Barnett v. Health Care Staffing, Inc. et al
Filing
58
ORDER granting 36 Motion for Summary Judgment; granting 37 Motion for Summary Judgment. The Clerk of Court is directed to ENTER FINAL JUDGMENT in favor of Defendants and CLOSE this case. Signed by Chief Judge Lisa G. Wood on 3/30/2015. (csr)
In the Lniteb tate
itrict (Court
for the 6outbern itritt of georgia
&untuick ibiion
ANTHONY D. BARNETT,
Plaintiff,
V.
HEALTHCARE STAFFING, INC.,
GATEWAY BEHAVIORAL HEALTH
SERVICES, KRISTINE WALDRON,
VANESSA SHEARER, and CATHY
THOMPSON,
Defendants.
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CIVIL ACTION NO.: CV213-073
•) l
Presently before the Court are two separate Motions for
Summary Judgment: the first filed by Defendants Healthcare
Staffing, Inc. ("HCS") and Kristine Waldron, dkt. no. 36, and
the second filed by Defendants Gateway Behavioral Health
Services ("Gateway"), Vanessa Shearer, and Cathy Thompson
(collectively "the Gateway Defendants"), dkt. no. 37. Plaintiff
filed Responses to these separate Motions. Dkt. Nos. 51, 52.
Each group of Defendants filed a Reply. Dkt. Nos. 54, 55. For
the following reasons, Defendants' Motions are GRANTED.
AO 72A
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FACTUAL BACKGROUND'
Defendant HCS is a company which, since the year 2000, has
"specialize[d] in providing staffing services for health care
facilities[.]" Dkt. No. 36-1, p. 1. Defendant HCS had a
contract to provide staffing services to Defendant Gateway,
which is a community service board created by the Georgia
legislature. Id., Dkt. 36-2, p.2. Gateway serves Georgia's
coastal counties and provides "assistance to individuals and
their families experiencing disabling effects of mental illness,
developmental disability, and addictive diseases." Id.
Per the terms of the contract between HCS and Gateway, HCS
accepts applications from potential employees and screens
applicants to be assigned to Gateway, but Gateway is to approve
any applicant before he works at Gateway. Id. at p. 3. HCS
pays and employs an individual during his assignment at Gateway,
but Gateway and its employees manage and control the HCS
employee. Id. Gateway determines the criteria, such as level
of education, credentials, and licenses an individual must
possess before he is assigned to Gateway. Gateway also
1
The Court views the evidence in the light most favorable to Plaintiff, as
it must do with a motion for summary judgment. However, Plaintiff's Second
Amended Complaint is short on facts, and his Statements of Material Facts
filed in response to Defendants' Motions cite to nothing of record other than
his own Complaint, with very few exceptions. Specifically, Plaintiff points
to his deposition testimony and an exhibit attached to the deposition
transcript only in a general manner to admit or deny certain statements the
Gateway Defendants made in their Statement of Material Facts. See Dkt. No.
51-2, p. 4. Nonetheless, the Court has taken care to view the record in
light of Plaintiff's best case.
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determines the compensation to be paid, whether the compensation
will be on an hourly or salaried basis, and whether to terminate
the "positions being filled by employees staffed by" HCS
employees. Id. HCS employees assigned to Gateway work at
Gateway facilities. Id. at p. 4. Defendant Vanessa Shearer is
the Human Resources Director for Gateway and coordinates with
HCS to fill Gateway's staffing needs. Dkt. 37-2, p. 3.
Plaintiff applied with HCS for a nursing position on the
Assertive Community Treatment ("ACT") team at Gateway on
August 30, 2011. Dkt. No. 36-2, p. 4; Dkt. No 36-4, p. 5, ¶ 22.
Plaintiff received a Bachelor of Nursing degree from Tuskegee
University in 1982 and has worked in the psychiatric nursing
field for approximately 30 years' time. To be eligible for the
position at Gateway, Plaintiff had to pass a series of tests,
including clinical and pharmacology tests. Dkt. No. 36-2, p. 5.
Plaintiff passed these tests after more than one attempt and was
approved to be a nurse on the ACT team at Gateway. Id.
Plaintiff began working at Gateway on September 28, 2011, and he
received a copy of the HCS employee handbook on October 3, 2011.
Id.; Dkt. No. 36-4, p. 6, IT 25, 26. Plaintiff was employed by
HCS from September 2011, until his termination on or about
July 9, 2012. Dkt. 9, IT 14, 35.
Gateway set Plaintiff's hours, schedule, and pay. Plaintiff
reported to Nina Kennedy, an employee of Gateway, and Ms.
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Kennedy and other Gateway managers supervised Plaintiff. Dkt.
No. 36-2, P. 6. The only matter Plaintiff reported to HCS was
the hours he worked. Id. Ms. Kennedy issued a written
reprimand to Plaintiff on November 16, 2011, based on his
lateness, a policy violation, and the quality of work produced.
Dkt. No. 36-4, p. 48; Dkt. No. 37-2, p. 6.
While Plaintiff worked at the ACT, Defendant Kristine
Waldron was working as the Acting Nurse Manager at Gateway.
Dkt. No. 37-2, P. 7. Defendant Waldron noticed Plaintiff would
package drugs and medications in pill containers prior to his
visits with consumers, which was against policy and the law.
Id. Defendant Waldron also noticed there were some narcotic
drugs missing, and Plaintiff admitted to repacking the
consumers' medications. Id. Defendant Waldron voiced her
concerns to Ms. Kennedy. Id. at p. 8.
Plaintiff later requested a transfer from the ACT team to
the Crisis Stabilization Unit ("CSU"), and Gateway approved this
request on or around February 15, 2012. Dkt. No. 36-2, p. 6.
Plaintiff worked the weekend night shifts. Dkt. No. 37-2, p. 8.
Defendant Cathy Thompson, an employee of Gateway, was
Plaintiff's supervisor on the CSU. Dkt. No. 36-2, p. 6. As
with the ACT team, in this new position, the only matter
Plaintiff reported to HCS was his hours worked. Id. at p. 7.
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Defendant Thompson is the manager in charge of the CSU at
Gateway. Dkt. No. 37-3, p. 2. Defendant Waldron reported the
issues she had had with Plaintiff while he was in the ACT to
Defendant Thompson. Dkt. No. 37-2, P. 8. During the week of
June 25, 2012, Defendant Thompson notified HCS that Plaintiff
was not to return to the CSU because of unsatisfactory job
performance. Based on the contract between HCS and Gateway, HCS
was required to remove Plaintiff from his assignment in the CSU.
Dkt. No. 36-2, p. 7. Hayley Barr of HCS left a voicemail for
Plaintiff to return her call, but Plaintiff did not receive this
message until after HCS's offices were closed. When Plaintiff
came to work at the CSU on June 29, 2012, Defendant Thompson
informed him that she did not want him working in the CSU any
longer.
Id.; Dkt. No. 36-7, pp. 107, 110.
Following the termination of his employment at Gateway, HCS
attempted to find Plaintiff another assignment, but these
efforts were not successful. Dkt. No. 37-2, p. 10. HCS issued
a separation notice to Plaintiff on July 9, 2012. Dkt. No. 367, pp. 113-14, 117; Dkt. No. 36-2, p. 7. Plaintiff filed
complaints against HCS and Gateway with the Equal Employment
Opportunity Commission ("EEOC"). On both complaints, the EEOC
issued Plaintiff a right to sue letter after determining that it
was unable to conclude that the information gathered established
violations of the statutes. Dkt. Nos. 9-1, 9-2.
AO 72A
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Plaintiff is a black male, and he claims he was fired
solely because of his race and gender and was replaced by
Defendant Waldron, a white female Plaintiff contends is less
qualified than he is. Dkt. No. 9, ¶ 63. Plaintiff also claims
Defendants Waldron, Shearer, and Thompson conspired to
manufacture reasons to terminate him. Dkt. No. 52-1, p. 4.
Plaintiff seeks relief under 42 U.S.C. § 2000e, et seq.
(Title
VII of the Civil Rights Act of 1964, or "Title VII"), 42 U.S.C.
§§ 1981 and 1981a, 42 U.S.C. § 1985, 42 U.S.C. § 1983, 42 U.S.C.
§ 1988, and under Georgia law for intentional infliction of
emotional distress. Dkt. No. 9, 191 66, 87, 108, 132, 167, 199,
219, 248, 277.
Defendants state Plaintiff was not discriminated against
based on his race or gender or treated unlawfully. Dkt. No. 361, P. 2; Dkt. No. 37-1, p. 3. Rather, Defendants HCS and
Waldron state Plaintiff "refuses to recognize that his own
actions . . . resulted in the termination of his employment[.]"
Dkt. No. 36-1, p. 2. The Gateway Defendants maintain there is
no basis for Plaintiff's claims against them. Dkt. No. 37-1,
p. 3.
SUMMARY JUDGMENT STANDARD
Summary judgment "shall" be granted if "the movant shows
that there is no genuine dispute as to any material fact and
that the movant is entitled to judgment as a matter of law."
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FED.
R. Civ. P. 56(a). "A dispute about a material fact is
genuine and summary judgment is inappropriate if the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party. However, there must exist a conflict in
substantial evidence to pose a jury question." Hall v. Sunjoy
Indus. Grp., Inc., 764 F. Supp.2d 1297, 1301 (M.D. Fla. 2011)
(citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986),
and (Verbraeken v. Westinghouse Elec. Corp., 881 F.2d 1041, 1045
(11th Cir. 1989)).
The moving parties bear the burden of establishing that
there is no genuine dispute as to any material fact and that
they are entitled to judgment as a matter of law. See
Williamson Oil Co., Inc. v. Philip Morris USA, 346 F.3d 1287,
1298 (11th Cir. 2003) . Specifically, the moving parties must
identify the portions of the record which establish that there
are no "genuine dispute[s] as to any material fact and the
movant[s are] entitled to judgment as a matter of law." Moton
v. Cowart, 631 F.3d 1337, 1341 (11th Cir. 2011). When the
nonmoving party would have the burden of proof at trial, the
moving parties may discharge their burden by showing that the
record lacks evidence to support the nonmoving party's case or
that the nonmoving party would be unable to prove his case at
trial. See id. (citing Celotex v. Catrett, 477 U.S. 317, 322-23
(1986)). In determining whether a summary judgment motion
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should be granted, a court must view the record and all
reasonable inferences that can be drawn from the record in a
light most favorable to the nonmoving party. Peek-A-Boo Lounge
of Bradenton, Inc. v. Manatee Cnty., Fla., 630 F.3d 1346, 1353
(11th Cir. 2011)
DISCUSSION
The instant Motions require the Court to apply the aboveexplained summary judgement standard to each claim within
Plaintiff's Second Amended Complaint. 2 While the Gateway
Defendants have filed a separate motion from Defendants HSC and
Waldron, much of the analysis applies equally to both motions.
I. Discrimination (Counts I through IV of Plaintiff's Second
Amended Complaint)
Title VII makes it unlawful for an employer to "discharge
or otherwise discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual's race. . . [or] sex[.]"
42 U.S.C. § 2000e-2(a)(1). Under 42 U.S.C. § 1981, "[aJll
2
"'As a general rule, an amended complaint supersedes and replaces the
original complaint unless the amendment specifically refers to or adopts the
earlier pleading.'" Schreane v. Middlebrooks, 522 F. App'x 845, 847 (11th
Cir. 2013) (quoting Varnes v. Local 91, Glass Bottle Blowers Ass'n of U.S. &
Canada, 674 F.2d 1365, 1370 n.6 (11th Cir. 1982)). "Once the district court
accepts the amended pleading, 'the original pleading is abandoned by the
amendment, and is no longer a part of the pleader's averments against his
adversary." Id. (quoting Piritando v. Miami-Dade Hous. Agency, 501 F.3d
1241, 1243 (11th Cir. 2007) (quotation omitted)) . Plaintiff filed an
original complaint and two amendments thereto. In his amendments, Plaintiff
does not refer to or adopt his earlier pleadings. Accordingly, the
assertions contained in Plaintiff's Second Amended complaint frame the issues
before the Court.
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persons within the jurisdiction of the United States shall have
the same right in every State . . . to make and enforce
contracts, to sue, be parties, give evidence, and to the full
and equal benefit of all laws and proceedings for the security
of persons and property as is enjoyed by white citizens[.]" 42
U.S.C. § 1981(a). "The rights protected by [Section 19811 are
protected against impairment by nongovernmental
discrimination[.]" 42 U.S.C. § 1981(c).
Claims of race discrimination under Section 1981 are
analyzed in the same manner as claims brought under Title VII.
Coar v. Pemco Aeroplex, Inc., 372 F. App'x 1, 2 (11th Cir. 2010)
(citing Rice-Lamar v. City of Fort Lauderdale, Fla., 232 F.3d
836, 843 n.h (11th Cir. 2000)). Likewise, claims involving
gender discrimination are analyzed in much the same manner as
racial discrimination claims under Title VII. See Quigg v.
Thomas Cnty. Sch. Dist., No. 7:12-CV-153, 2014 WL 4442029, at
*11 (M.D. Ga. Sept. 9, 2014) (citing Rioux v. City of Atlanta
Ga., 520 F.3d 1269, 1275 n.5 (11th Cir. 2008), and Matthews v.
Columbia Cnty., 294 F.3d 1294, 1297 (11th Cir. 2002)); Apodaca
v. Sec'y of Dep't of Homeland Sec., 161 F. App'x 897, 899 (11th
Cir. 2006)
A plaintiff's claim of racial discrimination may be
established by statistical or anecdotal proof, direct evidence,
or circumstantial evidence. Id.; Van Voorhis v. Hillsborough
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Cnty. Bd. of Cnty. Comrn'rs, 512 F.3d 1296, 1300 (11th Cir.
2008). A plaintiff's claim of gender-based discrimination can
be established by direct or circumstantial evidence. Lawyer v.
Hillcrest Hospice, Inc., 300 F. App'x 768, 771 (11th Cir. 2008)
(citing EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1272
(11th Cir. 2002)).
The Court will address whether Plaintiff
could establish discrimination at trial using any of these
avenues of proof.
A. Statistical and Anecdotal Proof (Pattern and Practice
Claim)
Plaintiff does not base a pattern and practice claim on
statistical proof. See generally, Dkt. No. 9. However, to the
extent Plaintiff seeks to set forth a pattern and practice claim
based on anecdotal evidence, his attempt fails.
A pattern and practice claim either may be brought by a
governmental entity (specifically the EEOC) "if there is
reasonable cause to believe that any person or group of persons
is engaged in a pattern or practice of discrimination, or by a
class of private plaintiffs under 42 U.S.C. § 2000e, et.
seq.[.]"
Joe's Stone Crab, 220 F.3d at 1286 (internal citations
omitted) . For such claims, the plaintiff must establish "that
Defendants HCS and Waldron assert Plaintiff's Title VII claims against
Defendant Waldron must fail because she is not an employer and had no power
or authority to terminate Plaintiff. Dkt. No. 36-1, pp. 13-14. Plaintiff
agrees. Dkt. No. 52-1, p. 7. Therefore, the court's focus on the Title VII
analysis will be on Plaintiff's contentions against Defendant HCS and the
Gateway Defendants and their alleged actions.
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[the] discrimination was the company's standard operating
procedure." Id. "To meet this burden of proof, a plaintiff
must 'prove more than the mere occurrence of isolated or
accidental or sporadic discriminatory acts. [The plaintiff]
ha[s] to establish by a preponderance of the evidence that [
discrimination [is] the company's standard operating procedure—
the regular rather than unusual practice.'" Id. at 1286-87
(quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324,
336 (1977) (alterations in original)) . A plaintiff may
establish a pattern or practice claim "through a combination of
strong statistical evidence of disparate impact coupled with
anecdotal evidence of the employer's intent to treat the
protected class unequally." Id. at 1287.
"[I]n determining
pattern or practice liability, the government is not required to
prove that any particular employee was a victim of the pattern
or practice; it need only establish a prima facie case that such
a policy existed." Id.
In this case, no governmental agency filed suit on behalf
of Plaintiff based on Defendants' alleged pattern or practice of
discrimination. Nor did a class of plaintiffs file this cause
of action. Thus, Plaintiff cannot sustain a "pattern and
practice claim" for racial or gender discrimination. Davis v.
Coca-Cola Bottlinq Co. Consol., 516 F.3d 955, 964-65 (11th Cir.
2008) (noting that the Government may bring a pattern and
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practice claim on behalf of a class of similarly situated
employees or as a class action pursuant to Federal Rule of Civil
Procedure 23(b) (2)). Assuming, arguendo, that Plaintiff could
proceed with this claim, he fails to provide evidence which
establishes the existence of a genuine dispute whether Defendant
HCS and the Gateway Defendants engaged in a pattern and practice
of discrimination. In fact, Plaintiff fails to present any
evidence in this regard.
B. Direct Evidence
Plaintiff does not rely on direct evidence
as support for
his discrimination claims. See Van Voorhis, 512 F.3d at 1300
(finding alleged statement that prospective employer did not
want to hire any old pilots direct evidence of age
discrimination); Damon v. Fleming Supermrkts. of Fla., Inc., 196
F.3d 1354, 1358-59 (11th Cir. 1999) (noting that an example of
direct evidence would be a management memorandum stating to fire
The Eleventh Circuit has defined direct evidence of discrimination as:
evidence which reflects a discriminatory or retaliatory attitude
correlating to the discrimination or retaliation complained of
by the employee. Direct evidence is evidence, that, if
believed, proves [the] existence of [a] fact without inference
or presumption. As our precedent illustrates, only the most
blatant remarks, whose intent could mean nothing other than to
discriminate on the basis of some impermissible factor
constitute direct evidence of discrimination. If the alleged
statement suggests, but does not prove, a discriminatory motive,
then it is circumstantial evidence.
Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1086 (11th Cir. 2004)
(alterations in original) (internal citations and punctuation
omitted) . In this case, Plaintiff does not make even a conclusory
allegation that there is direct evidence to support his race and age
discrimination claims.
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an employee because "he is too old" and holding that direct
evidence must indicate that the complained-of employment
decision was motivated by the decision-maker's discriminatory
intent) . Thus, the Court focuses on whether circumstantial
evidence supports Plaintiff's discrimination claims.
C. Circumstantial Evidence
The "sufficiency" of disparate treatment claims based on
circumstantial evidence is tested "by applying the burdenshifting framework" established in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973), and Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981) . Brooks v. Cnty. Coinm'n
of Jefferson Cnty., Ala., 446 F.3d 1160, 1162 (11th Cir. 2006)
(citing Chapman v. Al Transp., 229 F.3d 1012, 1024 (11th Cir.
2000)). Under the McDonnell Douglas burden-shifting framework,
"a plaintiff first must show an inference of discriminatory
intent, and thus carries the initial burden of establishing a
prima facie case of discrimination[,]" or disparate treatment.
Brooks, 446 F.3d at 1162 (italics omitted); see also, Kelliher
v. Veneman, 313 F.3d 1270, 1275 (11th Cir. 2002) . To establish
a prima facie case for disparate treatment in a race or age
discrimination case, "the plaintiff must show that: (1) she is a
member of a protected class; (2) she was subjected to an adverse
employment action; (3) her employer treated similarly situated
employees outside of her protected class more favorably than
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she was treated; and (4) she was qualified to do the job."
Burke-Fowler v. Orange Cnty., Fla., 447 F.3d 1319, 1323 (11th
Cir. 2006); Apodaca, 161 F. App'x at 900.
In support of their respective Motions, Defendants state
that: they made no adverse employment decision against
Plaintiff; Plaintiff fails to show he was treated differently
than similarly situated employees outside of Plaintiff's
protected classes; and Plaintiff was not meeting expectations at
the time of his termination. Dkt. No. 36-1, pp. 8-12; Dkt.
No. 37-1, pp. 4-5, 8-10. Conversely, Plaintiff contends:
Defendants made an adverse employment decision against him;
Defendants "went looking" for Defendant Waldron so Plaintiff
could be fired; and he was qualified to perform his job. Dkt.
No. 52-1, pp. 5-7. The Court will address these issues in turn.
1.
Adverse employment decision
The standard for a discrimination case requires a plaintiff
to establish an "ultimate employment decision," and termination
qualifies as such a decision. Crawford v. Carroll, 529 F.3d
961, 970 (11th Cir. 2008) . Thus, Plaintiff was unquestionably
subject to an adverse employment decision. However, the
Defendants do not dispute Plaintiff is a member of protected classes based
on his race and gender, which is the first prong of establishing a prima
facie case of discrimination through the use of circumstantial evidence.
Dkt. No. 36-1, p. 7; Dkt. No. 37-1, p. 8. Nor do Defendants dispute
Plaintiff was subjected to an adverse employment decision. Id. at p. 4, Dkt.
No. 36-1, p. 9. Defendants do dispute whether Defendant HCS or the Gateway
Defendants are responsible for this adverse employment decision.
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question remains whether the decision was made by one defendant
or by multiple defendants jointly as the result of a joint
employer relationship.
The Eleventh Circuit has held that the basis for finding a
joint employer relationship is "'simply that one employer while
contracting in good faith with an otherwise independent company,
has retained for itself sufficient control of the terms and
conditions of employment of the employees who are employed by
the other employer.'" Virgo v. Riviera Beach Assocs., Ltd., 30
F.3d 1350, 1360 (11th Cir. 1994) (internal citation omitted)
"[When discrimination is based on an adverse employment
decision, the joint employer theory concentrate[s] on the degree
of control an entity has over the adverse employment decision on
which the Title VII suit is based." Liampallas v. MiniCircuits, Lab, Inc., 163 F.3d 1236, 1244-45 (11th Cir. 1998).
"An adverse employment action is an ultimate employment
decision, such as discharge or failure to hire, or other conduct
that alters the employee's compensation, terms, conditions, or
privileges of employment, deprives him or her of employment
opportunities, or adversely affects his or her status as an
employee." Van Voorhis, 512 F.3d at 1300 (internal quotation
and citation omitted).
Defendant HCS contends the decision to ask Plaintiff not to
return to his assignment was made by Gateway, not HCS, and, as
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such, Defendant HCS did not make the adverse employment
decision. Dkt. No. 36-1, p. 8. Defendant HCS contends that it
cannot be held liable for Defendant Gateway's determination that
Plaintiff's assignment should end. The Gateway Defendants
contend that, while Gateway may be an "employer"" under Title
VII, it was not Plaintiff's employer and did not discharge
Plaintiff. Dkt. No. 37-1, pp. 4-5.
Plaintiff concedes the following facts: Defendant HCS and
Defendant Gateway had a contract; Defendant Gateway controlled
the persons assigned to it; and all work took place in Defendant
Gateway's facilities. Dkt. No. 52-1, p. 5. However, Plaintiff
claims Defendant "Gateway appeared to have shared the decision
with [Defendant] HCS as Gateway and HCS had to determine what to
put on [Plaintiff's] separation notice. . . the way the
termination proceeded in this case[ ] left both parties with
significant responsibilities." Id. at p. 6.
The Court must address the degree of control Defendant HCS
and Defendant Gateway had over Plaintiff to determine the entity
responsible for the adverse employment decision alleged in
Plaintiff's Second Amended Complaint. Defendant HCS submitted
the affidavits of Bonita Mikel, the then-project manager for the
Brunswick office of HCS, and Cindy Ackerman, the Human Resources
Manager for HCS, as well as the contract between Defendant HCS
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and Defendant Gateway. 6 Ms. Mikel and Ms. Ackerman both declare
that HCS contracted with Gateway for HCS to "provide staffing
services to Gateway" during the relevant time period. Dkt.
No. 36-4, p. 3, ¶ 9; Dkt. No. 36-5, p. 3, ¶ 10. Both women
declare that, per the terms of the contract, HCS accepted
applications, screened applicants for employment who were to be
assigned to Gateway, employed the individual during his
assignment at Gateway, and paid the employee. Dkt. No. 36-4,
p. 3, 191 11-12; Dkt. No. 36-5, p. 3, ¶91 11-12. However, Ms.
Mikel and Ms. Ackerman assert Gateway made all of the following
decisions: whether to approve an applicant prior to his
assignment at Gateway; the criteria the individual had to
possess to be eligible for assignment at Gateway; the
compensation to be paid to the HCS employee; and whether the
position was salaried or hourly. Dkt. No. 36-4, pp. 3-4, IT 11,
14-15; Dkt. No. 36-5, pp. 3-4, 1191 11, 14-15.
In addition,
Gateway managed and controlled the HCS employees who worked at
its facility, evaluated the HCS employees, issued reprimands,
and handled any discipline of HCS employees assigned to Gateway.
Dkt. No. 36-4, pp. 3-5, 191 12, 17, 19; Dkt. No. 36-5, p. 4,
The copy of the contract Defendant HCS submitted indicates the agreement
became effective beginning July 1, 2012, dkt. no. 36-4, P. 17, which postdates the adverse employment decision of June 29, 2012, but pre-dates any
alleged adverse employment decision of July 9, 2012. However, the parties
raise no issue with the copy, which leads the Court to conclude the submitted
version does not vary in significant manner from the contract which was in
place on June 29, 2012.
6
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¶J 17, 19. Ms. Mikel and Ms. Ackerman state that any HCS
employee who was assigned to Gateway worked on Gateway's
premises, not on those of HCS. Dkt. No. 36-4, p. 4, ¶ 18; Dkt.
No. 36-5, p. 4, ¶ 18. Finally, as relevant to the issue of
"control", Ms. Mikel and Ms. Ackerman state Gateway had the
ability to terminate the assignment of an HCS employee, and cite
to a provision of the contract between HCS and Gateway. Dkt.
No. 36-4, p. 4, ¶ 16; Dkt. No. 36-5, p. 4, ¶ 16. That provision
states: "CLIENT may request removal or transfer of AGENCY
Personnel at any time, with or without cause. Requests for
(sic) may be made either orally or in writing. All oral
requests for removal must be confirmed by CLIENT in writing on
the next business day. " 7 Dkt. No. 36-4, p. 14, § 4. 1. 8 Ms.
Mikel and Ms. Ackerman assert that Plaintiff's supervisor at
Gateway's CSU, Defendant Thompson, notified HCS during the week
of June 25, 2012, that Plaintiff was not to return to the CSU
because of "unsatisfactory job performance. Pursuant to the
Contract, [HCSI was required to remove [Plaintiff] from the CSU
assignment." Dkt. No. 36-4, p. 8, ¶ 40; Dkt. No. 36-5, p. 8,
¶ 40.
' HCS is identified as "AGENCY" and Gateway is identified as "CLIENT"
pursuant to this contract. Dkt. No. 36-4, p. 11, 91 1.
Ms. Mikel, Ms. Ackerman, and Defendant HCS's counsel cited to a section 2.5
of this contract as controlling. However, the version of the contract
submitted to the Court does not contain a section 2.5.
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In response, Plaintiff admits in his affidavit that he
worked at what he "understood to be Gateway facilities," yet "it
appeared to [him] that Gateway also employed me since my
paychecks had Gateway on them and it appeared that Gateway and
HCS had equal authority in firing me." Dkt. No. 52-3, p. 2,
¶ 8.
Plaintiff's impression that Defendants HCS and Gateway had
equal authority to fire him is not based on admissible evidence
and, this impression appears to go against all of the evidence
presented. Because Defendant HCS did not have control of
Plaintiff during his assignment to Defendant Gateway, Defendant
HCS cannot be said to have made the adverse employment decision
to terminate Plaintiff's assignment to Gateway on June 29, 2012.
Of course, Defendant HCS would then have had "control" over
Plaintiff from June 29, 2012, until his termination by Defendant
HCS on July 9, 2012, and Defendant HCS is the entity which made
an adverse employment decision against Plaintiff on July 9,
2012. Accordingly, there is sufficient evidence in the record
to show that Plaintiff suffered adverse employment decisions by
the Gateway Defendants and by Defendant HCS. However, the
satisfaction of this prong does not equate automatically to a
showing of a prima facie discrimination claim based on
AC 72A
(Rev. 8182)
1
19
circumstantial evidence, as a plaintiff must satisfy all four
(4) of the prongs of the McDonnell Douglas framework. 9
2.
Similarly situated
With respect to the second element of a prima facie case,
"the plaintiff and the comparator must be 'similarly situated'
'in all relevant respects.'" Jest v. Archbold Med. Ctr., Inc.,
561 F. App'x 887, 889 (11th Cir. 2014) (quoting Wilson, 376 F.3d
at 1091). When a plaintiff alleges that a person outside of his
protected classes "was treated more favorably," "[t]he
comparator must be nearly identical to the plaintiff to prevent
courts from second-guessing a reasonable decision by the
employer." Usry v. Liberty Reg'l Med. Ctr., Inc., 560 F. App'x
883, 890 (11th Cir. 2014) (quoting Wilson, 376 F.3d at 1091)
(alteration in original))
Here, Plaintiff alleges that a white female (Defendant
Waldron) was treated more favorably than he, a black male.
Defendant Waldron testifies that she has been a Registered
Defendant Gateway states it was not Plaintiff's employer. Dkt. No. 37-1,
p. 4. Nevertheless, the relevant inquiry is to what entity had "control"
over Plaintiff. The evidence bears out that Defendant Gateway had "control"
over Plaintiff until June 29, 2012. Despite this distinction, the Court
notes that Defendant HCS, as Plaintiff's employer, hired Plaintiff as an "at
will" employee and could have ended Plaintiff's employment at any time, with
or without cause. Dkt. No. 37-5, p. 14. It is worth noting that Plaintiff
filed EEOC complaints against both Defendant HCS and Defendant Gateway, which
indicates Plaintiff's displeasure with the end of his assignment on June 29,
2012, as well as his termination on July 9, 2012. Dkt. Nos. 9-1, 9-2. A
finding as to which Defendant had "control" of Plaintiff as of June 29, 2012,
or as of July 9, 2012, is not dispositive of the key issue before the Court—
whether Plaintiff creates a genuine dispute as to any fact material to his
discrimination claims.
AO 72A
(Rev. /82)
I
20
Professional Nurse in Georgia since 1994 and is Board certified
in psychiatric-mental health nursing. Dkt. No. 36-3, p. 1, ¶ 2.
Defendant Waldron states she has worked in healthcare since 1992
and began working at Gateway in September 2003 as a nurse in the
CSU. Id. at 9191 3-4. Ms. Waldron also states she was promoted
several times, including to the position of acting nurse manager
for Gateway in March 2005. Id. at p. 2, IT 5-6. However, Ms.
Waldron states there was a reorganization at Gateway in
April 2012, which eliminated several administrative positions,
including her position as acting nurse manager. Id. at p. 3,
¶ 12. Ms. Waldron declares she took some time off before
applying with HCS, and she accepted a position as a charge nurse
at Gateway. Id. at 191 13-14.
Plaintiff testified during his deposition that he obtained
his Bachelor of Science in Nursing from Tuskegee University
in 1982, and he has worked in the psychiatry field for 30 years.
Dkt. No. 36-7, pp. 12, 23. Plaintiff conceded that he received
a verbal reprimand on November 2, 2011. Id. at p. 77.
Plaintiff also testified to having received a written reprimand
from Ms. Kennedy, his supervisor with the ACT, on November 16,
2011, which indicated Plaintiff had "unsatisfactory" "behavior
actions" for "lateness, [a] policy violation, [and] quality of
work produced." Id. at p. 70. Upon clarification, Plaintiff
did not dispute that he was reprimanded for having billed for
AO 72A
(Rev. 8/82)
I
21
only one to two hours a day, even when he was out of the office
all day, and for failing to turn in his notes or reports from
the previous day's visits. Id. at p. 71.
After receiving this written reprimand, Plaintiff later
requested to be moved from the ACT, and he moved to the CSU at
Gateway. Id. at p. 77.
Plaintiff stated he never received a
reprimand while he was on the CSU which, to him, was "totally
different[ ]" than having received a reprimand while on the ACT.
Id. at p. 125. Plaintiff testified that he had a telephone
conversation with Defendant Thompson, his supervisor with the
CSU, on June 29, 2012, at which time she informed him not to
return to the CSU at Gateway. Id. at pp. 110, 125.
Defendant Thompson declared she spoke with Defendant
Waldron before hiring Plaintiff to join the CSU regarding
Plaintiff's competency as a nurse and to seek Defendant
Waidron's opinion about Plaintiff working in the CSU. Dkt.
No. 37-3, p. 2, ¶ 4. According to Defendant Thompson, Defendant
Waldron informed him she had had some issues with Plaintiff's
handling of drugs and medications while he was on the ACT. Id.
Defendant Thompson also declared that a nurse practitioner who
worked with Plaintiff on the CSU informed her that Plaintiff
wanted to administer medications to CSU patients, even though
these medications had not been prescribed properly. Id. at
pp. 2-3, ¶ 6.
AO 72A
(Rev. 8(82)
22
Erica Kitties, who was the staffing coordinator for
Defendant HCS at the time of Plaintiff's termination and who is
the Plaintiff in Case Number 2:13-CV-138, was deposed by
Defendants' counsel the day prior to Plaintiff's deposition.
Ms. Kitties testified that she heard Defendant Thompson tell Ms.
Barr that she (Defendant Thompson) wanted Plaintiff off of the
CSU because Plaintiff "was not performing his job correctly[.]"
Dkt. 37-6, p. 34. Plaintiff's termination notice indicated that
he was being terminated for "unsatisfactory performance[,]"
which Ms. Kitties understood to be consistent with Defendant
Thompson's proffered reason for Plaintiff's termination. Id. at
p. 36.
Even when all of this evidence is viewed in the light most
favorable to Plaintiff, it fails to meet the similarly situated
prong of the McDonnell Douglas test. To be similarly situated
with Defendant Waldron, Plaintiff would have to show that
Defendant Waldron had received written and verbal reprimands
from supervisors and had reports of unsatisfactory job
performance (as Plaintiff had received), yet was hired by
Defendant HCS for assignment to Gateway to work as a charge
nurse. Instead, the evidence shows Defendant Waldron had
received several promotions and had experience working as acting
nurse manager. She only lost that job because of an agency
reorganization. At best, the evidence before the Court reveals
AO 72A
(Rev. 8182)
I
23
that Plaintiff and Defendant Waldron had the same certifications
and many years' experience working in psychiatric nursing. This
evidence does not show that Defendant Waldron and Plaintiff were
"nearly identical" in their qualifications and past performance.
Thus, Plaintiff cannot show that he was similarly situated with
Defendant Waldron. 10
D. Legitimate, Non-Discriminatory Reason
Even assuming, arguendo, that Plaintiff could prove a prima
.facie case of discrimination, that showing would only create "a
rebuttable presumption that the employer unlawfully
discriminated against [him]." Joe's Stone, 296 F.3d at 1272.
"[T]he burden then shifts to the employer to produce evidence
that its action was taken for a legitimate, non-discriminatory
reason." Brooks, 446 F.3d at 1162. If the employer produces
such evidence, a court's "inquiry 'proceeds to a new level of
specificity,' in which the plaintiff must show that the
proffered reason really is a pretext for unlawful
discrimination." Id. (quoting Joe's Stone, 296 F.3d at 127273). "Although the intermediate burdens of production shift
10 The fourth prong of the McDonnell Douglas framework is whether the
plaintiff was "qualified" for the position from which he was terminated.
"[T]o demonstrate that he was qualified for the position, a Title VII
. satisfied an employer's objective
plaintiff need only show that he .
qualifications. The employer may then introduce its subjective evaluations
of the plaintiff at the later stages of the McDonnell Douglas framework."
Vessels v. Atlanta Indep. Sch. Sys., 408 F.3d 763, 769 (11th Cir. 2005). The
Court need not address this prong of the McDonnell Douglas framework because,
as noted above, Plaintiff failed to establish a genuine dispute as to any
fact material as to the similarly situated prong and thus, he fails to
establish a prima fade case of discrimination.
AO 72A
(Rev. 8/82)
24
back and forth, the ultimate burden of persuading the trier of
fact that the employer intentionally discriminated against the
employee remains at all times with the plaintiff." Id.
Defendants HCS and the Gateway Defendants assert Plaintiff
was terminated from his assignment at Gateway because he was
performing his job in an unsatisfactory manner.' 1 Dkt. No. 37-1,
p. 11; Dkt. No. 36-1, p. 12. This reason is a "legitimate, nondiscriminatory reason" for Plaintiff's termination. Brooks, 446
F.3d at 1162.12 Thus, Plaintiff must rebut this reason by
showing the proffered reason was a pretext for discrimination.
"[TJo avoid summary judgment [the plaintiff] must introduce
significantly probative evidence showing that the asserted
reason is merely a pretext for discrimination." Clark v. Coats &
Clark, Inc., 990 F.2d 1217, 1228 (11th Cir. 1993) (citation
omitted). A reason is not pretext for discrimination "unless it
is shown both that the reason was false, and that discrimination
' Although the Court determined Defendant HCS and the Gateway Defendants
each made adverse employment decisions against Plaintiff, this portion of the
Court's analysis focuses on the proffered reason for the end of Plaintiff's
assignment with Defendant Gateway. The parties present their contentions to
the Court in this way, especially considering Plaintiff's objection to his
termination based on the proffered reason of "unsatisfactory job
performance". The only evidence available shows that Defendant HCS
terminated Plaintiff because it was unable to assign Plaintiff to any other
facility, and Plaintiff has not challenged that decision. Rather, Plaintiff
has focused on the termination of his assignment at Gateway.
12
The Court notes Defendants' citation to Plaintiff's employment history,
such as failing to disclose terminations from two (2) previous positions, as
support for Plaintiff's lack of employability. Dkt. No. 37-1, p. 10. As
Plaintiff's alleged lack of employability was not a proffered reason for
Plaintiff's termination, the Court has limited any discussion of the "afteracquired evidence[.]" Id.
AO 72A
(Rev. 8182)
25
was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S.
502, 515 (1993) (emphases in original),
overruled in part on
other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167,
169-70 (2009)
Plaintiff has not brought forth any evidence showing that
the proffered reason to terminate his assignment is false and
that the real reason Plaintiff was terminated from his
assignment at Gateway was based on his race and/or gender. The
Court notes that, under the contract between Defendant Gateway
and Defendant HCS, Defendant Gateway had the authority to
"request removal or transfer [of any HCS] Personnel at any time,
with or without cause." Dkt. No. 36-4, p. 14. According to Ms.
Mikel and Ms. Ackerman, Defendant Thompson informed Defendant
HCS that Plaintiff was not to return to the CSU at Gateway
because of "unsatisfactory job performance[ 1" and that
Defendant HCS had no choice but to remove Plaintiff from his
assignment at the CSU as a result. Dkt. No. 36-4, p. 8, ¶ 40;
Dkt. No. 36-5, p. 8, ¶ 40.
Plaintiff declares that no one from the ACT unit or the CSU
"ever told [him] that [he] performed unsatisfactorily." Dkt.
No. 52-3, p. 2, ¶ 5. In addition, Ms. Kittles of HCS testified
that she and Ms. Barr did not know what to put on Plaintiff's
separation notice and that Plaintiff had to come back to HCS's
AO 72A
(Rev. 8182)
I
26
premises to get a completed separation notice. Dkt. No. 37-6,
pp. 35, 49.
Even accepting Plaintiff's evidence in the light most
favorable to him, Plaintiff fails to meet his burden of
establishing that the proffered reason for terminating his
assignment was pretextual. "An 'employer may fire an employee
for a good reason, a bad reason, a reason based on erroneous
facts, or for no reason at all, as long as its action is not for
a discriminatory reason.'" Chapman, 229 F.3d at 1030 (quoting
Nix v. WLCY Radio/Rahall Communc'ns, 738 F.2d 1181, 1187 (11th
Cir. 1984)). In other words, Plaintiff's disagreement with or
unawareness of the reasoning for his termination does not make
that reasoning unlawful. Plaintiff's and HCS's staff's
ignorance of Gateways' dissatisfaction with Plaintiff's
performance level is not relevant to whether Gateway's reason
for ending his assignment was a pretext. Consequently,
Defendants have shown a legitimate reason for terminating
Plaintiff's employment, his unsatisfactory job performance, and
Plaintiff has wholly failed to rebut that reasoning.
In sum, Plaintiff has not identified a substantially
similar comparator, and he has not rebutted Defendants'
legitimate non-discriminatory reason for his termination.
Consequently, Defendants HCS, Gateway, Shearer, and Thompson are
AO 72A
(Rev. 8 182)
ii
27
entitled to summary judgment on Plaintiff's discrimination
claims.
II. Conspiracy (Count V)
"To state a claim under [42 U.S.C.] § 1985(3), a plaintiff
must allege: (1) a conspiracy; (2) for the purpose of depriving
a person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy (4) resulting in an
injury to person or property, or a deprivation of any right or
privilege of a citizen of the United States." Gibbs v. United
States, 517 F. App'x 664, 669 (11th Cir. 2013) (citing Childree
v. UAP/GA AG Chem., Inc., 92 F.3d 1140, 1146-47 (11th Cir.
1996)) . "The language of Section 1985 which requires an intent
to deprive one of equal protection or equal privileges and
immunities means that there must be some racial or otherwise
class-based invidiously discriminatory animus behind the
conspirators' action." Byrd v. Clark, 783 F.2d 1002, 1007-08
(11th Cir. 1986), abrogated on other grounds by Noliri v. Isbell,
207 F.3d 1253, 1256 (11th Cir. 2000). 13
Plaintiff also brings claims pursuant to 42 U.S.C. § 1983 (Counts VI and
VII). However, the Court need not address these Counts of Plaintiff's Second
Amended Complaint. "Title VII and [Sllection 1983 claims have the same
elements where the claims are based on the same set of facts." Rioux, 520
F.3d at 1275 ri.5. Because the Court has determined Defendants are entitled
to summary judgment on Plaintiff's Title VII claims, Defendants are likewise
entitled to summary judgment on Plaintiff's Section 1983 claims.
13
A072AI
(Rev. 8/82)
ii
28
Here, Plaintiff claims there was a conspiracy among
Defendants Vanessa Shearer, Cathy Thompson, and Waldron to
eliminate his job. 14 Dkt. No. 9, p. 34, ¶ 170. Plaintiff
asserts these Defendants conspired to treat him in a disparate
manner by "subjecting him to Defendants' unfair policies and
practices insofar as dismissing [Plaintiff] based on his race
and sex so that Defendants could hire a lesser qualified white
female." Id. at ¶ 172.
As concluded above, Plaintiff fails to overcome his burden
of establishing a genuine dispute as to any fact material to his
discrimination claims. Thus, the alleged object of the claimed
conspiracy - i.e., to treat Plaintiff in a disparate manner
based on his race and gender - cannot be sustained as a matter
of law. Consequently, Plaintiff cannot establish that the
alleged conspirators' actions were motivated by some racial or
otherwise class-based invidiously discriminatory animus.
Even if Plaintiff's allegations of discrimination could
survive as a matter of law, he must set forth evidence creating
a genuine dispute as to the formation of a conspiracy to carry
out that discrimination. In this regard, Plaintiff testified
during his deposition that he believed "there was a conspiracy
to eliminate my job" by Defendants Shearer, Thompson, and
14
Defendants HCS and Waldron aver that Section 1985 is inapplicable because
Plaintiff's claims "are all premised on Title VII rights." Dkt. No. 36-1, P.
16. The Court need not assess this argument because the Court dismisses
Plaintiff's conspiracy claims on other grounds.
AO 72A
(Rev. 8182)
1
29
Waldron and Ms. Barr. Dkt. No. 36-7, P. 148. Plaintiff stated
he was "disappointed" with Defendant Waldron because he felt he
"was wronged" because "[t]hey conspired. There was a group that
conspired to take my position." Id. at pp. 149-50. Plaintiff
also testified that Ms. Barr told him she was going to have to
learn what Defendant Shearer said about his termination and
whether he was going to work at another Gateway facility or
would have to get another job. Id. at P. 174.
When pressed for details of a conspiracy, Plaintiff stated
he did not know when the alleged conspiracy began, who else was
involved, where the alleged conspirators met, or how they
communicated. Plaintiff also stated he did not know what the
alleged co-conspirators did in furtherance of this conspiracy,
and all he knew is what he "read" and what he "heard." Id. at
p. 176. Specifically, Plaintiff contends he relied on what Ms.
Kitties told him and had written in a statement to the EEOC on
his behalf, what Ms. Barr had said, and that he heard "several
people" talking about Defendant Waldron taking his job. Id. at
p. 175. Plaintiff testified that Defendant Waldron was "part of
the conspiracy as far as [he was] concerned." Id. at p. 176.
As for his evidence of Defendant Thompson's involvement in the
alleged conspiracy, Plaintiff stated Defendant Thompson "was the
one [who] told me to talk to [Ms. Barr]. So if she told me to
talk to [Ms. Barr], that means she had talked to [Ms. Barr].
AO 72A
(Rev. 8182)
ii
30
When I went to talk to [Ms. Barr], [she] said [Defendant
Thompson] and I have been talking about you[.]" Id. at p. 178.
Plaintiff testified about Ms. Barr's involvement in this alleged
conspiracy as, "If you're going to terminate me, you're surely
not going to give me a recommendation and then terminate me on
an unsatisfactory job performance. That's so contrary. . . . I
don't need [any] more. . . . I think there was a conspiracy to
have me fired." Id. at p. 179.
Defendant Waldron affies she had "no role or input on the
termination or any employment action" involving Plaintiff. Dkt.
No. 36-3, p. 3, ¶ 15. Defendant Thompson declares that, while
she did speak to Defendant Waldron about Plaintiff's competency
and had received complaints about Plaintiff's work performance,
she had Defendant Waldron work with Plaintiff in the hope of
addressing her concerns about Plaintiff. Dkt. No. 37-3,
pp. 2-3, 191 4-5, 7, 10. Defendant Thompson also declares she did
not request that HCS terminate Plaintiff to make a position
available for Defendant Waldron. Id. at p. 4, ¶ 11.
Plaintiff presents nothing which counters the sworn
statements of Defendants Waldron and Thompson, even though he
had the opportunity to do so through his own affidavit and
statement of material facts. See Dkt. Nos. 52-2, 52-3. At
best, Plaintiff's deposition testimony reveals his supposition
that, because Ms. Barr wrote a letter of recommendation on his
AO 72AII
(Rev. 8/82)
II
31
behalf after his termination and Ms. Barr and Defendant Thompson
spoke about him, a conspiracy must have existed. Dkt. No. 36-7,
p. 170. Such speculation cannot create a dispute of material
fact.
Plaintiff also points to the testimony of Ms. Kitties to
establish the formation of a conspiracy. She testified that HCS
had no full-time nursing positions available when Defendant
Waldron came in to apply for nursing positions until
Ms.
Barr
spoke with Defendant Shearer. However, Ms. Kittles also
testified she could not hear the conversation between
Ms.
Barr
and Defendant Shearer and had no idea of the content of their
conversation. Dkt. No. 37-6, pp. 124-25. Again, even accepting
Ms.
Kitties' testimony as true, her deposition fails to set
forth any competent evidence of a conspiracy.
Plaintiff's claim that Defendants Thompson, Shearer, and
Waldron and Ms. Barr conspired together to have him fired is not
supported by any evidence; rather, his claim is based on
conjecture, which is not enough to create a genuine dispute as
to any fact material to a conspiracy claim. Puglise v. Cobb
Cnty., Ga., 4 F. Supp2d 1172, 1181 (N.D. Ga. 1998) ("While the
plaintiffs need not produce direct evidence of a meeting of the
minds, they must come forward with specific circumstantial
evidence that each member of the alleged conspiracy shared the
same conspiratorial objective to obstruct the plaintiffs' access
A072A
(Rev. 8/82)
I
Ii
32
to the courts; mere speculation and conjecture will not
suffice.") (citing Hinkle v. City of Clarksburg, 81 F.3d 416,
421-23 (4th Cir. 1996)) . Plaintiff fails to carry his burden,
and Defendants Thompson, Shearer, and Waldron are entitled to
summary judgment on this Count.
III. Intentional Infliction of Emotional Distress (Count VIII)
To establish an intentional infliction of emotional
distress claim under Georgia law, a plaintiff must prove the
following four elements: "(1) the conduct must be intentional or
reckless; (2) the conduct must be extreme and outrageous; (3)
there must be a causal connection between the wrongful conduct
and the emotional distress; and (4) the emotional distress must
be severe." Bartholomew v. AGL Resources, Inc., 361 F.3d 1333,
1339 (11th Cir. 2004) (citations and punctuation omitted);
Trimble v. Circuit City Stores, Inc., 469 S.E.2d 776, 778 (Ga.
Ct. App. 1996) (citation omitted). In order to meet the second
element, the plaintiff must show that the defendants' "behavior
was so extreme or outrageous that 'no reasonable man could be
expected to endure it.'" Hammer v. Slater, 20 F.3d 1137, 1144
(11th Cir. 1994) (quoting Bridges v. Winn-Dixie Atlanta, Inc.,
335 S.E.2d 445, 448 (Ga. Ct. App. 1985)); Guthrie v. Waffle
House, Inc., 460 F. App'x 803, 809 (11th Cir. 2012)
"The existence of a special relationship between the actor
and victim, such as that of employer to employee, may make
AO 72A
(Rev. 8182)
33
otherwise non-egregious conduct outrageous." Trimble, 469
S.E.2d at 778. However, "Georgia courts have held that an
employer's termination of an employee—however stressful to the
employee—generally is not extreme and outrageous conduct."
Clark, 990 F.2d at 1229 (citing ITT Rayonier, Inc. v. McLaney,
420 S.E.2d 610, 612 (Ga. Ct. App. 1992); Borden v. Johnson, 395
S.E.2d 628, 630 (Ga. Ct. App. 1990); and Lane v. K-Mart Corp.,
378 S.E.2d 136, 138 (Ga. Ct. App. 1989)).
Plaintiff offers no reason why this Court should depart
from this general rule. Instead, Plaintiff alleges in the most
conclusory fashion that "Defendants" "[told] everyone but" him
"that they plan[ned] to fire him and replace him with a white
female." Dkt. No. 51-1, p. 8; Dkt. No. 52-1, p. 8. Plaintiff
claims Defendants "act[ed] disgracefully, bantering back-andforth suggested creations that they hope someone will believe.
[They] then manufacture this web of deceit accusing [Plaintiff]
of terrible things that no one will mention to him." Id. at pp.
8-9; Dkt. No. 51-1, p. 8.
Even viewing Plaintiff's allegations in the light most
favorable to him, his intentional infliction of emotional
distress claim fails as a matter of law. Plaintiff cites to no
evidence that Defendants acted in an intentional or reckless
manner with conduct that was outrageous. Moreover, the record
is bereft of any evidence that, even if Defendants conducted
A072A
(Rev. 8182)
I
Ii
34
themselves in an outrageous manner, Plaintiff suffered any
emotional distress as a result of Defendants' actions. For all
of these reasons, Defendants are entitled to summary judgment on
Plaintiff's intentional infliction of emotional distress claims.
IV. Attorney's Fees (Count IX)
In any action or proceeding to enforce a provision of
sections 1981, 1981a, . . ., 1983, 1985, . . * the court, in its
discretion, may allow the prevailing party, other than the
United States, a reasonable attorney's fee as part of the
costs[.]" 42 U.S.C. § 1988. As Plaintiff is not a prevailing
party on any of his enumerated claims, any request for
attorney's fees must be denied.
CONCLUSION
Based upon the foregoing, the Court hereby
GRANTS
Defendants Healthcare Staffing, Inc.'s, and Waidron's Motion for
Summary Judgment, and Defendants Gateway's, Shearer's, and
Thompson's Motion for Summary Judgment. Dkt. Nos. 36 & 37. The
Clerk of Court is directed to ENTER FINAL IJ1JDNT in favor of
Defendants and to CLOSE this case.
SO ORDERED,
this
5O
day/
1
/
2015.
- -
LIS/GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
A072A
(Rev. 8/82)
I
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