Hardy v. GHM Rock and Sand, Inc. et al
Filing
57
ORDER granting in part and denying in part 23 Defendants' Motion for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 8/29/2012. (csr)
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BENJAMIN R. HARDY,
Plaintiff,
vs.
GHM ROCK AND SAND, INC., and
GEORGE HERMAN MORRIS,
Defendants.
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CV 211-063
ORDER
Presently before the Court is a Motion for Summary Judgment
filed by Defendants GHM Rock and Sand, Inc. ("GHM") and George
Herman Morris ("Morris") (collectively "Defendants") . Dkt. No
23. Upon due consideration, the Defendants' Motion for Summary
Judgment is GRANTED in part and DENIED in part. Defendants'
motion is granted as to Plaintiff's Title VII claims asserted
against Morris and Plaintiff's state law claims for intentional
infliction of emotional distress asserted against both
Defendants. Defendants' motion is denied as to Plaintiff's
Title VII claims for retaliation and hostile work environment
asserted against GHM, and as to Plaintiff's 42 U.S.C. § 1981
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claims for retaliation and hostile work environment asserted
against both Defendants.
BACKGROUND
When considering a motion for summary judgment, the Court
must consider the facts in a light most favorable to the nonmovement. The following are the facts considered in the light
most favorable to the Plaintiff, the nonmovant.
Plaintiff Benjamin R. Hardy ("Hardy" or "Plaintiff") began
his employment with GHM on or about November 11, 2005. Hardy
worked for GHM as a truck driver until he was terminated on
April 17, 2008. Plaintiff alleges that he was continually
subjected to racial harassment in the form of derogatory slurs
and epithets while employed at GHM.' Plaintiff asserts that
GHM's managers did nothing to prevent racial harassment by GHM
employees and that the managers regularly participated in the
harassment. Hardy complained to Floyd Lawhorne ("Lawhorne"),
his supervisor, Jackie Owens ("Owens"), GHM's general manager,
and George Herman Morris ("Morris"), GHM's owner, about the
harassment, but nothing was done to remedy the situation. For
example, on January 26, 2007, Hardy was physically attacked by a
white coworker, Jeff Gilmore ("Gilmore"). Gilmore used the
racial slur "n-----" during the attack. Hardy reported the
1 The details of the harassment are set out more fully below.
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attack and Gilmore's comments to GHM's general manager, but
Gilmore was neither reprimanded nor terminated.
GHM typically allowed its truck drivers to select their
preferred delivery routes on a first-come, first-served basis.
On April 17, 2008, Hardy reported to the GHM offices in order to
secure his second route of the day. Owens was in charge of
assigning routes to drivers that day, and she told Hardy that
the "East Port route" was available. The East Port route was
preferable because it allowed drivers to secure the highest
payment for the shortest turn around. Hardy asked Owens for the
East Port route and she agreed. As Hardy was leaving the
office, Owens said "you sure like that East Port route don't
you." Hardy Dep. 67-68, Dkt. No. 27. Hardy responded, "yes, we
all do, Ms. Jackie." Id. Owens then called Hardy lazy and said
"wait a minute, bring your black ass back here." Id. Owens
demanded that Hardy return the delivery ticket and told him that
she was sending his "sorry black ass" on a less favorable route.
Id. Hardy approached Owens's desk and asked to know why she
would not let him take the East Port route. Owens opened the
drawer of her desk so that Hardy could see a handgun she kept in
the drawer. Hardy tried to discuss the route assignment with
Owens, but she terminated his employment on the spot.
Hardy filed a charge with the EEOC on August 12, 2008,
claiming racial discrimination and retaliation. The EEOC issued
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a right to sue letter on January 24, 2011. Hardy filed this
lawsuit approximately eighty days later, on April, 15, 2011. In
his Complaint, Hardy asserts claims of a hostile work
environment under both Title VII and § 1981, and claims for
retaliation under Title VII and § 1981. Hardy also asserts a
claim under state law for intentional infliction of emotional
distress. Defendants seek summary judgment on all of
Plaintiff's claims.
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The Federal Rules of Civil Procedure provide that a party
may move for summary judgment through identifying each claim or
defense on which summary judgment is sought. Fed. R. Civ. P.
56(a). Summary judgment is appropriate "if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Id. A fact
is "material" if it "might affect the outcome of the suit under
the governing law." FindWhat Investor Grp. v. FindWhat.com , 658
F.3d 1282, 1307 (11th Cir. 2011) (quoting Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). A dispute over such a
fact is "genuine" if the "evidence is such that a reasonable
jury could return a verdict for the nonmoving party." Id. In
making this determination, the court is to view all of the
evidence in the light most favorable to the nonmoving party and
draw all reasonable inferences in that party's favor. Johnson
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v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 507
(11th Cir. 2000).
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To
satisfy this burden, the movant must show the court there is an
absence of evidence to support the non-moving party's case. Id.
at 325. If the moving party discharges this burden, then the
burden shifts to the nonmovant to go beyond the pleadings and
present affirmative evidence to show that a genuine issue of
fact does exist. Anderson, 477 U.S. at 257.
DISCUSSION
I. Title VII and § 1981 Claims
Plaintiff asserts hostile work environment and retaliation
claims under Title VII and § 1981. 2 "Title VII and § 1981 `have
the same requirements of proof and use the same analytical
framework." Cha p ter 7 Trustee v. Gate Gourmet, Inc., 683 F.3d
1249, 1256-57 (11th Cir. 2012). Accordingly, the Court
addresses Plaintiff's Title VII claims and § 1981 claims
2 There was some ambiguity as to whether Plaintiff intended to assert
discrimination claims based on Hardy's termination as a tangible employment
action. See Reeves v. Robinson Worldwide, Inc., 594 F.3d 798, 808 (11th
Cir. 2010) (describing the distinctions between disparate treatment claims
based on tangible employment actions and those based on hostile work
environments). Following the oral hearing on Defendants' summary judgment
motion, Plaintiff clarified that he is only pursuing discrimination claims
based the existence of a hostile work environment and retaliation, not based
on a tangible employment action. See Pl.'s Notice, Dkt. No. 55.
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simultaneously, with the understanding that the same analysis
applies to both sets of claims . 3
See Blue v. Dunn Const., Co.,
Inc., 453 F. App'x 881, 883 (11th Cir. 2011) (addressing Title
VII claims with the understanding that the same analysis applies
to § 1981 claims)
A. Hostile Work Environment
Plaintiff alleges that he was subjected to a hostile work
environment while employed at GHM. "A hostile work environment
claim under Title VII is established upon proof that the
workplace is permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive
to alter the conditions of the victim's employment and create an
abusive working environment." Miller v. Kenworth of Dothan
Inc., 277 F.3d 1269, 1275 (11th Cir. 2002) (internal quotations
omitted). To establish a hostile work environment claim, a
plaintiff must show: "(1) he belongs to a protected group; (2)
he has been subject to unwelcome harassment; (3) the harassment
has been based on a protected characteristic, such as (in the
Defendants contend that "[w]here the plaintiff has alleged violations of
both Title VII and § 1981, the court will consider the claim under § 1981
only if violation of that statute can be made out on grounds different from
those available under Title VII." Mot. Summ. J. 12-13 (citing Johnston v.
Harris Cnty. Flood control Dist., 869 F.2d 1565, 1575 (5th Cir. 1989) and
Rivera v. City of Wichita Falls, 665 F.2d 531, 534 (5th Cir. 1982)). The
cases Defendants rely on are not binding precedent in this Court. Moreover,
the Eleventh Circuit recognizes that § 1981 and Title VII overlap one
another, and are not mutually exclusive. Freeman v. Motor Convoy, Inc., 700
F.2d 1339 (11th Cir. 1983). No binding authority supports Defendants'
position. A plaintiff need not assert separate factual grounds for § 1981
claim and a Title VII claim.
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instant case) race; (4) the harassment is sufficiently severe or
pervasive to alter the terms and conditions of employment and
create a discriminatorily abusive work environment; and (5) the
employer is responsible for such environment under a theory of
vicarious liability or a theory of direct liability."
Washington v. Kroger Co., 218 F. App'x 822, 824-25 (11th Cir.
2007) . Defendants submit that they are entitled to summary
judgment on Plaintiff's hostile work environment claim.
The requirement that the harassment be severe or pervasive
contains an objective and subjective component. Washington, 218
F. App'x at 825. Therefore, to be actionable the "behavior must
result in both an environment that a reasonable person would
find hostile or abusive and an environment that the victim
subjectively perceives to be abusive." Miller, 277 F.3d at
1276. Notably, the "mere utterance of an . . . epithet which
engenders offensive feelings in an employee . . - does not
sufficiently affect the conditions of employment." Harris v.
Forklift Sys., Inc., 510 U.S. 17 (1993) (internal quotations and
citations omitted).
For the subjective component, the employee must
"subjectively perceive the harassment as sufficiently severe and
pervasive to alter the terms or conditions of employment . .
." Mendoza v. Borden, Inc., 195 F.3d 1238, 1246 (11th Cir.
1999). There is no doubt that the Plaintiff subjectively
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perceived the environment at GHM as hostile, and Defendants have
made no argument to the contrary.
In making the objective determination, the Eleventh Circuit
has found that the following factors should be considered: "(1)
the frequency of the conduct; (2) the severity of the conduct;
(3) whether the conduct is physically threatening or
humiliating, or a mere offensive utterance; and (4) whether the
conduct unreasonably interferes with the employee's job
performance." Mendoza, 195 F.3d at 1246 (11th Cir. 1999)
The Court is satisfied that, based on the totality of the
circumstances, the Plaintiff has produced sufficient evidence to
create an issue of fact as to whether he was subjected to a
racially hostile work environment. Allen v. Tyson Foods, Inc.
121 F.3d 642, 645 (11th Cir. 1997) . The Plaintiff points to the
following evidence of harassment in support of his hostile work
environment claim :4
• GHM Employee Amanda Titchenell heard Morris and Owens
refer to African-American employees, including Hardy,
as "n-----. " Titchnell Aff. 1ff91 10-11, Dkt. No. 34.
• GHM Employee Daniel Mellerson stated that AfricanAmerican employees at GHM were regularly referred to
as "black bastards" or "black mother fuckers" in the
Defendants assert that conduct that occurred more than 300 days prior to
Hardy's filing of his EEOC charge cannot serve as evidence of a hostile work
environment. Mot. Suxnm. J. 3. Defendants are incorrect. Allegations of a
hostile work environment are viewed as "single unlawful unemployment
practice," and "if the smallest portion of that 'practice' occurred within
the limitations time period, then the court should consider it as a whole."
Shield v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).
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presence of GHM supervisors. Mellerson Aff. ¶91 6-7,
Dkt. No. 37.
• GHM Supervisor Floyd Lawhorne testified that Morris
frequently used the word "n----- " at GHM. Lawhorne
Dep. 12, 15, 34, Dkt. No. 32.
• Lawhorne further testified that Morris's computer
password was "HNIC" which as an acronym for "head n---- in charge." Lawhorne Dep. 65.
• Lawhorne testified that Morris made comments like "I
love beating a n-----out of a dollar." Lawhorne Dep.
36.
• Lawhorne testified that Owens used the word "n
on a daily basis. Lawhorne Dep. 15.
• Lawhorne testified that Owens would bring her pet dog
to work and praise the animal when it attempted to
bite GHM's African-American employees. Lawhorne Dep.
74, 145.
• GHM employee Sheldon Airall stated that Morris
referred to African-Americans, including Airall, as
s." Airall Aff. ¶ 7, Dkt. No. 35. Airall
complained about Morris's comments to GHM Supervisor
Floyd Lawhorne, and broke down in tears because of the
severity of Morris's comments. Lawhorne Dep. 35.
• Airall stated that Morris told Airall that an island
called "n-----island" existed in south Georgia, and
that the African-American residents of that island
were outsmarted by Caucasians. Airall Aff. 191 11-12.
• Hardy testified that he complained to Morris about the
island" comment, to which Morris responded "as
long as you got that GHM on your shirt, it's going to
be the 50s, 40s, and 30s." Hardy Dep 94, Dkt. No. 27.
When Hardy confronted Morris about the comment, Owens
warned Hardy to "keep [his] mouth closed or [he would
not] be employed here long." Id. at 97.
• Hardy testified that GHM employees referred to
African-American employees as "n-----s" and "jungle
bunnies" over the GHM CB radio system, that Hardy
reported the incident to Owens, and that Owens did
nothing to end the comments. Hardy Dep. 50-51, 121,
Dkt. No. 27.
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• Hardy testified that he complained to Owens about a
racist comment, to which Owens replied that if Hardy
did not like the work environment, he should resign.
Hardy Dep. 80.
• Hardy testified that Morris told a racist joke about
how he intended to take hunting hounds to Washington
D.C. and "chase all them coons out." Hardy Dep. 103104. Hardy complained to Owens and Owens took no
corrective action. Id.
• Hardy testified that on January 26, 2007, Jeff
Gilmore, a Caucasian GHM employee, physically attacked
Hardy. Hardy Dep. 86. During the attack, Gilmore
repeatedly screamed "I'm going to kill you, goddamn nI'm going to fuck you up, you goddamn n----Id. at 86-92. GHM did not reprimand or terminate
Gilmore.
• Hardy testified that on April 17, 2008, Owens
arbitrarily denied Hardy the East Port route and
called Hardy lazy. During the interchange, Owens made
the following comments: "bring your sorry black ass
back here" and that she was sending Hardy's "sorry
black ass" on a less desirable route. Hardy Dep. 6768. On that occasion, Owens opened her desk drawer
and reached for a handgun. Id. Owens terminated
Hardy immediately thereafter.
• Lawhorne testified that following Hardy's termination,
Owens told Lawhorne "that n-----better be glad I
didn't pull the damn trigger." Lawhorne Dep. 25.
First, there is sufficient evidence for a reasonable juror
to conclude the harassment Plaintiff was subjected to was
frequent. In analyzing the frequency of the conduct the
Eleventh Circuit has held that there is "not simply some magic
number of racial or ethnic insults" that preclude summary
judgment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269,
1276 (11th Cir. 2002) (citation and quotation omitted)
Instead, precedent requires a court to evaluate the evidence "in
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context, [and] not as isolated acts, and . . . under the
totality of the circumstances." Mendoza, 195 F.3d at 1246.
Plaintiff worked for GHM from November 11, 2005 to April
17, 2008, approximately two and a half years. During that
period, Plaintiff was subjected to a litany of racial
harassment. Plaintiff has presented evidence showing rampant
and widespread use of racial slurs, derogatory insults, and
racist jokes. Plaintiff relies not only on his own testimony,
but the testimony of several other GHM employees, all attesting
to the ever-present racial hostility that existed at GHM. The
record reflects that the racially hostile remarks uttered at
GHM, by its employees and managers, were so "commonplace, overt
and denigrating that they created an atmosphere charged with
racial hostility." E.E.O.C. v. Beverage Canners, Inc., 897 F.2d
1067, 1068 (11th Cir. 1990). The facts upon which Plaintiff
relies clearly show that the harassment was frequent as that
term is used in the context of the hostile work environment
analysis. See, e.g., Shockley v. HealthSouth Cent. Ga. Rehab.
Hosp., 293 F. App'x 742, 747 (11th Cir. 2008) (reversing a
district court's grant of summary judgment, and finding a
question of fact as to the severe and pervasiveness of
harassment, in a hostile work environment claim where the
employee alleged "frequent, severe, threatening, and humiliating
verbal harassment by her supervisor" in the form of "several
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racially charged comments" numerous "you people" comments, an
allegation that her supervisor spoke to her in a threatening
manner, and evidence that the employee requested transfer from
her immediate boss's supervision).
Second, a reasonable jury could conclude that the conduct
was severe. Conduct is severe when the work environment is
"`permeated with discriminatory intimidation, ridicule and
insult, not where there is the `mere utterance of an . . .
epithet."' Miller, 277 F.3d at 1276-77. The Eleventh Circuit
has instructed that courts should not consider the severity of
each utterance, but the "severity of all the circumstances taken
together." Reeves v. C.H. Robinson Worldwide, Inc., 525 F.3d
1139, 1146 (11th Cir. 2008). Here, as noted above, the AfricanAmerican employees at GHM were subjected to frequent and vicious
harassment in the form of racially offensive language. But in
the case of Hardy, his harassment went further, including being
the target of a violent physical assault where racial slurs were
used. Indeed, this pattern of violence culminated when Owens
brandished a firearm and terminated his employment. Taken
together, a jury could find that the work environment at GHM was
permeated with discriminatory intimidation, ridicule, and
insult.
Finally, the Plaintiff has submitted sufficient, although
disputed, facts that the work environment at GHM affected
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Plaintiff's job performance. Hardy testified that he was forced
to alter his work schedule and was in constant fear for his
safety due to the violent, racist environment at GHM. Hardy
Dep. 80-81. Plaintiff has shown that GHM's hostile work
environment adversely affected his job performance.
In conclusion, the evidence presented creates a question of
fact as to whether Plaintiff was subjected to severe or
pervasive harassment. Accordingly, Defendants are not entitled
to summary judgment on Plaintiff's hostile work environment
claims.
B. Retaliation
Plaintiff also asserts a claim of retaliation under § 1981
and Title VII. To establish a prima facie case of retaliation
under Title VII, a plaintiff may show that (1) he engaged in
statutorily protected activity, (2) he suffered a materially
adverse action, and (3) there was a causal link between the two
events
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Butler v. Ala. Dep't of Transp., 536 F.3d 1209, 1212-13
(11th Cir. 2008)
An employee typically engages in statutorily
protected conduct when he "communicates to [his] employer a
belief that the employer has engaged in . . . a form of
employment discrimination." Crawford v. Metro. Gov't of
Nashville and Davidson Cnty., Tenn., 555 U.S. 271, 276 (2009).
The elements of a retaliation claim are the same under § 1981 as they are
under Title VII. Butler v. Ala. Dep't of Transp., 536 F.3d 1209, 1212-23
(11th cir. 2008)
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Plaintiff has presented copious evidence that he engaged in
statutorily protected activity. Plaintiff testified that he
complained on numerous occasions to Owens, Morris, and Lawhorne
about racial discrimination at GHM. Hardy Dep. 51, 56, 79-81,
90-94, 96-97, 103-104, 106-108. Plaintiff further contends that
he suffered a materially adverse employment action in the form
of a reduction in "the number of routes [he] was allowed to
drive and in the loss of [his] right to choose from the
available routes." Compi. ¶ 56. Defendants do not dispute that
either a reduction in routes or the loss of the right to choose
among routes constitutes an adverse employment action. Rather,
Defendants dispute whether Hardy has presented evidence that
there was a causal link between his protected activity and the
adverse action. Mot. Summ. J. 5. In support of their position,
Defendants argue Hardy explicitly testified that the reduction
in routes was not because of his protected activity, but
"because of the poor economic conditions." 6 Id. (citing Hardy
Dep. 121). However, a close reading of Hardy's deposition does
not support Defendants' argument. Hardy merely stated that, at
some point, the number of routes was reduced because of a
downturn in the economy; Hardy does not state that the economic
downturn was the only reason for the reduction, or that GHM did
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This is Defendants' only discernible argument in favor of summary judgment
on Plaintiff's retaliation claims.
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not reduce his routes in retaliation for his complaints about
racial discrimination. Defendants' sole argument, based on a
single statement in Hardy's deposition, does not demonstrate the
absence of a causal connection between Hardy's complaints about
racial discrimination and his reduction in routes.
Defendants have not identified grounds that the absence of
a genuine issue of material fact, and therefore have not carried
their burden in moving for summary judgment. Celotex Corp. v.
Catrett, 477 U.S. 317, 323-24 (1986) . As a result, Defendants
are not entitled to summary judgment on Plaintiff's retaliation
claims.
II. Claims against Defendant Morris
Defendant Morris cannot be held liable in his individual
capacity under Title Vu. 7 See Dearth v. Collins, 441 F.3d 931,
933 (11th Cir. 2006) ("[W]e now expressly hold that relief under
Title VII is available against only the employer and not against
individual employees whose actions would constitute a violation
of the Act, regardless of whether the employer is a public
company or a private company."); Hinson v. Clinch Cnty. Bd. of
Educ., 231 F.3d 821, 827 (11th Cir. 2000) (stating that "[t]he
relief under Title VII is against the employer, not [against]
individual employees whose actions constitute a violation of the
Act."); Williams v. Physician Grp., 2011 WL 1897188, at *1 (S.D.
Plaintiff concedes this point. Pl.'s Resp. 22, Dkt. No. 43.
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Ga. Apr. 20, 2011) (noting that "supervisory employees . . cannot be held liable under Title VII in their individual
capacities"). Consequently, Defendant Morris is entitled to
summary judgment on Plaintiff's Title VII claims.8
III. Intentional Infliction of Emotional Distress
Plaintiff's intentional infliction of emotional distress
(lIED) claim is subject to a two-year statute of limitations.
See O.C.G.A. § 9-3-33 ("Actions for injuries to the person shall
be brought within two years after the right of action accrues
."); Risner v. R.L. Daniell & Assocs., P.C., 500 S.E.2d 634,
635 (Ga. Ct. App. 1998) (noting that there is a two-year statute
of limitations for intentional infliction of emotional distress
claims in Georgia) . Plaintiff's employment with GHM ended on
April 17, 2008. The present suit was filed on April 15, 2011,
well after the two-year statute of limitations. Dkt. No. 1.
Consequently, Plaintiff's lIED claim is untimely and the
Defendants are entitled to summary judgment as to Plaintiff's
lIED claim.9
B
The 42 U.S.C. § 1981 claims against Defendant Morris in his individual
capacity remain actionable. See Smith v. First Margie, Inc., 2011 WL
773432, at *1 (S.D. Ga. Feb. 28, 2011) ('Contrary to Title VII, individual
employees can be held liable for discrimination under § 1981." (quoting Moss
v. W & A Cleaners, 111 F. Supp. 2d 1181, 1187 (M.D. Ala. 2000))).
Plaintiff concedes this point. Pl.'s Resp. 24.
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CONCLUSION
For the reasons stated above, the Defendants' Motion for
Summary Judgment is GRANTED in part and DENIED in part.
Defendants' motion is granted as to Plaintiff's Title VII claims
asserted against Defendant George Herman Morris and Plaintiff's
state law claim for intentional infliction of emotional distress
asserted against both Defendants. Defendants' motion is denied
as to Plaintiff's Title VII claims for retaliation and hostile
work environment asserted against Defendant GHM and as to
Plaintiff's 42 U.S.C. § 1981 claims for retaliation and hostile
work environment asserted against both Defendants.
SO ORDERED, this 29th day of August, 2012.
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ISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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