Woodward v. Jim Hudson Luxury Cars, Inc.
Filing
41
ORDER granting in part and denying in part 22 Motion for Summary Judgment. Defendant's motion is granted as to Plaintiff's claims for age discrimination, retaliation, hostile work environment, intentional infliction of emotional distress , disability discrimination related to her alleged demotion, and gender discrimination related to her alleged demotion. Plaintiff's remaining claims under the ADA and Title VII shall proceed to trial in due course. Signed by Chief Judge J. Randal Hall on 9/30/2019. (pts)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
*
VICKIE WOODWARD,
*
*
Plaintiff,
■k
*
V.
CV
118-032
*
JIM HUDSON LUXURY CARS, INC.,
5
Defendant.
ORDER
Before the Court is Defendant's motion for summary judgment.
(Doc. 22.)
In this action, the Clerk of Court gave Plaintiff
notice of the motion for summary judgment and informed her of the
summary judgment rules, the right to file affidavits or other
materials in opposition, and the consequences of default.
23.)
(Doc.
Thus, the notice requirements of Griffith v. Wainwright, 772
F.2d 822, 825 (11th Cir. 1985) (per curiam), are satisfied.
The
time for filing materials in opposition has expired, and the motion
is ripe for consideration.
I. BACKGROUND
Plaintiff, Vickie Woodward, began working for Defendant, Jim
Hudson Luxury Cars, Inc., on March 10, 2014.
(Def.'s St. of Mat.
Facts,
Doc. 22-5, ^ 1.)^
At the outset.
Defendant employed
Plaintiff as a service advisor in the new car service department
at its Lexus store.
(Id.)
The following year. Defendant promoted
Plaintiff to Assistant Service Manager.
(Id. ^ 2.)
A. Plaintiff s Transfer from New to Used Car Center
In August 2015, Plaintiff received a breast cancer diagnosis
and informed Defendant in September 2015 that she required leave
to undergo a double mastectomy.
27-1,
6, 7.)
Marcus
Wideman,
(Pl.'s St. of Mat. Facts, Doc.
Upon learning of Plaintiff's forthcoming surgery,
Defendant's
Service
Manager,
commented
to
Plaintiff that he wanted to ''hug the girls" before Plaintiff's
operation. (Pl.'s St. of Mat. Facts, 1 8.) Following Plaintiff's
disclosure of her diagnosis to Defendant's General Manager, Bill
Gibbs, Mr. Gibbs made the decision to relocate Plaintiff from the
new car service center to the used car service center.
(Def.'s
St. of Mat. Facts, SI 9; Pl.'s St. of Mat. Facts, SISI 2, 11.)
Mr.
Gibbs instructed Mr. Wideman to inform Plaintiff of the transfer.
(Pl.'s St. of Mat. Facts, S[ 11.)
Although the Parties seemingly
disagree to some degree on the date of the transfer, it occurred
sometime between October 1, 2015, and October 5, 2015.
(Def.'s
St. of Mat. Facts, SI 9; Pl.'s St. of Mat. Facts, SI 17.)
^ The Court's citation to Defendant's Statement of Undisputed Material Facts or
Plaintiff's Statement of Disputed Material Facts indicates the statement is
undisputed unless otherwise noted.
The
Parties
dispute the implications of and
reasons for
Plaintiff's employment move. According to Plaintiff, the transfer
equated
to
a
demotion
in
terms
of
reputation,
prestige,
compensation, and duties and Defendant demoted her because of her
cancer diagnosis and requested leave.
(Id. SI 10; Woodward Dep.,
Doc. 22-2, at 278:1-14, 279:21-280:19, 295:4-24; Pl.'s Resp. to
Def.'s St. of Mat. Facts, Doc. 27-3, SI 17 (citing Woodward Dep.,
Doc. 22-2, at 274:17-276:7).)
Defendant, on the other hand,
disagrees with Plaintiff's classification of the transfer as a
demotion
because
she
operated
under
the
same title
and
she
experienced no reduction in pay. (Def.'s St. of Mat. Facts, SI 11;
Hooks Aff., Doc. 22-1, SI 9.) Furthermore, Defendant provides three
reasons for the transfer, none of which involve Plaintiff s cancer
diagnosis: (1) the used car service center had no managers and
needed Plaintiff's experience; (2) Defendant recently transferred
the top service advisor in the new car service department to the
used car service department resulting in a negative impact on
Plaintiff's commissions; and (3) conflict between Plaintiff and
Mr. Wideman caused a drop in morale and customer service scores in
the new car service department.
(Id. SISI 5-7.)
Plaintiff disputes
the legitimacy of each of Defendant's reasons for the transfer.
(Pl.'s Resp. to Def.'s St. of Mat. Facts, SISI 17-19.)
B. Plaintiff's Leave
Plaintiff
went
on
leave
returned December 15, 2015.
effective
October
21,
2015,
and
(Def.'s St. of Mat. Facts, SISI 29-30.)
Post surgery, chemotherapy side effects forced Plaintiff to take
additional
leave
beginning
January
12,
2016.
(Id.
SI 36.)
Plaintiff stated she needed leave extending until July 1, 2016,
however, her twelve weeks of Family and Medical Leave Act leave
expired February 15, 2016.
(Id. SISI 37, 39)
At that point.
Defendant granted Plaintiff fourteen weeks of additional leave
under Defendant's company policy.
Angela
Hooks,
Defendant's
(Id. SI 41)
Controller
and
On May 25, 2016,
Director
of
Human
Resources, mailed Plaintiff to inform her that she had exhausted
her discretionary leave and her "eligibility to participate in
[Defendant's]
employee . . .
group
health
plan
as
[would] end[]" on May 31, 2016.
an
active
(I^ SI 44; May
25, 2016 Letter, Doc. 22-1, at 15.)
Plaintiff did not immediately respond to Ms. Hooks's letter
but subsequently informed Defendant that she received medical
clearance to return to work on July 18, 2016.
(Def.'s St. of Mat.
Facts, SI 45; Pl.'s Resp. to Def.'s St. of Mat. Facts, SI 45;
Woodward Dep., at 286:22—287:5; Medical Clearance, Doc. 22-2, at
130.)
During Plaintiff's leave. Defendant demolished the used car
service center to construct a new dealership building.
Aff.,
SI 24.)
On
July
18,
2019,
Plaintiff
returned
(Hooks
to
the
dealership. (Def.'s St. of Mat. Facts, SI 46; Pl.'s Resp. to Def.'s
St. of Mat. Facts, SI 46.)
Plaintiff met with Warren Spooner,
Manager of the former used car service center and current ^'Lot 3."
(Def.'s St. of Mat. Facts, SI 47; Hooks Aff., SI 25.)
Mr. Spooner
asked Plaintiff to return the following week to allow him time to
work on a position for her.
(Pl.'s St. of Mat. Facts, SI 31.)
Ms.
Hooks, however, intervened and asked Plaintiff to return the
following day, July 19, 2016.
(Pl.'s St. of Mat. Facts, SI 33.)
C. The Social Media Pos-ts
Defendant received an email sometime around July 11, 2016,
enclosing a posting Plaintiff allegedly made, associated with her
Facebook profile, on an online article. (Def.'s St. of Mat. Facts,
SI 51; Pl.'s St. of Mat. Facts, SI 37; Social Media Emails, Doc. 22-
2, at 131-32, 172-74.)
The post appears to include Plaintiff's
name. Plaintiff's place of employment, and the message: ''HANDS UP;
THEY WON'T SHOOT!! ! Maybe white people understand proper English
and simple direction better."
172-74.)
(Social Media Emails, at 131-32,
The record also contains three relevant social media
posts allegedly made by current and former employees of Defendant.
First, Mr. Spooner purportedly posted a meme that states, in
part, "all lives matter" and "put your race card away." (Spooner
Post, Doc. 22-2, at 159.)
Second, Mark Licklider posted an image
on his Facebook page containing the caption, "It's not about color.
It's about the law."2
(Licklider Post, Doc. 22-2, at 161.)
Third,
Charles Cook posted an image depicting a Confederate flag and black
men with sagging pants.
The caption above the flag reads ^^this
does not offend me" and below the men read ^'but this bullshit
does."
(Cook Post, Doc. 22-2, at 171.)
D. Plaintiff's Termination
Plaintiff returned to the dealership on July 19, 2016, and
met with Karyn Heimes, Defendant's Chief Financial Officer, and
Ms. Hooks.
(Def.'s St. of Material Facts, SI 52.)
According to
Defendant, at this meeting, Ms. Heimes and Ms. Hooks informed
Plaintiff that her employment was terminated because her position
no longer existed. (Hooks Aff., SI 26.)
Further, Defendant claims
Ms. Heimes and Ms. Hooks notified Plaintiff that her online post
made her ineligible for rehire.
(Id.)
Plaintiff recalls that Ms.
Heimes and Ms. Hooks told her that she was terminated in light of
her online post but said nothing about her eligibility for rehire.
(Woodward
Dep.,
187:23-188:4,
299:11-20.)
At
that
point.
Plaintiff was presented a severance agreement that she refused to
sign.
(Severance Agreement, Doc. 22-2, at 133-35; July 27, 2016
Email, Doc. 22-2, at 136.)
2 In her deposition, Plaintiff discussed another of Mr. Licklider's Facebook
posts involving the same subject matter. (Woodward Dep., at 337:1—338:18.)
Based on the conclusions herein regarding Mr. Licklider as a comparator, the
Court need not analyze the second post in detail.
E. Equal Employmen't Oppor'tunity Commission
Plaintiff sent the United States Equal Employment Opportunity
Commission
C'EEOC") an unverified letter, dated April 1, 2016,
stating she was discriminated against based on her gender and
disability.
(April 1, 2016 Letter, Doc. 22-2, at 142.)
The EEOC
responded with a letter on July 13, 2016, informing Plaintiff the
April 1, 2016 letter contained insufficient information.
13, 2016 Letter, Doc. 22-2, at 144.)
(July
The letter enclosed a
questionnaire and informed Plaintiff that if she did not respond
within thirty days of receiving the July 13, 2016 letter, the EEOC
would conclude a lack of intent to file a charge of discrimination.
(Id.)
Plaintiff completed the questionnaire, signed it, and dated
it August 3, 2016.
(EEOC Questionnaire, Doc. 22-2, at 146-52.)
The questionnaire depicts an intake stamp dated October 17, 2016.
(Id. at 145.)
The EEOC then sent Plaintiff a Form 5 charge, which
Plaintiff signed and dated February 7, 2017.
Doc. 22-2, at 153.)
(EEOC Form 5 Charge,
The EEOC received the completed Form 5 on
February 15, 2017, and following investigation, the EEOC notified
Plaintiff of its dismissal and Plaintiff's right to sue.
to Sue, Doc. 22-2, at 154-58.)
on February 15, 2018.
(Right
Plaintiff filed the present action
(Compl., Doc. 1.)
II. SUMM2^Y 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 [substantive] 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., 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-moving party'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.
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)
(citing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970); Celotex
Corp., 477 U.S. 317). The movant cannot satisfy its initial burden
by merely declaring that the non-moving party cannot meet its
burden at trial.
Id. at 608.
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 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 was ^dverlooked or ignored" by the movant
or ^dome forward with additional evidence sufficient to withstand
a directed verdict motion at trial based on the alleged evidentiary
deficiency."
Id. at 1116—17.
The non-movant cannot carry its
burden by relying on the pleadings or by repeating conclusory
allegations contained in the complaint.
F.2d 1032, 1033-34 (11th Cir. 1981).
See Morris v. Ross, 663
Rather, the non-movant must
respond with affidavits or as otherwise provided by Federal Rule
of Civil Procedure 56.
In reaching its conclusions herein, the
Court has evaluated the Parties' briefs, other submissions, and
the evidentiary record in this case.
III. DISCUSSION
Defendant initially asserts that Plaintiff's late-filed EEOC
charge, dated February 7, 2017, time-bars her Title VII and ADA
claims.
Plaintiff claims that her initial letter to the EEOC,
dated April 1, 2016, constitutes a charge making all claims timely.
The Court addresses the Parties' competing arguments.
A. Timing of EEOC Charge
''It is settled law that, under the ADA, plaintiffs must comply
with the same procedural requirements to sue as exist under Title
VII."
Zillyette v. Capital One Fin. Corp., 179 F.3d 1337, 1339
(11th Cir. 1999).
"Prior to filing a Title VII action, . . . a
plaintiff must first file a charge of discrimination with the
EEOC."
Gregory v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279
(11th Cir. 2004) (per curiam).
42 U.S.C. § 2000e-5(e)(1) requires
the plaintiff to file the charge within 180 days after the alleged
10
unlawful employment practice occurred.
Ledbetter v. Goodyear Tire
& Rubber Co., 421 F.3d 1169, 1178 (11th Cir. 2005) (''Under . . . 42
U.S.C. § 2000e-5(e)(1), only those 'unlawful employment practices'
that are complained of in a timely-filed charge of discrimination
to
the
EEOC
can
form
the
basis
for
Title
VII
liability.");
Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)
(noting that as a non-deferral state, Georgia has a 180-day
deadline); see also 42 U.S.C. § 12117(a) (applying procedures set
forth in section 2000e-5 to ADA actions). The practice "'occurred'
on the day it 'happened.'"
Ledbetter, 321 F.3d at 1179 (quoting
Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002)).
"[D]iscrete
acts
of
discrimination"
such
as
"termination, failure to promote, denial of transfer, or
refusal to hire" are easy to identify, and each
"constitutes a separate actionable 'unlawful employment
practice.'" . . .
Because
each
is
an
identifiable
violation of Title VII, "each discrete discriminatory
act starts a new clock for filing charges alleging that
act.
"
Id. (quoting Morgan, 536 U.S. at 114).
Courts in this circuit
have interpreted demotion, reduction in pay, and termination as
discrete acts of discrimination.
See, e.g., Fenderson v. Ala. Bd.
of Pardons & Paroles, No. 2:13cv51-CSC, 2014 WL 1017805, at ^IS—
14 (M.D. Ala. Mar. 17, 2014); Nzundu-Andi v. NCO Fin. Sys., Inc.,
No. 1:09-CV-2138-CAP-JFK, 2009 WL 10701239, at *3 n.2 (N.D. Ga.
Dec. 14, 2009); Thomas v. Ala. Council on Human Relations, Inc.,
248 F. Supp. 2d 1105, 1115 (M.D. Ala. 2003).
11
Therefore, the Court
must analyze Plaintiff's filings with the EEOC and determine
whether
Plaintiff
filed
a
timely
charge
for
each
discrete
employment action.
''A charge shall be in
verified."
writing and signed
29 C.F.R. § 1601.9.
and shall be
In addition, a ''charge should
contain": (1) "The full name, address and telephone number of the
person making the charge"; (2) "The full name and address of the
person against whom the charge is made"; (3) "A clear and concise
statement of the facts, including pertinent dates, constituting
the alleged unlawful employment practices"; (4) "If known, the
approximate number of employees of the respondent employer"; and
(5) "A statement disclosing whether proceedings involving the
alleged unlawful employment practice have been commenced before a
State . . . agency." 29 C.F.R. § 1601.12. The EEOC enjoys "broad
discretion to determine in what form a charge must come and what
information it must contain."
Wilkerson, 270 F.3d at 1318.
The
burden of establishing a timely filed charge of discrimination
falls on the plaintiff. Jordan v. City of Montgomery, 283 F. App'x
766, 767 (11th Cir. 2008) (per curiam) (citing Jackson v. Seaboard
Coast Line R.R. Co., 678 F.2d 992, 1010 (11th Cir. 1982)).
Although the requirement that a plaintiff file a charge with
the EEOC prior to filing a lawsuit is not jurisdictional. Fort
Bend Cty. v. Davis, 139 S. Ct. 1843, 1850 (2019), "the filing of
a charge of discrimination with the EEOC is a condition precedent
12
to the bringing of a civil action under Title VII."
Sanchez v.
Standard Brands, Inc., 431 F.2d 455, 460 {5th Cir. 1970).
Keeping
the foregoing in mind, it is well-established in the Eleventh
Circuit that courts are "extremely reluctant to allow procedural
technicalities to bar claims brought under Title VII."
Gregory,
355 F.3d at 1280.
1. Demotion and Reduction in Pay Charge
The Court begins by analyzing when Plaintiff s charge was
filed.
Plaintiff contends her letter to the EEOC on April 1, 2016,
constitutes a timely filed charge and all amendments relate back
to that date.
(Resp. Opp'n Mot. for Summ. J., Doc. 27, at 13.)
Plaintiff continues that to the extent the April 1, 2016 letter
failed to constitute a timely-filed charge, her failure to execute
the necessary changes within the requisite time was not due to her
inaction, and therefore, the time to properly file the charge
should be tolled from the submission of the letter.
Opp'n Mot. for Summ. J., Doc. 33, at 4.)
(Sur-Reply
According to Plaintiff,
her demotion occurred on October 1, 2015.
Therefore, a timely
filed charge for that claim must have been filed, at the latest,
on April 1, 2016.
In light of the Supreme Court and Eleventh
Circuit's holdings that the absence of a timely charge is not
jurisdictional and for the reasons set forth in Section III(C)(1),
infra, the Court need not decide whether the April 1, 2016 letter
satisfies the charge requirement.
13
2. Termination Charge
The
Court
must,
however,
address
the
timeliness
of
Plaintiff's EEOC charge encompassing her claims related to her
termination.
Defendant argues that Plaintiff filed her EEOC charge
on February 7, 2017, the date Plaintiff executed her EEOC Form 5
to perfect the charge.
at 13.)
{Br. Supp. Mot. for Summ. J., Doc. 22-4,
Under Defendant's theory, because February 7, 2017, is
more than 180 days from the last possible date of Plaintiff's
termination. Plaintiff s Title VII and ADA claims related to her
termination are barred.
The Court, however, disagrees.
Although
the Court refrains from deciding the validity of the April 1, 2016
letter. Plaintiff timely filed her charge as to the termination
claims with later submissions.
The EEOC replied to Plaintiff's April 1, 2016 letter with a
letter dated July 13, 2016, informing Plaintiff that the April 1,
2016 letter provided insufficient information and enclosed a
questionnaire.
Plaintiff completed the questionnaire, signed it,
and dated it August 3, 2016.
Although the April 1, 2016 letter
only dealt with Plaintiff s alleged demotion, the questionnaire
referred to her termination on July 19, 2016.
The EEOC stamped
the questionnaire received on October 17, 2016.
Even assuming the
charge was not filed until October 17, 2016, the filing on October
17, 2016, is within 180 days of all possible termination dates.
14
Accordingly, if the completed questionnaire constitutes a charge,
the Title VII and ADA termination claims may proceed.
Pursuant to 29 C.F.R. § 1601.6(a), ''Where the information
discloses
that
a
person
is
entitled
to
file
a
charge,
the
appropriate officer shall render assistance in the filing of a
charge."
The Eleventh Circuit previously held that an intake
questionnaire
does
not
necessarily
constitute
a
charge.
Pijnenburg v. West Ga. Health Sys, Inc., 255 F.3d 1304, 1306 (11th
Cir.
2001).
Under
the
Eleventh
Circuit's
"manifest-intent
approach," however, an intake questionnaire may serve as a charge
when "the circumstances of [the] case convince a reasonable person
that
[the
plaintiff]
manifested
her
intent
to
activate
the
machinery of Title VII" and the ADA "by lodging her intake
questionnaire with the EEOC."
Wilkerson, 270 F.3d at 1319-20;
Godwin v. Mem'1 Hosp. & Manor, No. 1:15-CV-140 (LJA), 2018 WL
1528204, at *8 (M.D. Ga. Mar. 28, 2018).
Historically, courts
analyze two specific factors in determining whether a plaintiff's
submission to the EEOC constitutes a charge: (1) "The nature of
the information provided in the document"; and (2) "Whether the
EEOC treated the document in question as a 'charge' and acted
accordingly."
Daniels v. Mobile Register, Inc., No Civ.A. 04-
0832-L, 2005 WL 1505856, at *6 (S.D. Ala. June 24, 2005) (citing
Bost V. Fed. Express Corp., 372 F.3d 1233, 1240-41 (11th Cir.
2004); Wilkerson, 270 F.3d at 1319).
15
Evaluating the facts of this case, the Court finds that the
questionnaire constitutes a charge, filed on October 17, 2016, at
the latest.
First, the questionnaire contains all of the required
information of a charge in significant detail and is in writing.
Although the questionnaire does not appear to indicate that it was
verified, the lack of verification does not, itself, doom the
submissions's status as a charge.
A charge may be amended to cure
the failure to verify, and the verification relates back to the
timely filed charge. Butler v. Greif, Inc., 325 F. App'x 748, 749
(llth Cir. 2009) {citing Edelman v. Lynchburq Coll., 535 U.S. 106,
113 (2002); 29 C.F.R. § 1601.12(b)).
Plaintiff subsequently
verified the charge on February 7, 2017, which is deemed to relate
back to the filing of the questionnaire.
Second,
Plaintiff
manifested
administrative process.
bottom
of
the
her
intent to
activate
the
First, the ^^Privacy Act Statement" at the
questionnaire
reads:
^^Consistent
with
29
C[.]F[.]R[.] [§] 1601.12(b) . . . , this questionnaire may serve
as a charge if it meets the elements of a charge."
Questionnaire, at 148.)
intake
questionnaire
discrimination,
and
Second, Plaintiff checked ^^Box 2" of the
stating, "I
I
(EEOC
authorize
want
the
to
EEOC
file
to
a
charge
look
into
of
the
discrimination I described above. I understand that the EEOC must
give
the
employer . . . that
I
accuse
of
information about the charge, including my name."
16
discrimination
(Id.)
Box 2
contrasts Box 1 which states, ''I want to talk to an EEOC employee
before deciding whether to file a charge.
I understand that by
checking this box, I have not filed a charge with the EEOC.
I
also understand that I could lose my rights if I do not file a
charge in time."
information
(Id.)
within
the
A reasonable person could consider this
questionnaire,
along
with
Plaintiff's
supplied information, as Plaintiff manifesting her intent to
activate the administrative
process.
See
Fatz v. Winn-Dixie
Stores, Inc., No. 6:12—cv—1668—Orl—36DAB, 2013 WL 4080330, at *8—
9 (M.D. Fla. Aug. 13, 2013).
Additionally, in
response
to
Plaintiff's April 1,
2016
letter, the EEOC letter informed Plaintiff that 'Mi]f [the EEOC]
do[es] not hear from you within [thirty] days of the receipt of
this letter, we will conclude that you do not want to file a charge
of employment discrimination."
(July 13, 2016 Letter, at 144.)
Based upon the EEOCs language, a reasonable person could conclude
the opposite, that responding with the questionnaire qualifies as
an expression of intent to file a charge. See Wilkerson, 270 F.3d
at 1320-22.
Third,
the
facts
indicate
the
EEOC
treated
the
intake
questionnaire as a request for the EEOC to act, sent the EEOC Form
5 charge to Plaintiff to complete, and notified Defendant of the
charge.
Cf. Clark v. Coats & Clark, 865 F.2d 1237, 1239—41 (11th
Cir. 1989) (finding intake questionnaire constituted a charge when
17
the plaintiff returned the intake questionnaire that the EEOC
supplied within 152 days of termination, the EEOC sent a notice of
charge of discrimination to the plaintiff's employer, and then the
plaintiff signed a formal charge 202 days after his termination).
As
the
Eleventh
Circuit
has
instructed,
courts
are
extremely
reluctant to bar a plaintiff her day in court on the basis of a
technical defect.
Considering this hesitation and the foregoing
information, the Court concludes Plaintiff s intake questionnaire
filed on October 17, 2016, at the latest, met her obligation to
file a timely charge with the EEOC regarding her termination
claims.
B. Abandoned Claims
In her response brief. Plaintiff expressed her intent to
abandon her age discrimination and retaliation claims.
(Resp.
Opp'n Mot. for Summ. J., at 8 n.l.) Plaintiff further acknowledges
she does not assert a
hostile
Therefore,
only
Plaintiff
work environment claim.
proceeds
with
her
(Id.)
disability
discrimination, gender discrimination, intentional infliction of
emotional distress, and attorney's fees claims.
Defendant is
entitled to summary judgment on the abandoned claims.
C. Employment: Actions
Plaintiff argues discrimination contributed to her alleged
demotion and termination.
plaintiff may establish a claim of
illegal disparate treatment through either direct evidence or
18
circumstantial evidence."
1079,
1085
Cir.
either
establish
(llth
her
Wilson v. B/E Aerospace, Inc., 376 F.3d
2004).
Plaintiff
not
discrimination
gender
does
or
discrimination claim using direct evidence.
attempt
to
disability
Disparate treatment
claims relying on circumstantial evidence are generally evaluated
under the framework set forth in McDonnell Douglas Corp. v. Green.
411 U.S. 793, 802-04 (1973).
applies
to
both
gender
The McDonnell Douglas framework
discrimination
and
disability
discrimination disparate treatment claims. Lewis v. City of Union
City, 918 F.3d 1213, 1220 (llth Cir. 2019) (en banc) (gender
discrimination under Title VII); Durley v. APAC, Inc., 236 F.3d
651, 657 (llth Cir. 2000) (disability discrimination under ADA).
Under the McDonnell Douglas framework, a plaintiff must first
establish a prima facie case for the violation.
Ctr. V. Hicks, 509 U.S. 502, 506 (1993).
a prima facie case is not onerous."
St. Mary^s Honor
''The burden of proving
Watson v. Fort Worth Bank &
Tr., 487 U.S. 977, 986 (1988) (citation and internal quotation
marks omitted).
a
rebuttable
Success in establishing a prima facie case creates
presumption
that
the
McDonnell Douglas, 411 U.S. at 802.
employer
acted
illegally.
"The burden then must shift
to the employer to articulate some legitimate, nondiscriminatory
reason for the [adverse employment action]."
burden
is
an
"exceedingly
light"
one
of
Id.
The employer's
"production,
not
persuasion," which means the employer "need only produce evidence
19
that could allow a rational fact finder to conclude that [the
employment action] 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) (citation omitted).
1. Demotion - Gender and Disability Discrimination
Plaintiff alleges that her relocation from the new car service
department to the used car service department was a discriminatory
demotion based upon her gender and disability,
a. McDonnell Douglas Analysis
Under Title VII, "It shall be an unlawful employment practice
for an employer — (1) . . . to discriminate against any individual
with
respect
to
[her]
compensation,
terms,
conditions,
or
privileges of employment, because of such individual's . . . sex."
42
U.S.C.
§ 2000e-2(a).
Additionally,
the
ADA
disallows
"discriminat[ion] against a qualified individual on the basis of
disability in regard to job application procedures, the hiring,
advancement,
or
discharge
of
employees,
employee
compensation, . . . and other terms, conditions, and privileges of
employment." 42 U.S.C. 12112(a).
20
Plaintiff acknowledges that her
claims are for disparate treatment.
Accordingly, the McDonnell
Douglas framework applies.
In her response opposing summary judgment, Plaintiff included
the
elements
to
make
out
disability discrimination.^
14, 17.)
a
prima
facie
case
of
gender
and
(Resp. Opp'n Mot. for Summ. J., at
The requirement that the employer treated '^similarly
situated
employees
outside
of
[her]
protected
class
more
favorably" is recognized as an element of each prima facie case
for disparate treatment.
common
mechanism
requirement.
for
(Id.)
Comparator evidence is the most
satisfying
the
"similarly
situated"
See Lewis, 918 F.3d at 1217 (citing Tex. Dep^ t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 258-59 (1981)) ("similarly
situated" means a "comparator").
Yet, Plaintiff appears to accept
that she cannot point to a proper comparator regarding her alleged
demotion.
Rather than putting forth evidence of a comparator that
was similarly situated and not demoted. Plaintiff argues that she
need not produce comparator evidence to survive summary judgment
and may instead show a "convincing mosaic of circumstantial
evidence."
b. ^^Mixed-Motive'' and ^'Convincing Mosaic" Analysis
3 Plaintiff makes no attempt to argue that her ADA claim is based upon a failure
to accommodate. Accordingly, the Court only evaluates Plaintiff's disability
discrimination claims under the disparate treatment theory that she was demoted
and terminated because of her disability.
21
Because Plaintiff departs from the traditional comparator
analysis, the
Court analyzes
whether the
record
evidences a
^^convincing mosaic of circumstantial evidence that would allow a
jury to infer intentional discrimination by the decisionmaker."
Smith V. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (llth Cir.
2011) (finding a plaintiff can survive summary judgment upon
presenting ^^circumstantial evidence that creates a triable issue
concerning the employer's discriminatory intent").
The ''mixed-
motive" framework requires a plaintiff to show: "(1) The defendant
took an adverse employment action against the plaintiff; and (2)
A
protected characteristic was
a
motivating
factor for the
defendant's adverse employment action." Quigg v. Thomas Cty. Sch.
Dist., 814
F.3d 1227, 1232-33 (llth Cir. 2016) (punctuation
omitted).
A convincing mosaic of circumstantial evidence is
sufficient to survive summary judgment on the motivating factor
element.
See McCarley v. City of Northport, 240 F. Supp. 3d 1242,
1248-49 (N.D. Ala. 2017).
The convincing mosaic theory is not intended to undermine the
usual requirement of an identified comparator.
Turner v. Fla.
Prepaid Coll. Bd., 522 F. App'x 829, 833 (llth Cir. 2013) (per
curiam).
The evidence presented under the "convincing mosaic"
must be sufficient enough "to overcome the lack of comparator
evidence."
Williams
v.
Cleaver-Brooks,
Inc.,
No.
7:11-CV-144
(HL), 2012 WL 6151141, at *8 (M.D. Ga. Dec. 11, 2012); accord Bell
22
V. Crowne Mgmt., LLC, 844 F. Supp. 2d 1222, 1234 (S.D. Ala. 2012)
(^'When a plaintiff cannot draw into question the most obvious
nondiscriminatory
substitute
reason
evidence
must
for
be
unequal
comparably
treatment . . . ,
powerful
in
any
order
to
preserve to the prima facie case its gate-keeping function as
ordained by the Supreme Court.").
"'When an employee raising a
mixed-motive claim solely on remarks that indirectly evidence
discrimination,
the
employee
must
show
that
circumstances
surrounding the remarks create a genuine issue of material fact
that the employer actually relied on her sex or gender in making
its decision."
Quigg, 814 F.Sd at 1241 (internal quotation marks
omitted).
To support her position, Plaintiff directs the Court to a
comment
Mr.
Wideman,
her
immediate
supervisor,
made
before
Plaintiff's relocation: that he wanted to ''hug the girls" before
Plaintiff underwent her double mastectomy as part of her breast
cancer treatment.^
In passing. Plaintiff also refers to numerous
alleged derogatory comments that Mr. Wideman made to Plaintiff
regarding her gender.^
(Resp. Opp'n Mot. for Summ. J., at 17.)
The social media posts at issue are irrelevant to Plaintiff's alleged demotion.
The
evidence
is
that
Defendant
moved
Plaintiff from
the
new
car
service
department to the used car service department effective the first week of
October, 2015.
The evidence shows that Defendant became aware of Plaintiff's
online post on July 11, 2016, and therefore, the social media post could not
have been a factor in Plaintiff's move to the used car service department.
^ Reviewing the record, statements that Mr. Wideman allegedly made referencing
gender include a statement made to a third person that Plaintiff was a "bitch"
{Woodward Dep., at 71:15-72:7), a comment that "if [Plaintiff] kept cooking
like that he could get her pregnant" (id. at 74:4-8), stating that Plaintiff
23
In response, Defendant initially argued that Plaintiff does not
identify a decision maker.
Doc. 31, at 13.)
(Reply Br. Supp. Mot. for Summ. J.,
Later, Plaintiff admitted, however, that Mr.
Wideman was not the decision maker and affirmatively states that
Mr. Gibbs made the transfer decision.
Facts, SI 11.)
Mr.
Gibbs's
(Pl.'s St. of Disputed Mat.
Plaintiff points to no evidence establishing that
decision
was
motivated
by
discriminatory
animus.
Accordingly, Mr. Gibbs is a neutral decisionmaker.
Considering Mr. Gibbs is a neutral decisionmaker. Plaintiff
may only survive summary judgment under a cat's paw theory. ^^Under
this theory, a non-decisionmaking employee's discriminatory animus
may be imputed to a neutral decisionmaker when the decisionmaker
has not independently investigated allegations of misconduct."
Dwyer v. Ethan Allen Retail, Inc., 325 F. App'x 755, 757 (11th
Cir. 2009) (per curiam) (citing Llampallas v. Mini-Circuits, Lab,
Inc., 163 F.3d 1236, 1249 (11th Cir. 1998)). "In such a case, the
recommender is using the decisionmaker as a mere conduit, or ^cat's
paw' to give effect to the recommender's discriminatory animus."
"could not be coming around [the place of employment] dressed in jeans" (id. at
74:13-17), and a remark that he did not want to hire any more women because
they "were full of drama" (i^ at 241:11-21). Plaintiff offers no evidence
regarding when these statements occurred in relation to the alleged adverse
employment action. See Quigg, 814 F.3d at 1242 (considering temporal proximity
of communications evidencing bias to the employment action); see also Williams,
2012 WL 6151141, at *8 (removing circumstantial evidence from convincing mosaic
analysis that occurred "at least three years before" the adverse employment
action).
Plaintiff bears the burden of producing a convincing mosaic of
circumstantial evidence.
24
Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (llth Cir.
1999) (per curiam) (citation omitted).
Here,
Plaintiff
attributes
discriminatory
animus
to
Mr.
Wideman, not Mr. Gibbs, but Plaintiff "has not introduced any
evidence
that
could
reasonably
indicate
that
[Mr.
Wideman's]
alleged discriminatory animus influenced [Mr. Gibbs's] decision to
[relocate] her."
Id.
In Dwyer, the employee argued that her
supervisor discriminated against her when her supervisor, who
allegedly harbored animus regarding her disability, recommended to
his supervisor that the employee should be terminated.
Despite
the recommendation, the Eleventh Circuit still affirmed summary
judgment to the employer.
Plaintiff
offers
no
325 F. App'x at 757-58.
evidence
recommendation to Mr. Gibbs.
that
Mr.
Wideman
In comparison.
made
a
similar
Because Plaintiff is relying on a
convincing mosaic theory, her failure to offer evidence regarding
Mr. Gibbs's discriminatory intent or Mr. Wideman's recommendation
for her transfer falls well short of her burden.®
F.3d at 1242; Smith, 644 F.3d at 1329-35.
Cf. Quigg, 814
Therefore, Defendant is
entitled to summary judgment on Plaintiff's claims related to her
demotion and reduction in pay.
6 Because the Court concludes that Plaintiff fails to offer sufficient evidence
under her alternative theories to establish a prima facie case, the Court need
not address Defendant's argument that a mixed motive theory is inapplicable to
a disability discrimination claim regarding Plaintiff's alleged demotion.
(Reply Br. Supp. Mot. for Summ. J., at 21-22.)
25
2. Termination
The Court next evaluates Plaintiff's claims that Defendant
terminated her because of her gender and disability.
the
Court
turns
to
the
familiar
McDonnell
In doing so,
Douglas
framework.
Because the prima facie requirements for gender discrimination and
disability discrimination differ, the Court analyzes the prima
facie case for each separately.
a. Prima Face Case - Gender Discrimination
To establish a prima facie case of disparate treatment gender
discrimination through circumstantial evidence, a plaintiff must
first show that "(1) she belongs to a protected class; (2) she was
subjected to adverse employment action; (3) her employer treated
similarly
situated
employees
outside
her
classification
favorably; and (4) she was qualified to do the job."
B/E
Aerospace,
Inc.,
376
F.3d
1079,
1091
(11th
more
Wilson v.
Cir.
2004).
Defendant concedes three of the four elements acknowledging: (1)
Plaintiff is a member of a protected class; (2) Plaintiff was
qualified to perform her former job as Assistant Service Manager;
and (3) Plaintiff's termination constitutes an adverse employment
action.
Defendant disputes, however, that Plaintiff can establish
the remaining ^^similarly situated" element arguing that Plaintiff
points to no employees outside her classification treated more
favorably.
26
The
Eleventh
situated"
means
Circuit
that
the
recently
clarified
plaintiff
that ''similarly
"and
comparators
her
similarly situated in all material respects."
1224 (internal punctuation omitted).
are
Lewis, 918 F.3d at
Similarly situated in all
material respects means that the comparator "will have 'engaged in
the same basic conduct (or misconduct) as the plaintiff[;] will
have been subject to the same employment policy, guideline, or
rule as the plaintiff[;] will ordinarily (although not invariably)
have been under the jurisdiction of the same supervisor as the
plaintiff[;]
and
will
disciplinary history."
share
the
plaintiff's
employment
or
McQueen v. Ala. Dep't of Transp., 769 F.
App'x 816, 821-22 (11th Cir. 2019) (per curiam) (quoting Lewis,
918 F.Sd at 1238-39).
Lewis, in no uncertain terms, stated that
the comparator evidence is proper analyzed at the prima facie
stage.
Lewis, 918 F.3d at 1224.
First, the Court highlights that Plaintiff argues one of
Defendant's reasons for her termination was Defendant's discovery
of an online post by Plaintiff.
Defendant claims the post was not
a reason for terminating Plaintiff but the reason Defendant did
not
rehire
analysis,
Plaintiff.
the
timing
Although
of
the
Defendant's
Court
saves
decision
the
to
pretext
terminate
Plaintiff is essential to Plaintiff establishing a prima facie
case through comparator evidence.
If the evidence conclusively
establishes Defendant decided to terminate Plaintiff prior to it
27
discovering Plaintiff's online post, the post would be removed as
a cause for her termination as a matter of law thereby eliminating
the referenced social media posts from consideration as underlying
conduct for the comparator analysis.
See Lewis, 918 F.3d at 1227
('MA] similarly situated comparator . . . will have engaged in the
same basic conduct (or misconduct) as the plaintiff . . .
The
Parties
specifically
hint
at
a
addressing
dispute
the
regarding
issue.
the
timing
Nevertheless,
.
without
the
Court
examines the issue to determine if an issue of fact exists.
Defendant contends that Angela Hooks sent Plaintiff a letter
on May 25, 2016, informing Plaintiff that she was no longer an
active employee.
Plaintiff admits receiving the letter (Pl.'s
Resps. to Def.'s First Request for Admissions, Doc. 22-3, ^ 11)
but claims Defendant never informed her of her termination before
she returned to work on July 18, 2016.
At that time. Defendant
expressed uncertainty regarding her position and asked her to
return the following day.
Defendant's Director of Human Resources
states that on July 19, 2016, she informed Plaintiff of her
termination.
presented
(Hooks Aff., ^ 26.)
Plaintiff
a
severance
On that same day. Defendant
agreement.
The
Severance
Agreement states, "Employee desires to accept the severance and
resigns
her employment effective the
agreement."
2016,
date
(Severance Agreement, at 133.)
Defendant
she
executes this
On or near July 11,
was made aware of the online post at issue.
28
Nothing
in
the
foregoing
evidence
conclusively
establishes
Defendant decided to terminated Plaintiff prior to discovering the
online post.
Plaintiff presents evidence that three male employees of
Defendant, with no cancer or other similar diagnosis, made social
media posts sufficiently similar in nature to Plaintiff's to render
them comparators.^
At the outset, Mr. Licklider is an improper
comparator as a matter of law.
Defendant puts forth evidence that
Mr. Licklider was no longer an employee of Defendant when Defendant
became
aware
of
his
post in
question.
Plaintiff offers
no
competing evidence on this issue. Therefore, under the Lewis test,
even accepting Plaintiff and Mr. Licklider engaged in similar
conduct, the remaining considerations used to establish their
similar situation are lacking.
Next, Defendant argues that Mr. Cook is not similarly situated
because, despite his active employment status with Defendant when
the post was discovered, Mr. Cook removed the post after Defendant
Defendant objects to the comparator social media posts in its response to
Plaintiff's Statement of Disputed Material Facts as hearsay and because the
posts are not properly authenticated. (Def.'s Resp. to Pl.'s St. of Mat. Facts,
Doc. 40,
43, 44, 46, 47, 52.) First, Defendant arguably waived its objections
to the Court's consideration of the social media posts at this stage by failing
to raise the objections in its reply brief and sur-reply brief. Cf. Thomas v.
Clayton Cty., 94 F. Supp. 2d 1330, 1332 (N.D. Ga. 2000) (finding objection
properly made when raised in reply brief).
Nevertheless, "a court
may . . . consider evidence that is admissible or that could be presented in an
admissible form" at trial. Denney v. City of Albany, 247 F.3d 1172, 1189 n.lO
(11th Cir. 2001). The Court concludes that the social media posts could be
presented in admissible form.
To the extent Defendant objects to the
consideration of the comparator social media posts at this stage, Defendant's
objection is overruled.
29
received notice of it.
(Reply Supp. Mot. for Summ. J., at 17.)
The fact that Mr. Cook removed the post after Defendant's awareness
of it does not materially change the facts that Defendant was made
aware the post existed while it employed Mr. Cook and the posts
are
similar
in
nature.
As
noted,
if
Plaintiff
was
in
fact
terminated prior to Defendant discovering the online post, the
Court agrees that Plaintiff and Mr. Cook would not be similarly
situated.
But, having found an issue of fact regarding Plaintiff's
employment
status
at
the
time
Defendant
was
made
aware
of
Plaintiff's post, and considering Defendant's failure to offer
other
distinguishing
evidence.
Plaintiff
and
Mr.
Cook
are
sufficiently similar to constitute comparators.
Finally, Plaintiff asserts Mr. Spooner's social media post is
the same underlying conduct, but Defendant did not terminate him.
Defendant attempts to distinguish Mr. Spooner's post with evidence
that Mr. Spooner's Facebook account was private at the time
Defendant received information regarding the post.
SI 29.)
Plaintiff puts forth evidence that she
(Hooks Aff.,
accessed
Mr.
Spooner's post without a "friend" connection, implying the post
was
public.
(Woodward
Dep.,
at
363:17-364:4.)
Given
that
Defendant employed Mr. Spooner at the time the post existed on his
Facebook account and conflicting evidence exists regarding whether
his account was public or private at all relevant times, Mr.
Spooner and Plaintiff are proper comparators.
30
Defendant
further
argues
that
the
male
employees
are
different because the corporate office did not discover the male
employees' posts. Even so, this is not a significant enough reason
to distinguish the conduct.
Defendant,
aware
differently.
of
The relevant question is whether
similar
conduct,
treated
employees
There is no dispute that Defendant was notified of
all three social media posts.
Plaintiff meets her prima face
burden to put forth evidence of proper comparators.
b. Prima Facie Case - Disability Discrimination
The
Parties
agree
that
a
prima
facie
cas.e
for
ADA
discrimination requires a plaintiff to show that, ^^at the time of
the adverse employment action" she: ^Ml) [was] disabled; (2) [was]
a
qualified
individual;
and
(3)
was
subjected
discrimination because of [her] disability."
to
unlawful
U.S. Equal Emp't
Opportunity Comm'n v. St. Joseph's Hosp., Inc., 842 F.3d 1333,
1343 (11th Cir. 2016); Greenberq v. BellSouth Telecomm., Inc., 498
F.3d 1258, 1263 (11th Cir. 2007) (per curiam).
When relying on
circumstantial evidence in the disparate treatment context, the
third element generally requires that a comparator "engaged in
similar misconduct but [was] not similarly disciplined."
Postmaster Gen., 488
curiam).
Wolfe v.
F. App'x 465, 468 (11th Cir. 2012) (per
Defendant expressly concedes only that Plaintiff had a
disability.
(Br. Supp. Mot. for Summ. J., at 29.)
Further,
Defendant does not appear to dispute that Plaintiff suffered an
31
adverse employment action, termination.
529 F.3d 961, 970 (11th Cir. 2008).
See Crawford v. Carroll,
Defendant argues, however,
that Plaintiff fails to satisfy the "qualified individual" element
as to termination because she was on leave.
Under the ADA, a "qualified individual" is a person who "with
or without reasonable accommodation, can perform the essential
functions of [her] employment."
42 U.S.C. § 12111(8).
Defendant
argues that Plaintiff was not a "qualified individual" because she
required long-term medical leave; thus, she could not perform the
essential functions of her employment.
It is well-established
that an employer is not required to provide indefinite leaves of
absence to an employee with a disability.
1309,
1313-14
(11th
Cir.
2003).
Wood v. Green, 323 F.3d
Defendant
also
offers
uncontradicted evidence that Plaintiff exceeded the permissible
leave, but Defendant, in brief, does not claim that it terminated
Plaintiff for taking leave beyond the permissible limit.
The
record
contains
evidence
that
Defendant
terminated
Plaintiff after she was cleared to return to work following her
cancer treatment.
Defendant's
Having overcome the disability, and based on
acknowledgement
that
Plaintiff
was
qualified
to
perform her job prior to leave, there is, at minimum, a question
of fact regarding Plaintiff s ability to resume as an Assistant
Service Manager following leave.
32
Finally, for the reasons set forth in Section III(C)(2)(a),
supra, Plaintiff meets her burden of establishing a prima facie
case for disability discrimination.
surrounding
the
timing
of
There is a question of fact
Defendant's
decision
Plaintiff and the reason for her termination.
to
terminate
Because Plaintiff
points to comparators who engaged in similar conduct, did not have
a disability, and were not terminated for their social media posts.
Plaintiff satisfies her prima facie burden.
Because the remaining
arguments under the McDonnell Douglas framework equally apply to
Plaintiff s gender discrimination and disability discrimination
claims, the Court analyzes them together.
c. Legitimate, Nondiscriminatory Reasons
Defendant offers a legitimate, nondiscriminatory reason for
terminating Plaintiff and an additional reason for not rehiring
Plaintiff.
took
First, the undisputed evidence is that after Plaintiff
leave.
Defendant
demolished
Plaintiff's prior position.
the
center
which
housed
Second, Defendant claims it refused
to rehire Plaintiff after receiving notification of the online
post.®
''To satisfy this intermediate burden, the employer need
only produce admissible evidence which would allow the trier of
fact rationally to conclude that the employment decision had not
8 Despite Defendant's contention that it did not terminate Plaintiff because of
the online post, because the timing of Defendant's decision to terminate
Plaintiff is factually disputed, the Court must examine whether an issue of
fact exists regarding the online post's contribution to Plaintiff's termination.
33
been motivated by discriminatory animus."
Combs v. Plantation
Patterns, 106 F.3d 1519, 1528 (11th Cir. 1997) (emphasis omitted)
(quoting Tex. Dep^t of Cmty. Affairs v. Burdine, 450 U.S. 248, 257
(1981)).
First, a business decision to eliminate a position may serve
as a legitimate, nondiscriminatory reason for termination.
See
Gardner v. Aviagen, 454 F. App'x 724, 728 (11th Cir. 2011) (per
curiam); see also Mitchell v. City of LaFayette, 504 F. App'x 867,
870 (11th Cir. 2013) (per curiam) (citing Tidwell v. Carter Prods.,
135 F.3d 1422, 1426 (11th Cir. 1998)). Second, an employee's social
media content may serve as a legitimate, nondiscriminatory reason
for talcing adverse employment action.
See Carney v. City of
Dothan, 158 F. Supp. 3d 1263, 1282 (M.D. Ala. 2016).
Defendant's
proffered reasons satisfy its burden,
d. Pretext
To
survive
summary
judgment.
Plaintiff
Defendant's proffered reasons were pretextual.
must
show
that
Meeting the burden
requires ^'sufficient evidence to demonstrate the existence of a
genuine issue of fact as to the truth of each of the employer's
proffered reasons for its challenged action" by demonstrating
"such
weaknesses,
incoherencies,
or
implausibilities,
contradictions
in
the
inconsistencies,
employer's
proffered
legitimate reasons for its action that a reasonable factfinder
could find them unworthy of credence."
34
Cooper v. S. Co., 390 F. 3d
695, 725 (11th Cir. 2004) (citation omitted), overruled, in part,
on other grounds, Ash v. Tyson Foods, Inc., 546 U.S. 454 (2006);
Combs, 106 F.3d at 1529.
''A plaintiff is not allowed to recast an
employer's proffered nondiscriminatory reasons or substitute her
business judgment for that of the employer."
Atl.
Developers,
Inc.,
610
F.3d
1253,
1265
Alvarez v. Royal
(11th
Cir.
2010)
(quoting Chapman v. AI Transp., 229 F.3d 1012, 1030 (11th Cir.
2000) (en banc)).
If the employer satisfies the intermediate
burden, "an employee must meet that reason head on and rebut it,
and she cannot succeed by simply quarreling with the wisdom of
that reason." Id. at 1265-66 (quoting Chapman, 229 F. 3d at 1030).
An employer's multiple reasons for an employment action do not
necessarily demand a finding that the explanations are shifting or
inconsistent.
multiple
Tidwell, 135 F.3d at 1428.
reasons
for
termination,
When an employer offers
"those
reasons
must
be
inconsistent in order to constitute evidence of pretext," Moore v.
Jefferson Cty. Dep't of Human Res., 277 F. App'x 857, 859 (11th
Cir. 2008) (citing Zaben v. Air Prods. & Chems., Inc., 129 F. 3d
1453, 1458-59 (11th Cir. 1997)), or the plaintiff must put forth
"record evidence . . . permit[ting] a reasonable factfinder to
reject each . . . proffered explanation[] for
[the] decision."
Combs, 106 F.3d at 1539.
The
Court
finds
that
Defendant's
explanations
are
inconsistent and Defendant contradicts itself to the point that a
35
reasonable factfinder could conclude Defendant's proffered reasons
for termination are unworthy of credence.
First, Defendant claims
that the only reason for terminating Plaintiff was the elimination
of her position.
Defendant claims it then refused to rehire her
based upon the social media post.
The discrepancies begin here.
In Ms. Hooks's Affidavit, she states that Ms. Woodward approached
Mr. Spooner about her job on July 18, 2016.
But,
[u]nbeknownst
to [Mr.] Spooner, . . . the dealership's General Manager, William
Gibbs, had received an e-mail . . . advising of an inflammatory
online comment made by [Plaintiff]."
(Hooks Aff., S[ 25.)
Ms.
Hooks continues, ''Based on the elimination of Ms. Woodward's
position and her online post, . . . I advised Ms. Woodward on July
19, 2016 that her job had been eliminated and, thus, her employment
was terminated and that she was not eligible to be re-hired for
any position at the dealership due to her online post."
(Id.
5 26.)
A
factfinder
corroborate
could
Plaintiff's
interpret
argument
Ms.
and
Hooks's
contradict
statement
to
Defendant's.
First, she affirms under oath that Plaintiff was informed that she
was terminated on July 19, 2016, the day of her meeting after
returning from leave.
Second, Ms. Hooks states that when, on July
18, 2016, Mr. Spooner asked Plaintiff to return the following week,
Mr. Spooner lacked knowledge of the social media post.
Ms. Hooks,
on the other hand, upon learning of the conversation between Mr.
36
Spooner and Plaintiff, asked Plaintiff to return the next day,
July 19, 2016.
knowledge
of
Upon Plaintiff's return, Ms. Hooks, possessing
the
social
media
post,
terminated
Plaintiff's
position and explained Plaintiff was ineligible for rehire at the
same time, but for different reasons.
Further,
contradiction
the
in
EEOCs
Right
Defendant's
to
Sue
statements:
letter
^^In
reveals
regards
to
a
your
termination. Respondent stated that their main reason was because
of your facebook comment.
Respondent alleged that that facebook
comment from you was racially controversial and inappropriate as
a management employee of Jim Hudson Lexus.
(EEOC Right to Sue
Letter, Doc. 22-2, at 157.)
These inconsistencies
Defendant's
claimed
are
reason
sufficient for
for
terminating
elimination of her position, false.
sufficient
evidence
exists
that
a jury to find
Plaintiff,
the
Based on the foregoing,
a
jury
could
disbelieve
Defendant's argument that it terminated Plaintiff because it
eliminated
Plaintiff's
position
and
instead
find
Defendant
5 Plaintiff does not cite to this statement, and Defendant makes no objection
to the admissibility of this statement. But, ''[t]o the extent the EEOC rightto-sue letter . . . may be characterized as hearsay, this evidence may be
considered at summary judgment if it can be reduced to admissible form at
trial." Boykin v. Gulf Coast Enters., No. 2:15-cv-631-MHT-GMB, 2016 WL 1357459,
at *4 n.5 (M.D. Ala. Mar. 17, 2016) (citing Macuba v. Deboer, 193 F.3d 1316,
1322 (11th Cir. 1999)). As was the case in Boykin, "the [C]ourt finds that,
assuming this evidence constitutes hearsay, it could be admissible at trial
through the presentation of live testimony or through an exception to the
hearsay rule, and therefore it may be considered at the summary-judgment stage.
Id.; see also supra Note 7.
37
terminated
Plaintiff
because
of
the
social
media
post.
The
elimination of Defendant's proffered reason allows a factfinder to
conclude
that,
employees'
because
social
discriminatory.
media
of
Defendant's
posts,
treatment
Defendant's
of
other
termination
See Standard, 161 F.3d at 1332.
was
The combination
of issues of fact regarding the validity of Defendant's legitimate,
nondiscriminatory reason for termination and Defendant's disparate
treatment
of comparators
allows
Plaintiff
to
survive
summary
judgment on her claims of gender and disability discrimination as
to her termination.
D. Intentional Infliction of Emotional Distress
Plaintiff
argues
that
her
alleged
demotion
after
her
diagnosis and her termination following her return to work evidence
intentional infliction of emotional distress.
The Court concludes
Defendant is entitled to summary judgment on this claim.
Under Georgia law, the elements of a cause of action for
intentional
infliction
intentional
or
reckless
of
emotional
conduct;
(2)
distress
that
include:
is
''(1)
extreme
and
outrageous; (3) a causal connection between the wrongful conduct
and the emotional distress; and (4) severe emotional distress.
Ferrell
v.
Mikula,
672
S.E.2d
7,
13
{Ga.
Ct.
App.
2008).
Based upon the Court's finding that Plaintiff survives summary judgment on
her disability discrimination claim through comparator evidence, the Court need
not address whether a '"mixed motive" theory of discrimination is proper to prove
a disability discrimination claim under the ADA.
38
See supra Note 6.
^^Liability for [intentional infliction of emotional distress] has
been found only where the conduct has been so outrageous in
character, and 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."
Yarbrouqh v. SAS Sys.,
Inc., 419 S.E.2d 507, 509 (Ga. Ct. App. 1992).
^^Whether a claim
rises to the requisite level of outrageousness and egregiousness
to sustain a claim for intentional infliction of emotional distress
is a question of law."
Frank v. Fleet Fin., Inc. of Ga., 518
S.E.2d 717, 720 (Ga. Ct. App. 1999) (citation omitted).
The Eleventh Circuit's decision in Roddy v. City of Villa
Rica squarely addresses the issue at hand. 536 F. App'x 995 (11th
Cir. 2013) (applying Georgia law).
In Roddy, the plaintiff
suffered a back injury and was terminated after he exhausted all
leave.
Id. at 997.
In affirming summary judgment for the
defendant, the Eleventh Circuit noted, ''Georgia courts have held
that an employer's termination of an employee — however stressful
to the employee — generally is not extreme and outrageous conduct.
Id. at 1003 (quoting Clark v. Coats & Clark, Inc., 990 F.2d 1217,
1229 (11th Cir. 1993) (citing ITT Rayonier v. McLaney, 420 S.E.2d
610, 612 (Ga. Ct. App. 1992))).
Absent abuse or disrespect, an
employment action is not extreme or outrageous conduct as a matter
of law.
Id.
39
Although Plaintiff s cancer diagnosis and subsequent double
mastectomy were undoubtedly more significant in comparison to the
back injury at issue in
suggesting
that
the
Roddy, Plaintiff offers
underlying
disability
outrageousness of the employment decision.
no authority
amplifies
the
Defendant's employment
decision may be viewed as harsh or unkind, but Plaintiff presents
no evidence that Defendant's conduct reached sufficient levels to
succeed on her intentional infliction of emotional distress claim.
Furthermore, Plaintiff points to no evidence establishing
that the employment actions in question caused severe emotional
distress.
one's
"Although,
job'"
or
^the frustration associated with losing
being
demoted
"'is
frustration alone is not 'severe.'"
understandable,'
that
{quoting Jones v. Fayette
Family Dental Care, Inc., 718 S.E.2d 88, 91 (Ga. Ct. App. 2011)).
Accordingly, Plaintiff's claim for intentional infliction of
emotional distress fails.
IV. CONCLUSION
Based
on
the
foregoing.
Defendant's
motion
for
summary
judgment (Doc. 22) is GRANTED IN PART and DENIED IN PART.
Defendant's motion is granted as to Plaintiff's claims for age
discrimination, retaliation, hostile work environment, intentional
infliction
of
emotional
distress,
disability
discrimination
related to her alleged demotion, and gender discrimination related
40
to
her
alleged
demotion,
to
the
extent
she
asserts
each.
Plaintiff s remaining claims under the ADA and Title VII shall
proceed to trial in due course.
ORDER
ENTERED
at
Augusta,
Georgia,
this
day
September, 2019.
!F JUD(
iTES DISTRICT COURT
south^:rn district of Georgia
41
of
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?