Jamison v. Augusta Warrior Project, Inc. et al
Filing
46
ORDER granting 40 Motion for Summary Judgment. The Clerk is directed to enter judgment in favor of Defendant. This case stands closed. Signed by Chief Judge J. Randal Hall on 2/11/2020. (pts)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
JANICE SHARITA JAMISON,
*
*
Plaintiff,
V.
*
*
CV 117-153
*
FORCES UNITED f/k/a AUGUSTA
WARRIOR PROJECT, INC.,
*
*
*
Defendant.
*
ORDER
Before the Court is Defendant's motion for summary judgment.
(Doc. 40.) The Clerk of Court gave Plaintiff notice of the motion
for summary judgment and informed Plaintiff of the summary judgment
rules, the right to file affidavits or other materials in
opposition, and the consequences of default.
(Doc. 42.)
Thus,
the notice requirements of Griffith v. Wainwriqht, 772 F.2d 822,
825 (11th Cir. 1985) (per curiam), are satisfied.
The time for
filing materials in opposition has expired, and the motion is ripe
for consideration.^
1 In her response to Defendant's motion for summary judgment, Plaintiff fails
to cite to evidence in the record as required by Local Rule 7.1(b). Although
the Court need not consider statements in her motion or briefs absent citations
to the record, the Court considers Plaintiff's arguments as best it can but
notes Plaintiff offers little to refute the facts as laid out by Defendant.
Puj^thermore, Plaintiff failed to respond to Defendant's statement of undisputed
material facts as required by Local Rule 56.1. Thus, all material facts offered
by Defendant in its statement of material facts (Def.'s St. of Mat. Facts, Doc.
40-2) are deemed admitted. See LR 56.1, SDGa ("All material facts set forth in
the statement required to be served by the moving party will be deemed to be
admitted unless controverted by a statement served by the opposing party.").
I.
BACKGROUND
Plaintiff Janice Jamison, proceeding pro se, is an African
American.
{Pl.'s Dep., Doc. 40-3, at 96:14—16.)
A. Plaintiff Begins Employment with AWP
Plaintiff worked with Defendant Augusta Warrior Project, Inc.
C'AWP'') from June of 20132 to December 28, 2015.^
52:17-19, 190:21-22.)
(Pl.'s Dep., at
Several months after Plaintiff started
working for AWP, Kim Elle became AWP's new President and CEO. (Id.
at 66:22-67:4; Kim Elle's Aff., Doc. 40-5, at 1.) Plaintiff worked
in the community relations department and reported directly to Ms.
Elle.
(Pl.'s Dep., at 73:24-74:1, 74:5-7.)
Plaintiff and Ms.
Elle were the only employees working at AWP's headquarters until
Spring of 2015.
{1^ at 83:4-5, 9-12; 97:1-3.)
B. AWP Expands
In the Spring of 2015, AWP hired Amy Palowitch as Director of
Operations
and
Jill
Schepp
as
Director
of
Marketing
and
Development; both women joined Plaintiff and Ms. Elle working at
headquarters.
(Id. at 97:24—98:2, 101:5—14, 105:18-20; Amy
Palowitch's Aff., Doc. 40-8, 1 1; Jill Schepp's Aff., Doc. 40-9,
2 Plaintiff was a temporary contract employee through the AmeriCorps VISTA
program from June of 2013 to December 30, 2013, when Plaintiff became a fulltime, salaried employee of AWP.
(See Offer Letter, Doc. 40-6; Pl.'s Dep., at
52:19-20, 56:2.)
3 Effective August 31, 2018, AWP changed its name to Forces United, Inc. (Def.'s
Br. Supp. Mot. for Summ. J., Doc. 40—1, at 2 n.l (The Court uses the presumed
correct spelling of Defendant Forces United, Inc. as found in Defendant's Answer
(Doc. 33),).)
"The organization's name was [AWP] at all times during
Plaintiff's employment."
Id.
at 1.)
Ms. Elle gave Plaintiff the opportunity to choose whether
to continue in her same role and report directly to Ms. Schepp or
transition to the operations department and report directly to Ms.
Palowitch.
(Pl.'s Dep., at 105:20-21.)
Plaintiff chose to stay
in the marketing and development department and report to Ms.
Schepp.
(Id. at 107:3-8; Jill Schepp's Aff., at 1.)
C. Performance Issues
Under Ms. Schepp, there is evidence that Plaintiff began
exhibiting performance issues, including unprofessional behavior
and absenteeism.^
There are two instances where Plaintiff failed
to respond to third parties.
First, in April of 2015, an
interested volunteer made multiple attempts to contact Plaintiff,
but
Plaintiff
interested
failed
volunteer
to
to
respond
contact
for
two
another
Regarding Interested Volunteer, Doc. 40-12.)
weeks
forcing
employee.
the
(Emails
Ms. Elle received a
forwarded email exchange about this situation.
(Id_^ at 1.)
Second, in the Fall of 2015, Citizens of Georgia Power wished to
donate $101,000 to AWP but ''was close to moving on to another
charity" after reaching out to Plaintiff "on several occasions
^ Defendant offers statements from some of Plaintiff's coworkers expressing
grievances about Plaintiff. (See Def.'s Br. Supp. Mot. for Summ. J., at 9-10.)
The Court, however, focuses only on evidence of performance issues of which Ms.
Elle, Ms. Palowitch, or Ms. Schepp were aware. In doing this, the Court does
not decide whether Ms. Palowitch and Ms. Schepp were decision makers. It is
clear, however, that Ms. Elle made the ultimate decision to terminate Plaintiff
and, therefore, was a decision maker. (Id. at 14 ("Elle made the decision to
terminate [Plaintiff] for failure to perform her required job duties."); PI.'s
Resp. Opp'n Def.'s Mot. for Summ. J., Doc. 43-1, at 4 ("Plaintiff was terminated
under the direction of Kim Elle.").)
over a [two- to three-]week span and never hear[ing] back from
her."
(Citizens of GA Power Email, Doc. 40-13.)
As a final
effort, Citizens of Georgia Power contacted Ms. Elle who helped
the organization with the charity event.
(Id.)
There are other instances where Ms. Palowitch, Ms. Schepp,
and Ms. Elle noted performance and tardiness issues with Plaintiff
prior to November 2015 - when meetings began discussing work
tensions and performance issues.
On October 8, 2015, Ms. Elle
emailed Plaintiff, copying Ms. Palowitch, asking whether Plaintiff
had completed a specific task assigned the previous morning. (Oct.
8, 2015 Email with Pl.'s Resp., Doc. 40-10, at 1.)
Ms. Palowitch
responded to Ms. Elle complaining about working with Plaintiff.
(Oct. 8, 2015 Email with Amy Palowitch's Resp., Doc. 40-11, at 1.)
Specifically, after explaining all she did to make it easier for
Plaintiff to complete the task, Ms. Palowitch states, ^^From my
experience, [Plaintiff] usually gets around to things when she
feels like it and she doesn't provide updates or status checks.
This is one of the things about [Plaintiff] that is very time
consuming for whoever works with her."
(Id.)
Ms. Schepp, Plaintiff's direct supervisor, complained that
Plaintiff ""was frequently tardy, often left work early, or was
absent altogether."
recounted
an
(Jill Schepp's Aff., at 1.)
incident
on
June
5,
2015,
where
Ms. Schepp
Plaintiff
was
scheduled to work at a fundraising event but left early without
permission or notifying Ms. Schepp. (Id. at 2.) On July 21, 2015,
Ms. Schepp signed a statement that Plaintiff was late to work that
day without calling.
(July 21, 2015 St. by Jill Schepp, Doc. 40-
18.)
D. November 9, 2015 Meeting
On
or
around
November
6,
2015,
Ms.
Palowitch
felt
that
Plaintiff passed off her own tasks onto Ms. Palowitch.
Ms.
Palowitch and Plaintiff had a text conversation where Ms. Palowitch
stated, ""I am so mad at you right now I can not speak to you.
will be addressing this BS on Monday."
22, at 1.)
I
(Text Messages, Doc. 40-
Plaintiff, Ms. Palowitch, and Ms. Elle held a meeting
on Monday, November 9, 2015, to discuss the issue.
This meeting
is important because, according to Plaintiff, it is the first time
she complained about race discrimination.
Plaintiff admits that Ms. Palowitch did not state anything
about race in their text exchange, which was "just a work dispute."
(Pl.'s
Dep., at 133:1-11.)
Plaintiff states,
however, "It
became . . . a racial issue when we got in the meeting."
133:13-14.)
(Id_^ at
During the meeting. Plaintiff told Ms. Elle:
[I]f I would have interacted with Amy, who is a white
woman, the way she's doing with me, the way she did with
me over the phone, the way she did with me through text
messages, through voicemails and the way she was
carrying on in this office right now, I would be
immediately fired.
I'm not given — I would not have
been given the same latitude to act out like that.
(Id. at 165:2-9.)
treated
a
Apart from this single claim that Ms. Elle
white employee
better than she
would
have treated
Plaintiff, Plaintiff repeatedly claims that Ms. Palowitch and Ms.
Schepp treated her differently because they ^^had become very good
friends" and were ''push[ing] [her] out."
(Id. at 144:6-25.)
Plaintiff also believes she ''started getting shut out" when she
began questioning whether AWP was misusing finances.
(See id. at
166:23-167:1, 167:16-168:7.)
E. December Absences
In December, Plaintiff had unapproved tardies and absences
culminating in her termination on December 28, 2015.
Ms. Elle
stated that on December 3, 2015, Plaintiff "reported to work late
without notifying her supervisor of her tardiness."
Aff., at 1.)
that
she
On December 16, 2015, Plaintiff informed Ms. Elle
would "be
holidays."
(Kim Elle's
in
the
office
with
the
exception
of the
(Emails Regarding Plaintiff's EGY Schedule, Doc. 40-
20, at 1.) Plaintiff, however, was then absent without permission
at least part of the day on December 18, 22, and 23, 2015.
(Id.;
Kim Elle's Aff., at 1-2; Dec. 22, 2015 Email from Amy Palowitch,
Doc. 40-19.)
Regarding the December 22nd absence, Ms. Palowitch
emailed Ms. Elle that Plaintiff left around noon without letting
anyone know where she was going.
(Emails Regarding Plaintiff's
EGY Schedule, at 1; Dec. 22, 2015 Email from Amy Palowitch.)
In
her deposition. Plaintiff states she "had to go meet with someone
about [a fundraising] drive" and that her schedule was on the
shared Microsoft Outlook calendar.
189:19-190:8.)
(Pl.'s
Dep., at 189:6-13,
The calendar has not been provided to the Court.
F. December 21, 2015 Meeting
Plaintiff called a meeting with Ms. Schepp on December 21,
2015, to discuss work tensions because ^^the situation had not
improved" since the November 9, 2015 meeting.
185:2; 186:3-13.)
(Id. at 184:23-
Ms. Schepp stated that Plaintiff rudely and
loudly requested the meeting in the hall and then ''began yelling
at [her]."
her voice.
Schepp,
"I
{Jill Schepp's Aff., at 2.)
Plaintiff denies raising
(Pl.'s Dep., at 188:24-189:1.)
feel
like . . . I'm
being
Plaintiff told Ms.
treated
like
a
slave. . . . I'm getting all of the . . . work dumped on me and
then y'all are taking all of the credit for it. And . . . leaving
me out of meetings and things like that."
(Id. at 187:5-11.)
In
her deposition. Plaintiff states she thought she was treated
unfairly because she was black.
(Id. at 187:12-15.)
It is
unclear, however, whether Plaintiff told Ms. Schepp she thought
her differential treatment was because of her race.
(See id. at
186:17-187:15.)
6. December 28, 2015 Termination
Ms. Elle made the decision to terminate Plaintiff on December
28, 2015, "as a result of her poor performance." (Kim Elle's Aff.,
at 3.)
Ms. Palowitch and Wright McLeod, an attorney and AWP board
member, told Plaintiff about her termination.
(Pl.'s Dep., at
190:23-191:2,
reason
195:8-9.)
Plaintiff
asked
the
for
her
termination and Wright McLeod responded that Plaintiff ^^would find
out at a later date."
(I^ at 192:13-16.)
Wright McLeod asked
Plaintiff whether they could inspect her backpack and purse to
make sure she was not in possession of company property.
194:23-24.)
(Id. at
A tense exchange ensued, and the police were called.
(Id. at 194:24-196:12.)
H. Post-Termination Events
Plaintiff focuses her opposition to Defendant's motion for
summary judgment on events occurring
after her termination.
Plaintiff pressed charges against Wright McLeod and Ms. Palowitch.
(Criminal Warrant Appl., Doc. 43-1, Ex. 3, at 27-30.)
In an
apparent attempt to protect his name after Plaintiff filed the
criminal warrant against him, Wright McLeod released a press
statement that Plaintiff was terminated for stealing confidential
veteran information.
9, at 45.)
(Wright McLeod Media Release, Doc. 43-1, Ex.
There is no evidence, however, that Ms. Elle, Ms.
Palowitch, or Ms. Schepp ever told Plaintiff or anyone else
Plaintiff was terminated for stealing veteran information.
Plaintiff also initiated a case with the Georgia Department
of Labor C'DOL") to receive unemployment benefits. (See generally,
Georgia DOL Proceedings, Doc. 43-1, Exs. lla-e, at 51-64.) Because
the Court finds Plaintiff's disparate treatment and retaliation
8
claims fail as a matter of law at the prima facie stage, neither
the criminal case nor unemployment benefit case has any bearing on
the outcome of this matter.
As such, the Court declines to expand
further on either proceeding.
I. EEOC Case and Present Posture
On August 26, 2016, Plaintiff filed an EEOC Charge alleging
race discrimination and retaliation.
(EEOC Charge, Doc. 40-24.)
Plaintiff filed this action on November 14, 2017.
1.)
(Compl., Doc.
On June 15, 2018, the Court found Plaintiff's claims were not
barred
for
failure
to
exhaust
administrative
remedies
and
dismissed Kim Elle as a defendant because Ms. Elle cannot be held
liable in her individual capacity under Title VII.
(Order on Mot.
to Dismiss, Doc. 21, at 7.) On April 5, 2019, Defendant filed the
present motion for summary judgment.
(Doc. 40.)
Plaintiff
responded (Doc. 43-1) and Defendant replied (Doc. 45).
II. SUMMARY JUDGMENT 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 law," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986), and a dispute is genuine "if the non[-]moving party has
produced evidence such that a reasonable factfinder could return
a verdict in its favor."
Waddell v. Valley Forge Dental Assocs.,
9
Inc., 276 F.3d 1275, 1279 {11th Cir. 2001).
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-movant's] favor." United States v. Four Parcels of Real Prop.,
941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (citation, internal
quotation marks, and internal punctuation omitted).
The Court
should not weigh the evidence or determine credibility. Anderson,
477 U.S. at 255.
evidence
in
But "[t]he mere existence of a scintilla of
support
of
the
[nonmovanfs]
position
will
be
insufficient" for a jury to return a verdict for the nonmoving
party. Id. at 252; accord Gilliard v. Ga. Dep^t of Corr., 500 F.
App'x 860, 863 (11th Cir. 2012).
The moving party has the initial burden of showing the Court,
by reference to materials in the record, 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 322—23.
When
the movant does not bear the burden of proof at trial, it may carry
the initial burden in one of two ways — by negating an essential
element of the non-movant's case or by showing that there is no
evidence to prove a fact necessary to the non-movant's case.
See
Clark V. Coats & Clark, Inc., 929 F.2d 604, 606-08 (11th Cir. 1991)
10
(citing Adickes v» S.H. Kress & Co., 398 U.S. 144, 153, 157, 160
(1970); Celotex Corp., 477 U.S. at 320, 322-25).
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. at 608.
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 carries its
initial burden.
For example, if the movant presents evidence
affirmatively negating a material fact, the non-movant
must
respond with evidence sufficient to withstand a directed verdict
motion at trial on the material fact sought to be negated."
Fitzpatrick v. City of Atlanta, 2 F. 3d 1112, 1116 (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 ^das Overlooked or ignored' by the moving
party" or ^Oome forward with additional evidence sufficient to
withstand a directed verdict motion at trial based on the alleged
evidentiary deficiency."
Id. at 1116—17 (quoting Celotex, 477
U.S. at 332 (Brennan, J., dissenting)).
The non-movant cannot
carry its burden by relying on the pleadings or by repeating
'conclusory allegations contained in the complaint. See Morris—
Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).
Rather, the non-
movant must respond with affidavits or as otherwise provided by
Federal Rule of Civil Procedure 56.
11
In reaching its conclusions
herein,
the
Court
has
evaluated
the
Parties'
briefs,
other
submissions, and the evidentiary record in this case.
III. DISCUSSION
Plaintiff
brings
claims
of
(A) disparate
treatment
and
(B) retaliation under Title VII of the Civil Rights Act of 1964,
42 U.S.C. §§ 2000e, at sag. based on her termination.
The Court
addresses each claim in turn.
A. Discrimination
1. Standard
Title
VII
establishes
that 'Mi]t
shall
be
an
unlawful
employment practice for an employer - (1) . . . to discriminate
against any individual with respect to [her] compensation, terms,
conditions,
or
privileges
individual's race."
of
employment,
42 U.S.C. § 2000e-2(a).
because
of
such
A plaintiff may
establish a discrimination claim under Title VII using direct or
circumstantial evidence.
1266-67 (11th Cir. 1999).
Schoenfeld v. Babbitt, 168 F.3d 1257,
"Direct evidence of discrimination is
evidence, that, ^if believed, proves the existence of a fact in
issue without inference or presumption.'"
Id. at 1266 (quoting
Burrell v. Bd. of Trs. of Ga. Military Coll., 125 F.3d 1390, 1393
(11th Cir. 1997)). "MOjnly the most blatant remarks, whose intent
could be nothing other than to discriminate' on the basis of some
12
impermissible factor" qualify as direct evidence.
Id. {quoting
Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989)).
Here,
Plaintiff
discriminatory
discrimination.
remarks
does
not
argue
constituting
anyone
direct
made
evidence
blatant
of
race
On its own review, the Court also finds no direct
evidence.
Thus, Plaintiff's case relies solely on circumstantial
evidence.
When a plaintiff relies solely on circumstantial
evidence to support her claim, courts employ the burden shifting
framework set forth in McDonnell Douglas Corp. v. Green.
411 U.S.
792, 802-04 (1973).
Under the McDonnell Douglas framework, a plaintiff must first
establish a prima facie case of a Title VII violation. St^—Mary s
Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
A plaintiff makes
a prima facie case of race discrimination by showing by a
preponderance of the evidence that she (1) ^^is a member of a
protected racial class," (2) ^'was qualified for the position,
(3) ''experienced an adverse employment action," and (4) "was
replaced by someone outside of [her] protected class or received
less favorable treatment than a similarly situated person outside
of [her] protected class." Flowers v. Troup Cty. Sch. Dist., 803
F.3d 1327, 1336 (11th Cir. 2015). "The burden of proving a prima
facie case is not onerous." Watson v. Fort Worth Bank & Tr., 487
U.S. 977, 986 (1988) (citation and internal quotation marks
omitted).
Success in establishing a prima facie case creates a
13
rebuttable presumption that the employer acted illegally.
McDonnell Douglas, 411 U.S. at 802.
See
''The burden then must shift
to the employer to articulate some legitimate, nondiscriminatory
reason for the [termination]."
Id.
The employer's burden is an
"exceedingly light" one of production, not persuasion, which means
the employer "need only produce evidence that could allow a
rational fact finder to conclude that [the plaintiff s] discharge
was not made for a discriminatory reason."
Standard v. A.B.E.L.
Servs., Inc., 161 F.3d 1318, 1331 (11th Cir. 1998); Meeks v.
Comput. Assocs. Int'l, 15 F.3d 1013, 1019 (11th Cir. 1994).
If
the employer meets this burden, the burden shifts back to the
plaintiff who can only avoid summary judgment by presenting
^^significantly probative" evidence that the proffered reasons are
pretextual.
Young v. Gen. Foods Corp., 840 F.2d 825, 829 (11th
Cir. 1988) (quoting Anderson, 477 U.S. at 249-50).
2. Prima Facie Case
The Court assumes Plaintiff meets the first three prongs of
her prima facie case.
The remaining issue is whether there is
evidence in the record showing by a preponderance of the evidence
that similarly situated comparators were treated more favorably
than Plaintiff by the same decision makers.^ Comparator evidence
is the most common mechanism for satisfying the
^ There is no evidence on who, if anyone, replaced Plaintiff.
14
similarly
situated" requirement.
See Lewis v. City of Union City, 918 F.3d
1213, 1217 {11th Cir. 2019) (citing Tex. Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248, 258-59 (1981)) (''similarly situated" means
a "comparator"). To be an adequate comparator, the employees must
be "similarly situated in all material respects."
Id. at 1224.
The comparator analysis allows the Court to grant summary judgment
when the evidence does not "permit a valid inference that invidious
discrimination is afoot."
Id. at 1229.
Plaintiff's only comparator evidence is that two white women,
Katherine Hyer and Christine McLeod, were both "given the option
to either
resign or
be terminated
and
receive
unemployment
benefits" and "[n]either of these two individual s personal
belongings were searched upon termination/resignation.
(PI. s
Resp. Opp'n Def.'s Mot. for Summ. J., st 5.) Other than her own
statements. Plaintiff offers no evidence supporting her assertion
that these two women were treated differently.®
More importantly,
however, there is no evidence in the record showing that Ms. Hyer
and Ms. McLeod were similarly situated to Plaintiff in all material
respects.
In the disciplinary context, the relevant inquiry is "whether
the employees are involved in or accused of the same or similar
conduct and are disciplined in different ways." Hill v. SunTrust
® The Court need not decide whether the differential treatment Plaintiff states
Ms. Hyer and Ms. McLeod received qualifies as more favorable treatment.
15
Bank, 720 F. App'x 602, 606 {11th Cir. 2018) (citation omitted).
There must be enough evidence in the record for a reasonable juror
to find by a preponderance of the evidence that Ms. Hyer and Ms.
Mcleod "engaged in the same basic conduct (or misconduct) as
[Plaintiff]."
issues
Lewis, 918 F.3d at 1227.
Plaintiff engaged
in
included
Here, the performance
unexcused
absences and
tardies and unprofessional behavior. Thus, there must be evidence
in the record showing that the alleged comparators engaged in the
same basic conduct.
Defendant points to the absence of evidence showing Ms. Hyer
or Ms. McLeod "exhibited any performance issues at all, much less
in the same quantity as [Plaintiff]." (Def.'s Reply Supp. Def.'s
Mot. for Summ. J., Doc. 45, at 6.)
Plaintiff fails to offer any
evidence to the Court showing that Ms. Hyer and Ms. McLeod
exhibited any performance issues.
The only mention of either
termination is found in Plaintiff s deposition where she states
she thinks Ms. McLeod was terminated because "she wasn't very good
at foreseeing. what [Ms. Elle] needed."
24.)
(Pl.'s Dep., at 101:16-
Without evidence showing Ms. Hyer and Ms. McLeod engaged in
similar conduct or misconduct as Plaintiff, the Court finds Ms.
Hyer and Ms. McLeod cannot be Plaintiff's comparators.
16
As such.
Plaintiff's disparate treatment claim fails at the prima facie
stage.
In addition, by failing to submit opposition to Defendant's
statement of undisputed material facts, as required by the Local
Rules, Plaintiff has admitted that ''[b]ased on her consistent
performance issues over a prolonged period of time, [Ms.] Elle
made the decision to terminate [Plaintiff] for failure to perform
her required job duties."
{Def.'s St. of Mat. Facts, 5 81; see
also Diaz v. Kaplan Univ., No. 08-60368-CIV, 2009 WL 7226980, at
*7 (July 1, 2009), aff'd, 394 F. App'x 631 (11th Cir. 2010). Thus,
Plaintiff admits that she was terminated not because of her race
but her performance issues. The Court ends its disparate treatment
analysis at the prima facie stage and grants Defendant's motion
for summary judgment as to Plaintiff's disparate treatment claim.
B. Retaliation
1. Standard
The McDonnell Douglas burden-shifting analysis also applies
•to retaliation claims that depend on circumstantial evidence,
requiring a plaintiff to establish a prima facie case.
Knott v.
DeKalb Cty. Sch. Sys., 624 F. App'x 996, 997 (11th Cir. 2015)
(citing Bryant v. Jones, 575 F.3d 1281, 1307 (11th Cir. 2009)).
To establish a prima facie case of retaliation, a plaintiff must
There is also insufficient evidence in the record to establish a "convincing
mosaic" of race discrimination.
17
put evidence in the record showing
she engaged in an activity
protected under Title VII; (2) she suffered an adverse employment
action; and (3) there was a causal connection between the protected
activity and the adverse employment action." Crawford v. Carroll/
529 F.3d
961, 970 (11th
Plaintiff's
termination
Cir. 2008).
constitutes
It is
an
undisputed that
adverse
action.
Plaintiff's claim, however, fails as a matter of law because she
did not engage in protected activity.
Plaintiff's retaliation claim is premised on the ''opposition
clause"
of
Title
VII's
anti-retaliation
provision,
which
"prohibits retaliation when an employee 'opposes any practice made
an unlawful employment practice by Title VII.'" Howard v. Walgreen
Co., 605 F.3d 1239, 1244 (11th Cir. 2010) (quoting 42 U.S.C.
§ 2000e-3(a)).
When an employee opposes an employer's unlawful
employment practice, she engages in protected activity.
U.S.C. § 2000e-3(a).
Id,, 42
Because it is unclear if Plaintiff engaged
in protected activity, the Court begins by examining potential
instances of opposition to an unlawful employment practice.
2. Potential Instances of Opposition
Plaintiff states she "complained of 'discrimination' directly
to . . . Kim Elle, Amy Palowitch[,] and Jill Schepp." (Pl.'s Resp.
Opp'n Def.'s Mot. for Summ. J., at 10.)
The alleged complaints
occurred at meetings on November 9, 2015, and December 21, 2015.
(Id.)
In brief. Plaintiff fails to elaborate what actions she
18
complained of, the adverse employment effects of those actions, or
how those actions were motivated by race.
Plaintiff states only
that because ^'both were verbal complaints," they ^'indeed fall under
protected activity."
A
(Id. at 10-11.)
verbal complaint is
protected
activity only
when its
substance opposes employment practices made unlawful by Title VII.
Howard,
605
F.3d
at
1244.
Therefore,
it is irrelevant to
Plaintiff's retaliation claim that she complained she was treated
differently because she raised concerns about the organization's
finances, vocalized her feeling that she was being pushed out
because Ms. Palowitch and Ms. Schepp were good friends, or pressed
charges after her termination. (Pl.'s Resp. Opp'n Def.'s Mot. for
Summ. J., at 12.)
Similarly, Plaintiff conclusively stating in
brief that she complained about discrimination is insufficient to
establish a prima facie case of retaliation, especially in this
case where Plaintiff repeatedly uses ^discrimination" to refer to
perceived unfair treatment not based on her race.
Sifting through Plaintiff's deposition, the Court finds two
situations where Plaintiff mentions differential treatment because
of race.
First, during the November 9, 2015 meeting Plaintiff
told Ms. File:
[I]f I would have interacted with Amy, who is a white
woman, the way she's doing with me, the way she did with
me over the phone, the way she did with me through text
messages, through voicemails and the way she was
carrying on in this office right now, I would be
19
immediately fired.
I'm not given — I would not have
been given the same latitude to act out like that.
Second, during the December 21, 2015 meeting. Plaintiff complained
to Ms. Schepp that she ^Vas still being left out of meetings,"
^Mt]here was virtually no communication," and she "was still being
sent [Ms. Schepp and Ms. Palowitch's] work to do."
at 183:15-25.)
(Pl.'s Dep.,
In deposition. Plaintiff states she felt she was
being treated differently because she was black. Because Plaintiff
is the non-movant and the facts are unclear, the Court assumes
Plaintiff told Ms. Schepp her suspected reason for the differential
treatment.
When asked for examples of how she was treated
differently. Plaintiff provided only one example, which was that
she was assisting in "prepping for [the] end-of-year reports" but
was then removed from the project until later getting "pulled back
in because they couldn't get it done on time." (Id. at 184:5-22.)
Plaintiff, more generally,, then stated she told Ms. Schepp that
she felt like she was "being treated like a slave" because she was
"getting all of the . . . work dumped on [her]" but not getting
the credit.
Now that the Court has uncovered two potential instances where
Plaintiff complained she was treated differently because of her
race, the Court analyzes whether Plaintiff s complaints amount to
protected activity.
20
3. Protected Activity
To show engagement in a protected activity at the prima facie
stage,
''a
plaintiff
need
not
prove
that
the
underlying
discriminatory conduct that she opposed was actually unlawful."
Knott, 624 F. App'x at 997. A plaintiff, however, only establishes
a prima facie case ^^if [s]he shows that [s]he had a good faith,
reasonable
employment
belief that the
practices."
employer
Little
v.
was engaged
United
in
Techs.,
Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997).
unlawful
Carrier
As stressed
by the Eleventh Circuit:
It is critical to emphasize that a plaintiff's burden
under this standard has both a subjective and an
objective component.
A plaintiff must not only show
that [s]he subjectively (that is, in good faith)
believed that h[er] employer was engaged in unlawful
employment practices, but also that h[er] belief was
objectively reasonable in light of the facts and record
presented.
id. (emphasis in original).
Even if Plaintiff subjectively believed she was discriminated
against, her belief was not objectively reasonable because a race
discrimination claim under Title VII requires (a) an adverse action
(b) based on an employee's race. Maynard v. Bd. of Regents of the
Div. of Univs. of Fla. Dep't of Educ. ex rel. Univ. of S. Fla.,
342 F.3d 1281, 1288-89 (11th Cir. 2003).
21
a. Adverse Employment Action
Because discrimination requires an adverse employment action,
opposition requires an objectively reasonable belief that the
employer's conduct resulted in such an adverse action. If not, it
cannot
be
objectively
discriminated.
reasonable
to
believe
the
employer
''Not all employer actions that negatively impact
an employee qualify as adverse employment actions. . . . Rather,
only those employment actions that result in a serious and material
change in the terms, conditions, or privileges of employment will
suffice." Howard, 605 F.3d at 1245 (internal citations, quotation
marks, and emphasis omitted). A material change includes "hiring,
firing, failing to promote, reassignment with significantly
different responsibilities or a decision causing a significant
change in benefits." Williams v. Ga. Stevedore Ass'n, No. CV411284, 2014 WL 1319366, at *3 (S.D. Ga. Mar. 28, 2014) (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (1998)).
The key is whether there is evidence of some adverse effect on the
employment status or benefits. Compare Akins v. Fulton Cty., 420
F.3d 1293, 1301 (11th Cir. 2005) (finding "unwarranted reprimands,
a negative work evaluation, threat of job loss . . . , threat of
suspension without pay, exclusion from meetings, [and] removal of
job duties (followed by reprimands for not completing that work),"
"[e]ven when considered in the aggregate," were not adverse), with
Wideman v. Wal-Mart Stores, Inc., 141 F.3d 1453, 1455, 1456 (11th
22
Cir. 1998) {finding incorrectly listing employee as a no-show when
not scheduled for work, suspending employee, soliciting negative
comments
about
employee
for
employee
work,
and
from
coworkers,
delaying
failing
authorization
to
of
schedule
medical
treatment, collectively, were adverse because they would affect
her compensation, employment status, and benefits). Actions that
reasonably lead to consequences such as reduced pay, a smaller
raise than the employee would otherwise receive, or suspension of
incentives are generally considered materially adverse.
Edwards
V. Nat'l Vision, Inc., 568 F. App'x 854, 862 (11th Cir. 2014).
Plaintiff's first alleged opposition, in the November 9, 2015
meeting, can be viewed through two lenses — either Ms. Palowitch
was not reprimanded because she was white or Ms. Palowitch was
allowed to reprimand Plaintiff because Plaintiff was black. Either
way, no evidence indicates that Ms. Palowitch's comments to
Plaintiff
resulted
in
any
adverse
effect
on
Plaintiff's
employment. See Witt v. Franklin Cty. Bd. of Educ., No. 3.14 CV
01395-AKK, 2014 WL 7330862, at *3 (N.D. Ala. Dec. 19, 2014).
Plaintiff's second alleged opposition was that she was left out of
meetings, given the work of others, taken off projects, and not
given credit for what she did.
There is no evidence that these
actions adversely affected Plaintiff's employment.
Edwards,
568 F. App'x at 862 (finding being assigned "more patients than
other employees," among other things, was not evidence that
23
employee ''was materially and adversely affected; for example, she
did
not
Because
indicate
there
is
that
she
suffered
no evidence
a
allowing
decrease
a
in
salary.").
reasonable
person
to
believe Plaintiff's employment was adversely affected. Plaintiff's
complaints do
not
amount to
protected
activity.
As such,
Plaintiff's retaliation claim fails as a matter of law.
b. Based on a Protected Class
Even
if it
was
reasonable
for
Plaintiff
to
believe
she
experienced an adverse employment action, it is not objectively
reasonable for Plaintiff to believe such decisions were based on
her race.®
Plaintiff admits she has no evidence that she was
treated differently because of her race.®
at 144:22-25.)
(See, e.g., Pl.'s Dep.,
When asked why Plaintiff felt she would have been
treated differently if she had engaged in the same behavior as Ms.
Palowitch, she said, "[T]hat's what I felt because . . . she
8 Once within her brief Plaintiff states she complained to Ms. Schepp about the
"hostile work environment." (Pl.'s Resp. Opp'n Def.'s Mot. for Summ. J., at
10.)
Even if Plaintiff's complaints to her superiors could be considered
complaints of a hostile work environment, she must still show that the
unwelcomed conduct was based on Plaintiff's race. See Shockley v. Barbee, 747
F. App'x 754, 756-57 (11th Cir. 2018) (citing Mendoza v. Borden, Inc., 195 F.3d
1238, 1245, 1245 n.4 (11th Cir. 1999) (en banc)). For the same reasons discussed
within this section, there is insufficient evidence in the record for an
objectively reasonable person to find the unwelcomed conduct was a result of
Plaintiff's race. Consequently, even if Plaintiff opposed what she subjectively
believed was a hostile work environment, any opposition does not equate to
protected activity.
9 Throughout her deposition. Plaintiff also explains she believed Ms. Palowitch
and Ms. Schepp were trying to push her out not because of her race, but because
they "had become very good friends." (See, e.g., Pl.'s Dep., at 144:6-21.)
Even if true, "favoritism, unfair treatment[,] and unwise business decisions do
not violate Title VII unless based on a prohibited classification." Sherk v.
Adesa Atlanta, LLC, 432 F. Supp. 2d 1358, 1370 (N.D. Ga. 2006) (quoting Tak^
V. Okla. Corp. Comm'n, 125 F.3d 1366, 1370 (10th Cir. 1997)).
24
started the meeting out telling me I was being full of drama."
(Id. at 161:3-16.)
The only evidence Plaintiff offers in an
attempt to show she was treated differently because of her race,
then, is that Ms. Elle said Plaintiff was starting drama.
Without
more, this cannot support an objectively reasonable belief that
Plaintiff was discriminated against because of her race. See Coutu
V. Martin Cty. Bd. of Cty. Comm'rs, 47 F.3d 1068, 1074 (11th Cir.
1995) (holding plaintiff did not engage in protected activity
because he ^^made no allegation and offered no proof of race or
national origin discrimination"); Diamond v. Morris, Manning &
Martin, LLP, 457 F. App'x 844, 846 (11th Cir. 2012) (finding
employee's belief she was discriminated against because of her
race objectively unreasonable because employee offered no evidence
that employees outside her race were treated differently).
Consequently, Plaintiff's complaint of retaliation fails as a
matter of law.^o
The Court grants Defendant's motion for summary
judgment as to Plaintiff's retaliation claim.
IV. CONCLUSION
For the foregoing reasons, the motion (Doc. 40) is GRANTED.
Accordingly, the Clerk is directed to ENTER JUDGMENT in favor of
10 Furthermore, because Plaintiff failed to oppose Defendant's statement of
undisputed material facts, Plaintiff admits she was terminated because of her
performance issues and not her alleged opposition. (Def.'s St. of Mat. Facts,
f 81); see also Diaz, 2009 WL 7226980, at *7.
25
Defendant on all of Plaintiff's claims, TERMINATE all other pending
motions, if any, and CLOSE this case.
ORDER ENTERED at Augusta, Georgia, this ///^day of February,
2020.
UNITED ^ATES DISTRICT COURT
-SQimiEm DISTRICT OF GEORGIA
26
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