Haven v. The Board of Trustees of Three Rivers Regional Library System et al

Filing 66

ORDER granting in part and denying in part Defendant's 23 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 10/18/2018. (ca)

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KAREN L. HAVEN,

Plaintiff,
NO. 2:13-CV-00090
V.

THE BOARD OF TRUSTEES OF THREE *
RIVERS REGIONAL LIBRARY SYSTEM

*

AND LINDA KEAN,

*

Defendants.

ORDER

Before the Court is Defendant The Board of Trustees of Three

Rivers Regional Library System's Motion for Summary Judgment. This
Motion has been fully briefed and is ripe for review.

For the

following reasons. Defendant's Motion with respect to Plaintiff's

age

discrimination

claim

under

the

Age

Discrimination

in

Employment Act, 29 U.S.C. §§ 621-34 (2018) {^^ADEA"), is GRANTED.
Defendant's Motion with respect to Plaintiff's retaliation claim
under the ADEA is DENIED.
BACKGROUND

I.

Factual Background

Plaintiff Karen Haven began working as a certified librarian

for the Three Rivers Regional Library System {^'Three Rivers") in

A0 72A

(Rev. 8/82)

1999.

Defendant's Statement of Undisputed Facts, Dkt. No. 23-1

SISI 12, 18.^

Three Rivers is the regional library system over

Brantley, Camden, Charlton, Long, Mclntosh, and Wayne counties.
Id. SI 1.

Linda Kean, has been the Director of Three Rivers since

taking over on January 1, 2010.

Id. SISI 1, 13.

In 2011, the State of Georgia informed Three Rivers that it

would be providing approximately $200,000 less in funding for the
regional library system for the fiscal year 2012.

Id. SI 15.

As

a result, Kean had to reduce spending to meet the new budget.

To

absorb a budget cut that large, Kean had to cut personnel, and
because librarian salaries were the bulk of Three River's personnel

budget, Kean decided to cut three librarian positions.
17,

20.

At

the

time.

Three

Rivers

employed

four

Id. SISl 16certified

librarians who performed library functions: Plaintiff (age 51),
Jamie Wendt (age 50), Ceil Smith (age 41), and Mareen Hersey (age
63). 2

Id. SI 18.

Kean decided to lay-off Wednt because he was

responsible for the talking book center, which was closing.
SI 21.

Id.

Kean testified that she thought the next logical choice was

Hersey because she often had trouble finding work for Hersey to do
since she was responsible for special projects and assisting Haven

1 Throughout this Order, the Court cites only those statements in Defendant's
Statement of Undisputed Material Facts that Plaintiff explicitly admits.
2 Kean was born in 1957, so in 2011 she was age 54 or 55.
2

Dkt. No. 23-1 f 1.

with cataloguing.

Dkt. No. 32-2 at 33.

Hersey also did not have

experience in information technology (^^IT").

Dkt. No. 23-1 SI 23.

This narrowed down the final lay-off decision to Smith and
Plaintiff.

Both Plaintiff and Smith were performing essential

functions for Three Rivers.

Id. SI 25.

Plaintiff was responsible

for cataloging, and Smith was responsible for IT, which meant that

the remaining employee would need to cover both areas.^

Id.

Kean

testified that she chose to retain Smith because Smith had prior

cataloging experience while Plaintiff did not have the necessary

IT experience, and she also considered the fact that Plaintiff had
documented reprimands in her personnel file while Smith's file had
no such reprimands.

Dkt. No. 32-2 at 39-41; Dkt. No. 32-1 at 70.

As far as Plaintiff's IT experience, it is true that Plaintiff

had a master's degree in Library and Information Studies and had

performed IT work when she first started with the library about
ten years earlier.

Plaintiff's Statement of Additional Undisputed

Material Facts, Dkt. No. 30-2 SI

Dkt No. 34-1 at 38-39.

However,

Plaintiff did not perform IT functions for very long.

Shortly

after Plaintiff was hired. Lee Moon took over the IT work at that

time because Plaintiff did not have a background in IT networking

3 Kean did hire Amanda Barker to take over as the IT librarian about a year

after the reduction-in-force when funding stabilized. Dkt. No. 32-1 at 31, 69.
In addition. Three Rivers used an outside contractor for extraordinary IT
issues.

Id. at 69.

Throughout this Order, the Court cites only those statements in Plaintiff's
Statement of Additional Undisputed Material Facts that Defendant explicitly
admits.

issues.5

Dkt. No. 34-1 at 38-39.

Now, ten years later, Smith was

in charge of IT functions at the library at the time of Kean's
reduction-in-force (^^RIF") decision. Dkt. No. 23-1 2 25; Dkt. No.
32-1 at 70.

As

for

the

documented

performance

issues

in

Plaintiff s

personnel file, the file contained the following entries in 2011:
A February 2006 letter from a prior director counseling
Plaintiff about an ^'unprofessional, antagonistic, and
unconstructive" e-mail that Plaintiff had sent.

An October 22, 2009, verbal notice from a prior director
to Plaintiff regarding speaking to the press about
library matters.

An October 22, 2009, verbal notice from a prior director
to Plaintiff for violating library policy by contacting
a library trustee.

A May 2011 conversation between Kean and Plaintiff
regarding Kean's concerns about Plaintiff's performance,
specifically Plaintiff being behind in cataloguing.
A May 2011 conversation between Kean and Plaintiff
regarding Kean finding boxes of books that Plaintiff had
failed to catalogue and distribute to the libraries in
the Three Rivers system.

A June 6, 2011 counseling notice issued by Kean to
Plaintiff for violating library policy by sending an
email soliciting money without approval from Kean.
Dkt. No. 23-1 11 48-51, 55, 58.

Kean did not find any reprimands

in Smith's file and considered her to have an excellent performance
record.

Dkt. No 32-1 at 70; Dkt. No. 32-2 at 35.

Based on these

5 Plaintiff also testified that she did not apply for a IT position that became

available after her employment with Three Rivers ended because "IT was not [her]
strength." Dkt. No. 34-1 at 61.
4

reasons, Kean informed Plaintiff on June 10, 2011, that she was

being laid-off because of budget cuts.

Dkt. No. 23-1 5 28.

About a month later, on or about July 18, 2011, the United

States

Equal Employment Opportunity Commission

(EEOC)

sent a

notice to Three Rivers that Plaintiff had filed a charge of age

discrimination against the library.

Id. 5 29.

About two weeks

later on August 2, 2011, counsel for Three Rivers sent a letter to
Plaintiff advising that it would be in Plaintiff's best interest

to drop her discrimination claim.

Dkt. No. 30-2 SI 16.

The

following day, August 3rd, Kean added six pages of new handwritten
notes about Plaintiff into Plaintiff's personnel file.

30-2 SI 17.

Dkt. No.

The August 3rd notes included comments about Plaintiff

giving incorrect accounts of processing supplies such as tape.
Plaintiff allowing staff to take materials home resulting in

missing materials. Plaintiff not being able to remain current in
her cataloging workload. Plaintiff having difficulty working with
venders.

Plaintiff

attempting

to

attend

a

cataloging

summit

without prior approval from Kean, Plaintiff refusing to train a
new employee to do copy cataloging because she did not think the

new employee was capable, and Plaintiff employing her niece while
allowing the niece to eat and take coffee breaks during work hours.
Dkt. No. 34-4 at 10-15.

During the month of August, Plaintiff applied for a position
with the State Library of North Carolina.

Dkt. No. 30-2 SI 18.

In

the application, Plaintiff gave Grant Pair, the hiring director at
the

North

Carolina library, permission to contact Kean

employment reference.

as an

Dkt. No. 30-2 5 22; Dkt. No. 23-1 SI 31.

Pair called Kean to ask if she would answer some questions about

Plaintiff who they were considering for a position, but Kean
declined.

Dkt. No. 30-2 SI 25.

Rather than state a reason for

declining, Kean suggested that Pair could make a request for

Plaintiff's personnel file.®

Id. SISI 26-27; Dkt. No. 23-1 SI 36.

Pair had no reason to request the file but for Kean's suggestion.
Dkt. No. 30-2 SI 27.

On October 19, 2012, as Kean instructed. Pair

sent an email requesting a copy of Plaintiff's personnel file.
Id. SI 28.

That same day, Kean added two more pages of handwritten

notes which included derogatory comments and complaints about
Plaintiff.

Id. SI 29.

The comments included that Plaintiff was

not following ''TRRLS cataloging procedure," was allowing libraries
to order materials through a different '^sign in" to avoid a $4.00

charge, and as a result ^^thousands of books . . . were waiting to
be cataloged and sent to member libraries."
17.

Dkt. No. 34-4 at 16-

Kean exclaimed in the notes that 'Mn]o wonder our cataloging

department was never current while Karen Haven was in charge of
the department."

Id. (emphasis in original).

The following day.

® Kean stated in her deposition that Pair was the one who brought up the
personnel file first, but the parties agree that Kean suggested to Pair that he
could request the file. Dkt. No. 32-1 at 91-92; Dkt. No. 30-2 21 26-27; Dkt.
No. 35-1 22 26-27.

Kean replied to Pair's email letting him know that she had received

his open records request and was working on it.
SI 30.

Dkt. No. 30-2

After receiving and reviewing Plaintiff's personnel file,

Pair decided not to recommend Plaintiff for the Data Specialist

position for which she had applied. Id. SI 31.

Pair testified that

although '^there was no one document" that caused him to not
recommend Plaintiff, he also stated he was concerned about the

notes he saw in her personnel file, specifically the
[and] notes."

-mails

Dkt. No 30-2 SI 33; Dkt. No. 34-3 at 14.

Pair

testified that he did not recommend Plaintiff after reviewing her

file

because

he

questioned

her

professional

judgment in

not

informing him about the negative relationship with her former
employer.
II.

Dkt. 34-3 at 15-17.

Procedural History

After not receiving the job in North Carolina, Plaintiff
amended her EEOC charge to include a claim of retaliation on or

about February 24, 2012.

Dkt. No. 1 SI 10.

She commenced this

action against Three Rivers and Kean on July 10, 2013.

Plaintiff

sued Three Rivers for age discrimination and retaliation under the
ADEA.

She sued Kean for tortious interference with employment

relationships.

This Court issued an initial order granting Defendant Kean's

motion for summary judgment as to the tortious interference with

employment

relationships

claim

and

dismissed

Plaintiff s

two

claims against Three Rivers under the ADEA for lack of subject
matter

jurisdiction

immunity from suit.

finding

that

Dkt. No. 37.

Three

Rivers

had

sovereign

Plaintiff appealed, and the

Eleventh Circuit vacated and remanded this Court's initial order

holding that a district court cannot rely on a plaintiff s failure
to oppose a defendant's contention that it was an ^'arm of the
state" for Eleventh Amendment immunity purposes.

Dkt. No. 52.

The Eleventh Circuit remanded the case for this Court to decide

the Eleventh Amendment "arm of the state" issue, and this Court
found that Three Rivers was not an arm of the state for Eleventh

Amendment purposes.

Dkt. No. 65.

Thus, Three Rivers was not

immune from suit.

Plaintiff did not appeal the Court's grant of summary judgment
with respect to the claim against Kean for tortious interference.
Therefore, that judgment remains final, and only Plaintiff's two

claims against Three Rivers under the ADEA remain to be adjudicated
on the merits.
LEGAL STANDARD

Summary judgment is required where "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."
56(a).
the

Fed. R. Civ. P.

A fact is "material" if it "might affect the outcome of

suit

under

FindWhat.com,

the

658

governing

F.3d

1282,

law."
1307
8

FindWhat
(11th

Cir.

Inv'r

Grp.

v.

2011)

(quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

A

dispute is ^^genuine" if the ^^evidence is such that a reasonable

jury could return a verdict for the nonmoving party."

Id.

In

making this determination, the court is to view all of the evidence
in the light most favorable to the nonmoving party and draw all
reasonable inferences in that party's favor.

Johnson v. Booker T.

Washington Broad. Serv., Inc., 234 F.3d 501, 507 (11th Cir. 2000).

The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.

Celotex Corp. v.

Catrett, 477 U.S. 317, 323 (1986). The movant must show the court
that there is an absence of evidence to support the nonmoving

party's case.

Id. at 325.

If the moving party discharges this

burden, the burden shifts to the nonmovant to go beyond the

pleadings and present affirmative evidence to show that a genuine
issue of fact does exist.

Anderson, 477 U.S. at 257.

The nonmovant may satisfy this burden in one of two ways.

First, the nonmovant ^^may show that the record in fact contains

supporting evidence, sufficient to withstand a directed verdict
motion, which was ^overlooked or ignored' by the moving party, who
has thus failed to meet the initial burden of showing an absence

of evidence."

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116

(11th Cir. 1993) (quoting Celotex Corp., 477 U.S. at 332 (Brennan,

J., dissenting)).

Second, the nonmovant ^'may come forward with

additional evidence sufficient to withstand a directed verdict

motion at trial based on the alleged evidentiary deficiency." Id.
at 1117.

with

Where the nonmovant attempts to carry this burden instead

nothing

more

"than

a

repetition

of

his

conclusional

allegations, summary judgment for the [movant is] not only proper

but required." Morris v. Ross, 663 F.2d 1032, 1033-34 (llth Cir.
1981) (citing Fed. R. Civ. P. 56(e)).
DISCUSSION

Plaintiff brings two separate claims against Defendant for

age discrimination and retaliation under the ADEA. "The ADEA makes
it ^unlawful for an employer to fail or refuse to hire or to

discharge any individual or otherwise discriminate against any
individual with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's age.'"
Chapman v. AI Transp., 229 F.3d 1012, 1024 (llth Cir. 2000)

(quoting 29 U.S.C. § 623(a)(1)). The ADEA applies to "individuals
who are at least 40 years of age." 29 U.S.C. § 631 (a).

The ADEA

also prohibits employers from retaliating against employees who
"opposed any practice made unlawful by this section .
§ 623(d)(1).

An

employee

aggrieved

by

its

employer's

discrimination or retaliation "may bring a civil action in any

court of competent jurisdiction" for legal or equitable relief.
§ 623(c)(1).

10

I.

ADEA Discrimination Claim

To prove a claim of age discrimination under the ADEA,
Plaintiff must establish that her age was the ''but-for" cause of

the adverse employment action, and she can do this through direct
or

circumstantial

evidence

of

discrimination.

Liebman

v.

Metropolitan Life Ins. Co., 808 F.3d 1294, 1298 (11th Cir. 2015).
In the absence of direct evidence of discrimination, courts utilize

the burden-shifting framework established in McDonnell Douglas
Corp. V. Green, 411 U.S. 792 (1973).

Chapman, 229 F.3d at 1024.

Under this framework, a plaintiff must first establish a prima
facie case of discrimination.

To make out a prima facie case under the ADEA, a plaintiff
must show the he ^'(1) was a member of the protected age group, (2)

was subject to adverse employment action, (3) was qualified to do
the job . . . and (4) was replaced by a younger individual." Benson
V. Tocco, Inc., 113 F.3d 1203, 1207-08 (11th Cir. 1997) (citations

omitted). But, this prima facie rule is altered in cases involving
a reduction-in-force because in an "'RIF" situation, ''employers

rarely seek replacements for the discharged employee."

Mitchell

V. City of LaFayette, 504 F. App'x 867, 870 (11th Cir. 2013); see

Benson, 113 F.3d at 1208.
demonstrate

In such cases, the plaintiff must

the following: "(1) he was in a protected age group;

(2) he was adversely affected by an employment decision; (3) he
was

qualified for

his

current

position

11

or to assume

another

position at the time of discharge; and (4) the evidence could lead
a factfinder reasonably to conclude that the employer intended to
discriminate on the basis of age."

Mitchell, 504 F. App'x at 870;

see Benson, 113 F.Sd at 1208. ''In order to satisfy the last prong,

the plaintiff must produce some evidence that the employer did not
treat

him

neutrally

with

respect

discriminated based upon it."

to

his

age,

but, instead,

Mitchell, 504 F. App'x at 870.

If the plaintiff can establish a prima facie case, the burden

of production shifts to the defendant to show a non-discriminatory
reason for the adverse employment action.
1035.

Chapman, 229 F.Sd at

If the defendant can provide such a reason, the burden

shifts back to Plaintiff to prove that the reason given by the

defendant was mere pretext for discrimination.

Id.

Provided that

the proffered reason is "one that might motivate a reasonable

employer, an employee must meet that reason head on and rebut it,
and the employee cannot succeed by simply quarreling with the

wisdom of that reason."

I^ at 1030 (11th Cir. 2000).

In other

words, the Court does not sit as a "super-personnel department

that reexamines an entity's business decisions." Id. (citations
omitted).

Rather, the Court is "solely concerned with 'whether

unlawful discriminatory animus motivate[d] a challenged employment
decision.'"

Mitchell, 504

F. App'x at 871 (11th Cir. 2013)

(quoting Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1361 (11th Cir.1999).
12

In this case. Plaintiff relies on circumstantial evidence,
which

makes

appropriate.

the

McDonnell

Douglas

burden-shifting

framework

Furthermore, this case involved the laying-off of

three librarians as part of an RIF due to a decreased budget.
While it is true that Smith took over Plaintiff's cataloging

responsibilities. Smith was the only librarian left at Three Rivers
and was responsible for all of the IT issues—something that
Plaintiff was not responsible for.

In other words, this was•an

RIF situation where Smith began a new position with combined

responsibilities of cataloguing and IT functions, not a situation
where Plaintiff was fired and replaced.

Thus, the altered prima

facie standard is applicable.

Here, the Court finds that the first three elements of the

prima facie case are met.

Where Plaintiff fails to make out his

prima facie case is element number four.

First, Plaintiff failed

to even address the prima facie case in her response to Defendant's
motion for summary judgment, deciding to jump directly into a

pretext argument instead. See Davis v. Mgmt. Tech., No. 1:03-CV118 (WLS), 2005 WL 2406059, at *4 (M.D. Ga. Sept. 28, 2005)

(granting summary judgment in favor of the defendant where the

plaintiff failed to address the prima facie case argument and
instead skipped straight to pretext prong of the analysis), aff'd,
193 F. App'x 872 (11th Cir. 2006).

Second, even if Plaintiff had

addressed the prima facie case issue, the record fails to show
13

facts that would allow a reasonable jury to conclude that Defendant

intended to discriminate
Plaintiff.

on the

basis of age in laying off

The record is devoid of any evidence of any negative

or discriminatory comments about age made by Kean or others at
Three Rivers.^ See Dkt. No. 23-1 1 73 (''Plaintiff is not aware of

any ageist comments made by Kean.").

The only evidence that

Plaintiff could point to on this issue is the fact that she, at

the age of 51, was laid-off while Smith, at the age of 41, was
retained as the only remaining librarian.

But, in the context of

an RIF, this fact alone would not be enough to allow a reasonable

jury to find that Defendant intended to discriminate on the basis
of age in reaching the decision of who to retain and who to lay
off.

Even if Plaintiff could meet the prima facie case element.

Defendant presents a legitimate non-discriminatory reason for

laying off Plaintiff while retaining Smith.

Kean testified that

she decided to lay-off Plaintiff instead of Smith because of
Smith's better IT experience and clean personnel file.

Kean

explained that she had to layoff librarians to get within the
^ Plaintiff states in her Statement of Undisputed Facts that ''Kean wanted to

get rid of what 'she referred to [as] the older librarians,' and 'bring young
people in.'" Dkt. 30-2 5 8. However, as correctly pointed out by Defendant,
Plaintiff's deposition contradicts this statement because it makes clear that
this comment was allegedly made by Leslie Jones who was a previous director of
Three Rivers, and it is therefore irrelevant because Leslie Jones was no longer
the director of Three Rivers when Plaintiff was let go. Additionally, even if
the statement was relevant, it is double-hearsay because Plaintiff claims that

she heard other people say they heard Jones make this comment. Thus, this
alleged statement has no bearing on the prima facie case.
14

$200,000 budget cut.

She had already decided to lay-off two of

the other four librarians, Wendt and Hershey, which narrowed the
decision to Smith and Plaintiff.

In deciding who to retain, Kean

stated that she needed a librarian who could handle both the

cataloging and IT responsibilities of the office. While both had
cataloging experience. Plaintiff had not handled the IT functions
in approximately ten years and had only dealt with IT functions
for a short time when she was initially hired.

Plaintiff admitted

that she did not have experience in IT network issues and stated
that IT was not her strength.
could

better

handle

both

of

In addition to deciding that Smith
these

functions

as

the

single

librarian, Kean also noted that while Plaintiff s personnel file
contained various documentations of performance problems. Smith's

file did not contain any such documentations. Thus, based on these

nondiscriminatory reasons, Kean decided to lay-off Plaintiff.
Because Defendant articulated a legitimate non-discriminatory

basis for its decision to lay—off Plaintiff, Plaintiff would have
to

show

that

this

articulated

basis

was

pretext

for

age

discrimination. Even assuming arquendo that Plaintiff established

a prima facie case. Plaintiff has not met her burden on pretext.
At the outset. Plaintiff faces a tough burden to show pretext

because Kean, who laid-off Plaintiff, was older than Plaintiff.

See Vahey v. Philips Elecs. N. Am. Corp., 461 F. App'x 873, 875
{11th Cir. 2012) CMA] plaintiff alleging age discrimination by
15

decisionmakers over age 40 faces a Mifficult burden' because such
decisionmakers

^are

more

likely

to

be

the

victims

of

age

discrimination than its perpetrators.'") (quoting Elrod v. Sears,

Roebuck and Co., 939 F.2d 1466, 1471 (11th Cir. 1991)).

First,

Plaintiff argues that there is a genuine dispute of material fact

as to why Plaintiff was discharged claiming that Plaintiff was
told she was let go as a part of an RIF due to budget cuts without

any mention of her job performance.

However, the record is clear

that Kean had to lay-off employees due to budget cuts and in

deciding who to lay-off, she looked to different factors including
performance issues.

Plaintiff was not fired for job performance

issues; she was let go due to budget cuts that required Kean to

consider performance and other job-related issues in deciding who
to retain.

Second, Plaintiff challenges Defendant's proffered reason
that she had no recent IT experience arguing that Plaintiff was

the ''IT person" when she was hired and that she has a master's

degree in Library and Information Services. She also mentions the
fact that Three Rivers hired an IT person after laying off Kean
and contracted with an out-of-network person for IT issues.

But,

Plaintiff fails to mention the facts that Lee Moon took over IT

functions shortly after Plaintiff was hired and that Plaintiff had

not been the "IT person" in about ten years. At the time Plaintiff
was let go. Smith, not Plaintiff, was already in charge of IT
16

functions.

Plaintiff also admits in her deposition that she did

not have experience with IT network issues, and in regard to the

IT person hired almost a year after Plaintiff was laid-off.
Plaintiff did not apply for that position because IT was not her

strength. As for the outside IT contractor, Kean explained in her
deposition that the contractor has always been used for issues

that required more in-depth IT experience than the IT librarian
could handle.

Finally, Plaintiff argues that her file did not contain any
documented performance issues before June 10, and that any issues
in the file before that date related to issues she raised while

advocating on the behalf of others.

Plaintiff's argument on this

point

by

is

squarely

contradicted

the

documentations

of

performance issues and policy violations in her file. See supra at
4.

In addition. Plaintiff does not dispute the fact that Smith

did not have any documented performance issues in her file.
Here, Plaintiff fails to show that a reasonable factfinder
could find that Defendant's asserted reason for laying her off was

pretext for discrimination.

Her arguments fail to show actual

discrimination or undermine the non-discriminatory reasons given

by Defendant; rather. Plaintiff's arguments ask the Court to

question the wisdom or business judgment of Defendant's decision.
For these reasons. Defendants Motion for Summary Judgment with

17

respect to Plaintiff's claim of age discrimination under the ADEA
is GRANTED.

II.

ADEA Retaliation Claim

Retaliation claims under the ADEA are also analyzed under the

McDonnell Douglas burden-shifting framework.

See Trask v. Sec'y,

Dep't of Veterans Affairs, 822 F.3d 1179, 1193-94 (llth Cir. 2016)

(applying the burden—shifting framework to analyze a plaintiff s
retaliation claim under Title VII and the ADEA).

To establish a

prima facie case of retaliation, the plaintiff must show a ^^(1)
statutorily protected expression, (2) [an] adverse employment

action, and (3) a causal link between the protected expression and
the adverse action."

Goldsmith v. City of Atmore, 996 F.2d 1155,

1163 (llth Cir. 1993) (applying burden-shifting framework in Title
VII case); see Penninqton v. City of Huntsville, 261 F.3d 1262,
1269 (llth Cir. 2001) (^MW]e typically apply legal standards

developed in Title VII and ADEA cases interchangeably."); Coles v.
Post Master Gen. United States Postal Servs., 711 F. App'x 890,

896 (llth Cir. 2017) (quoting Gomez-Perez v. Potter, 553 U.S. 474,

479,

487

(2008))

(''''The

ADEA

federal-sector

provision

was

patterned directly after Title VII's federal-sector discrimination
ban' and bars retaliation against federal employees 'based on the

filing of an age discrimination complaint.'"); see also Trask, 822
F.3d at 1193-94.

To establish a "causal link" a plaintiff "need

only establish that the protected activity and the adverse action
18

were not wholly unrelated" and ''[a]t minimum . . . must generally
establish that the employer was actually aware of the protected

expression

at

the

time

it

took

adverse

employment

action."

Goldsmith^ 996 F.2d at 1163.

In

this

case.

Plaintiff

asserted

a

statutorily

protected

expression by filing a charge with the EEOC and notifying her
former

employer

of

the

action.

Plaintiff

has

also

likely

experienced an adverse employment action in the negative notes
that were added to her personnel file after she was laid-off, but
at the very least, it is a jury issue.

Defendant argues that the

first note added on August 3rd cannot be considered an adverse
employment action because it would be unreasonable to assume that
such a note could have an impact months later when Pair requested
the personnel file from Kean.

However, while it might be difficult

for Plaintiff to show that Defendant wrote the note with the intent

of harming Plaintiff's future employment opportunities, in light

of the evidence that Kean is the one who suggested sending the
file to Pair, the note added about two weeks after Defendant was

notified

about the

EEOC charge

and

the

day

after

Defendant's

counsel encouraged Plaintiff to drop the EEOC claim could lead a

reasonable juror to infer that this note was an adverse employment
action intended to retaliate against Plaintiff.

Furthermore, the

fact that Plaintiff was no longer employed by Defendant does not
mean that the notes cannot be considered adverse employment actions
19

because even former employers can take adverse actions against

their former employees.

See Robinson v. Shell Oil Co./ 519 U.S.

337, 339 (1997) (finding former employees included within Title
VII's retaliation provision where a former employer gave a negative

job reference for one of its former employees); Sherman v. Burke
Contracting, Inc., 891 F.2d 1527, 1532 (11th Cir. 1990) (holding

that former employees can sue for retaliation), superseded by
statute on other grounds. Civil Rights Act of 1991, 105 Stat. 1071.
As for the third element of a causal link. Plaintiff has

pointed to evidence of temporal proximity of the notes added to
her file and of the fact that Kean suggested that Pair request

Plaintiff's personnel file. Here, Plaintiff has to show only that
Kean adding notes to her file after Plaintiff was laid-off was not

wholly unrelated to Plaintiff's EEOC charge. Here, Kean added the

August 3rd note to Plaintiff's file about two weeks after Plaintiff
filed the EEOC charge and the day after Defendant's counsel
encouraged Plaintiff to drop the EEOC charge.

Defendant argues that any causal inference from the close

proximity the notice of the EEOC charge and the August 3rd note is
severed by the intervening event that Kean was made aware of

problems with Plaintiff's performance that Kean did not know about
while Plaintiff was employed.

To support this point. Defendant

cites Wu V. Southeast-Atlantic Beverage Corp., 321 F. Supp. 2d

1317, 1337 (N.D. Ga. 2004). There, during the roughly five months
20

after the employee filed an EEOC complaint, the employer received

complaints about the employee, suspended the employee because of

the complaints, learned of more problems about the employee during
the suspension, and as a result, terminated the employee.

The

district court found that these intervening events dispelled any
inference

of

a

causal

link

created

by

temporal

proximity.

Defendant also cites Spence v. Panasonic Copier Co., 46 F. Supp.

2d 1340 (N.D. Ga. 1999). There, after allegedly complaining about
discrimination in either June or August (a protected activity),

the employee failed to meet sales quotas and was warned about the

quotas in September and October before being terminated at the end
of October.

The district court found that these intervening

factors barred an inference of causation.

In this case. Plaintiff's alleged intervening factor is

Kean's finding out about new information regarding Plaintiff s

work performance that Kean wanted to add to the personnel file for
her own benefit.

This assertion is not enough to sever the causal

inference based on temporal proximity.

Writing a new six-page-

long note of negative comments in the file after an employee has
already been let go, about two weeks after learning that the
employee has filed a suit with the EEOC, and a day after your
attorney encouraged the employee to drop the suit could allow a
reasonable

juror

to

find

causation

and

thus

retaliation.

Furthermore, the cases cited by Defendant involved intervening
21

actions by th© ©niployee that justifisd the adverse action; here,
the

alleged

intervening

act

involved

Kean

learning

of

new

information, not any new conduct by Plaintiff to warrant some

adverse action.

Lastly, just because Kean had documented other

issues about Plaintiff before Plaintiff was let go does not, as

Defendant argues, undermine the possible inference of causation
from the temporal proximity of six pages of new notes added after
Plaintiff was let go.

In other words, a reasonable juror could

still find an inference of causation based on the approximately

two-week temporal nature of the August 3rd note even if Plaintiff
had notes in her personnel file before she was fired.
Kean also added a note to Plaintiff's file on October 19th,

the same day that Pair contacted Kean to request Plaintiff's
personnel file. Defendant argues that this note cannot as a matter
of law show a causal connection because it was written three months
after Plaintiff filed her EEOC charge in July.

While it is true

that the Eleventh Circuit has stated that 'Ma] three to four month

disparity between the statutorily protected expression and the
adverse employment action is not enough" to show causation, Thomas
V. Cooper Lighting, Inc., 506 F.Sd 1361, 1364 (11th Cir. 2007), we
are not left with mere temporal proximity as the only evidence of
retaliation in this case.

While the timing of the October 19th

note alone might not give rise to an inference of causation, read

in light of the facts that it was the second set of negative and
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disparaging coininents added to Plaintiff s file after her being let

go and after filing her EEOC charge, that Kean is the one who
suggested the personnel file to Pair, and that the October 19th
note was added to the file the saitie day that Pair emailed Kean

requesting Plaintiffs personnel file, the Court cannot say as a
matter of law that a reasonable jury could not infer a causal link
based on the combination of these facts.

Indeed, a reasonable

juror could find that in light of all of these facts, a note added
2-j[ght before sending the file to a new potential employer
emphasizing that ^^[n]o wonder our cataloging department was never
current while Karen Haven was in charge of the department," was

not wholly unrelated to the previously filed EEOC charge, thus
establishing a causal link and a prima facie case of retaliation.
Dkt. No. 34-4 at 16-17 (emphasis in original).

Assuming a reasonable jury finds that Plaintiff has met the

prima facie case. Defendant has articulated a legitimate nonretaliatory reason for adding the notes.

Defendant asserts that

Kean added the August 3rd note because she was made aware of

problems that were uncovered with Plaintiff s performance after
she was let go and wanted to document them in case the budget ever
increased and Plaintiff was being considered for a future position.
As for the October 19th note, Kean asserts that she added the note
for the same reason after a managers' meeting that happened to be

23

on th© sain© day that Pair ©inail©d K©an ir©<5u©sting Plaintiff s
p©rsonn©l fil©.

B©caus©

D©f©ndant

could

articulat©

a

l©gitimat©

non-

r©taliatory r©ason for th© not©S/ th© Court turns to th© final

prong of pr©t©xt. Und©r this prong (assuming Plaintiff has shown

a prima faci© cas©), th© Court finds that Plaintiff has shown
evid©nc©

such

that

a

r©asonabl©

juror

could

conclud©

that

D©f©ndant's ass©rt©d non—retaliatory reasons for th© notes were

actually pretext for retaliation in response to th© filing of th©
EEOC charge.

First, while Defendant is correct that Plaintiff

never uses the word "'pretext" in her reply. Plaintiff does address
the asserted non-retaliatory reason and presents argument as to

why that reason does not hold water.

Second, both parties agree

that Kean suggested to Pair that he could request Plaintiff's

personnel file and that Pair had no reason to request the file but
for Kean's suggestion.

This is significant because a reasonable

jury could find Kean's suggestion as evidence of a desire to
retaliate against Plaintiff when combined with the fact that Kean
added more notes to the file the same day that Pair emailed Kean

requesting Plaintiff's file.

Defendant argues that this dispute

is irrelevant because the second note was too far removed from the

EEOC charge to create an inference of retaliation.
reasons

as discussed

above, the

Court rejects

For the same

this

argument.

Third, the length of the notes added after Plaintiff was laid off
24

and the negative and disparaging language could lead a reasonable

jury to find that this language was specifically added to harm
Plaintiff's future employment.

Finally/ the timing of the notes

being added could also lead a reasonable jury to decide that the
reason given by the Defendant was pretext. Adding one note about
two weeks after getting notice of the EEOC charge and the day after
Defendant's counsel encouraged Plaintiff to drop the charge and a

second note the same day that Pair, requested Plaintiff's personnel
file is at minimum suspicious timing, and a juror could find that

suspicious timing combined with the other facts of this case as
evidence that Defendant's proffered reason for the notes was
pretext for retaliation.

For

these

reasons.

Defendant's

Motion

with

respect

to

Plaintiff's ADEA claim for retaliation is DENIED.
CONCLUSION

Defendant's

Motion

for

Summary

Judgment

with

respect to

Plaintiff's age discrimination claim under the ADEA is GRANTED.
Defendant's motion with respect to Plaintiff's retaliation claim
under the ADEA is DENIED.

SO ORDERED, this 18th day of October, 2018.

HON.^ISA GODBEU WOOD, JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA

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