Height v. Georgia Department of Human Services
Filing
60
ORDER granting in part and denying in part 31 Motion for Summary Judgment. Signed by Chief Judge Lisa G. Wood on 3/25/2014. (csr)
N the Mutteb Statto flitritt Court
for the boutberu flitritt of Oeorgta
runtnttk ibiton
ANGELA HEIGHT,
Plaintiff,
VS.
GEORGIA DEPARTMENT OF
HUMAN SERVICES,
Defendant.
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CV 212-077
ORDER
Presently before the Court is Defendant's Motion for
Summary Judgment. Dkt. No. 31. For the reasons stated below,
Defendant's Motion is GRANTED in part and DENIED in part.
FACTUAL BACKGROUND
This is a Title VII case in which Plaintiff contends she
was demoted based on her race, African American. She claims
further that she was retaliated against for filing a Charge of
Discrimination with the Equal Employment Opportunity Commission
("EEOC") . See Dkt. Nos. 11, 28. Plaintiff alleges violations of
42 U.S.C. §§ 2000(e), 1981, 1983, and 1985, and the Thirteenth
and Fourteenth Amendments, as well as claims for hostile work
environment and intentional infliction of emotional distress.
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Plaintiff Angela Height was hired by the Glynn County
Department of Family and Child Services ("DFCS") in 1994. Dkt.
No. 31, Ex. 1, ¶ 1; Dkt. No. 44, 91 1. Plaintiff was promoted to
the position of Error Control Specialist in April 2007 and to
the position of Office of Family Independence ("OFI") supervisor
in September 2009. Id. at 191 2-3.
As OFI Supervisor, Plaintiff managed and supervised front
desk and clerical operations. Dkt. No. 31, Ex. 10, 19: 10-15.
The front desk staff was responsible for processing and
distributing applications for food stamps. Id. at 20: 12-19.
Prior to Plaintiff assuming those duties, Jamie Rhodes
("Rhodes"), a Caucasian employee, supervised that area (Id. at
21: 15-17), but took family medical leave around Thanksgiving of
2009 and did not return until January 2010. Dkt. No. 31, Ex.
39, 10: 10-13. Plaintiff and her fellow supervisor, Harold
Small, absorbed Rhodes's duties while she was away on leave.
Dkt. No. 31, Ex. 10, 21: 22-24.
DFCS Audit
The Glynn County DFCS Office had, prior to Plaintiff's
promotion, experienced difficulties processing applications in a
timely manner. Dkt. No. 31, Lx. 34, 25: 17-20. The Georgia
Department of Human Services used a metric called Standard of
Promptness ("SOP") to determine the percentage of applications
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that were timely processed. Dkt. No. 31, Ex. 1, ¶ 29; Dkt. No.
44, ¶ 29.
On January 5, 2010, Freddie Norris, a Caucasian employee
who was the Region XII Food Stamp Field Specialist, conducted an
audit of the Glynn County DFCS Office. Dkt. No. 31, Ex. 38, 18:
18-24. The audit was prompted by SOP problems. Id. at 19: 7-17.
Norris specifically looked at the processing, timeliness, and
accuracy of food stamp applications. Id. During the audit,
Norris spoke with two employees, Arlie Slay ("Slay") and Tonya
Tresvant ("Tresvant"), although Norris did not speak with
Plaintiff's immediate supervisor, Semona Holmes ("Holmes"),
regarding Plaintiff's work performance. Dkt. No. 31, Ex. 32, 21:
4-15. In fact, Harold Small ("Small"), Plaintiff's fellow
supervisor, testified that he was not interviewed prior to the
audit report being made, and was never asked about Plaintiff's
performance or ability to work as a supervisor. Dkt. No. 49, 14:
12-23.
Plaintiff contends that the audit results were inaccurate
because Norris based much of the report on the words of Slay and
Tresvant, who Plaintiff believes to have personal problems with
Plaintiff and her family. Dkt. No. 31, Ex. 10, 40: 2-9, Dkt. No.
43, Ex. 1, ¶I 13-14. Slay and Tresvant informed Norris that
Height had instructed them to deny applications early. Dkt. No.
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31, Ex. 38, 20: 15-23. DFCS policy instructs employees to
schedule interviews and to interview applicants prior to denying
applications, unless applicants miss their appointment and make
no contact with the agency. Dkt. No. 44, 191 21-22; Dkt. No. 31,
Ex. 1, 191 21-22. Plaintiff adamantly denies that she ever
instructed anyone to improperly close cases early. Dkt. No. 43,
Ex. 1, ¶ 12. Plaintiff further contends that every customer
referenced in Norris's report was serviced by Slay and that
Slay's actions caused the problems noted in the report. Id. at
¶91 10, 11.'
Slay also informed Norris that she had been told to deny
applications without making contact with clients or sending the
appointment letters they were supposed to receive. Dkt. No. 47,
23: 10-15. Norris contacted several of those clients who denied
ever receiving an appointment letter, although appointment
letters appeared in the files. Id. at 22: 10-25, 23: 1-25, 38:
6-20. Norris was concerned that the appointment letters
contained in the records were fraudulent. Id. at 41: 9-19. Slay
also sent Norris emails regarding Plaintiff's allegedly improper
instructions in which she repeated her contention that Plaintiff
told Slay to close cases early. Dkt. No. 31, Ex. 5, Ex. C.
I
Jacki Bryant, Region XII OFI Regional Manager, testified that Slay was not
disciplined after the audit report because she resigned on January 26, 2010.
Tresvant received a Memorandum of Concern and Expectations on January 27,
2010. Dkt. No. 31, Ex. 5. ¶ 10.
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Norris testified that a front desk employee told her the front
desk workers "were being told by Ms. Height to give information
out the front window as far as not doing--they weren't going to
give them an appointment letter right then; that they'd be
calling them back with an appointment letter." Dkt. No. 47, 24:
19-25. According to Holmes, it was surprising that Slay was
involved in Norris's investigation because Slay "complained
about everything," yet had sent Holmes an email "outlining the
improvements that had taken place since Mrs. Height had become
supervisor and just commending [her] on putting her in that
position . . . ." Dkt. No. 31, Ex. 32, 49: 2-12.
Audit Report
On January 7, 2010, Norris issued a memorandum ("the
Report") to Jacki Bryant documenting her concerns following the
audit. Dkt. No. 31, Ex. 13. In the Report, Norris stated she:
was told that workers were being told by supervision
to close cases before the 30th day so that they would
not reflect on the OSOP [Over Standard of Promptness]
report as well as cases that were issued a Form 173
requesting verification with a due date, and workers
were told to close before the end of the month even
though it was before the due date. If these cases
are pulled by QA or QC they will be Invalid/denials.
Id. The Report also outlined concerns that clients were being
asked about personal information through the front window, in
violation of policy, and listed various clients with whom no
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contact was made and who did not receive an appointment letter.
Id. Because the Report referred mainly to improper instructions
from "supervision," Plaintiff argues that the two other
supervisors, Rhodes and Small, were equally implicated by the
Report. See Dkt. No. 43, pg. 4. Plaintiff argues that the
Report implicated all three supervisors, because all three
supervisors had authority over the intake workers. See id.
(citing Dkt. No. 46, 27: 23-24; Dkt. No. 31, Ex. 10, 22-23.).
Plaintiff's Demotion
The Report was emailed to Lisa Lariscy ("Lariscy"),
Regional Director of Region XII. Lariscy testified that she
deferred to Norris's findings because she had "no reason to
believe that Ms. Norris in her report, in her investigation -if you want to call it that -- was not absolutely accurate."
Dkt. No. 31, Ex. 34, 18: 22-25.
Lariscy demoted Plaintiff and testified that the reason was
"her performance as a supervisor specifically as it related to
the lack of a process for accepting applications and telling
staff to inappropriately process applications." Id. at 28: 2025. Plaintiff affied that, contrary to Lariscy's assertion,
Plaintiff did have a process in place for accepting economic
support applications. Dkt. No. 43, Ex. 1, ¶ 15. Furthermore,
Plaintiff submitted a copy of the checklist that she created and
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which she contends shows the process she instituted for taking
applications. See Dkt. No. 43, Ex. 1, Ex. 2.
Lariscy held a staff meeting on January 11, 2010, which
included Plaintiff, Norris, Holmes, Bryant, and Small. Dkt. No.
31, Ex. 10, 42: 3-22. Plaintiff stated that during the meeting,
Lariscy "accused [her] of fraud, said that [Plaintiff] had
falsified documents, and that it was indicated in the report
from Mrs. Norris." Id. at 43: 9-11. Plaintiff contends that she
was not allowed to speak in her defense at this meeting, but was
told to "be quiet and shut up." Id. at 50: 9-10. Plaintiff and
the other employees were informed that Plaintiff "was no longer
going to be supervising." Id. Plaintiff's demotion was later
processed by the human resources department, with the letter
sent by human resources stating, "[t]his demotion is based on
your continuing performance deficiencies and your failure to
meet the standard of performance for an OFI Supervisor." Dkt.
No. 43, Ex. 3. Holmes testified that staff members were "very
emotional" and were even crying following the announcement of
Plaintiff's demotion. Dkt. No. 31, Ex. 32, 45: 22-25.
Holmes did not agree that Plaintiff should be demoted based
on the Report and Norris's investigation. Id. at 24: 1-25 - 28:
1-10. Holmes felt that Plaintiff was an "exceptional" employee
who was "knowledgeable," "committed," and a "great team player."
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Id. at 12: 15-17. Holmes testified that she did not attribute
SOP issues to Plaintiff. Rather, she stated, "there were
problems with the SOP and I knew that the agency was working
hard to try to bring the number down . . . . I identified it as
an agency problem . . . . I didn't identify the problem just
associated with [Plaintiff]." Id. at 11: 1-10.
Holmes also did not believe that Plaintiff falsified
documents or violated any federal food stamp policy and wanted
further proof beyond the Report that Plaintiff had taken those
actions. Id. at 25: 13-19. Holmes testified she believed
Plaintiff was demoted because of "bad leadership" and "someone
abusing their power" but that she disagreed with the demotion
because she "never believed that [she] had enough evidence to
substantiate that [Plaintiff] [] actually did this." Id. at 25:
21-24, 27: 11-14. Holmes also commented on the unusual nature of
Plaintiff's demotion. She stated:
Usually when this kind of decision is made, it's
made after long deliberation, after looking at a
person's work history with the agency, after
talking with the involved parties, after
reviewing data that can show where the -- you
know, where the evidence is that this could have
happened or the probability of it happening [] is
very great. Then those decisions are made. Not
like this -- this happened.
Id. at 37: 22-25, 38: 1-5. Furthermore, Holmes testified
that had she been given evidence to show the conclusions in
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the report to be true, she would have recommended for
Plaintiff to be fired rather than demoted. Id. at 70: 2425, 71: 1-7.
No other supervisor was demoted as a result of the
investigation, including Small or Rhodes. Dkt. No. 31, Ex. 34,
33: 3-15. Rhodes later returned from family medical leave and
requested a voluntary demotion. 2 Id. Larsicy testified that
Rhodes was not disciplined as a result of Norris's investigation
"because the problems that were noted in the report were
specific to the staff that [Plaintiff] directly supervised and
to the process of processing intake applications at the front
desk which [Plaintiff] was over." Id. at 78: 25, 79: 1-4.
Holmes testified that although Rhodes wanted to step down,
Lariscy talked with Rhodes to encourage her not to do so. Dkt.
No. 31, Ex. 32, 34: 1-9. Holmes stated that she did not
understand "why Ms. Lariscy intervened with the demotion of Mrs.
Rhodes, because [Mrs. Rhodes] was the one that requested it. And
Ms. Lariscy was aware of the issues that [Mrs. Rhodes] was
presenting as a manager." Id. at 33: 22-25, 34: 1.
2
Rhodes testified that she requested the demotion because her personal
problems meant that she "would not have the time needed to commit to that
position." Dkt. No. 31, Ex. 39, 21: 1-6.
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First EEOC Charge: Discrimination
Plaintiff filed a Charge of Discrimination with the EEOC on
February 8, 2010 alleging that she was demoted based on her
race. The Charge specifically notes:
On January 11, 2010, Lisa Lariscy, Regional
Director, demoted me to Screener, based on the
report submitted by Freddie Norris. Jamie Rhodes,
OFI Supervisor's (white, female), work product
was included in the same report, however, Ms.
Rhodes did not receive any disciplinary actions
for the noted procedure discrepancy.
Dkt. No. 43, Ex. 4.
Second EEOC Charge: Retaliation
On November 1, 2011, Plaintiff filed a second Charge of
Discrimination with the EEOC. In this Charge, Plaintiff alleges
that she was discriminated against for filing her initial,
February 8, 2010 Charge. She specifically stated:
Since March 4, 2010, I have been continuously
harassed and subjected to different terms in
conditions of employment. I have been
continuously demoted to lesser responsibilities
by Regional Manager, Jackie Bryant and not
allowed to perform the essential functions of my
position. I have been moved around the office on
numerous occasions to different offices and
externally to another location. My most recent
move was in July 2011. On July 31, 2011, I
received an uncharacteristically low annual
performance review.
Dkt. No. 43, Ex. 4.
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Multiple Moves and Changes in Duties
After her demotion, Plaintiff was assigned to work under
Small's supervision in the review unit as an interviewer. Dkt.
No. 31, Ex. 5, pg. 4. In October 2010, because Plaintiff lived
in McIntosh County, she agreed to move to the McIntosh office,
where she was assigned to process applications and conduct
reviews on food stamp cases. Id. Plaintiff testified that she
did not mind working in McIntosh County because it was nearby to
her home and required less gas money to get to and from work.
Dkt. No. 31, Ex. 12, 66: 9-14. In March 2011, after two workers
resigned from the McIntosh County office, leaving Plaintiff as
the only case manager in this county, she worked two days in
Glynn County and three days in McIntosh County each week. Dkt.
No. 31, Ex. 5, pg. 4. In April 2011, Bryant moved all of the
work from the McIntosh County office work to Glynn and Camden
County offices, meaning that it was no longer necessary to house
a worker in McIntosh County. Id. Thus, Plaintiff was moved
back to Glynn County where she worked as an interviewer. Id. In
June 2011, Bryant met with all of the supervisors in the Glynn
County OFT to determine the most productive placements for staff
members, resulting in ten case managers being reassigned to
complete different duties based on the supervisors' input
regarding worker strengths. Id. As a result of this
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reassignment, Plaintiff began working as a processor under Betty
Francis in the Intake Unit. Id. Plaintiff requested to be moved
from Francis's supervision because Plaintiff suspected that
Francis might have been involved in the investigation that led
to her demotion. Dkt. No. 31, Ex. 10, 73: 10-19. Bryant moved
Plaintiff to Lisa Bessent's supervision because Bryant believed
that Plaintiff, as a veteran worker, could effectively function
as a specialized Medicaid worker, which would help improve the
SOP. Dkt. No. 31, Ex. 5, pg. 4-5. Plaintiff was relocated to
Bessent's hail to be nearby Bessent for assistance. Id. at pg.
5.
Plaintiff is currently the only employee under Bessent's
direct supervision. See Dkt. No. 43, Ex. 1, Ex. 1. All other
employees in the Tr-Coastal Service Center share a supervisor
with several other employees. Id. Having only one employee
under a supervisor is unusual; neither Small nor Lariscy could
identify another instance of this organizational structure.
Dkt. No. 46, 41: 7-9; Dkt. No. 49, 26: 10-15.
Several other case managers within Region XII were also
reassigned multiple times. Susan Carter, who is Caucasian, was
moved six times starting in July 2010 and had three different
offices; Vernal Morrison, who is African American, was moved
four times; Tonalisa LaVant, who is African American, was moved
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six times starting in July 2010 and had three different offices;
and Lautrese Thomas, who is African American, was moved five
times in 2011 and had three different offices. Dkt. No. 31, Ex.
5, pg. 5. Defendant claims the reassignments resulted from
business restructuring to help address the increase in families
needing assistance. Id. at pg. 2.
Changes to September 2011 Performance Evaluation
Small first drafted a performance evaluation for Plaintiff
on September 23, 2011. Through four subsequent revisions, Small
was instructed by Bryant, his supervisor, to change the
evaluation to include critical comments and lower Plaintiff's
ratings. See Dkt. No. 43, Ex. 5. Small had never previously
been instructed to make such substantial edits to a performance
evaluation he drafted. Dkt. No. 49, 32: 4-7. Small testified
that he believed his original draft was correct. Id. at 31: 5-7.
Several ratings were changed from a "3" to a "2." Dkt.
No. 31,
Ex. 1 9191 54, 57, 58, 59; Dkt. No. 44, 191 54, 57, 58, 59.
A
rating of "3" is given to an employee who has met every
performance expectation and may have exceeded some, and who
performed as a "solid contributor to the success of his/her
department and the State." Dkt. No. 31, Ex. 1, ¶ 55, Dkt.
No.
44, ¶ 55. A rating of "2" is given to an employee who has met
most but not all performance expectations, and who needs
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improvement in at least one area. Id. at 91 56. Bryant
identified overdue and untimely claims as well as complaints she
received regarding Plaintiff as the reasons why she recommended
changing the performance evaluation ratings. Dkt. No. 31, Ex.
5, pg. 6. Even with the changes, Plaintiff's overall performance
evaluation was that of a successful performer, with an overall
rating of "3," and an actual rating of "2.85." Dkt. No. 31, Ex.
23.
Promotional Opportunities
Plaintiff argues that Defendant retaliated against her by
not informing her of promotional opportunities that were filled
by other employees. Specifically, Lautrese Thomas was selected
as lead worker, a position selected by the supervisor of the
unit in 2010. Dkt. No. 31, Ex. 5, pgs. 8-9. Rhodes was selected
as lead worker in 2012. Id. at pg. 9. Additionally, Bryant
asked the supervisors within OFI to speak with staff they
thought would be well suited for management when an acting
supervisor position opened in Glynn County. Id. at pg. 8.
Lautrese Thomas, Myra Alvin, and Vanessia Wallace applied for
the position as a result. Id.
Disheveled Office
Plaintiff contends that her office was "trashed" while she
was out on family medical leave. She testified that it did not
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look trashed when she left for leave. Dkt. No. 31, Ex. 10, 112:
6-8. Plaintiff stated,
"[sifter
filing my EEOC Charge, I
returned to my office destroyed and in shambles." Dkt. No. 43,
Ex. 1, ¶ 17. Plaintiff submitted a photograph of her office,
which reveals some trash on the floor and some clutter on her
desk. Dkt. No. 43, Ex. G.
Christmas Lunches
Plaintiff contends that Defendant's retaliation is also
indicated by Plaintiff not being invited to attend a unit
specific Christmas luncheon. Dkt. No. 43, Ex. 1,
91 6.
Traditionally, each unit would eat lunch together prior to the
Christmas holidays followed by the supervisor allowing employees
to go home for four hours to prepare for the holiday. Dkt. No.
31, Ex. 10, 93: 1-9. During December 2012, multiple supervisors
organized Christmas lunches for their employees and allowed
their employees to leave early that day. Id. at 93: 14-15. At
three o'clock on December 12, 2012, Bessent, who only supervised
Plaintiff, invited Plaintiff to go to lunch and to take the rest
of the afternoon off work. Id. at 5-17. Bessent told Plaintiff
that "she forgot about [Plaintiff]." Id. at 94: 14-17.
Plaintiff did not go to lunch with Bessent and, because she had
not prepared to leave early that day, Plaintiff did not leave
early.
Id. at 94: 1-12.
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LEGAL STANDARD
Summary judgment is only 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." Fed. R. Civ.
P. 56(a) . A material fact is one that could impact the outcome
in a case. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 248
(1986) . A dispute is genuine only where the jury could issue a
verdict in the nonmoving party's favor. Id. In determining
whether summary judgment is appropriate, the Court will view the
evidence "in the light most favorable to the opposing party."
Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970).
The moving party bears the burden of showing a lack of
genuine issue of material fact. Adickes, 389 U.S. at 157. The
moving party should do so by identifying "particular parts of
materials in the record" which indicate "the absence . . . of a
genuine dispute." Fed. R. Civ. P. 56(c) (1) (A). It is only after
the moving party has fulfilled this burden that the party
opposing summary judgment bears a burden of responding. Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmovant will
defeat a motion for summary judgment by presenting evidence
"such that a reasonable jury could return a verdict for the
nonmoving party." Anderson, 477 U.S. at 248.
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DISCUSSION
I.
Title VII Racial Discrimination
Title VII prohibits employment discrimination on the basis
of color, religion, sex, or national origin. 42 U.S.C. § 2000e2(a) (1). Under McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973), the plaintiff in a Title VII case bears the initial
burden of establishing a prima facie case of race
discrimination. Demonstrating a prima facie case only requires
the plaintiff to put forth facts that create an inference of
discrimination. Holifield v. Reno, 115 F.3d 1555, 1562 (11th
Cir. 1997).
To establish a prima facie case of discrimination, the
plaintiff must prove that he or she: 1) belonged to a racial
minority; 2) was subjected to adverse job action; 3)was treated
less favorably than similarly situated, non-minority employees;
and 4) was qualified for the job. Holifield, 115 F.3d at 1562;
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) . A
plaintiff is subjected to an adverse employment action when he
suffers "a serious and material change in the terms, conditions,
or privileges of employment." Rainey v. Holder, 412 Fed.Appx.
235, 238 (11th Cir. 2011) (quoting Davis v. Town of Lake Park,
245 F.3d 1232, 1238-39 (11th Cir. 2001)). "To make a comparison
of the plaintiff's treatment to that of non-minority employees,
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the plaintiff must show that he and the employees are similarly
situated in all relevant respects." Holifield, 115 F.3d 1555 at
1562. Determining whether employees are similarly situated
requires the Court to look at whether they "are involved in or
accused of the same or similar conduct and are disciplined in
different ways." Brown v. Jacobs Engineering, Inc., 401 Fed.
Appx. 478, 480 (11th Cir. 2010) (quoting Maniccia, 171 F.3d at
1368. "The comparator must be nearly identical to the plaintiff
to prevent courts from second-guessing a reasonable decision by
the employer." Wilson v. B/E Aerospace, Inc., 376 F.3d 1079,
1091 (11th Cir. 2004) . "If a plaintiff fails to show the
existence of a similarly situated employee, summary judgment is
appropriate where no other evidence of discrimination is
present." Holifield, 115 F.3d at 1562. After establishing a
prima facie case, the burden shifts to the defendant "to
articulate some legitimate, nondiscriminatory reason for the
employee's rejection." McDonnell Douglas Corp., 411 U.S. at 802.
The plaintiff then bears the burden of producing sufficient
evidence of pretext. Tex. Dept. of Cmty. Affairs v. Burdine, 450
U.S. 248, 248 (1981).
Prior to bringing a Title VII discrimination suit, a
plaintiff must exhaust administrative remedies, which include
filing a timely charge of discrimination with the EEOC.
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Wilkerson v. Grinnell Corp., 270 F.3d 1314, 1316 (11th Cir.
2001). The Court may only analyze a Title VII claim based on the
scope of the EEOC charge. See Thomas v. Miami Dade Public Health
Trust, 369 Fed.Appx. 19, 22 (11th Cir. 2010) (affirming the
district court's determination that race and sex discrimination
claims were barred where EEOC Charge alleged only retaliation,
but complaint alleged race and sex discrimination).
Prima Facie Case
It is undisputed that Plaintiff, as an African American
female, belonged to a racial minority, that she was subjected to
an adverse job action through demotion, and that she was
qualified for the job. Rather, the dispute regarding the prima
facie case centers on whether Rhodes was an employee similarly
situated to Plaintiff. Plaintiff contends that Rhodes was
similarly situated to Plaintiff yet avoided punishment,
specifically demotion, following the audit report. Dkt. No. 11,
¶91 17, 19. Defendant contends that Plaintiff and Rhodes were not
similarly situated because, unlike Plaintiff, Rhodes was not
accused of acts such as denying applications early and failing
to send appointment letters. Dkt. No. 31, Ex. 2, pg. 8.
Without the audit, Plaintiff and Rhodes were similarly
situated, as both were OFI supervisors in the same office.
Deposition testimony indicates that both supervisors were faced
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with the SOP challenges, and that Rhodes was considered to have
performance deficiencies. Dkt. No. 31, Ex. 32, 13: 15-16, 18.
The distinguishing factor between Plaintiff and Rhodes is that
Plaintiff received accusations in the audit that Rhodes did not.
If the audit itself was generated in a racially discriminatory
fashion, though, the presence of accusations against the African
American employee and not against the Caucasian employee cannot
logically serve as the sole distinguishing factor that makes the
employees not similarly situated. The Court finds that Plaintiff
has brought forth sufficient evidence to create a fact issue as
to whether Rhodes and Plaintiff are similarly situated.
Much of the basis for the negative audit report stems from
allegations by Slay and Tresvant that Plaintiff instructed them
to close cases early and not send appointment letters. Plaintiff
adamantly denies that she engaged in the behavior noted in the
Report. Holmes testified that she did not believe the
allegations in the Report, and that no other evidence was
provided to support the allegations. Further, Plaintiff contends
that the Report itself was generated in a discriminatory
fashion. Evidence to support this contention is that Plaintiff's
African American immediate supervisor and also her African
American fellow supervisor, who could best attest to Plaintiff's
performance, were not consulted. Dkt. No. 43, Lx. 1, 191 11-12.
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Also, Plaintiff contends she was not given an opportunity to
dispute the Report at the meeting held by Lariscy and that the
Report was used as the sole basis for Plaintiff's demotion,
which was an unprecedented method for deciding upon an employee
demotion. In contrast, Rhodes, a Caucasian employee, retained
her position even after performance deficiencies and even after
requesting that she be demoted. Consequently, a factual dispute
exists regarding whether the Report was generated out of racial
animus, which in turn goes to whether Plaintiff and Rhodes were
similarly situated.
The Court finds that summary judgment is not appropriate
because a dispute over a genuine issue of material fact exists
with regard to whether Plaintiff was treated less favorably than
a similarly situated, non-minority employee. Specifically in
dispute is whether the audit report that formed the basis for
Plaintiff's demotion but not Rhodes's demotion was generated out
of racial animus, thereby serving as an invalid justification
for Plaintiff's demotion. Resolution of this factual dispute
will answer whether Plaintiff and Rhodes were similarly
situated, and therefore whether Plaintiff established her prima
facie case. Because this question of fact exists, summary
judgment is not appropriate, but rather a jury must resolve the
factual dispute.
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Legitimate, nondiscriminatory reason or pretext?
Issues of material fact also exist with regard to
Defendant's proffered reason for demoting Plaintiff. After a
plaintiff establishes a Title VII prima facie case, the burden
of production, but not the burden of persuasion, shifts to the
employer to articulate a legitimate, non-discriminatory reason
for the employment action. McDonnell Douglas Corp., 411 U.S. at
802. The burden then returns to the plaintiff to prove that the
employer's reasons are a pretext for discrimination. Tex. Dept.
of Cmty. Affairs, 450 U.S. at 248. A plaintiff shows pretext by
providing enough evidence to "cast sufficient doubt on the
defendant's proffered nondiscriminatory reasons to permit a
reasonable factfinder to conclude that the employer's proffered
'legitimate reasons were not what actually motivated its
conduct.'" Combs v. Plantation Patterns, 106 F.3d 1519, 1538
(11th Cir. 1997) (quoting Cooper-Houston v. S. Ry. Co., 37 F.3d
603, 605 (11th Cir. 1994)). If the proffered reason could
motivate a reasonable employer, "an employee must meet that
reason head on and rebut it" by doing more than "simply
quarreling with the wisdom of that reason." Chapman v. Al
Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) . It is not the
Court's role to "sit as a super-personnel department that
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reexamines an entity's business decisions." Elrod v. Sears
Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991).
Plaintiff was demoted based on the results of Norris's
audit report. As noted above, Lariscy testified that Plaintiff
was demoted based on "her performance as a supervisor
specifically as it related to the lack of a process for
accepting applications and telling staff to inappropriately
process applications." The demotion letter sent to Plaintiff
specifies that Plaintiff's demotion occurred because of
"continuing performance deficiencies and [her] failure to meet
the standards of performance for an OFI supervisor."
Plaintiff asserts that Defendant changed the stated reasons
for demoting Plaintiff by initially asserting that the demotion
stemmed from allegations contained within the Report and next
from "performance deficiencies." The Court does not find that
these explanations are mutually exclusive, but rather that
"performance deficiencies" is a more general term that could
subsume the initially proffered reasons. Regardless, Plaintiff
has presented evidence to cast sufficient doubt that the
proffered reasons were actually what motivated Plaintiff's
demotion. First, Plaintiff has presented evidence that a
Caucasian OFI Supervisor with noted performance deficiencies was
not demoted, which casts doubt on the notion that performance
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deficiencies motivated the demotion. Second, Plaintiff testified
under oath that she did not tell staff to inappropriately
process applications, which casts doubt on the notion that the
Report was conducted in an accurate, unbiased manner. Third,
Plaintiff provided evidence to show the existence of her process
for accepting applications. If believed, such evidence would
cast doubt on the assertion that Plaintiff's lack of process was
a legitimate reason for her demotion. Fourth, Plaintiff has
presented evidence that her own supervisor did not find her
performance deficient and did not believe the allegations
against her, casting doubt on the contention that the Report was
accurately generated and that performance deficiencies were the
real reason for firing Plaintiff. Plaintiff has presented
evidence from which a reasonable juror could determine that the
proffered reasons for demoting Plaintiff were pretexts.
Consequently, whether the proffered reasons for demoting
Plaintiff were pretexts is in dispute and summary judgment is
not appropriate.
II. Title VII Retaliation
Plaintiff asserts a retaliation claim under Title VII. "Title
VII protects employees against retaliation by an employer for
participation in an employment discrimination case." Donnellon
v. Fruehauf Corp., 794 F.2d 598, 600 (11th Cir. 1986). To
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establish a Title VII retaliation claim, Plaintiff must prove
she: a) engaged in statutorily protected activity; b) suffered a
materially adverse action; and
C)
there was a causal relation
between the protected activity and adverse action. Butler v.
Alabama Dept. of Transp., 536 F.3d 1209, 1212-13 (11th Cir.
2008) (quoting Goldsmith v. Bagby Elevator Co., 513 F.3d 1261,
1277 (11th Cir. 2008)). After the plaintiff establishes a prima
facie case, the employer may present a legitimate, nonretaliatory reason for the action. Pennington v. City of
Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001) (citing Olmsted
v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998).
However, "[t]he ultimate burden of proving by a preponderance of
the evidence that the reason provided by the employer is a
pretext for prohibited, retaliatory conduct remains on the
plaintiff." Id.
"An action is materially adverse if it 'might have
dissuaded a reasonable worker from making or supporting a charge
of discrimination."' Chapter 7 Trustee v. Gate Gourmet, Inc.,
683 F.3d 1249, 1259 (11th Cir. 2012) (citing Burlington N. &
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)) . Regarding
causation, the United States Supreme Court determined that butfor causation is required in Title VII retaliation claims. Univ.
of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2533 (2013)
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"The text, structure, and history of Title VII demonstrate that
a plaintiff making a retaliation claim under § 2000e-3(a) must
establish that his or her protected activity was a but-for cause
of the alleged adverse action by the employer." Id. at 2534. The
causation burden can be met by showing "close temporal proximity
between the statutorily protected activity and the adverse
employment action." Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007) (noting that "in the absence of other
evidence tending to show causation, if there is a substantial
delay between the protected expression and the adverse action,
the complaint fails as a matter of law") . However, "mere
temporal proximity, without more, must be 'very close.'" Id.
Plaintiff alleges that Defendant retaliated against her,
indicated by her multiple moves and changes in duties, changes
to her September 2011 performance evaluation, the denial of
promotional opportunities, the items of trash in her office, and
the alleged denial of a Christmas lunch. It is undisputed that
Plaintiff has satisfied the first element of a retaliation claim
by filing an EEOC Charge of Discrimination. Less clear is
whether the changes she complains about are "materially
adverse." An even more challenging element for Plaintiff to meet
is that of causation.
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Multiple Moves and Chanaes in Duties
Plaintiff has not presented evidence that her various moves
and duty changes would not have occurred but for wrongful
actions of the employer. Rather, multiple other employees were
moved to different offices without evidence that they filed EEOC
Charges. Additionally, many other employees, like Plaintiff,
changed job responsibilities numerous times. Plaintiff has not
shown that her own reassignments were different from those of
other employees and resulted from retaliation rather than the
purpose stated by Defendant—business restructuring to help
address the increase in families needing assistance.
Plaintiff alleges that moving to a different room to
interview and process Medicaid applications indicates
retaliation by Defendant. Dkt. No. 53, pgs. 7-8. Plaintiff was
moved under Bessent's supervision after she complained about
working under her previous supervisor. Plaintiff has not shown
that her duties were changed as a product of retaliation rather
than for the purpose stated by Bryant—to create a specialized
Medicaid worker to help improve the SOP. Although employees
testified that the business structure in Plaintiff's department
is unusual, with only one employee under one supervisor, an
unusual business structure created after Plaintiff requested a
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new supervisor does not, without more, serve as evidence of
retaliation. Consequently, this claim fails as a matter of law.
Changes to September 2011 Performance Evaluation
Plaintiff alleges that Bryant's action of changing the
performance review to indicate a lower rating indicates
retaliation. Dkt. No. 43, pg. 13. However, Plaintiff has not
presented evidence that Bryant, who was notified of numerous
complaints regarding Plaintiff, asked Small to redraft the
review based on retaliation rather than the reasons presented by
Bryant. Bryant testified that she recommended for three of
Plaintiff's ratings to be changed from a "3" to a "2" because of
complaints that Plaintiff did not return calls, complaints of
untimely interviews, and because Plaintiff had untimely and
overdue claims. Bryant submitted emails documenting these
complaints. Plaintiff presented no evidence to show that Bryant
recommended lowering Plaintiff's ratings as a result of
retaliation rather than the documented complaints. Consequently,
this claim fails as a matter of law.
Promotional Opportunities
Plaintiff does not satisfy the prima facie case of
retaliation with regard to other employees receiving promotions
instead of Plaintiff. Plaintiff has not established that she
would have been promoted over the other qualified employees but
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for wrongful actions of the employer. According to Bryant, lead
candidates for the acting supervisory position and lead worker
positions were determined by each supervisor. Plaintiff has not
presented evidence to show that her supervisors exhibited
retaliation by choosing other candidates for these promotions.
Consequently, Plaintiff has not established a prima facie case
of retaliation with regard to promotional opportunities and this
claim fails as a matter of law.
Disheveled Office
Plaintiff was away from work on January 22, 2010 through
March 10, 2010 for family medical leave. During this time,
Plaintiff filed the EEOC Charge of Discrimination, on February
8, 2010. Plaintiff testified that while she was away, her office
was put into a state of disarray, unlike how she left the
office. Dkt. No. 31, Ex. 10, 112: 6-8. The Court has reviewed
the photograph Plaintiff took of her allegedly destroyed office
(Dkt. No. 43-1, Ex. 3), and notes that the picture does not
represent the scene as described by Plaintiff. Further, the
picture shows no indication of who allegedly destroyed her
office or when the alleged act took place. Consequently,
Plaintiff has failed to establish causation and this claim fails
as a matter of law.
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Christmas Lunches
The alleged instance of retaliation involving Plaintiff not
being timely invited to a Christmas lunch and not being given
four hours off on December 11, 2012 occurred approximately two
years and ten months after Plaintiff filed her EEOC Charge. This
event is not in "close temporal proximity" to the filing of the
Charge. Consequently, it does not satisfy the prima facie case
of retaliation. This claim fails as a matter of law.
III. Additional Claims
Plaintiff alleges a variety of claims in the Complaint and
Amended Complaint that she fails to defend in later briefs.
Plaintiff alleges that Defendant violated her right to equal
protection by demoting Plaintiff rather than Rhodes, a white
employee who Plaintiff alleges was responsible for performance
deficiencies. Dkt. No. 11, ¶91 21, 30-34. Plaintiff also alleges
that Defendant's conduct makes Defendant liable for creating a
hostile work environment, for intentional infliction of
emotional distress, violation of the Thirteenth Amendment, and
§§ 1981, 1983, and 1985 claims. Id. at 191 9-29, 35-38; Dkt. No.
28, ¶ 40. Plaintiff has not mentioned these claims since her
Amended Complaints. Even after Defendant argued against the
viability of these claims in moving for summary judgment (see
Dkt. No. 31-2), Plaintiff did not argue their merits in opposing
we
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summary judgment (see Dkt. Nos. 43, 53, 57) . According to the
Eleventh Circuit, a district court should consider a claim
abandoned when a claim included in the complaint is not
addressed in opposing summary judgment. Road Sprinkler Fitters
Local Union No. 669 v. Independent Sprinkler Corp., 10 F.3d
1563, 1568 (11th Cir. 1994) (determining the district court
correctly treated as abandoned a claim alleged in the complaint
but not raised in support of or in opposition to summary
judgment); see also Wilkerson, 270 F.3d at 1322 (deeming claim
abandoned where argument was not presented in initial response
to summary judgment). "There is no burden upon the district
court to distill every potential argument that could be made
based upon the materials before it on summary judgment."
Resolution Trust Corp. v. Dunmar Corp., 43 F.3d 587, 599 (11th
Cir. 1995) (declining to address a legal issue against which a
party failed to argue in opposing motion for summary judgment).
As Plaintiff similarly failed to present the Court with any
argument on the aforementioned claims after the amended
complaints, the Court considers these claims abandoned and
summary judgment on them appropriate.
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CONCLUSION
Based on the foregoing, Defendant's Motion for Summary
Judgment, Dkt. No. 31, is GRANTED as to the Title VII
retaliation, equal protection, hostile work environment,
intentional infliction of emotional distress, Thirteenth
Amendment, §§ 1981, 1983, and 1985 claims, and DENIED as to the
Title VII racial discrimination claim.
SO ORDERED, this 25TH day of March, 2014.
eq
L~
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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