Brown v. Georgia Department of Human Services Division of Family and Children Services et al
Filing
61
ORDER granting 43 Motion for Summary Judgment. The Clerk of Court is DIRECTED to enter the appropriate judgment. Signed by Chief Judge Lisa G. Wood on 11/8/2016. (csr)
Ifn
?linttelii States; Bisitrtct Court
for tl^e ^outfiem l^iotrict of C»eorsta
ilimnolDtck IBtbtOion
LISA BROWN,
Plaintiff,
CV 214-18
V.
GEORGIA DEPARTMENT OF HUMAN
SERVICES DIVISION OF FAMILY AND
CHILDREN SERVICES and LISA C.
LARISCY, individually and in
her official capacity.
Defendants.
ORDER
Plaintiff
Lisa
Brown
brings
Department of Human Services
Children Services
"'Defendants") .
Defendants
Plaintiff,
retaliated
discrimination,
U.S.C.
("'DECS")
suit
{''GDHS")
and Lisa
an
against
C.
against
for
Georgia
Division of Family and
Lariscy
African-American,
her
the
(collectively,
alleges
complaining
of
that
racial
in violation of the Civil Rights Act of 1964, 42
§ 2000e et♦ seq.,
the Civil Rights Act of 1866, 42 U.S.C.
§ 1981, and the Civil Rights Act of 1866, 42 U.S.C.
unlawfully:
her
("Compl.").
A0 72A
(1)
terminating
(Rev. 8/82)
demoting
her;
Plaintiff contends that Defendants terminated her
employment.
(2)
transferring
§ 1984, by
See
generally
her;
Dkt.
and
No.
(3)
1
employment after she filed a formal Equal Employment Opportunity
Commission
(^^EEOC")
Defendants
Summary
charge.
responded
Judgment
(Dkt.
No.
by
filing
43),
the
instant
arguing
that:
cannot prove a prima facie case of retaliation;
(1)
(2)
Motion
for
Plaintiff
Plaintiff's
claims regarding her alleged demotion and reassignment are timebarred;
and
(3)
Lariscy is entitled to assert
the defense of
qualified immunity and, thus, is not liable to Plaintiff in her
individual capacity.
generally Dkt. No.
Plaintiff opposes these contentions.
See
54.
The parties fully briefed the Motion, dkt. nos. 43, 54, 57,
and it is now ripe for review.
The Motion is GRANTED for the
reasons set forth below.
FACTUAL BACKGROUND^
History of the Parties and Structure of GDHS
^ Plaintiff's March 2009 demotion and October 1, 2009 reassignment claims are
time-barred.
The 42 U.S.C. § 1981 claims fall under Section 1981's four-year
statute of limitations.
Dkt.
No.
54-1 at 55.
As to the Title VII claims, a charge of discrimination must be filed
with the EEOC within 180 days "after the alleged unlawful employment practice
occurred."
42 U.S.C.
§ 2000e-5(e)(1);
see also Wilkerson v. Grinnell Corp.,
270 F.3d 1314, 1317 (11th Cir. 2001) ("For a charge to be timely in a nondeferral state such as Georgia, it must be filed within 180 days of the last
discriminatory act.").
Assuming that Plaintiff's April 5, 2010 Intake
Questionnaire qualifies as a charge, any action occurring prior to October 7,
2009, is time-barred.
See EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265,
1272 (11th Cir. 2002) (per curiam) (applying statute of limitations because
"[t]he alleged acts at issue . . . were discrete, one-time employment events
that should have put the claimants on notice that a cause of action had
accrued."); Beavers v. Am. Cast Iron Pipe Co., 975 F.2d 792, 796 (11th Cir.
1992) ("[A]negations that the discriminatory act continues to adversely
affect the employee or that the employer presently refuses to rectify its
past violation will not satisfy the [statute of limitations]." (quoting
Gonzalez v. Firestone Tire & Rubber Co., 610 F.2d 241, 249 (5th Cir. 1980))).
Summary
judgment
reassignment claims.
is
thus
GRANTED
as
to
Plaintiff's
demotion
and
In June 2007,
Children Services
the Liberty County Department of Family and
(''LCDFCS")
Dkt. No. 43-7, 50:15-19.
employee
the
leave,
internal
behalf of
[and]
hired Plaintiff as office manager.
Plaintiff was responsible for handling
ordering and
control
[Richard]
distributing
plan,
[]
attending
Chamberlin,
completing adpours."^
[]
Id.
supplies,
outside
^^updating
meetings
on
paying the office expenses,
at 59:18-25.
Plaintiff also
reported computer issues to the IT specialist and supervised two
receptionists (whom Plaintiff deemed the only front-desk staff),
id.
at
58:21-59:6,
60:13-61:1;
include collecting mail.
In November 2007,
her
responsibilities
did
not
Id. at 60:22.
Richard Chamberlin,
a
Caucasian,
became
Plaintiff's supervisor when he was promoted to LCDFCS director.
Dkt. No. 43-15, 12:13-24.
He,
in turn, reported to the regional
Human Resources Director^—at the time, LeRoy Felder, an AfricanAmerican.
2,
2009,
Id.
Dkt.
4.
43-12,
Lisa Lariscy,
dkt.
at
Nos.
no.
43-12,
29:20-21.
a Caucasian,
26:17-25,
Her
43-15,
51:17-53:16;
43-4,
replaced Felder in April
becoming peinnanent
supervising
director became Dennis Burns,
July 2009.
34:3-11;
regional
human
an African-American,
that
fall.
resources
beginning in
Dkt. No. 43-23, 15:22-16:9.
^ Adpours are "documentation of invoices." Id.
^ Responsible for "hiring and firing; compensation; consulting with County
Directors and other managers about general personnel matters; responding to
EEOC / GCEO [Georgia Commission on Equal Opportunity] charges; internal
grievances; and external complaints from vendors or clients."
Dkt. No. 43-4
1 3.
Plaintiff's Performance in Liberty County
Around September 10, 2008, Plaintiff received a Performance
Management
Evaluation
reviewed by Felder.
it,
(^^PME"),
completed
by
Dkt. No. 43-9 at 22-24.
Chamberlin
and
Plaintiff signed
but took issue with its criticisms of her performance.'^
Shortly
thereafter.
Chamberlin's
use
Plaintiff
of
Performance Survey.
Plaintiff
Felder,
never
and
Chamberlin.
a
complained
supplemental,
Dkt. No. 43-7,
complained
Felder
Dkt. No.
43-8,
Felder
about
unapproved Administrative
168:7-169:11, 177:21-178:11.
about
discussed
to
racial
discrimination
Plaintiff's
167:13-171:20,
concerns
to
with
177:11-178:11.
Leadership Changes at LCDFCS
In January 2009,
Mclntosh
County
retire.
Dkt.
Felder learned that the Director of the
Department
No.
43-4
of
Children
10-14.
Services
Felder
asked
planned
Chamberlin
to
to
serve as interim director there while remaining LCDFCS director.
Id.
H 14.
Multi-county directors,
who enjoyed pay supplements,
were common, given financial constraints.
Chamberlin
accepted
on
February
5.
Id. HH 13, 17.
Id.
21,
23.
He
successfully requested Janice Collier's promotion to Plaintiff s
direct
supervisor,
effective
March
1.
Dkt.
Nos.
43-15,
60:5-
61:18; 49-17 H 4.
^ Plaintiff "Met Expectations" regarding her work responsibilities.
Id. at
24.
However, as to "Statewide Responsibilities," she received a negative
rating on teamwork and satisfactory ratings with regards to customer service,
organizational commitment, and performance management.
Id. at 22-23.
Plaintiff' S' Complain-bs
Adams'
F i r s t Comment
Plaintiff alleges that in early February 2009, Delores Bell
Adams, a co-worker who neither supervised her work nor reviewed
her performance,
her
a
"redbone^
claims
that,
and
that
''as
get
dkt.
ass
she
no.
went
to
and
work
114:4-17,
Id.
heifer.
colleagues [, ]
along
43-7,
at
derogatorily called
108:16-109:6.
Chamberlain,
who
allegedly
[Plaintiff and Adams]
the
need[ed]
to try
Chamberlin denies that Plaintiff ever reported Adams'
comment or
On February 27,
Plaintiff
No.
Id.
her
113:13-17.
Dkt.
out."
told
at
other racial discrimination.
matter
Plaintiff
43-15,
signed a
45:5-46:7.
copy of
her
Interim
Progress Review, completed by Chamberlin and reviewed by Felder.
Dkt. Nos. 43-9, pp. 25-26; 43-5, 109:7-113:5.®
The Second Adams Incident
Shortly
Adams'
24.
thereafter,
on
March
13,
Plaintiff
office to deliver some documents.
Adams
Dkt.
in
a
43-7,
into
116:20-
"picked the papers up and slung them back towards
[Plaintiff,] stating 'I am sick of this shit'
up
No.
walked
charging
motion."
Id.
at
. .
. and .
117:3-118:4.
.
. got
Plaintiff
^ "Redbone" is a term used within the African-American community to describe
African-Americans with light skin.
See, e.g., JeffriAnne Wilder, Color Stories:
Black Women and Colorism in the 21st Century 69 (2015) , available at goo.gl/tsbI6X.
® Plaintiff ^'Met Expectations" in all categories, but Chamberlin explained
that she needed to iir^rove by "work [ing] collaboratively with colleagues and
staff to provide program support throughout the office" and "[w]ork[ing]
expediently to resolve and complete assignments."
Id.
emailed Chamberlin to complain, and when she did not hear back,
emailed him again on March 17.
On
discuss
March
the
insulted,
or
uttered
Id.
was
Chamberlin,
incident.
Plaintiff.
she
20,
Id. at 118:21-120:9.
at
Id.
a
at
and
Plaintiff
121:12-14.
racially
165:1.
satisfied,
Adams,
Adams
derogatory
Chamberlin asked
and
Plaintiff
met
never
again
comment
Plaintiff
responded
to.
whether
negatively,
explaining that she wanted to relay her concerns to Felder.
at
to
Id.
121:15-125:8.
Plaintiff emailed Felder,
Chamberlin'5
193:4.
leadership
requesting a
style.
Id.
at
meeting to discuss
151:21-153:10,
192:22-
She did not explicitly set forth any racial concerns,
because she wanted to discuss such ^^sensitive" issues in person.
Dkt. Nos.
43-7,
at 153:7-14; 49-17 H 23.
Felder, met with Plaintiff on April 9.
43-7,
160:17-22; 43-12,
Lariscy, who replaced
Dkt. Nos. 43-6 at 29-33;
26:18-29:25.
Plaintiff's Complaints to OHBMD
On June 22, Plaintiff filed a complaint with Isabel Blanco,
DFCS
Deputy
complaints,
retaliation,
Director,
that
as
a
she was subjected to harassment,
and
176:20-177:25.
discrimination.
^^state
explaining
agency
a
hostile
The
Id.
staff
work
environment.
complaint
at
did
177:18-20.
would
provide
not
result
her
unfair treatment,
Dkt.
No.
mention
Plaintiff
an
of
honest,
43-7,
racial
assumed
that
legitimate
investigation into her complaints and that her supervisors would
truthfully inforin any investigator of her complaints of Adams'
racially derogatory comments."
Burns'
31-i32.
Investigation
In August
2009,
retaliation claim
and
Dkt. No. 49-17
Lariscy's
abilities.
Burns decided to
investigate
Plaintiff's
(based on removal of her supervisory duties)
concerns
regarding
Chamberlin's
Dkt. Nos. 43-10 at 22; 43-23,
32:4-11.
leadership
Burns denies
receiving a race-discrimination allegation from Plaintiff.
Nos.
43-23,
42:21-45:2,
106:22-107:5.
her
federal
because
assessment"
level,"
complaint."
he
to
his
expressed
"avert
specifically,
66:11,
the
because
wanting
complaint
it
was
to
complete
going
a
the
"Title
VII
August
19
Investiga-tion
report.
Burns
criticized
both
Two major themes were revealed during this
process:
A)
Leadership deficiencies with
accountability,
performance
conflict
management;
B)
interpersonal behaviors.
•
a
to
management and Plaintiff:
•
105:16,
Dkt. No. 43-17 at 11-12.
The Results of Burns'
In
59:20-61:20,
Plaintiff avers that Burns knew of this angle to
complaint
''thorough
54:22-55:18,
Dkt.
[Plaintiff]
has
not
been
management and
Inappropriate
harassed
nor
retaliated against for reporting issues to
upper
management
by
[Collier]
or
[Chamberlin].
However,
the administrative
upper
realignment of her position was
inappropriately by [Chamber1in].
•
There
are
performance
staff
issues
and
managed
to
However,
[Plaintiff]
performance
[Plaintiff's]
relationships
members.
not
with
\mtil
management
with
these
appropriately
handled
issues
nor
the
other
were
communicated
end
cycle.
of
the
[Plaintiff]
did not have the opportunity to address and
correct performance deficiencies nor was she
given specifics.
•
There are significant issues with County
Director, [Chamberlin's] style of leadership
as evidence by his handling of incidents
with
the
following
staff:
[Plaintiff],
Patricia
Stevens,
and
Matilda
Adams.
Chamberlin has not exercised parity with
treatment
of
employees,
doesn't
confront
issues head-on and has not fostered a high
performing environment.
Dkt.
No.
43-16 a t
75-76.
Burns recommended a personnel shakeup:
•
the
"Regional
Director
should
consider
transitioning [Chamberlin] to the Mclntosh
County in an effort to focus and further
develop him.
The dysfunction at Liberty
County is so strong that he would need to
start
fresh.
continuation
We
of
would
a
not
recommend
multi-county
status
the
for
[Chamberlin]
•
Paula Mungen should be promoted, because she
was
"overwhelmingly
[]
perceived
as
a
knowledgeable and fair leader and it's my
recommendation
leadership
that
role
at
she
assume
Liberty
a
County
greater
(i.e.
Acting County Director)."
•
Plaintiff
should
work
"under
Mungen.
[Chamberlin] trusts Collier explicitly and
may ignore concerns from [Plaintiff] because
A0 72A
(Rev. 8/82)
she is perceived as being difficult to work
with."
Id.
Burns
noted
that
the
relationship between Collier and [Plaintiff]
was
^'damaged,
unhealthy and has adverse
consequences for the remainder of the staff.
It
is
my
feeling
that
this
relationship
cannot be repaired."
Id.
LCDFCS changed significantly, with Chamberlin demoted, dkt.
no.
43-12,
director.
51:13-18,
Id.
61:8-62:13,
92:3-6,
and
Mungen
becoming
a t 92:23-93:3.
Impact of the Report on Plaintiff
Soon
after
Burns's
report,
LCDCFS
noted
concerns
with
P l a i n t i f f ' s work:
•
Inability to recognize that your point is
one of many, and there maybe of [sic] points
of
views
that
should
be
reviewed
for
use
when making decisions.
•
Poor
follow-up
and
response
to
various
projects.
•
Perception
of
being
difficult
and
unpredictable.
Dkt.
No.
43-10
at
32.,
LCDCFS
set
forth
expectations
Plaintiff's continued employment:
•
Have positive engagement in person with a
fellow member, in meetings and discussions
or when you need to be critical of what is
being said, do so in a constructive, yet
pleasant way.
•
When receiving a new project or task, you
will ensure that you have all pertinent
pieces
of
information
by
asking
for
for
clarification
by
if
you
establishing
Additionally,
do
a
when
not
understand and
project
timeline.
responding
to
update
requests,
you
will
provide
a
detailed
summairy of exactly where you are with the
project, thus nothing successful milestones
and barriers
to
completion.
You will
refrain
from
comments
like,
"I
have
until
Friday
to
complete."
You
will
also
transition
from
telling
your
supervisor
you' re going to be away from the office for
20 minutes to requesting to be away from
office for 20 minutes as an example.
•
Maintain
a
courteous,
positive,
professional
demeanor
employees and the public.
•
Maintain
a
with
courteous,
professional
demeanor
and
clients,
positive,
in
the
and
presence
of
clients, the general public, and employees.
Additionally, you can be more inviting by
working with your door open (unless you're
in a meeting or working on a time-sensitive
project).
•
Refrain
from
emotional
outbursts
in
the
workplace.
•
Do not circumvent your supervisory chain by
involving team members and other Liberty
County staff with workplace concerns.
Plain-biff's Reassignmen-b
Upon
Glynn
Holmes,
Chamberlin's
Counties
an
were
demotion,
combined
DFCS offices
in Mclntosh
under
leadership
Dkt.
African-American.
the
no.
43-12,
of
and
Semona
150:10-115:15.
Holmes took charge of the Glynn office in early summer 2009, and
of Mclntosh in September.
15:21-16:19.
A0 72A
(Rev. 8/82)
Dkt.
Nos.
She reported to Lariscy.
10
43-8,
218:1-219:23;
Dkt. No. 43-25,
43-25,
23:8.
Mclntosh
did
not
position was vacant.
and Holmes
141:12.
have
an
office
manager
and
Id. at 11:3-25; 43-12, 153:4-25.
noted each office's
Lariscy alleges
needs.
that
there
administrative support positions.
Dkt.
was
No.
a
43-12,
hiring
Glynn's
Lariscy
135:22-
freeze
for
Id.
Lariscy reassigned Plaintiff to Mclntosh with the approval
of Burns and DFCS's Debra Keys.
43-25,
had
11:3-24.
some
Holmes that she
be
effective October 1,
She
also
132:5-133:22;
Plaintiff,
[Holmes would]
leadership
Lariscy
told
work well with
style
and
Dkt. No. 43-25, 38:3-14.
reassigned
Policy #106.''
with
that
[Holmes's]
On September 28,
would
problems
[thought]
with
personality."
43-12,
Although Lariscy allegedly intimated that she
experienced
[Plaintiff]
Dkt. Nos.
2009, Lariscy infonned Plaintiff that she
as
the
County
office
manager,
pursuant to GDHS Human Resource/Personnel
Dkt. Nos. 43-8,
informed
Mclntosh
Plaintiff
215:1-5; 43-10, p. 33
that
Plaintiff
would
(Ex. 15).
work
under
Holmes's supervision and that her reassignment occurred because
Mclntosh County needed an office manager.
Id.^
' ^*Based on the needs of the Department, management has the authority to
assign, take from, add to,
. . . or otherwise change the duties and
responsibilities of employees, and to direct and control their work.
The
assignment of duties and responsibilities may be temporary or permanent .
Employees may be assigned from one duty station to another as a
transfer, promotion,
demotion, or relocation of function."
.
.
result of
Dkt. No. 43-10 at
39.
® The memorandum Lariscy gave Plaintiff states:
"Managers and employees have
a shared responsibility to ensure that the mission of the Department is
accomplished.
In order to accomplish this responsibility, managers have the
11
The
next
day,
Plaintiff
sent
an
email
to
Holmes,
introducing herself and noting that she needed to use a day for
annual leave.
Dkt. No. 43-10 at 34.
Plaintiff alleges that she
was unaware that she would also work in the Glynn County office,
eighteen
miles
October 4.
Holmes
(«PMF")
further
away,
until
she
Dkt. No. 49-17 HH 38, 39.^
discussed
and
Plaintiff's
duties,
coordinating
which
employee
leave.
with
Holmes
on
That day. Plaintiff and
Performance
included
met
Management
maintaining
Dkt.
No.
Evaluation
supplies
43-8,
and
220:24-25.
Plaintiff understood that she ^'^would be in Mclntosh three days a
week, and [Holmes]
Id.
at
were
220:24-221:4.
from 8:00
desk[,]
left it at
to
[her] discretion as to what days."
Plaintiff
5:00"
and that
acknowledged
she
that
her
^'would also man the
and take mail to and from the post office [,]
^'hours
front
as well as
meet with outside vendors in reference to our emergency plan and
banking and inventory."
When Plaintiff
dkt. nos. 43-7,
Id. at 221:4-8.
started,
she
20:22-21:3; 43-25,
supervised volunteer workers,
24:7-25, but alleges that she
did not supervise front-desk staff until February 1, 2010.
No.
49-17
H
43.
supervisory duties.
Holmes,
Her
PMF
had
a
''not
Dkt. No. 43-9 at 34.
applicable"
at
for
However, according to
Plaintiff had duties that "weren't necessarily specified
authority to reassess and/or re-locate employees at any time."
10
mark
Dkt.
Dkt. No. 43-
33.
® Multi-county employees were assigned to a
purposes.
Dkt. No. 43-21,
34:18-23.
12
specific coimty for accoiinting
or
clearly
outlined,"
supervising
front-desk
applications
and distributed
assisted by the
21:17-24:25,
dkt.
no.
staff.
51:4-16,
Said
fonns
entire office.
28:5-23,
43-25,
staffers
to clients,
Dkt.
including
No.
received
and they were
43-25,
15:21-16:19,
51:4-15.
January 2010 Issues
In
January
2010,
following
evaluation for Glynn County,
a
front-desk
work
Regional Manager Jacqueline Bryant
devised an office restructuring plan.
159:17.
negative
Dkt.
No.
43-12,
156:14-
On January 22, Plaintiff attended a meeting with Bryant
and Economic Support Supervisor Lisa Bessett to discuss changes
to her duties,
Glynn County
effective February 1,
front
desk/registration
2010:
staff;
(1)
(2)
supervise the
work
Monday,
Wednesday, and Friday in Glynn County, and Tuesday and Thursday
in Mclntosh County;
(3) take outgoing mail to the post office on
her scheduled days in Glynn. County; and (4)
desk duties.
Bessett
Dkt. No.
offered
43-8,
to
be
perform some front-
229:17-231:11; 43-10 at 42.
available
sent to registration training,
for
help.
Plaintiff
was
Bryant arranged for the Chatham
County Office Manager to ""shadow" Plaintiff, and Bryant arranged
for Liberty County staff to assist Plaintiff with registrations.
Dkt. No.
43-8,
229:17-231:11;
43-10 at 42.
13
Bryant
wrote
a
memorandum
Bessett sent an email
expectations.
confirming
the
to Plaintiff and her staff
changes,
about
and
the new
Dkt. Nos. 43-8, 229:17-231:11; 43-10 at 42.
Lariscy
believed
that
Plaintiff's
prior
experience
supervising front-desk staff in Liberty County qualified her to
supervise.
Dkt.
No.
43-12,
160:9-15.
Bryant
allegedly
delegated a partial front-desk supervisory role to Plaintiff.
Dkt. No.
43-12,
159:8-11.
Plaintiff maintains that she began to
supervise all of the front-desk staff.
Dkt. Nos. 43-8,
20,
She further claims that
231:17-12;
43-10 at 42
she was ill-prepared,
receptionists.
In
19).
given that she had only ever supervised
Dkt. Nos. 49-17 H 40; 43-7, 60:24-61:7.^°
mid-January
38:19-41:22.
(Ex.
2010,
Holmes
resigned.
Dkt.
43-10
Plaintiff that ^^it
H 74.
for
43-25,
at
[was]
41;
43-25,
Dkt. Nos.
61:17-63-24.
not an official copy."
43-8,
Holmes
Dkt. No.
told
49-17
Lariscy reviewed the evaluation and returned it to Holmes
corrections,
Lariscy
No.
She had given Plaintiff an unofficial performance
review indicating that she ^^Met Expectations."
227:4-228:16;
221:15-
but
allegedly
Gomillion,
Holmes
sent
the
made
none.
incomplete
Dkt.
No.
43-20
evaluation
to
at
38.
Petula
an interim Liberty County director who did not know
Plaintiff, for a ^^re-do."
Dkt. No. 4 9-18 HH 3, 5, 8.
Plaintiff
further
alleges
that
"[t]hese
responsibilities
were
not
substituted for my prior responsibilities; rather, they were loaded on top of
what I already was doing." Dkt. No. 49-17 ^ 40.
14
Effective
became
February
director
interim
1,
2010,
for
Beth
Mclntosh
and
thus Plaintiff's immediate supervisor.
232:25,
245:4-10; 43-12,
Griffis,
a
Glynn
Dkt.
counties,
Nos.
154:22-155:12; 43-18,
Caucasian,
43-8,
and
231:17-
13:5-25.
Plaintiff's Requests for a Salary Supplement and Rental Car
Back
when
Mclntosh,
Plaintiff
Holmes
first
suggested
began
that
she
working
request
in
a
Glynn
multi-county
salary supplement; Lariscy denied Plaintiff's request.
49-17
H 49.
According
to
both Griff is
and
Dkt. No.
and Beverly Boone,
a
regional human resource manager, a supplement was only approved
when
an
employee's
duties
significantly
surpassed her
day-to-day responsibilities and job description.
19,
133:9-136:23;
43-21,
11:4-12,
115:16-118:18.^^
DFCS did not
from
to
their
homes
their
offices,
cars had to deduct personal miles.
Dkt. Nos. 43-
46:5-58:7,
reimburse
and
81:12-87:12,
employees
those
normal
who
for
travel
used
rental
Dkt. No. 43-21, 36:24-45:17.
Lariscy allegedly told Holmes that if a
salary supplement
were approved for PlaintijEf,
it would need to be approved for
every multi-county employee,
which would be unfeasible.
No. 43-25,
everyone
26:2-21.^^
that
worked
Dkt.
Holmes explained that while ''pretty much
for
Glynn
County
was
available
Boone stated that the only employees who automatically received
supplement were multi-county directors.
Dkt. No. 43-21, 50:8-51:21.
for
the
An employee would submit a supplement request to a supervisor; it would
then progress up the chain to OHRMD.
Dkt. No. 43-21, 58:2-59:3.
The claim
could be stopped at any point and approval depended on "the specifics of the
actual circumstances."
Dkt.
No.
43-21,
57:7-12.
15
Mclntosh," none of these received a supplement.
Id.
Plaintiff
responds that not eveiy employee who worked for Glynn was also
available to work for Mclntosh.
On
March
19,
2010,
Dkt. No. 49-17 H 48.
Plaintiff
spoke
to
Griffis
requesting both a salary supplement and a rental car.
43-8,
242:6-247:23;
43-10
Griffis
had approved
manager.
Dkt. No.
Plaintiff
that she used a
personal
vehicle,
office runs.
a
at
44.
rental
Plaintiff
car
49-17 HH 51-52.
even
for
Dkt. Nos.
heard
that
social-service
a
had
about
case
Griffis allegedly informed
rental car to preserve miles on her
offering
Plaintiff
its
use
for
post
Id. t 51.
On March 29, Plaintiff asked Griffis if she had spoken with
Lariscy.
Dkt. No. 43-10 at 44.
Griff is replied that she could
not request the supplement because of staffing realities:
Many workers are working both Glynn and
Mclntosh at this point as we have combined
the
counties.
Staff are being compensated
for the travel expenses between their home
county and the other.
Your PMF that you
sighed reflect that you are assigned as
office manager for both counties and this
arrangement was reached before my assignment
in Glynn/Mclntosh.
Dkt.
Nos.
43-8,
According
supplement
242:6-244:13;
to
because
office manager.
Boone,
her
43-10 at 46.
Plaintiff
duties
was
did not
Dkt. No. 43-21,
go
not
eligible
beyond
those
81:16-87:10, 115:20-117:2.
16
for
a
of
an
Plaintiff does not know why her request for a
was denied.
Dkt.
Nos.
43-8,
242:6-244:21.
for travel between her home office,
rental car
She was reimbursed
Mclntosh County,
and Glynn
County; trips to the post office to get DFCS mail; and travel to
training.
Dkt.
No.
43-8,
236:4-237:23,
244:4-20,
248:2-249:17.
Plaintiff alleges that after her requests were denied,
displayed
247:8;
strange attitude
towards
[her]
Id.
Griffis
at
245:4-
43-10 at 64.
Griffis'
Problems with Plaintiff
When
Griffis
began,
she
perception of Plaintiff as a
was
allegedly
unaware
challenging employee,
of
the
given that
Lariscy described Plaintiff as an experienced office manager.
Dkt.
No.
43-18,
33:20-34:22.
Griffis was also unaware of any
complaints of race discrimination by Plaintiff.
132:7.
Griffis
assumed
that
Plaintiff
duties, but she soon noticed problems.
Griffis
Office of
claims
that
Plaintiff
Family Independence
("OFI")
front-desk
(2)
timely submit a
deficiency
in
handle
failed
to:
(1)
(4)
register
applications because she
id.
at 44:23-45:6; 43-
processing
OFI
(3)
applications,
id.
at
help other employees,
because she stayed in her office with her door closed,
45:11-15;
job
plan of action addressing a
60:20-61:25; 43-20 at 33; 43-10 at 52;
43-18,
her
Id. at 56:12, 61:3-69:3.
delegated that responsibility to others,
10 at 54-57;
could
Id. at 127:13-
dkt. no.
tell Griffis which office she was going to.
17
instead of seeking her input,
15;
43-10
at
54-57;
distribute mail
138:4-25;
43-10
(6)
at
at 42:14-43:1;
43-8,
272:10-
retrieve mail on one occasion and to
correctly,
43-20;
41:19-24;
(5)
id.
dkt.
nos.
43-18,
accurately complete
54-57;
(7)
remain
41:10-12,
time
for
52:3-25,
sheets,
the
id.
duration
at
of
a
special training, dkt. nos. 43-18, 41:25-42:12, 53:21-55:12; 4310 at 54-57; and
19,
(8)
appropriately use her leave,
dkt.
nos. 43-
92:5-97:15; 43-10 at 54-63.
Griffis
also
maintains
being out on Mondays,
that
Plaintiff
had
a
history
of
requested sick leave at the last minute
after being told that she could not take annual leave unless her
work
was
completed,
and
scheduled
a
doctor's
conflict with an Emergency Preparedness Meeting.
20,
appointment
Dkt.
Nos.
in
43-
150:8-153:17; 43-10 at 54-63.
Griffis
tried
to
rectify
these
problems,
dkt.
no.
43-18,
61:13-14, but claims that Plaintiff was hostile and unreceptive.
Id.
at
61:13-21.
Plaintiff
complaints.
responds
See Dkt. Nos.
49-22,
14:4-17,
action
''plan,"
17:15-20.
not
that
her
49-23,
She
learning
"inadequate" until later.
immediate
staff
31:21-34:9; 49-25,
says
that
that
Dkt. No.
she
Griff is
had
54:5-57:16;
sent a
detailed
considered
49-17 KH 63-64.
no
it
Plaintiff
also noted that any deficiencies in front-desk supervision could
18
not be attributed to her because she did not have a
supervisory role until February 1, 2010.
front-desk
Id. H 63.
She believed from her prior work with Holmes and from her
memorandum
light
of
Griffis'
that
she
office
should
needs.
displeasure.
independently
Dkt.
Plaintiff
without first informing her.
Plaintiff
only
assistant was ill,
No.
of
H 65,
complaints
31:21-34:9; 49-25,
Plaintiff
training
for
to
claims
her,
use
42.
left
the
schedule
in
Following
office
again
one
mail
complaint,
when
her
and she maintains that a co-worker
Id.
f
66.
She never received
from employees.
Id.
H 67;
49-23,
54:5-57:16; 49-22, 14:4-17, 17:15-20.
that
as
Dkt. No. 49-17 H 68.
minutes
at
43-10
never
interfered with her mail duties.
any timesheet
her
Dkt. No. 49-17 HH 57, 71.
heard
id.
set
the
the
Griffis
did
training
not
arrange
in question was
special
regional.
She acknowledges that she left for fifteen
restroom,
but
says
she
returned
remainder and explained her absence to the speaker.
for
the
Id.
She says that she used leave because she was experiencing
^'temporary but serious health issues."
Plaintiff
ensure
that
alleges
someone
planning meeting.
that
from
Griffis
the
Id. H 70.
19
Id. H 69.
merely asked Plaintiff
office
attend
the
to
emergency
GriffIs Complains about Plaintiff
Griffis notified Lariscy that she. was having problems with
Plaintiff's performance and Lariscy directed her to voice her
concerns with the Office of Human Resource Management Division
C'DHRMD").
Dkt.
No.
43-18,
49:21-50:14,
67:21,
Accordingly, on April 1, 2010, Griffis emailed Burns.
43-20 at 35-36.
number
of
the
71:3-9.
Dkt. No.
Burns explained that Plaintiff had exhibited a
issues
Liberty County,
Griffis
complained
of
while
and that Lariscy had met with her.
working
Id.
at
Burns
noted that since Plaintiff's problems were repetitive, she would
receive a written reprimand.
On April 9,
2010,
supervisory
duties
Plaintiff.
Dkt.
Plaintiff
had
Besset took over Plaintiff's front-desk
and
assumed
Nos.
yet
disciplinary action,
Id.
43-8,
to
supervisory
282:13-283:17;
receive
dkt.
a
no.
any
role
43-20
written
37-40.
corrective
49-17 ^ 72; moreover,
received any report for the year 2010.
at
over
or
she never
Id.
In an email exchange beginning on April 12 and ending on
April
13,
Griffis
memorandum.
requested
Dkt.
that
sent
Nos.
Griffis
Burns
43-20
send
supporting
at
37-40;
Plaintiff's
documentation
43-10
at
interim
54-57.
review.
and
a
Burns
Id.
Griffis alleges that she could only find an unexecuted draft and
that
Holmes
review.
Dkt.
could
Nos.
not
remember
43-18,
if
48:19-51:20;
20
she
completed
43-19,
Plaintiff s
84:21-85:12;
43-20
at 37;
43-8,
287:4-288:15.
Lariscy told Griffis that she sent
the review back to Holmes for corrections,
complete them before her resignation.
but Holmes failed to
Dkt. No. 43-20 at 38.
Griffis reported the lack of a
finalized interim review,
and Burns responded on April 13 at 3:09 p.m., with instructions:
Please complete the review from the time
that she transferred to Glynn up until the
present.
You
can
use
some
of
the
qualitative/quantitative
information
that
you agree with from [Holmes] during her
oversight period; and then add your input
with special attention to the performance
deficiencies that you have noticed and have
documentation to support.
Please have Jackie Bryant, and whomever else
in a supervisory capacity provide you with
information as well - if they have observed
performance.
You'll
need
to
have
an
inclusive
well-rounded
approach
when
providing feedback to this employee.
Please
confirm
that
she
received
expectations upon arrival to Glynn.
This
MRF
will
document
all
of
that you presented to me in a
the
issues
previous e-
mail.
Dkt.
No.
43-20
at
37.
Griffis drafted an interim review on April 14.
44.
at 41-
It gave Plaintiff low ratings and noted the issues of which
Griffis complained.
Id.
Plaintiff alleges that Griffis did not
use any positive information from Holmes'
19,
Id.
85:21.
without
the
Griffis
claims
that
aid
Lariscy
or
of
21
she
review.
drafted
Burns,
dkt.
the
no.
Dkt. No.
43-
report
alone,
43-18,
50:24-
51:20,
but
Griffis
Plaintiff
show
argues
otherwise,
that
emails
no.
49-10
dkt.
stated that she did not receive a
until after she was fired,
between
at
Lariscy
2-15.
copy of the
and
Plaintiff
interim report
and that it was unofficial because it
was never signed or executed.
Dkt. No. 43-8, 285:17-288:15.
Internal Complaint
On
April
5,
Plaintiff
used
sick
leave
for
a
medical
appointment; she also visited the EEOC to file a complaint.
at 258:5-20.
an
EEOC
Plaintiff did not tell anyone that she completed
Intake
emailed Blanco,
Questionnaire.
Id.
Plaintiff
aware
of
her
13,
Plaintiff
Walker and Assistant
Id.
at 278:20-280:20;
Dkt.
No.
Plaintiff did not send a copy of that email to
Griff is. Burns, or Lariscy,
129:9-130:15;
April
notifying them that she had filed
an EEOC retaliation complaint.
43-20 at 45-46.
On
copying Commissioner B.J.
Commissioner Mark Washington,
aware of it.
Id.
and they allege that they were never
Id.; Dkt. Nos.
43-12,
74:4-20,
contends
EEOC
43-23,
105:20; 43-19,
121:17-122:5,
113:6-18.
that
Lariscy,
complaint
because:
Burns
(1)
and
Griffis
Plaintiff
were
emailed
Blanco at 4:23 p.m. on April 13 and at 4:35 p.m., the email was
forwarded to Rosa Waymon
64;
her,
(2)
{Burns'
supervisor) ,
dkt.
no.
43-10 at
Burns then sent an email to Griffis asking to speak to
dkt.
no.
43-24 at 30;
16 that she ^Vanted
(3)
[documents]
Plaintiff told Griffis on April
to submit to the EEOC," dkt.
22
no.
43-8,
a
294:5-295:14; and
report
from
an
(4)
Griffis emailed Lariscy that day of
employee
that
Plaintiff
information to prove" discrimination.
^^was
gathering
Dkt. No. 43-11 at 22.
The Enterprise Incident
On April
Rent-A-Car
12 or April
14,
Plaintiff
(a DECS contractor) ,
contacted Enterprise
stating that she was an office
manager and wanted receipts for Griffis, Chamberlin, and another
supervisor,
Laurie Morton.
at 71; 43-21,
sole
36:15-24.
purpose
of
Dkt. Nos.
43-8,
292:5-293:24; 43-10
Plaintiff says that she did so ^^for the
getting
documentation
discrimination/retaliation charge."
Dkt.
to
No.
support
49-17 H 81.
April 15, Griffis emailed Burns about the incident:
I just received a telephone call from the
manager of the Kingsland Georgia Enterprise
Vehicle Rental Chain.
that
she
felt
She called to t e l l me
uncomfortable
about
a
DECS
employee calling her repeatedly for the past
two days insistent on getting copies of mine
and
Laurie
She
advised me
herself
as
Morton's
that
car
rental
this
[Plaintiff],
person
Office
agreements.
identified
manager
of
DECS and represented to her that she needed
these copies to process [sic].
The manager
stated
times
that
but
she
called
[Plaintiff]
during
presented
very
busy
like
this
was something she had to have at the moment.
She requested agreements be sent to two
different
EAX
numbers
which
the
manager
thought
was
strange.
[Plaintiff]
has
nothing whatsoever to do with this process,
especially
since
mine
and
Ms.
Morton's
positions are Camden County.
These calls
were obviously a misrepresentation of DECS
business.
Besset
A0 72A
(Rev. 8/82)
this
Also,
I
have
afternoon
23
that
heard
from
[Plaintiff]
Lisa
had
[her]
On
[Chamberlin's]
rental
agreements
faxed
to
her at the Mclntosh office.
Dkt.
No.
43-11 a t
22.
The next day.
Plaintiff requested Family Medical Leave Act
(^'FMLA") leave, effective from April 19 to May 5.
On April 16,
about
the
Id. at 2-3.
Burns directed Griffis to contact Plaintiff
Enteirprise
statement from her,
incident
because
in addition to a
at Enterprise who contacted her.
he
needed
a
signed
statement from the person
Id.
at 22.
Burns requested
that Griff is fax him copies of the documents Enterprise sent to
Plaintiff, along with Griffis' interim review of Plaintiff.
Griffis
replied
later
that
day,
explaining
that
she
Id.
called
Plaintiff at home and Plaintiff admitted to calling Enterprise
to obtain rental car agreements.
Id.; .Dkt. No.
Griffis
informed
told
Burns
that
Plaintiff
her
49-17 H 82.
that
she
was
gathering evidence of discrimination, allegedly threatening that
was the least of Griffis'
out what she meant.
Dkt.
problems and that Griffis would find
No.
43-24 a t 35.
13
In the same email, Griffis explained her privacy concerns:
I
am
not
worried
about " [Plaintiff's]
cause.
I
have
done nothing wrong and stand behind my work and work
action.
What I am worried about is her gathering my
personal information for a vendor by misrepresenting
herself using her job title to get it.
This is very
upsetting to me.
I obviously do not trust her with
my personal information.
I feel this is a breach of
confidentiality and fraudulent.
I feel this should
be dealt swiftly with some action taken and not left
on hold iintil she returns to work.
Id.
at
22
24
Thanks.
Plaintiff claims
that
she
told Griffis and Morton that
she
was taking the documents to the EEOC, dkt. no. 49-17 f 83, and
that
she
only
gave
investigator and,
295:10.
her
information
later,
from
her attorney.
them
Dkt.
to
No.
the
43-8,
EEOC
294:13-
Plaintiff said that she apologized to Morton and told
that
she
would
shred
any
document
with
confidential
information because she was not trying to commit identity theft.
Id.
at
297:1-301:5.
Defendants never requested or obtained a
signed statement from Plaintiff.
Griffis claims that this
the
camel's
back."
termination.
Dkt.
at
According to Lariscy,
her
behavior
employee."
"
Boone
^'was
Dkt. No. 49-17 i| 82.
incident was
No.
43-18,
48:6-52:2,
the
62:9-12.
66:3-17;
'^straw that broke
She
43-19,
recommended
80:2-81:19.
she wanted to terminate Plaintiff because
significantly
egregious
conduct
by
a
state
Dkt. No. 43-13, 208:20-24."
stated
that
Plaintiff s
phone
call
to
Enterprise
violated
Standards of Conduct and Ethics, which Plaintiff signed.
Dkt. Nos.
119:12-125:25; 43-10 at 8-21; 43-9 at 6-9.
The policy states:
All employees of the [GDHS] are expected to
maintain and exercise at all times the highest moral
and
ethical
standards
in
carrying
out
their
responsibilities
and
functions.
Employees
must
conduct themselves in a manner that prevents all
forms
of
impropriety,
placement of
self-interest
above
public
threats,
interest,
partiality,
prejudice,
favoritism and undue influence.
Employees must be alert in conducting business
with employees and non-employees to avoid even the
appearance of misconduct, personal or financial gain
or
conflict
of
interest.
While
performing
departmental duties, employees are reqpaired to comply
with
.
Services,
Rules of
policies.
.
.
the
the
the
Code
of
Ethics
for
Governor's Executive Order
State Personnel Board and
25
Govemment
.
.
. and
Department
GDHS
43-21,
Lariscy and Griffis agreed that the basis for
termination was
the
report of
Plaintiff s
Plaintiff's
misrepresentation to
Enterprise that she needed the records for payment when she had
no job-related reason to obtain them.
118:10; 43-18,
On
April
termination.
could
not
Griffis
62:9-12,
advise
to
68:10-25; 43-19,
Lariscy
Dkt. No.
claims
events"
16,
that
Burns,
43-11 at 22."
without
the
she
sent
id. ;
dkt.
contends
that
no.
dkt.
nos.
43-18,
43-10
to
recommend
documentation.
and
at
a
71,
Griffis
and
^'statement
but
need the records to process payment.
Plaintiff
Lariscy
had
43-19,
43-21,
in
80:12-81:19,
fact
and
she did not claim to
Dkt. No. 49-17 H 84.
Dkt. Nos. 43-21, 119:10-131:24; 43-11 at 8-21
(parentheticals
Boone testified that when an infraction is particularly egregious,
No.
of
long before the Enterprise
65:13-66:17;
Dkt.
Id.
Dkt. No. 50-2 K 169.
that during her phone call to Enterprise,
dismissal could be warranted.
114:11-
Burns responded that he
documents
recommended her termination in March,
incident,
Burns
requested
the
43-12,
102:12-108:9.
emailed
alleges that they were not produced.
Plaintiff
Dkt. Nos.
She
omitted).
immediate
130:21-131:24.
"Not only do I see [Plaintiff's] work performance as a significant issue,
but I am very concerned about the threat that [Plaintiff] made to [Griffis]
this a.m. and see this situation only escalating if [Plaintiff] is allowed to
return.
In my opinion, [Plaintiff] has created a hostile working environment
by threatening [Griffis].
To my knowledge, [Griffis] has done nothing wrong
and has actually been the first County Director to deal appropriately with
[Brown] in trying to hold her accountable.
Based on what [Griffis] has
stated to me the information that Enterprise faxed to
[Plaintiff]
has
[Griffis'] personal information such as social security number on it.
I know
that we have to be fair with all staff but at this point, [Griffis] needs to
be supported by the Division as well and by allowing [Brown] to return to
work I do not believe this shows our support for a solidly performing
employee who is managing three counties.
Georgia is an at will employer and
as such I think when we have these types of situations we need to balance out
all employees' interests and rights.
Please let me know OHRMD's thoughts on
t h i s matter."
Id.
26
avers
that
the
document
she
received
did
not
contain
Griffis'
social security number, credit card number, or driver's license
number.
Dkt.
No.
Plaintiff
43-11 a t 22.
acknowledged that her
employment
was
^^at
will"
and that she could be ^^separated at any time without notice or
statement of reasons."
Dkt. Nos.
43-7,
54:15-55:17; 43-9 at 7.
Request for Donated Leave
Plaintiff argues that she was denied the opportunity to
apply for donated leave.
Dkt. No.
43-8,
303:4-6.
Plaintiff
testified that she requested a donated leave form from Telisha
Mack,
but the paperwork was never sent to her.
306:14.
Mack,
Id.
at 302:18-
a Financial Operations Generalist for Region XII
Accounting, forwarded Plaintiff's leave request to Burns, asking
how to respond.
Dkt.
No.
43-11 at 33.
DHS Donated Leave Policy provides
and use leave donations,
without
pay
annual,
personal,
time."
for
Dkt. Nos.
80
43-8,
that in order to solicit
an employee must be on approved leave
consecutive
sick,
Burns responded that
and
hours
and have
forfeited
leave
and
exhausted all
compensatory
302:18-306:14; 43-11 at 33.
Boone says that donated-leave forms were easily accessible
online.
Dkt.
No.
Plaintiff
admitted
time of her request.
43-21,
to
98:13-20.
knowing
that
Dkt. No. 43-8,
27
Defendants
she
was
contend
ineligible
303:4-304:8.
at
that
the
Plain-tiff's Termlna-tion
On May 4,
2010,
Lariscy told Griff is
that both she and
OHRMD had approved Plaintiff's termination.
48.
Lariscy did so on April 16.
Dkt.
No.
43-20 at
Dkt. No. 43-11 at 22.
Burns
allegedly informed her that she could not terminate Plaintiff
until Plaintiff returned from her FMLA leave,
the wrong impression.
Dkt. Nos. 43-19, 112:20-113:11, 118:9-12;
Dkt. No. 43-23, 118:8-119:10.
Lariscy
nor
temination.
terminated
Waymon,
118:4-9,
Griffis
Id.
for fear of giving
Burns also testified that neither
pressured
at
Plaintiff
him
to
120:22-121:1,
in
with
Dkt.
No.
Griffis.
43-12,
Griffis
called Plaintiff
notify Plaintiff that she was being terminated.
113:3-114:19;
same date,
308:17;
Lariscy
Burns,
88:9-89:23,
208:3-210:18.
Directed by Burns,
19,
Plaintiff s
127:20-128:1.
collaboration
and Gary Nagel at OHRMD.
approve
OHRMD
43-11
at
43-8,
307:11-308:17.
Via a
terminated Plaintiff.
34.
Burns
letter and Griffis signed it.
drafted
Dkt.
Dkt.
Nos.
5
to
43-
letter with the
No.
43-8,
Plaintiff's
Dkt. No. 43-19,
Lariscy retired on July 1.
on May
307:11-
termination
109:14-110:6.
Dkt. No. 43-6 H 3.
EEOC Charges
On July 14, 2010, Plaintiff filed a charge with the Georgia
Commission on Equal Opportunity
(^'GCEO") ,
terminated
discrimination
on
the
basis
of
race
28
alleging that she was
and
retaliation.
Dkt.
No.
43-11
notice.
Id.
charge
at
37-45.
On
August
4,
2010
GDHS
received
That notification stated that GCEO dismissed the
and
relinquished
investigation.
Id.
jurisdiction
to
the
EEOC
for
On November 1, 2010 Plaintiff received an
EEOC Notice of Right to Sue.
Id.
LEGAL
STANDARD
Summary judgment is required where ^^the movant shows that
there
is no genuine dispute as
movant is entitled to
Civ.
P.
56 (a).
outcome of the
Grp.
V.
is
658
Liberty
if
it
"might
governing law."
F.3d
fact
and the
a matter of law."
''material"
suit under the
(quoting Anderson v.
(1986)).
judgment as
A fact
FindWhat. com,
to any material
1282,
Lobby,
1307
Inc.,
Fed.
affect
FindWhat
(11th
477
the
Inv^r
Cir.
U.S.
R.
2011)
242,
248
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
Johnson
501,
507
all
v.
reasonable
Booker
(11th Cir.
T.
inferences
Washington
in
Broad.
that
Serv.,
party's
Inc.,
favor.
234
F.3d
2000) .
The moving party bears the initial burden of demonstrating
the absence of a genuine issue of material fact.
V.
Catrett,
477 U.S.
317,
323
(1986).
29
Celotex Corp.
The movant must show the
court
that
there
is
an
nonmoving party's case.
If
the
moving
absence
of
evidence
to
support
the
Id. at 325.
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.
this burden in two ways:
at 257.
First,
The nonmovant may satisfy
the nonmovant ''may show that
the record in fact contains supporting evidence,
withstand
ignored'
a
directed
verdict
by the moving party,
motion,
which
was
sufficient to
'overlooked
who has thus failed to meet the
initial burden of showing an absence of evidence."
V.
City of Atlanta,
Celotex,
the
477
U.S.
nonmovant
2 F.3d 1112, 1116
at
"may
332
(Brennan,
come
sufficient to withstand a
or
(11th Cir. 1993)
J.,
forward
Fitzpatrick
dissenting)).
with
additional
(quoting
Second,
evidence
directed verdict motion at trial based
on the alleged evidentiary deficiency."
Id. at 1117.
DISCUSSION
Plaintiff
alleges
that
Defendants
retaliated
after
she
complained about racial discrimination by denying her a subsidy
after transferring her job duties to a different office, causing
her to drive 114 miles roundtrip;
drafting a
false performance
review; denying her sick-leave requests; assigning her excessive
work for which she had no training;
30
terminating her employment
while she was on approved FMLA leave; and terminating her after
she filed an EEOC Complaint.
I.
Plaintiff
Fails
to
See generally Compl.
Set
Forth
a
Prima
Facie
Case
of
Retaliation
Plaintiff
2000e-3 (a) (1)
asserts
a
retaliation
{''Title VII")
Section 1981
"have
the
and 42 U.S.C.
same
Standard v.
(11th Cir. 1998).
under
§ 1981.
requirements
same analytical framework."
161 F.3d 1318, 1330
claim
42
U.S.C.
§
Title VII and
of proof and use the
A.B.E.L.
Servs./
Therefore,
Inc.,
the Court will
"explicitly address the Title VII claim with the understanding
that the analysis applies to the § 1981 claim as well."
Given
this
that
case
is
Plaintiff
governed
relies
by
the
McDonnell Douglas Corp. v. Green,
on
circumstantial
burden-shifting
411 U.S.
792
Id.
evidence,
framework
(1973).
of
Brown v.
Ala. Dep^t of Transp., 597 F.3d 1160, 1181 (11th Cir. 2010).
"Title
employer
case."
Cir.
(b)
a
for
protects
that
employees
participation
Donne lion v.
1986).
prove
VII
To
(a)
Freuhauf
establish
she
in
engaged
a
against
an
Corp.,
retaliation
employment
794
retaliation
F.2d
by
an
discrimination
598,
claim.
600
Plaintiff
(11th
must
in statutorily protected activity,
she suffered a materially adverse action,
and
(c)
there was
casual relation between the protected activity and the adverse
action.
Butler v. Ala.
Dep^t of Transp.,
31
536 F.3d 1209,
1212-13
{11th Cir.
2008)
F.3d 1261, 1277
(quoting Goldsmith v.
Bagby Elevator Co. ,
513
(11th Cir. 2008)).
After the plaintiff establishes
employer may present a
legitimate,
a
prima facie
case,
the
non-retaliatory reason for
\
the action.
1266
Pennington v.
(11th Cir.
F.3d 1457, 1460
2001)
City of Huntsville,
(citing Olmstead v.
261 F.3d 1262,
Taco Bell Corp.,
141
(11th Cir. 1998)).
If i t does so,
then ^'[t]he ultimate burden of proving by a
preponderance of the evidence that the reason provided by the
employer
is
a
pretext
for
remains on the plaintiff."
A.
retaliatory
conduct
Id.
Plaintiff Engaged in Statutorily Protected Activity
There
are
activities.
two
categories
of
statutorily
protected
The Participation Clause protects individuals who
have filed EEOC charges.
Sys.
prohibited,
Servs. ,
Inc. ,
42 U.S.C.
221 F.3d 1171,
§ 2000e-3 (1) ; EEOC v. Total
1174
(11th Cir.
2000).
The
Opposition Clause protects activity prior to that point, such as
filing
an
supervisor.
internal
complaint
42 U.S.C.
Dep^t of Law Enf^t,
plaintiff engaging in a
least,
comm\micate
to the employer, '
informally
§ 2000e-3(a);
Terrace, 267 F.3d 1197, 1201
Fla.
or
complaining
Pipkins v.
(11th Cir. 2001)
868 F.2d 397, 400
that
(citing Rollins v.
(11th Cir. 1989)).
discrimination
A
^'^at the very
is
and cannot rely on the employer to
32
a
City of Temple
protected activity must,
her belief
to
occurring
^infer that
discrimination
Fla., Inc.,
has
occurred.'"
321 F. App'x 847,
Demers
852
v.
Adams
(11th Cir. 2009)
Homes
of
Nw.
(quoting Wedd
V. R&B Holding Co., 992 F. Supp. 1382, 1390 (S.D. Fla. 1998)).
Plaintiff argues that she engaged in Participation Clause
activity
when
she
Questionnaire.
agrees.
(11th
Cf.
Cir.
visited
Dkt.
Nos.
EEOC
and
49-13 at 2-4;
Wilkerson v.
2001)
the
completed
54 at 9-10.
Grinnell Corp.,
(holding
that
Intake
an
Intake
The Court
270 F.3d 1314,
Questionnaire
1321
can be
formal EEOC charge for purposes of statute of limitations).
a
The
Participation Clause ^^protects proceedings and activities which
occur in conjunction with or after the filing of a formal charge
with the EEOC."
also
Silver
v.
Total Sys.
KCA,
Inc.,
Servs.,
586
Inc.,
F.2d
221 F.3d at 1174;
138,
141
(9th
Cir.
see
1978)
(explaining that '""participation in the machinery set up by Title
VII to enforce its provisions" is protected) .
an
employee
Inc. ,
221
to
F.3d
"instigate
at
1174
n.2;
(protecting "participat[ing]
or]
proceedings."
m
see
also
It is enough for
Total
42
Sys.
U.S.C.A.
Servs.,
§
2000e-3
any manner in an investigation[
proceeding").
Plaintiff selected "Box 2," which states,
"I want to file a
charge of discrimination, and I authorize the EEOC to look into
the
discrimination
I
described
above."
Dkt.
No.
49-13
at
This brought her within the Participation Clause's ambit.
Laughlin v.
Metro.
Wash.
Airports Auth. ,
33
149 F.3d 253,
259
4.
See
(4th
Cir.
to
1998)
{^'Participatory activities are vigorously protected
ensure
employees'
continuing
enforcement process.");
4:05-2086,
2008
WL
access
Richardson v.
906559,
at
to
the
EEOC
Horry Cty.^
*10
(D.S.C.
and
the
A.
No.
Civ.
Mar.
31,
2008)
(explaining that filing an Intake Questionnaire is protected);
cf. Kaplan v. City of Arlington,
Tex.
2002)
can
constitute
184 F. Supp. 2d 553, 564
(observing that filing a
Plaintiff s
protected
prima
facie
state intake questionnaire
behavior).
case
(N.D.
is
The
first
satisfied
prong
of
to
the
as
Participation Clause.
It is not satisfied as to the Opposition Clause.
argues
that Defendants
retaliated against her by demoting her
and reassigning her to a different county.
14.
Plaintiff
Dkt.
No.
54 at 10-
The Opposition Clause makes it unlawful for an employer to
discriminate against an employee "because
practice
made
VI], or because
an
unlawful
employment
[s]he has made a charge,
[s]he has opposed any
practice
[Subchapter
testified, assisted, or
participated in any manner in an investigation,
hearing under [Subchapter VI]."
by
proceeding,
42 U.S.C. § 2000e-3(a).
Plaintiff argues that she
complained both of her co-worker's hostile,
humiliating racial slur directed squarely at
her and about the failure of her supervisor
and then her supervisor's supervisor to do
anything about it.
And in late March when
her
supervisory
responsibilities
were
removed without explanation less than two
34
or
months
from
the date of her complaint,
[Plaintiff]
additionally
complained about
retaliation she perceived in response to her
complaint of the co-worker's racial slur.
Dkt.
No.
54
at
11.
The actions cited by Plaintiff are time-barred.
at
2 n.l.
The Court will not equitably toll
the
See supra
statute of
limitations on the ground that Plaintiff relied on Defendants'
internal investigation.
Defendants
''lulled
complaints
were
reliance
See Dkt. No. 54 at 22 (complaining that
[Plaintiff]
into
believing
properly
addressed").
Defendants'
on
being
internal
investigation
that
her
Plaintiff's
plainly
shows
that "Defendants made no misrepresentations that hindered
[her]
from
her."
learning
[their
Intown
Howard v.
of
Suites
739168, at *2
alleged]
Mgmt.,
discrimination
Inc.,
No.
against
l:04-CV-759,
2006
WL
(N.D. Ga. Mar. 17, 2006).
Plaintiff could attempt to save her Opposition Clause claim
by leaning on other supposed wrongdoing,
her request for a
memorandum,
the
subsidy,
denial
of
such as the denial of
the drafting of a
her
sick
leave
false perfonnance
request,
or
assignment of excessive work for which she had no training.
generally Compl.
faith,
unlawful
reasonable
But she needs to show "that
belief
employment
that
the
practices."
Carrier Transicold Div.,
103 F.3d 956,
35
employer
Little
960
v.
[s]he had a
was
engaged
United
the
See
good
in
Techs.,
(11th Cir. 1997).
She cannot do so.
the
event
that
Her complaint of racial discrimination-
allegedly
triggered
retaliation—occurred
approximately one year before any of those events.^®
is
devoid
actions
of
evidence
were
due
discrimination,
her
that
to
Plaintiff
her
previous
motivated by racial
complaints
to
believed
management.
The record
that
Defendants'
complaint
animus,
Thus,
of
or the
racial
results of
Plaintiff
could
not
reasonably believe that she was still suffering from opposing an
unlawful practice a year before the incidents in question.
Higdon
v.
(observing,
Jackson,
393
in finding a
infer retaliation:
F.3d
1211,
1220
(11th
Cir.
See
2004)
three-month delay to be too great to
^^If there is a
sxibstantial delay between the
protected expression and the adverse action in the absence of
other
evidence
tending
retaliation fails as a
to
show
causation,
the
complaint
of
matter of law.").
Plaintiff may not agree with the decisions Defendants made,
but the Court's ^^sole concern is whether unlawful discriminatory
animus
motivates
a
challenged
Fleming Supermarkets
Cir.
1999) .
Plaintiff's
It
of
did
Fla.,
not.
allegations.
employment
Inc.,
There
196
is
Accordingly,
decision."
F.3d 1354,
no
1361
evidence
summary
Damon v.
(11th
supporting
judgment
is
GRANTED as to Plaintiff's Opposition Clause claim.
"
Plaintiff immediately complained about Adams'
insult and the subsequent
March incident to management and continued to complain when she felt that her
concerns were not adequately addressed.
36
B.
Plaintiff
Suffered
a
Materially
Adverse
Employment
Action
action
is
materially
adverse
if
it
^might
have
dissuaded a reasonable worker from making or supporting a charge
of discrimination.'"
F.3d 1249,
Fe
Ry.
1259
Co.
v.
Chapter 7 Tr.
(11th Cir.
White,
2012)
548
U.S.
employment was terminated.
C.
But-for
claims.
the
activity,"
of Tex.
is
53,
68
required
(2006)).
decision-maker
Vignoli v.
the
other
adverse
(11th
evidence
substantial
Ctr.
had
in
Plaintiff's
Causal
v.
Title
Link between
VII
Nassar,
at *7
action,
(S.D.
retaliation
133 S.
Ct.
2517,
protected
2007)
tending
to
between
the
Fla.
the
Inc.,
Oct.
protected
No.
7,
activity
12-24508-
2014)
and
Cooper Lighting,
(noting
show
the
complaint
"[M]ere temporal proximity,
of
(citing
and show "close temporal proximity
Thomas v.
Cir.
delay
knowledge
Clifton Apartments,
statutorily
employment action."
1364
& Santa
A plaintiff must both "'provide sufficient evidence
393 F.3d at 1220),
between
1361,
(citing Burlington N.
683
This prong is established.
Sw. Med.
2014 WL 6850775,
Higdon,
Inc. ,
Protected Act and Her Teinnination
causation
Univ.
2533 (20i3) .
CIV,
Gate Gourmet,
Intervening Misconduct Broke the
Plaintiff s
that
v.
that
protected
fails
as
Inc.,
"in
causation,
the
if
a
37
adverse
506 F.3d
absence
there
expression
matter
without more, must be
Id.
the
is
and
of
of
a
the
law").
"very close.'"
Defendants
Plaintiff
were
sent
Washington,
aware
an
of
email
Plaintiff's
to
GDHS
and Walker on April 13,
protected
Commissioners
2010,
Blanco,
in which she stated
that she had ^^filed a complaint with the EEOC."
at 46.
activity.
Dkt. No.
43-20
This, even by itself, was sufficient to make a decision-
maker ^'aware" of Plaintiff's protected activity.
Even were
it not.
Defendants expect the Court to believe
that since Plaintiff did not send the email to Burns,
or Griff is,
at
19.
they were unaware of her complaint.
Based on the
evidence presented,
a
could find this argument to be implausible.
Appalachian Corp.,
court
may
494 F. Supp. 330,
disregard
believed.").
Blanco,
Lariscy,
Blanco
Walker,
and Griffis.
45-46.
evidence
Dkt.
forwarded
333
that
Plaintiff's
less
Burns emailed Griffis,
than
an
hour
later.
juror
(^'The
too incredible to
supervise
278:20-280:20;
email
to
direct supervisor, twelve minutes after receipt.
at 64.
43-1
See Hales v. First
{N.D. Ala. 1980)
is
43-8,
Dkt. No.
reasonable
and Washington
Nos.
Lariscy,
be
Burns,
43-20 at
Waymon,
Burns'
Dkt. No. 43-10
requesting her telephone number,
Dkt.
No.
43-24
at
30.
Plaintiff
expressly told Griffis on April 16 that she ^^wanted [documents]
to
submit to the EEOC."
emailed
Lariscy
that
Dkt.
No.
another
43-8,
294:5-295:14.
employee
had
Griffis
reported
that
Plaintiff was gathering information to prove that she was being
discriminated against.
Dkt. No. 43-11 at 22.
38
At a
minimum,
Burns and Griff is were aware of Plaintiff s
complaint.
Plaintiff
Plaintiffs
also
satisfies part
filing
protected act.
thereafter.
of
her
EEOC
of
the
Intake
causation analysis.
Questionnaire
was
a
Plaintiff notified GDHS Commissioners shortly
That
she
was
terminated
only
a
few
weeks
later
establishes prima facie causation.^'
But
the
causation analysis
does
not
end with
timelines.
Defendants argue that Plaintiffs contact with Enterprise broke
the causation circuit.
Plaintiff
obtained
Dkt.
No.
information
43-1 at 20.
to
which
The Court agre.es.
she
was
not
using her status as a government office manager.
entitled
This was an
adequate basis for her termination, and without evidence showing
it
to
have
been mere
pretext,
judgment for Defendants.
No.
CV 412-120,
(granting
reason
motivate
Merely
a
an
reasonable
quarreling
suffice.
Plaintiff
Court
with
was
cannot
reason
demoted
infer
in
at *3
^'[0]nce
employment
employer,
the
Furthermore,
discriminatory
The
judgment:
adverse
authorizes
granting
summary
See Hills v. Savannah River Util. Co.,
2014 WL 4267486,
summary
for
it
for
an
employer
action
the
that
employee
wisdom
an
(S.D. Ga. Aug.
of
termination,
March
2009
and
causation
from
these
termination.
39
proffers
might
a
otherwise
must
rebut
it.
does
not
legitimate,
even
transferred
time
2014)
reason
that
employer's
27,
if
on
periods
non-
based
October
to
the
on
1,
May
a
2009.
2010
mistaken
but
liability."
reasonable
(internal
belief,
citation
will
omitted));
Coll. Sys. of Ga., No. CV 412-075,
Ga.
Dec.
2014)
11,
2013),
(granting
adopted,
summary
not
subject
Saripalli
it
v.
Tech.
2014 WL 6504771, at *3
2014 WL 808005
judgment:
(S.D.
Ga.
to
(S.D.
Feb.
28,
'MA]n employer's good faith,
but incorrect,
belief that an employee violated a work rule can
constitute
nondiscriminatory
a
reason
for
that
employee's
termination[.]" (citation and parenthetical omitted)).
The Enterprise incident also purges any inference that the
jury
would
draw
misconduct
from _the
^^break[s]
the
timeline.
causal
Intervening
link
between
conduct and the adverse employment action."
Express,
No.
10-15633,
(per curiam)
2011 WL 4600721,
(unpublished opinion)
judgment);
see also Kiel v.
1131,
(8th Cir.
1136
1999)
the
protected
Henderson v.
at *4
(11th Cir.
(affirming grant of
Select Artificials,
(en banc)
employee
Inc.,
FedEx
2011)
summary
169 F.3d
(affirming grant of summary
judgment and explaining that plaintiff's intervening misconduct
'^eroded any causal connection that was suggested by the temporal
proximity
Schoebel
27AEP,
of
v.
2015
his
Am.
WL
protected
Integrity
Ins.
4231670,
at
conduct
Co.
*3
of
and
his
Fla.,
(M.D.
Fla.
termination");
No.
8:14-CV-426-T-
July
10,
2015)
(granting summary judgment in part).
Plaintiff attempts
to resurrect her claim by arguing that
Griffis and Lariscy actually decided to terminate her in March.
40
Dkt.
Nos.
43-18,
But
there
can
65:13-66:17;
be
no
43-19,
inference
statutorily protected act.
See,
80:12-81:19;
of
e.g.
54
retaliation
at
without
Butler v. Ala.
Transp., 536 F.3d 1209, 1212-13 (11th Cir. 2008).
18-21.
Dept.
a
of
Plaintiff did
not come under the protection of the Participation Clause until
April 5, when she filed her EEOC Intake Questionnaire.
Besides,
allegation,
whereas
See Shuler v.
544
(11th Cir.
and
Plaintiff's
Bd.
theory
Defendants'
of Trs.
2012)
is
is
backed by
Of Univ.
of Ala.,
(per curiam)
self-serving, allegations
supported
only
record evidence.
480
F.
App'x 540,
(unpublished opinion)
are
inadequate
plaintiff's burden on summary judgment.").
by
to
(''Bare
carry
the
Between April 5 and
April 12 or 14, Lariscy, Griffis, and Burns discussed Plaintiff.
Their emails reflect frustration,
termination.
71:3-9;
See,
e.g.,
43-20 at 35-36.
Dkt.
but do not explicitly discuss
Nos.
43-18,
49:21-50:14,
Lariscy did not recommend termination
until April 16—after Plaintiff contacted Enterprise.
43-11
at
wants
the
Court
to
the
infer
that
the April
of which Defendants learned on April 13,
cause of her May 4 termination.
is
Dkt.
No.
22.
Plaintiff
charge,
67:21,
plainly
evidenced
Plaintiff's mere conjecture.
survive summary judgment.
5
EEOC
was the real
But her contact with Enterprise
reason,
whereas
retaliation
is
Such conjecture is not enough to
See Schoebel,
41
2015 WL 4231670,
at *3
{explaining that
[w] here .
an inference of fact,
i.e.
.
. circumstantial evidence supports
causation, but direct evidence proves
the contrary, the inference has been shown to be unreasonable").
In light of Plaintiff's act of intervening misconduct,
she
has failed to prove causation, and thus her prima facie case for
retaliation
fails
and
the
McDonnell
Douglas
inquiry
ends.
Summary judgment is GRANTED.
II.
Claims against Lariscy Are Barred by Qualified Immunity
Lariscy is protected by qualified immunity.
offers
^^complete
protection
their individual capacities
for
government
if their conduct
This defense
officials
Moes
sued
in
not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known.'"
F.3d 1340,
457 U.S.
1346
800,
(11th Cir.
818
2002)
Vinyard v. Wilson,
(quoting Harlow v.
311
Fitzgerald,
(1982)).
A public official must prove that she was acting within the
scope of her discretionary authority at the time of the alleged
wrongful acts.
2012).
Terrell v. Smith, 668 F.3d 1244, 1250 (11th Cir.
Lariscy did so.
She was human resources director and
Plaintiff complains of human resources decisions.
The
burden
shifts
immunity does not apply.
assesses whether:
that
the
(1)
defendants
to
Plaintiff
Vinyard,
to
show
that
311 F.3d at 1346.
the plaintiff alleged facts
violated
a
42
constitutional
qualified
The Court
to establish
right;
and
(2)
that right was clearly established.
U.S.
223,
232
(2009) . A
Pearson v.
constitutional
Callahan,
right
is
555
clearly
established if ''a reasonable official would understand that what
he is doing violates that right."
U.S. 635,
640
Creighton,
483
(1987).
Plaintiff argues
rights.
Anderson v.
that Lariscy violated her constitutional
See generally Compl.
Lariscy was clearly involved in
making decisions regarding Plaintiff's employment.
But she did
not violate Plaintiff's clearly established rights:
Lariscy denied Plaintiff pay supplements and a rental car,
but there is no evidence that she did so from racial animus.
Lariscy
Lariscy
participated
recommended
difficulties working
in
Plaintiff's
Plaintiff—who
reassignment.
had
had
But
significant
in Liberty County—for the Mclntosh Coiinty
vacancy, describing her as an experienced office manager.
No.
43-18,
33:20-34:22.
When Lariscy transferred Plaintiff to
work with Holmes, Lariscy believed that Holmes'
would jibe well with Plaintiff.
reasonable
Plaintiff's
juror would conclude
complaints
transferring her
to
match—not
Lariscy
that
Dkt.
Dkt.
No.
43-25,
38:3-14.
workplace
a
difficulties
supervisor who was
retaliated
against
a
43
See Pearson, 555 U.S. at 236
by
better
Plaintiff
complaining to upper-level management.
" Courts can address either prong first.
Any
that Lariscy tried to resolve
and
work under
leadership style
for
Even
toward
progressive
the
end,
discipline
39:17-40:13.
Lariscy
and
help
counseled Griffis
Plaintiff.
is
No.
apply
43-18,
It was only after Plaintiff contacted Enterprise
that Lariscy decided to terminate her.
There
Dkt.
to
no
evidence
that.
Dkt.
Plaintiff's
discrimination against Adams,
No.
43-11 at 22.
complaints
of
racial
and her challenge to Chamberlin's
handling thereof—which occurred fifteen months earlier—motivated
Lariscy's decision.
Lariscy
is
thus
entitled
to
qualified
immunity.
Accordingly, Defendant's Motion for Summary Judgment is GRANTED.
CONCLUSION
For
the
reasons
herein.
Judgment is GRANTED.
Plaintiff's
Defendants'
Dkt. No.
reassignment
43.
and demotion
Motion
for
Summary
Given the untimeliness of
claims,
summary judgment
as to them is appropriate.
Plaintiff failed to prove a prima
facie
because
case
of
retaliation
her
misconduct—contacting
Enterprise under false pretenses and abusing her piiblic position
in doing
filing
so—broke
of
her
the
EEOC
inferred
charge
and
causal
her
connection between the
termination.
Qualified
immunity protects Lariscy in her individual capacity.
The
Clerk
of
Court
is
DIRECTED
j udgment.
44
to
enter
the
appropriate
so ORDERED, this 8th day of November,
2016.
LISA GODBEY WOOD,
CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
A0 72A
(Rev. 8/82)
45
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