Kittles v. Health Care Staffing, Inc. et al
Filing
47
ORDER granting Defendants' 29 Motion for Summary Judgment; granting 31 Motion for Summary Judgment in their entirety, Plaintiff failed to point to evidence in the record showing genuine dispute of material fact as to any of her claims. Because Plaintiff's other claims have failed, she cannot recover attorney's fees. The Clerk is directed to enter the appropriate judgment. Signed by Chief Judge Lisa G. Wood on 3/18/2015. (ca)
N the WnitebStates; Ditrttt Court
for the boutbern flitrict of georgia
Jiruutuitk flibiton
ERICA D. KITTLES,
Plaintiff,
V
CV 213-138
.
HEALTHCARE STAFFING, INC.,
VANESSA SHEARER, BONITA MIKEL,
and CINDY ACKERMAN,
Defendants.
ORDER
Plaintiff Erica Kitties, a black woman employed by
Defendant Healthcare Staffing, Inc., complained to her superiors
when Anthony Barnett, a black employee the staffing agency had
placed at a nursing facility, was terminated from that
placement. Plaintiff was fired a short time later. In this
action, Plaintiff brings claims for discriminatory termination
and retaliation under Title VII and § 1981 against Defendants
Healthcare Staffing and its employees, Bonita Mikel and Cindy
Ackerman. She also brings a § 1985(3) claim against Defendant
Vanessa Shearer, Human Resources Coordinator at the nursing
facility that fired Barnett, along with Defendants Healthcare
Services, Mikel, and Ackerman. Finally, Plaintiff brings a state
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law claim for intentional infliction of emotional distress, and
a claim for attorney's fees. Defendant Shearer has filed a
motion for summary judgment (Dkt. no. 29), as have Defendants
Healthcare Staffing, Mikel, and Ackerman (Dkt. no. 31).'
FACTUAL BACKGROUND
Plaintiff Erica D. Kitties was employed as a staffing
coordinator by Defendant Healthcare Staffing ("HCS") . Dkt. no
29-3 ("Kittles Dep."), 39:1-4. HCS is a Georgia for-profit
corporation, and Plaintiff worked in its Brunswick office. Dkt.
no. 1, ¶ 18. As a staffing coordinator, Plaintiff was
responsible for attracting potential employees. When potential
employees applied for work through the agency, Plaintiff would
administer various tests to the employees to measure their
aptitude in different nursing-related skills. Kitties Dep. 39:525. In addition to the knowledge-based nursing skills tests,
Plaintiff would administer the "First Advantage" test, which was
designed to test an applicant's personality and integrity. Id.
at 39:12-41:6.
All applicants for healthcare-related positions were
required to take the First Advantage Test and receive a passing
score before they could be considered for employment. Id. at
69:16-20; Dkt. no. 31-1 ("Mikel Decl."), ¶ 9. While the
1
Because Defendants Healthcare Staffing, Mikel, and Ackerman jointly filed
their motion for summary judgment, the Court occasionally refers to these
Defendants together as the "HCS Defendants."
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knowledge-based tests could be taken more than once by an
applicant, the First Advantage Test was designed to only be
taken once. Kitties Dep. 112:8-12. If an applicant were to take
the test multiple times, he could manipulate the test. Mikel
Deci. ¶ 11. For this reason, the training manual for the First
Advantage Test states "under no circumstances will an applicant
be allowed to retake the test once it is completed." Id.
Plaintiff admits that she was regularly reminded that the
First Advantage Test could not be given to an applicant more
than one time, and that she was forwarded an email on February
9, 2012, that made this point. See Dkt. no. 31-2 (HCS
Defendants' Statement of Undisputed Facts, or "HCS SUF"), ¶ 15;
Dkt. no 42-2 (Pl.'s Resp. to HCS SUF), ¶ 15. She also admits
that Hayley Barr, who also worked at HCS's Brunswick office,
emailed Plaintiff on her work email account on March 8, 2012,
stating:
Just an FYI in case we haven't discussed this, when
applicant takes the First Advantage Test we are not
allowed to discuss their scores with them and they are
not allowed to retake it should they score poorly on
it. If they do not score well enough to be considered
then we just have to send them a NO HIRE letter.
HCS SUF ¶ 16; Pl.'s Resp. to HCS SUF ¶ 16. However, Plaintiff
claims that despite these reminders to only give the First
Advantage Test once per applicant, she was frequently instructed
by her supervisors to allow some applicants to take the test
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multiple times. Plaintiff testified,
"[w]e were told they could
take it once. But if it was somebody that we thought would be a
good candidate, we had to get permission from the supervisor [to
allow them to retake the test], and that's what I always did."
Kitties Dep. 68:23-69:3. Plaintiff says she does not have any
written documentation of her asking a supervisor to allow an
applicant to retake the First Advantage Test. Id. at 69:11-15.
On July 17, 2012, Plaintiff was given a written warning for
poor job performance. P1's Resp. to HCS SUF IT 20-22. The
warning did not mention anything about allowing applicants to
retake the First Advantage Test. Instead, it admonished
Plaintiff for excessive absences and substandard job
performance, and attributed the poor performance issues to
Plaintiff allowing personal matters to interfere with her job
duties. HCS SUF 91 21. The written warning further stated, in all
capital letters:
YOU ARE FORMALLY BEING WARNED TO BRING TO YOUR
ATTENTION THE SEVERITY OF THIS SITUATION, FAILURE TO
CORRECT THIS BEHAVIOR AND/OR VIOLATION OF COMPANY
POLICY WILL RESULT IN ADDITIONAL DISCIPLINARY ACTION
UP TO AND INCLUDING DISCHARGE.
Id. ¶ 22.
Around the time Plaintiff received this warning, a nurse
whom HCS had placed at a nursing facility named Gateway was
terminated from his position. Gateway is a public, non-profit,
community-based organization created under Georgia law to
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provide disability services to people with developmental
disabilities, mental illness, and addictive diseases. See Dkt.
no. 29-1, p. 1; Ga. Code Ann. §§ 37-2-6, 37-2-6.1. Defendant
Vanessa Shearer is the Human Resources Director at Gateway. Dkt.
no. 29-2, ¶ 4.
Anthony Barnett, the nurse who was terminated from Gateway,
is a black male. Because HCS had placed him at Gateway, many of
his employment records were kept at HCS. His direct supervisor
at Gateway, though, was a woman named Cathy Thompson. Plaintiff
had heard from others that Thompson wanted Barnett removed from
his position because he was not performing his job correctly.
Kittles Dep. 127:5-17. Plaintiff agrees that there is no dispute
that "Cathy Thompson was unhappy with [Barnett's] work
performance." Kitties Dep. 131:24-135:3. However, Plaintiff
believed that there had never been any written complaints or
write-ups against Barnett and that no such documents existed in
his file. See Kitties Dep. 192:1-193:7. Aside from a
conversation she had directly with Barnett after he was
terminated, Plaintiff never spoke with anyone at Gateway about
how well employees, including Barnett, were performing. Kittles
Dep. 118:6-9. Furthermore, she admits that any information she
has on whether or not Barnett was performing his job well would
be hearsay, and not based on firsthand knowledge. Id. at 125:1525.
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After Barnett was fired, he filed an EEOC claim against HCS
alleging discrimination on July 20, 2012. Ackerman Deci. ¶ 15.
Soon after HCS received the EEOC claim, Plaintiff says that
Defendant Shearer called HCS and asked Plaintiff to look in
Barnett's file to see what kind of records were kept in relation
to his job performance. Kitties Dep. 116:23-117:9. Plaintiff
refused to pull the file, and another employee had to do so. Id.
at 126:5-127:4. While another employee was getting the file,
Defendant Shearer was placed on speakerphone, and Plaintiff says
she could hear the conversation between Shearer and the other
employee. Id. Plaintiff says "they were trying to find something
in his chart, and nobody could find anything. And at that time I
felt the tension going. I stayed out of it, and I just didn't
want any part of it because I felt like eventually it would come
to this right here," referring to her current deposition in her
own wrongful termination lawsuit. Id.
A few weeks later, Defendant Cindy Ackerman, who is HCS's
Corporate Director of Human Resources and works at the HCS
corporate office in College Park, Georgia, went to the HCS
Brunswick office to interview witnesses concerning Barnett's
EEOC claim. Id. at 191 2-3, 16. In Brunswick, Defendant Ackerman
met with Defendant Bonita Mikei, Director of the HCS Brunswick
office, to conduct the interviews. Mikel Decl. ¶ 23. The two
Defendants spoke with Plaintiff about Barnett's termination, and
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Plaintiff told them that she disapproved of Barnett's
termination. Kitties Dep. 212:8-23.
Defendant Ackerman says that it is her practice, when
traveling to a satellite office, to do a general audit of the
office's hiring practices. Ackerman Deci. ¶91 17-18. When she
visited the Brunswick office, she audited some applicant files
to ensure that they were complete and that proper procedures
were being followed. Id. ¶ 19. Defendant Ackerman discovered
that many applicants had been given the opportunity to take the
First Advantage Test, which is designed to only be taken once,
several times, some as many as ten times. Id. ¶91 20-22. When
Defendants Ackerman and Mikel confronted Plaintiff about this
practice, she admitted to allowing applicants to take the First
Advantage Test more than once. Dkt. no. 45-1 ("Ackerman Second
Deci."), ¶ 4. Defendant Ackerman says she did not find any
evidence that anyone except Plaintiff had been improperly
allowing applicants to take the First Advantage Test multiple
times. Id. 91 5. The HCS Defendants then terminated Plaintiff,
the stated reason being that she had recently been reprimanded
and warned that any violation of company policy could result in
her termination, and her offering the First Advantage Test
multiple times constituted such a violation.
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Plaintiff maintains that she was terminated because she
complained to her supervisors about what she perceived to be
Barnett' s discriminatory termination.
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." Fed. R. Civ.
P. 56(a) . A fact is "material" if it "might affect the outcome
of the suit under the governing law." FindWhat Investor Grp. v.
FindWhat.com , 658 F.3d 1282, 1307 (11th Cir. 2011) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A
dispute over such a fact is "genuine" if the "evidence is such
that a reasonable jury could return a verdict for the nonmoving
party." Id. In making this determination, the court is to view
all of the evidence in the light most favorable to the nonmoving
party and draw all reasonable inferences in that party's favor.
Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d
501, 507 (11th Cir. 2000)
The party seeking summary judgment bears the initial burden
of demonstrating the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) . To
satisfy this burden, the movant must show the court 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
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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 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, 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. Where the
nonmovant attempts to carry this burden instead with nothing
more "than a repetition of is conclusional allegations, summary
judgment for the defendants [is] not only proper but required."
Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981)
DISCUSSION
I.
Title VII and 42 U.S.C. § 1981 Discrimination Claims
Counts I and III of Plaintiff's Complaint allege Title VII
claims for disparate treatment, based on Plaintiff's race,
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against Defendant HCS, along with a § 1981 claim against HCS and
possibly HCS employees Mikel and Ackerman. 2
Title VII prohibits employers from discriminating against a
person based on race. 42 U.S.C. § 2000e-2 (a) (1). Additionally,
42 U.S.C. § 1981 provides that all persons in the United States
"shall have the same right . . . to make and enforce
contracts . . . as is enjoyed by white citizens," and this
provision has been interpreted to prohibit employment
discrimination. Addison v. Ingles Mkts., Inc., 515 F. App'x 840,
841-42 (11th Cir. 2013). The Court will address Plaintiff's
Title VII and § 1981 discrimination claims together as both
claims "have the same requirements of proof and the same
analytical framework." Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1330 (11th Cir. 1998).
"A plaintiff may prove a claim of intentional
discrimination through direct evidence, circumstantial evidence,
or statistical proof." Alvarez v. Royal Ati. Developers, Inc.,
2
It is unclear from Plaintiff's complaint if she targets any of the
individual Defendants (Shearer, Mikel, and Ackerman) under her § 1981 claim.
Plaintiff's Response to Shearer's Motion for Summary Judgment (Dkt. no. 43-1)
appears to concede that the only claim brought against Shearer is the Count
IV, § 1985(3) conspiracy claim. Defendants HCS, Mikel, and Ackerman's Motion
for Summary Judgment (Dkt. no. 31-1) addresses the § 1981 claim along with
the Title VII claims, but does not argue that Defendants Mikel and Ackerman
are not named under the § 1981 claim. Plaintiff's response (Dkt. no. 42-1)
does not clarify this point, either. In any event, the Court will not fret
over whether Mikel and Ackerman are named as Defendants for the § 1981 claim
because, to the extent that they are, the § 1981 claim would fail as to them
for the same reasons it fails as to HCS. Finally, even though Plaintiff named
all of the individual Defendants in her Title VII claims, see Dkt. no. 1, p.
45 (Relief Requested, (b)), she concedes in her reply briefs that none of the
individual Defendants can be liable for her Title VII claims. Dkt. no. 42-1,
p. 10; Dkt. no. 43-1, p. 8.
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610 F.3d 1253, 1264 (11th Cir. 2010) (quoting Rioux v. City of
Atlanta, 520 F.3d 1269, 1274 (11th Cir. 2008)). The parties do
not discuss the nature of Plaintiff's evidence of
discrimination. Plaintiff's allegations, though, plainly come
from inferences she has made about her termination based on the
circumstances. Likewise, she has not proffered any direct or
statistical evidence that her termination was discriminatory.
Thus, this Court will proceed under the two available
"circumstantial evidence" analyses.
The more common analysis enumerated by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) and
Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981), applies when the plaintiff is relying on comparators as
evidence of differential treatment. Wilson, 376 F.3d at 1087.
"Under this framework, the plaintiff first has the burden of
establishing a prima facie case of discrimination, which creates
a rebuttable presumption that the employer acted illegally." Id.
A plaintiff may establish his prima fade case by showing
(1) he belongs to a racial minority; (2) he was
subjected to adverse job action; (3) his employer
treated similarly situated employees outside his
classification more favorably; and (4) he was
qualified to do the job.
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The
similarly situated employee, known as a "comparator," must be
similarly situated "in all relevant respects," and must be
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"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 1074, 1091 (11th Cir. 2004).
If the plaintiff meets her burden of establishing her prima
facie case, then there is a presumption that the employer acted
illegally, which the employer may rebut by articulating a
legitimate, nondiscriminatory reason for its actions. Id. at
1087. If the employer satisfies this burden of production, then
the burden shifts back to the plaintiff, who must show that the
defendant's proffered reasons for its actions are simply a
pretext for discrimination. Id. While the burden of production
may shift back and forth between the plaintiff and defendant, it
is the plaintiff who ultimately bears the burden of showing that
the defendant intentionally discriminated against her. Id.
(quoting Burdine, 450 U.S. at 256)
Where the McDonnell Douqias framework is not useful for
lack of comparators, courts rely on a more straightforward
circumstantial evidence analysis—albeit one that requires more
piercing evidence of discrimination. The Eleventh Circuit has
held that the McDonnell Douglas framework is not the sine qua
non for a plaintiff to survive summary judgment in a
discrimination case. Sims v. MVM, Inc., 704 F.3d 1327, 1333
(11th Cir. 2013)
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Instead, the plaintiff will always survive summary
judgment if [she] presents circumstantial evidence
that creates a triable issue concerning the employer's
discriminatory intent. A triable issue exists if the
record, viewed in a light most favorable to the
plaintiff, presents a convincing mosaic of
circumstantial evidence that would allow a jury to
infer intentional discrimination by the decisionmaker.
Id. (citations and quotations omitted)
Here, Defendants concede that Plaintiff belongs to a racial
minority and was subjected to an adverse employment action.
However, they argue that Plaintiff has failed to show she was
treated differently than similarly situated employees outside of
her protected class. 3
In her Response brief, Plaintiff attempts to establish a
comparator by naming "Ms. Gardner, a white female staffing
coordinator, just like Ms. Kittles . . •" Dkt. no 42-1, p. 9.
According to Plaintiff, Ms. Gardner was also told to retest HCS
applicants in direct contradiction to HCS's stated policies, but
HCS did not fire Ms. Gardner for doing the retests as it did
with Ms. Kittles. Id. However, Plaintiff's attempt to establish
Gardner as a comparator fails because she does not establish
The HCS Defendants also argue that, because Plaintiff had been recently
issued a warning and then was found to have been administering the First
Advantage Test multiple times, that she was "unqualified" to perform her job
at the time of her termination. The parties never discuss whether this fault
of Plaintiff's would more appropriately be considered as a "legitimate,
nondiscriminatory reason" for Plaintiff's termination assuming she had
established her prima facie case. Because it makes no difference to the
outcome, the Court will address the HCS Defendants' stated reason for
terminating plaintiff as a "legitimate, nondiscriminatory reason" (to be
considered after Plaintiff establishes her prima facie case) rather than a
lack of qualification (which is considered as part of Plaintiff's prima facie
case)
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that Gardner was "similarly situated" in all relevant respects
to Plaintiff. The relevant circumstances to Plaintiff's
termination are that she had recently been given a written
warning for substandard job performance and she was later found
to have violated company policy by allowing applicants to take
the First Advantage Test multiple times. In her response brief,
the only evidence Plaintiff offers as to how similarly situated
she is to Gardner is that both of them were told to allow some
"retests" in certain circumstances. See Dkt. no. 42-3 ("Kitties
Aff."), 191 6-8. However, Plaintiff does not state in her
affidavit that Gardner was specifically retesting applicants
with the First Advantage Test (as opposed to any of the several
other tests HCS uses in evaluating applicants), nor does she
state that Gardner was, like Plaintiff, on a probationary period
of sorts for absenteeism and poor job performance. In fact,
Defendants produced evidence from the record that Gardner was
not similarly situated - to Plaintiff. In her audit of HCS's
hiring practices, Defendant Ackerman says she found no evidence
of any employee except Plaintiff allowing applicants to take the
First Advantage Test multiple times. Ackerman Second Decl. ¶ 5.
This evidence stands uncontroverted. Thus, because the evidence
in no way shows that Gardner was also administering the First
Advantage Test more than once per applicant, and, as far as the
Court has been apprised, had not been recently admonished for
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poor job performance, Plaintiff has failed to create a material
issue of fact as to whether Gardner was similarly situated to
Plaintiff "in all relevant respects." See Wilson, 376 F.3d at
1087.
Additionally, even if Plaintiff had adequately established
her prima facie case, she has still failed to rebut the HCS
Defendants' proffered "legitimate, nondiscriminatory" reason for
her termination. Just a few weeks before her termination,
Plaintiff received a written warning for her frequent absences
from work and failure to follow the proper protocols for asking
off of work. The warning also reprimanded her for substandard
job performance. At the bottom of the reprimand, in all capital
letters, a warning read, in part, ". . . VIOLATION OF COMPANY
POLICY WILL RESULT IN ADDITIONAL DISCIPLINARY ACTION UP TO AND
INCLUDING DISCHARGE." After Defendant Ackerman came to the HCS
office to investigate Barnett's termination, she discovered in
an audit that Plaintiff was still administering the First
Advantage Test multiple times for certain applicants. This
conduct was a violation of HCS policy, and Plaintiff had been
placed on notice that such conduct would result in her
termination. Thus, Plaintiff's failure to adhere to HCS's
policies was a legitimate, nondiscriminatory reason for HCS to
terminate her from her position as staffing coordinator.
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Plaintiff has not argued that this proffered reason was
pretextual.
Thus, Plaintiff has failed to produce evidence from the
record supporting her prima facie case. Summary judgment is
appropriate, then, on Counts I and III for discriminatory
termination under Title VII and § 1981.
II. Title VII Claim For Retaliation
Count II of Plaintiff's complaint brings a claim for
retaliation under Title VII against HCS. 4 Plaintiff's singular
theory of retaliation is that HCS terminated her because she
"did not play the game to impugn Mr. Barnett." Dkt. no. 42-1,
p. 10. See also Pl.'s Resp. to HCS SUF ¶ 42 (". . . Defendants
fired Ms. Kitties for not supporting Defendants' racial and
sexual discrimination of Mr. Barnett.")
To establish a retaliation claim under Title VII, Plaintiff
must prove that she: (1) engaged in statutorily protected
activity; (2) suffered a materially adverse action; and (3)
there was a causal relation between the protected activity and
the adverse action. See 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)).
As noted above, the Complaint specifically named the individual Defendants
under Count II as well, but Plaintiff later conceded that they were not
appropriate Title VII Defendants.
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A plaintiff engages in a "statutorily protected activity"
when she protests an employer's conduct—even if that conduct is
actually lawful—so long as she demonstrates that she had "a good
faith, reasonable belief that the employer was engaged in
unlawful employment practices." Little v. United Techs., Carrier
Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). While the
"good faith belief" standard is subjective, this belief must be
"objectively reasonable in light of the facts and record
presented. It thus is not enough for a plaintiff to allege that
[her] belief in this regard was honest and bona fide; the
allegations and record must also indicate that the belief,
though perhaps mistaken, was objectively reasonable." Id.
(emphasis in original)
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)).
Finally, the "causal relation" prong of the plaintiff's
prima facie case requires the plaintiff to show that the
statutorily protected activity was the "but-for" cause of the
adverse employment action. Univ. of Texas Sw. Med. Ctr. v.
Nassar, 133 S.Ct. 2517, 2533 (2013) . "This requires proof that
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the unlawful retaliation would not have occurred in the absence
of the alleged wrongful action or actions of the employer." Id.
"After the plaintiff has established the elements of a
claim, the employer has an opportunity to articulate a
legitimate, nonretaliatory reason for the challenged employment
action as an affirmative defense to liability." Goldsmith, 513
F.3d at 1277. If the defendant meets this burden of production,
the burden shifts back to the plaintiff to satisfy her "ultimate
burden of proving retaliation by a preponderance of the evidence
and that the reason provided by the employer is a pretext for
prohibited retaliatory conduct." Id.
Here, it is uncontested that Plaintiff's termination
amounts to a "materially adverse" action. However, Plaintiff
fails to satisfy the first and third prongs of her prima facie
retaliation case. First, Plaintiff has not produced any evidence
that her belief that Barnett was discriminated against was
objectively reasonable, and there is substantial evidence in the
record suggesting that her conclusion that his termination was
racially motivated was objectively unreasonable. For instance,
Plaintiff and Barnett worked for separate organizations and at
separate locations. Kitties Dep. 118:12-20. She only went to the
Gateway office, where Barnett worked, for her initial
orientation and for occasional deliveries. Id. 118:21-119:13.
Plaintiff did not communicate with Gateway regarding how
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employees were performing their jobs. Id. 118:6-9. However, she
had heard that Cathy Thompson, Barnett's supervisor at Gateway,
wanted him removed because he was not performing his job
sufficiently. Id. 127:5-17. Based on Plaintiff's own deposition
and the other evidence before the Court, it is undisputed that
Plaintiff simply concluded that Barnett was discriminated
against because he was fired and because he was black—even when
she had heard that the actual reason he was fired was his poor
job performance. Defendants have shown an absence in the record
of any evidence that would support a finding that Plaintiff's
subjective belief of Barnett's discriminatory termination was
objectively reasonable. Plaintiff does not, in her responses to
Defendants' motions for summary judgment and Defendants'
statements of undisputed facts, identify evidence in the record
that would support such a finding. All Plaintiff offers in
response to Defendants' challenge on this point are conclusory
allegations that "the only one reasonable conclusion" for why
Barnett lost his job was because of his race and sex. Dkt. no.
42-1, p. 10. Such conclusory allegations by a nonmovant are
insufficient to overcome a motion for summary judgment.
Additionally, even if Plaintiff had provided evidence that
she reasonably believed Barnett's termination was
discriminatory, she has failed to show that her objection to
that termination was the "but-for" cause of her own termination.
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The record plainly shows that HCS fired Plaintiff because she
continued to give HCS applicants multiple opportunities to take
the First Advantage Test, in violation of company policy, even
when she had been warned before not to do so. Plaintiff's
conduct alone would have resulted in her own termination
regardless of Defendants' alleged discriminatory termination of
Barnett. Plaintiff has failed to show that her objection to
Defendants' allegedly unlawful conduct was the but-for cause of
her termination, and thus has failed to establish her prima
facie retaliation claim. The Court grants Defendants' motion for
summary judgment as to Count II.
III. 42 U.S.C. § 1985(3) Claims
Count IV of Plaintiff's Complaint alleges that Defendants
HCS, Mikel, Ackerman, and Shearer all conspired to deprive
Plaintiff of her "right to equal protection of the laws, or of
equal privileges and immunities under the laws, and [the] right
to exercise her rights or privileges of a citizen of the United
States," in violation of § 1985(3), by conspiring to fire her
because she is black and because she refused to participate in
the discriminatory investigation and termination of Mr. Barnett.
Dkt. no. 1, ¶ 183.
To state a claim under § 1985(3), a plaintiff must allege:
(1) defendants engaged in a conspiracy; (2) the
conspiracy's purpose was to directly or indirectly
deprive a protected person or class the equal
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protection of the laws, or equal privileges and
immunities under the laws; (3) a conspirator committed
an act to further the conspiracy; and (4) as a result,
the plaintiff suffered injury to either his person or
his property, or was deprived of a right or privilege
of a citizen of the United States.
Jimenez v. Wellstar Health Sys., 596 F.3d 1304, 1312 (11th Cir.
2010) (citing Johnson v. City of Fort Lauderdale, 126 F.3d 1372,
1379 (11th Cir. 1997)). "When the alleged § 1985(3) conspirators
are private actors, the plaintiff must demonstrate that the
conspiracy was aimed at rights constitutionally protected
against private impairment." Id. (citing Bray v. Alexandria
Women's Health Clinic, 506 U.S. 263, 274 (1993); Park v. City of
Atlanta, 120 F.3d 1157, 1162 (11th Cir. 1997) ) . "These rights
include only select 'serious constitutional right[s].'" Id.
(citing Cook v. Randolph County, 573 F.3d 1143, 1157 (11th Cir.
2009)
"The only rights the Supreme Court has expressly declared
enforceable against private conspirators under § 1985(3) are the
right to interstate travel and the right against involuntary
servitude." Id. (citing Bray, 506 U.S. at 278) . The Supreme
Court has declared that the freedom of speech and the rights
protected under Title VII are insufficient to form the basis of
§ 1985(3) actions against private actors. Id. (citing Bray, 506
U.S. at 278; Great Am. Fed. Say. & Loan Ass'n v. Novotny, 442
U.S. 366, 378 (1979)). Additionally, the Eleventh Circuit has
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held that private conspiracies to violate rights protected under
§ 1981 are likewise insufficient to form the basis of a
§ 1985(3) claim. Id.
Defendant Shearer, who is the Human Resources Director at
Gateway, a public organization created and existing under the
laws of Georgia, is the only defendant who is a public employee.
The parties do not address whether her role at Gateway makes her
a public actor for purposes of § 1985(3), but because this claim
ultimately fails, the court will assume, for purposes of this
Order, that she is. Thus, Defendant Shearer's presence in the
alleged conspiracy is necessary for Plaintiff to bring a
§ 1985(3) claim for unlawful termination and retaliation
(assuming that mixed public/private conspiracies are actionable
as public conspiracies under § 1985(3), another point neither
party addresses) . Otherwise, the only parties to the conspiracy
would be HCS, a private corporation, and its employees. A purely
private § 1985(3) conspiracy cannot be based on constitutional
rights other than the right to be free from involuntary
servitude or her right to interstate travel. 5 Because these
rights are not the basis of Plaintiff's § 1985(3) claim, she
Whether HCS and its own employees could engage in a conspiracy is
questionable, given the Eleventh Circuit's adoption of the intracorporate
conspiracy doctrine. See McAndrew v. Lockheed Martin Corp., 206 F.3d 1031,
1036 (11th Cir. 2000) (explaining that the doctrine of intracorporate
conspiracy bars claims arising under § 1985(3) because "it is not possible
for a single legal entity consisting of the corporation and its agents to
conspire with itself.")
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must show that Defendant Shearer participated in the conspiracy
to survive summary judgment.
Plaintiff has not proffered any evidence that Defendant
Shearer participated in a conspiracy to violate her rights. In
fact, she stated just the opposite in her deposition:
Q:
And at that time [through the interrogatories] I
asked you please specify in detail all acts or
omissions by Vanessa Shearer that you allege to
be wrongful, tortious, or that otherwise caused
harm to you. And what was your answer?
A:
She didn't cause any harm to me.
Q:
Did she cause harm to you?
A:
No, sir.
Q:
Okay. Are you aware of any conspiracy that she
did?
A:
Not to me.
Kittles Dep. 185:14-24. In her response brief, Plaintiff appears
to suggest that Shearer nevertheless may have participated in
the conspiracy despite her complete lack of evidence of a
conspiracy because "[r]arely do conspirators enlighten the
victim of the conspiracy against the victim." Dkt. no. 43-1,
p. 9. This may be true, but without evidence from which a jury
could determine a conspiracy actually existed, such insinuations
amount to speculation.
Plaintiff has failed to show that Defendant Shearer
participated in any conspiracy with HCS or its agents to
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terminate Plaintiff. The only potential conspirators left, then,
are HCS and its agents, who are private persons and entities and
thus cannot conspire to violate the rights at issue here. The
Court must grant Defendants' motion for summary judgment on
Plaintiff's § 1985(3) claim.
IV. Intentional Infliction of Emotional Distress
Plaintiff also alleges in Count V of her Complaint a claim
of intentional infliction of emotional distress. In Georgia, to
prevail on a claim of intentional infliction of emotional
distress, a plaintiff must show that:
(1) the conduct giving rise to the claim was
intentional or reckless; (2) the conduct was extreme
and outrageous; (3) the conduct caused emotional
distress; and (4) the emotional distress was severe.
The defendant's conduct must be so extreme in degree,
as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a
civilized community. Whether a claim rises to the
requisite level of outrageousness and egregiousness to
sustain a claim for intentional infliction of
emotional distress is a question of law.
Steed
V.
Fed. Nat. Mort. Corp., 689 S.E.2d 843, 851-52 (Ga. Ct.
App. 2009) . The severity of the emotional distress is a key
element, and the "law intervenes only where the distress
inflicted is so severe that no reasonable man could be expected
to endure it." Bridqes v. Winn-Dixie Atlanta, Inc., 335 S.E.2d
445, 448 (Ga. Ct. App. 1985) (emphasis added).
Here, even if the Court assumes that Plaintiff can satisfy
the first three elements of the prima facie test, she has failed
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to produce any evidence aside from vague, conclusory allegations
that her emotional distress was so severe that a reasonable
person could not endure it. When Defendants raised this argument
in their Motion for Summary Judgment (Dkt. no. 31-1),
Plaintiff's response included no citations to the record
evidence, but merely stated that "Ms. Kittles' emotional
distress left deep wounds." Dkt. no. 42-1,
p. 11. In light of
Plaintiff's failure to point to any evidence of the severity of
her emotional distress, the Court will grant Defendants' motion
for summary judgment on this issue as well. Cf. Quarles v.
McDuffie County, 949 F. Supp. 846, 855-56 (S.D. Ga. 1996)
(granting summary judgment on an intentional infliction of
emotional distress claim where the plaintiff had "produced no
evidence beyond her own assertions to support her claim that she
[had] suffered severe emotional distress, as the law
requires.").
V. Attorney's Fees
Because Plaintiff's other claims have failed, she cannot
recover attorney's fees.
CONCLUSION
Plaintiff failed to point to evidence in the record showing
a genuine dispute of material fact as to any of her claims.
Defendants' motions for summary judgment (Dkt. nos. 29, 31) must
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therefore be
GRANTED
in their entirety. The Clerk of Court is
directed to enter the appropriate judgment.
SO ORDERED,
this 18TH day of March, 2015.
16
LISA GODBEY WOOD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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