 S.E.2d at 7.

Although

county funds are used to compensate tax appraisers,'* county
commissions

have

little

appraisers' employment.
the

Board - not

fundamental

the

aspects

control

over

the

terms

of

tax

Ballard, 615 F. App'x at 624 ("[I]t is
County - that

of

the

has

employment

'control

over

relationships'

the

with

respect to [tax appraisers]." (quoting Lyes v. City of Riviera
Beach, Fla., 166 F.Sd 1332, 1345 (11th Cir. 1999))).

Consistent

with

the

statutory

scheme,

the

board

of

tax

assessors — not the county commission — is considered to be the

employer

of

tax

appraisers

for

the

purposes

of

Title

VII.

^ Although the statute contemplates approval of tax appraisers' contracts by
the county governing authority, the Georgia Supreme Court has repeatedly held
that the board of tax assessors is vested with authority in dealing with all

matters related to county tax appraisers.
254 S.E.2d at 844.

" O.C.G.A. § 48-5-263(c).

Chambers, 495 S.E.2d at 8; Spell,

Ballard, 615 F. App'x at 624.
has

explicitly

held

that

a

Moreover, the Eleventh Circuit

board

of

assessors

and

a

county

government cannot be aggregated into a single employer under
Title VII.

Lyes

Id. at 623 {finding plaintiff could not overcome the

presumption

that

governmental

subdivisions

considered

separate and distinct under state law should not be aggregated
under Title VII).

Accordingly, Plaintiff's employer for the purposes of her
Title VII claim is the Richmond County Board of Tax Assessors.

As such. Defendant, being a separate governing body from the
Board of Tax Assessors, cannot be held liable under Title VII

because it is not Plaintiff's employer.

See Ballard, 615 F.

App'x at 624.

The Court recently addressed this same issue in Garner v.

Ross, 2016 WL 1241521 (S.D. Ga. March 28, 2016), in which a tax

appraiser

brought

commission

and the board of tax

Court,

following

Eleventh

a

the

Circuit

Title

above

precedent,

VII

claim

against

assessors.

cited
found

Supreme

county

although

the

plaintiff

named

the

The

Court

and

not

the

was

plaintiff's employer for the purposes of Title VII.
Moreover,

county

Id. at *1.

Georgia
the

the

Id. at *3.

board

of

tax

assessors as a defendant, it did not meet the fifteen employee

numerosity requirement of Title VII nor could the board and the

county be aggregated to meet the requirement.

Id. at *4 (citing

Lyes, 166 F.3d at 1345; Ballard, 615 F. App'x at 624-25).

same

reasoning

applies

here,

and

Plaintiff

has

The

presented

arguments to persuade the Court to hold otherwise.

no

Accordingly,

Plaintiff's claims against Defendant should be dismissed.

IV.

CONCLUSION

For the above reasons, IT IS HEREBY ORDERED that Defendant

Augusta,

Georgia's

Plaintiff's

claims

motion

to

against

dismiss

{doc.

Defendant

18)

are

is

GRANTED.

DISMISSED

WITH

PREJUDICE, and the Clerk is DIRECTED to CLOSE this case.

ORDER ENTERED at Augusta, Georgia, this

/

day of

September, 2018.

^ND^XyHALL, ^C:HIEF JUDfeE

uniteT^ates district court
iRN DISTRICT OF GEORGIA