Millwood-Jones v. Holder
Filing
61
ORDER denying 43 Motion for Summary Judgment. Defendant's motion is DENIED in its entirety. All claims remain pending at this time. The Clerk of Court is hereby DIRECTED to substitute Loretta E. Lynch for Eric H. Holder, Jr., as the named Defendant in this case. Signed by Chief Judge Lisa G. Wood on 3/22/2016. (csr)
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PAMELA MILLWOOD-JONES,
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Plaintiff,
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V.
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CV 214-035
ERIC H. HOLDER, JR., Attorney *
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General,
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Defendant.
ORDER
Presently before the Court is Defendant's Motion for
Summary Judgment (dkt. no.
briefed, see dkt. nos.
43), which the parties have fully
51, 5455•1 For the following reasons,
Defendant's Motion (dkt. no.
43) is DENIED in its entirety.
BACKGROUND2
At all relevant times, Plaintiff and her husband, Jason
Jones, have worked for the Federal Bureau of Prisons (the "BOP")
1
Defendant notes that since Plaintiff's filing of this action, Eric
H. Holder, Jr., has resigned as Attorney General, and Loretta E. Lynch
has assumed this position. Dkt. No. 43, p. 1 n.l. Pursuant to
Federal Rule of Civil Procedure 25(d), the Clerk of Court is hereby
DIRECTED to substitute Loretta E. Lynch for Eric H. Holder, Jr., as
the named Defendant in this case.
2
Defendant has filed a Statement of Material Facts (dkt. no. 43-1),
and Plaintiff has filed a Response (dkt. no. 51-1) largely agreeing
with Defendant's recitation of the facts of this case. Accordingly,
the Court, for ease of exposition, cites only to Defendant's version
of the facts (dkt. no. 43-1) as the Statement of Undisputed Facts
("SUF") and specifically notes herein any facts with which Plaintiff
disagrees.
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at the Federal Correctional Institute in Jesup, Georgia ("FCI
Jesup") . SUF, 191 1, 3, 11. Loretta E. Lynch is the Attorney
General of the United States and the head of the United States
Department of Justice. Dkt. No. 1, 91 5; Dkt. No. 43, p. 1 n.1.
As the BOP is an agency of the Department of Justice, she has
ultimate authority over BOP decisions. Dkt. No. 1, ¶ 5.
While Plaintiff's initial position at FCI Jesup was that of
a correctional officer, Plaintiff subsequently applied and was
selected for a unit secretary position—a position that she
assumed on August 15, 2010. SUF, 191 4-5. Plaintiff has
testified that while a unit secretary receives less pay than a
correctional officer, she applied for the position "to broaden
[her] experience." Id. at 91 6. However, after eight months in
this position, Plaintiff requested to return to her previous
position as a correctional officer. Id. at 91 5. Plaintiff's
transfer from Unit Secretary back to Correctional Officer is
reflected in a Notification of Personnel Action bearing the
effective date May 8, 2011. Id. at 91 7.
I. Plaintiff's Relationship with David Pritchard ("Pritchard")
In May 2011, Plaintiff and Jason Jones separated. Id. at 91
12. Within days, Plaintiff began speaking to Pritchard—an FCI
Jesup Lieutenant at that time—"on a personal level." Id. at 9191
13-14. Plaintiff and Pritchard communicated daily, exchanged
romantic feelings for one another, and had their first sexual
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encounter on July 2, 2011. Id. at 9191 16-17. Plaintiff has
admitted that over the course of the months-long relationship
that ensued, she had intercourse with Pritchard and performed
oral sex on him. Id. at 91 14.
On one occasion, Plaintiff took her son on a fishing trip
with Pritchard and his son. Dkt. No. 43, Ex. A ("P1.'s Dep."),
71:22-72:1. According to Pritchard, he was drinking whiskey
during the fishing trip, and Plaintiff performed oral sex on him
while their sons were at the opposite end of the fishing pier.
Dkt. No. 51, Ex. 11 ("Pritchard Dep."), 65:13-17, 91:2-6.
Plaintiff, however, maintains that the two did not engage in
sexual activity on the fishing trip because the two children
were present. Pl.'s Dep., 72:2-7.
In October 2011, Plaintiff began to suspect that Pritchard
was having sexual relations with two other women, including FCI
Jesup Nurse Tracy Townsend ("Nurse Townsend"). SUF, 191 18, 23.
When Plaintiff confronted Pritchard about her suspicions, he
denied having any relationship with Nurse Townsend; however,
when Plaintiff asked Nurse Townsend, Nurse Townsend confirmed
that the two were seeing each other. Pl.'s Dep., 76:1-7, 90:1114. The relationship between Plaintiff and Pritchard came to an
end in late October 2011. SUF, 91 19.
Pritchard has testified that BOP policy prohibited him, as
a superior officer, from engaging in a sexual relationship with
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Plaintiff—and that he knew that he was violating this policy
during their relationship. See Pritchard Dep., 20:9-13. As
Pritchard has acknowledged, however, there was no BOP policy
that forbid Plaintiff's carrying on of such relationship. Id.
at 20:14-18.
II. Plaintiff's Reporting of the Relationship and Pritchard's
Demotion
Plaintiff reported her affair with Pritchard to Warden
Anthony Haynes ("Warden Haynes") in a memorandum dated November
16, 2011. Id. at ¶I 20, 28. Specifically, the memorandum
stated as follows:
I . . . have been having an affair with .
Pritchard since July 1, 2011. I have an emotional
attachment to [Pritchard,] and he is aware of this.
He has also stated that he was attached but he was
going to work thing[s] . . . out with his wife. We
ended our affair around October 27, 2011[,] because of
this reason. Recently[,] I found out he is seeing
[Nurse] Townsend . . . . I asked him not to let her
come and sit in his office . . . . Today[,] she baked
him cookies and brought them to his office .....I
think that he intentionally flaunted her and allowed
her to visit with him in his office knowing that I
would be upset.
Id. at ¶ 20. Upon receiving Plaintiff's memorandum, Warden
Haynes instructed her to complete a second memorandum giving a
more direct and clear account of what happened. Id. at ¶t 2829. Accordingly, Plaintiff submitted a second memorandum, in
which she added that, "[d]ue to [their] relationship and
[Pritchard] subjecting [her] to the emotional trauma of watching
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his behavior with another female staff member, [she] [could] not
perform [her] job duties in a safe and effective manner
with him as [her] supervisor." Id. at ¶ 31 (first alteration in
original). Plaintiff also confronted Pritchard, in front of
Nurse Townsend, about their affair and informed Pritchard's wife
of her husband's affairs with Plaintiff and the two other female
staff members. Id. at ¶ 68.
Warden Haynes referred Plaintiff's memoranda to the BOP's
Office of Internal Affairs (the "OIA") for investigation. Id.
at ¶ 30. Additionally, Captain Glenn Carrino ("Captain
Carrino") notified Pritchard that Plaintiff had accused him of
violating BOP policy. Pritchard Dep., 31:16-22. Captain
Carrino ordered Pritchard to "refrain from any disruptive
behavior or the appearance of inappropriate behavior." SUF, I
32. He further advised Pritchard "to avoid interaction and
contact with [Plaintiff] and . . . Jason Jones, her husband, at
all times." Id.
Ultimately, the OIA investigation resulted in a charge
against Pritchard for the offense of "Inappropriate
Supervisor/Subordinate Relationship." Id. at ¶ 33. Based on
this charge, Pritchard received a demotion, effective July 1,
2012, from Lieutenant to Sport Specialist. Id. at 99 34-35.
III. Pritchard' s and Other Employees' Conduct Toward Plaintiff
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On November 17, 2011, just after Plaintiff reported their
relationship, Pritchard attended a meeting with several other
lieutenants and officers—including Lieutenant Joseph Arnett
("Lieutenant Arnett")—as well as Captain Carrino's Secretary at
the time, Jodi Thomason ("Thomason") . Dkt. No. 51, Ex. M
("Thomason Dep."), 114:22-115:13, 115:20-116:11. Thomason has
testified that during this meeting, Pritchard discussed his
fishing trip to the pier with Plaintiff and related that he had
been drinking heavily, "his dick had fell [sic] in her mouth,"
and "he didn't know how it [had] happened." Id. at 116:3-6.
According to Plaintiff, Pritchard made this statement because he
was angry that she had informed his wife of his affairs and had
a "personal vendetta to humiliate her through deceitful lies."
StJF, ¶ 68.
Soon after the November 17, 2011, meeting, another officer
informed Plaintiff that Officer Jeremy Bowen ("Officer Bowen")
had made a comment on December 3, 2011, referring to Plaintiff
as having "road rash" on her mouth from performing oral sex.
Pl.'s Dep., 100:21-101:6. Officer Michael Brown also notified
Plaintiff that another FCI Jesup employee had warned him "not to
get caught on the pier" with Plaintiff. Id. at 154:12-18.
Additionally, Thomason heard Lieutenant Arnett joke about
Plaintiff's sexual activity by stating, "Don't go fishing with
[Plaintiff]." Thomason Dep., 118:22-25.
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As Thomason was the President of the prison employees'
union, multiple prison officials reported to her that they had
heard others-including Lieutenant Arnett, Officer Bowen, and
Officer Franklin Linder ("Officer Linder")-making derogatory
comments and jokes about Plaintiff. Id. at 7:7-10, 120:23130:21. In one instance in particular, an employee went to
Thomason's office after a "lieutenants meeting" at which
Thomason had not been present. Id. at 123:12-21. The employee
told Thomason that at the meeting, Lieutenant Arnett had asked
Pritchard-with regard to Plaintiff performing oral sex - "[D]id
she swallow?" Id. at 123:23-25. However, Lieutenant Arnett has
since denied making this comment in reference to Plaintiff,
instead insisting that he asked this question while on the phone
with his wife discussing their daughter's swollen tonsils. SUF,
¶ 66.
Plaintiff also has testified that some of her coworkers
made hand motions mimicking the act of performing oral sex when
they passed by her in the hallway. Pl.'s Dep., 158:24.
Plaintiff has indicated that she cannot identify every single
instance of this or any other act, because the FCI Jesup
employees made comments or gestures about her sexual activity
"every single day." Id. at 158:10-159:10. Even the prison
inmates eventually caught on and joined in on the gossip. See
id. at 147:19-23.
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Distraught over her coworkers' actions, Plaintiff began
feeling sick and went to get checked by the medical department
at FCI Jesup. Id. at 101:6-9. Plaintiff learned that her blood
pressure was high and thus decided to leave work and seek care
at Wayne Memorial Hospital. Id. at 101:7-11. Plaintiff avoided
returning to FCI Jesup and worked only periodically for the rest
of December 2011. Id. at 101:14-17.
IV.
Reporting of the Conduct Toward Plaintiff
On January 31, 2012, Plaintiff contacted an Equal
Employment Opportunity ("EEO") Counselor with the BOP to
initiate the process of filing a sexual harassment complaint
based on the "inappropriate conversations between [her]
supervisors." Dkt. No. 11, Ex. C. Plaintiff finalized the EEO
complaint on March 14, 2012. Id.
Additionally, on February 15, 2012, Thomason sent an e-mail
to Warden Haynes informing him, in part, that Pritchard had made
comments to fellow staff members concerning his sexual relations
with Plaintiff. SUF, ¶ 36. Thomason stated in the e-mail that
she "should most likely have reported these things . . . a few
weeks [before] however [she] had hoped for a better solution for
all staff involved." Id. at ¶ 39. Following an OIA
investigation into Pritchard's conversations, it was determined
that Pritchard—in stating that "his dick fell in Plaintiff's
mouth"—had engaged in "Unprofessional Conduct of a Sexual
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Nature," but that Lieutenant Arnett and Officer Bowen had not
made any comments warranting a similar charge. Id. at 191 37,
43•3 Pritchard was disciplined for this offense in the form of a
three-day suspension and a written reprimand by Warden Suzanne
Hastings ("Hastings"). Id. at 9191 41-42.
V. Scrutiny of Plaintiff's Leave Request
After initiating the process of filing an EEO complaint on
January 31, 2012, Plaintiff spent several days out of the
following month at an inpatient psychiatric facility. Dkt. No.
51, p. 14. When Plaintiff submitted a request for approval of
her medical leave along with a doctor's note, Captain Carrino
placed the note in a safe in his office and did not immediately
process the request. SUF, 91 79. It was not until two weeks
later, when Thomason inquired about the leave request, that
Captain Carrino removed the doctor's note from his safe and
explained that the note needed to be verified because it
appeared that the date on it had been altered. Thomason Dep.,
58:9-59:19.
As any further delay in the approval of Plaintiff's leave
request would have threatened her receipt of a paycheck for that
pay period, Thomason suggested that Captain Carrino call the
doctor's office at the number listed on the letterhead so as to
Plaintiff admits that the OIA investigation reached this conclusion
but nevertheless contends that Lieutenant Arnett and Officer Bowen
were cleared of any charges "only because the investigation was deeply
flawed." Dkt. No. 51-1, 91 37.
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receive verification in an expeditious manner. Id. at 58:16-17,
60:22-25. Nevertheless, Thomason has testified that she did not
believe that the doctor's note was forged and would not have
questioned its authenticity. Id. at 59:2-8. Thomason has also
indicated that in her time as union President, she had dealt
with a similar matter involving an allegedly altered medical
document only one time, several years prior to this incident.
Id. at 59:20-25.
Upon calling Plaintiff's doctor's office, Captain Carrino
discovered that the doctor had made a mistake and changed the
date on the note. SUF, 1 79. Soon thereafter, Captain Carrino
processed and approved Plaintiff's leave request. Id.
VI. Overtime Shifts and Medical Trips
On March 14, 2012, Plaintiff began to notice that she was
being passed over for opportunities to work overtime shifts and
medical trips. Id. at ¶ 59. FCI Jesup has an electronic system
for assigning overtime shifts and medical trips: any staff
member interested in these opportunities may sign up on a list;
the list is sorted so as to give priority to correctional
officers over other staff members; and a lieutenant responsible
for filling overtime positions for the given day works down the
priority list from top to bottom until all available positions
are filled. Thomason Dep., 88:18-89:4, 93:14-15.
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Plaintiff has submitted an affidavit specifically
discussing the overtime shifts on June 1 and 7, 2013—days on
which she happened to print the screen for the overtime sign-up
system—along with copies of those screenshots and of the
overtime sign-up sheets and daily rosters disclosed by Defendant
for the purposes of this lawsuit. See Dkt. No. 51-2 ("Pl.'s
Aff."), 9191 3-8 & Exs. A-B. Plaintiff's screenshot of the
overtime sign up on June 1, 2013, shows that she was third on
the list for the evening-watch overtime shift; however,
Defendant's overtime sign-up sheet for this date lists Plaintiff
as number twenty-three on the list, and the daily roster
reflects that four other officers were selected to work overtime
during this shift. Id. at Ex. A. Plaintiff's screenshot for
June 7, 2013, indicates that she was fourth on the evening-watch
overtime sign up, but Defendant has produced for this date a
sign-up sheet showing Plaintiff in the twenty-fourth spot and a
roster assigning four other officers to this shift. Id. at Ex.
B. Plaintiff affies that she was never contacted about or
offered the opportunity to work these overtime shifts. Id. at
¶91 5, 8.
Additionally, it is undisputed that Plaintiff worked as a
correctional officer on both June 1 and 7, 2013, SUF,
9191 5, 7,
and the screenshots of the overtime sign-up sheets on these
dates reflect that she held a custodial position, Pl.'s aff.,
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exs. A-B. However, the sign-up sheets that Defendant has
produced list Plaintiff as a noncustodial employee on these
dates. Pl.'s Aff., Exs. A-B. In fact, Defendant's records
dating back to November 2011 show Plaintiff as having neither
held a custodial position nor been at the top of the overtime
priority list since that time. Dkt. No. 51,
p. 9 (citing Dkt.
No. 51, Ex. 5); Dkt. No. 54, p. 14.
As to medical trips, Plaintiff has testified that between
February 22, 2012, and September 27, 2013, she went on over
thirty medical trips. SUF, ¶ 76. Nevertheless, Plaintiff
emphasizes in her affidavit that Defendant's daily rosters for
August 2012 show that Officer Ken Lee worked ten medical trips,
and Officer Joseph Mosely worked fifteen, while Plaintiff was
offered and accepted only two opportunities to take such trips
that month. Pl.'s Aff., ¶ 10.
Thomason has testified that the lieutenants assigning
overtime shifts during the period in question were skipping over
Plaintiff's name on the priority list and not offering her
overtime shifts and medical trips that she would otherwise have
been granted, because certain officers had informed the
lieutenants that they would refuse to work a shift or trip
alongside Plaintiff. Thomason Dep., 89:24-90:16. Consequently,
Thomason has stated that Plaintiff missed out on the generous
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overtime pay afforded to staff members who worked these
positions. Id. at 90:19-21.
VII. Disciplinary Actions Against Plaintiff
On April 29, 2012, Plaintiff received a "Form B," which
notifies an employee that he or she is the subject of an
investigation. Pl.'s Dep., 129:5-22. The Form B stated that an
inmate had accused Plaintiff of having sexual intercourse with
Pritchard at the prison, and that she would be investigated for
"unprofessional conduct of a sexual nature." Id. at 132:19133:2. Thomason stated at her deposition that FCI Jesup
typically does not initiate a Form-B inquiry based on an
accusation of a single inmate, and that it was "unusual" that
FCI Jesup did so in Plaintiff's case. Thomason Dep., 81:22-
Over the course of the following months, Plaintiff made
several requests for a letter clearing her of this allegation,
but she never received any response. Pl.'s Dep., 136:12-16.
When Warden Hastings sent Plaintiff a clearance letter in
December 2012, id. at 136:16-18, she explained that the inmate's
allegation "required a thorough investigation," Pl.'s dep., ex.
13. Even so, Defendant has produced documents showing that the
investigation was completed in May 2012; an unspecified
deficiency in FCI Jesup's investigative packet delayed its
approval until August 2012; and—despite the September 10, 2012,
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due date for the FCI Jesup investigator to transfer the case to
the status of "pending case closure"—the investigator did not do
so until February 20, 2013. Dkt. No. 51, Ex. 6.
Plaintiff received another Form B in October 2013—this time
informing her of an inmate's allegation that she had danced
naked on a table at the prison "to show [the inmates] that [she]
was a woman." Pl.'s Dep., 129:25-130:5. Notwithstanding
Plaintiff's discovery request for the production of all
documents relating to "any allegation of misconduct,
investigation of an allegation of misconduct, or disciplinary
action," Defendant has not disclosed any report of an
investigation into this charge. Dkt. No. 51, p. 12. As of
August 7, 2015, when Plaintiff filed her Response to the instant
Motion, she had not received a letter clearing her of this
allegation and believed that the case remained pending. Id. at
p. 11 (citing Pl.'s Dep., 130:1-3). Notably, Warden Hastings
has testified that allegations of sexual misconduct are
automatically referred for further investigation, and that a
written report must be generated for any investigation of a
complaint against an employee. Dkt. No. 51, Ex. 9 ("Hastings
Dep."), 35:2-24, 53:21-24.
Effective October 20, 2013, Plaintiff voluntarily moved
from Correctional Officer to the lower-paying secretary
position. SUF, ¶I 6, 8. Plaintiff affies that while the
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disciplinary investigations have remained pending—which has
encompassed "most of 2012, the end of 2013, all of 2014, and all
of 2015"—she "ha[s] refrained from applying for promotions for
which [she was] highly qualified because [she]
know[s] that
[she] cannot be promoted until [she is] cleared of the
misconduct accusations." Pl.'s Aff., 1 9. According to
Thomason, it is "common knowledge" in the BOP that no warden
will refer an employee for a promotion or transfer while the
employee is the subject of a pending investigation. Thomason
Dep., 83:4-17. Confirming this statement, Warden Hastings
acknowledged at her deposition that she, in fact, would not
promote an officer with a pending disciplinary case, unless it
had been conclusively determined that the officer would be
cleared of any alleged misconduct. See Hastings Dep., 106:3107:6. In early 2015, Plaintiff requested to change back to the
correctional officer position, and the FCI Jesup officials
informed Plaintiff that "they had no slots" open for this
position and that she needed to reapply, "yet they hired
[twelve] people." Pl.'s Dep., 42:23-43:5.
VIII. Inmate Incident Reports
In September 2012, Plaintiff submitted a disciplinary
report documenting that she had observed an inmate engaging in
sexual activity in his cell, in violation of prison policy.
Pl.'s Dep., Ex. 15. Plaintiff has testified that she followed
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up on the status of this report on three separate occasions—each
time learning that the report had been "lost" and having to
rewrite it—before any investigation into the incident ever took
place. Id. at 140:11-21. While the FCI Jesup Investigator
promptly recommended that Plaintiff's report be expunged, the
Disciplinary Hearing Officer—who serves at the next level of
decision making and reports to a regional director rather than
the warden of any particular facility, see Hastings dep., 67:468:2—sustained the charge. Pl.'s Dep., Ex. 15, pp. 3-4. The
Disciplinary Hearing Officer noted that the FCI Jesup
Investigator's recommendation that the charge be expunged was
"not based on any specific evidence, or information that would
cause th[e] hearing officer to agree." Id. at Ex. 15,
p. 4.
According to Plaintiff, she later checked the computer
system that tracks inmate incident reports and found that the
last nine of her write-ups against inmates had been expunged or
lost. Id. at 139:7-9. In one of these instances, in October
2012, Millwood reported that an inmate had sent an e-mail to his
mother stating, in part, that the Captain and Lieutenant had
helped him "get out of" a prior disciplinary write-up that
Plaintiff had filed against him. Id. at 139:19-140:4.
Plaintiff has described being "humiliated" when she had to
process the inmate's paperwork allowing him to transfer to a
halfway house, knowing that she had filed two disciplinary
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reports against him that were disposed of without investigation.
Id. at 147:13-24.
Warden Hastings has since testified that the inmate's email was "absolutely" problematic and "should have been
processed." Hastings Dep., 63:21-64:11. While Warden Hastings
indicated at her deposition that every institution has issues
with captains and lieutenants "sometimes . . . do[ing] away with
incident reports without them going through the process," she
stated that she had not dealt with this issue at FCI Jesup other
than in Plaintiff's case. Id. at 60:14-61:10.
IX. Plaintiff's Second EEO Filing
On June 4, 2012, Plaintiff again contacted an EEO counselor
to begin the process for filing a second EEO complaint. SUF, ¶
58. Plaintiff reported, in part, that she had been the target
of retaliation following her report of sexual harassment to the
EEO Counselor on January 31, 2012. Dkt. No. 11, Ex. F, p. 6.
In particular, Plaintiff referenced "her leave requests
being arbitrarily delayed by management"; FCI Jesup officials
selecting noncomplaining officers over her for overtime shifts
and medical trips; and officials "subject[ing] [her] to
frivolous investigations." Id. Plaintiff filed her
administrative complaint on these grounds on July 23, 2012.
SUF, ¶I 62-63.
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X. Plaintiff's Causes of Action
Plaintiff filed suit against Defendant in this Court on
March 14, 2014. Dkt. No. 1. Plaintiff seeks to hold Defendant
liable under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e to 2000e-17 ("Title VII"), for discrimination on
the basis of a sexual harassment hostile work environment, id.
at 191 40-48 (count one), and retaliation, id. at IT 49-60
(count two). Plaintiff requests declaratory and injunctive
relief, as well as special and compensatory damages, costs, and
attorneys' fees. Id. at 91 65.
LEGAL STANDARDS
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 Inv'r
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.
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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
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 Corp., 477 U.S. at
332 (Brennan, J., dissenting)). Second, the nonmovant "may come
forward with additional evidence sufficient to withstand a
directed verdict motion at trial based on the alleged
evidentiary deficiency." Id. at 1117. Where the nonmovant
attempts to carry this burden instead with nothing more "than a
repetition of his conclusional allegations, summary judgment for
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the defendants [is] not only proper but required." Morris v.
Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981) (citing Fed. R.
Civ. P. 56(e)).
DISCUSSION
Defendant now moves for summary judgment on both of
Plaintiff's Title VII claims. Dkt. No. 43. Applying the abovedescribed standards, the Court addresses the parties' arguments
with respect to each claim in turn.
I. Sexual Harassment Hostile Work Environment Claim (Count I)
Defendant maintains that she is entitled to judgment in her
favor on Plaintiff's claim in count one, because the allegedly
harassing conduct of the FCI Jesup employees either failed to
rise to the level of harassment or was not based on Plaintiff's
gender. Dkt. No. 43, pp. 12-21. Defendant contends that even
if any particular act amounted to harassment based on gender,
the employees' conduct, taken together, was not so severe or
pervasive as to create a hostile work environment for which
Defendant could be held liable. Id. at pp. 21-24. Even if
Plaintiff could make such a showing, Defendant continues, the
affirmative defense set forth in Faragher v. City of Boca Raton,
524 U.S. 775 (1998), and Burlington Industries,Inc. v. Ellerth,
524 U.S. 742 (1998), shields her from any liability for the
same. Id. at pp. 24-25.
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In her Response, Plaintiff clarifies that her sexual
harassment hostile work environment claim is based only on the
following allegations:
• Pritchard's comment to a group of employees that his "dick
fell in [Plaintiff's] mouth";
• Pritchard's statement that he "didn't know how it happened"
because he was intoxicated;
• Lieutenant Arnett's question of "can she swallow?";
• Officer Bowen's assertion that Plaintiff had "road rash" on
her mouth from performing oral sex;
• several unidentified officers' miming of oral sex as they
passed Plaintiff in the prison hallways;
• unidentified officers' admonitions not to "get caught on
the pier" with Plaintiff; and
• Lieutenant Arnett's warning not to "go fishing" with her..
Dkt. No. 51, pp. l8-19.
Plaintiff argues that the evidence of
these statements creates a genuine dispute of material fact
precluding summary judgment on Plaintiff's sexual harassment
claim. Id. at pp. 15-30. Plaintiff also submits that this
Plaintiff specifically notes that despite Defendant's suggestion,
see SUF, ¶ 27, the event involving Pritchard "flaunting" Nurse
Townsend in his office-which Plaintiff later reported to prison
management-"is not one that Plaintiff alleges was an act of sexual
harassment under Title VII." Dkt. No. 51-1, ¶ 27.
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evidence defeats Defendant's assertion of any affirmative
defense at this time. Id. at p. 23.
Pursuant to Title VII, it is unlawful for an employer to
discriminate "with respect to [an employee's] compensation,
terms, conditions, or privileges of employment," on the basis of
her "race, color, religion, sex, or national origin." 42 U.S.C.
§ 2000e-2(a) (1). While Title VII does not explicitly mention
sexual harassment, it is well established that sexual harassment
can constitute discrimination based on sex under Title VII. See
Mendoza v. Borden, Inc., 195 F.3d 1238, 1244 (11th Cir. 1999)
(citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).
Even so, sexual harassment amounts to sex discrimination "only
when the harassment alters the terms or conditions of
employment." Id. at 1245.
Sexual harassment meets this threshold when "the workplace
is permeated with discriminatory intimidation, ridicule, and
insult, that is sufficiently severe or pervasive to alter the
conditions of the victim's employment and create an abusive
working environment." Hyde v. K.B. Home, Inc., 355 F. App'x
266, 271 (11th Cir. 2009) (quoting Harris, 510 U.S. at 21). To
establish such a "hostile work environment" claim, a plaintiff
must demonstrate the following:
(1) she is a member of a protected group; (2) she was
subjected to unwelcome sexual harassment; (3) the
harassment was based on her sex; (4) "the harassment
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was sufficiently severe or pervasive to alter the
terms and conditions of employment and create a
discriminatorily abusive working environment;" and (5)
there is a basis for employer liability.
Id. at 271-72 (quoting Mendoza, 195 F.3d at 1245)
In the case at bar, the parties do not dispute that
Plaintiff, as a female, belongs to a protected class under the
first element. See Dkt. No. 43, p. 12; Dkt. No. 51, p. 15. Nor
does Defendant challenge the harassing nature of any of the FCI
Jesup employees' alleged behaviors under element two, other than
the "swallow" comment made by Lieutenant Arnett. See Dkt. No.
43, pp. 12-13.
However, Defendant's argument regarding
Lieutenant Arnett's comment—that he was on the phone with his
wife discussing his sick daughter, not Plaintiff, see id.—
squarely contradicts Thomason's sworn statement that an
employee, who was present when Lieutenant Arnett made this
comment, reported that he did so in the context of a
conversation with Pritchard about Plaintiff performing oral sex,
Thomason dep., 123:23-25. Defendant thus fails to show the
In her Reply brief, Defendant challenges Pritchard's comments as not
constituting harassment, and the alleged statements of other employees
as unsubstantiated, dkt. no. 54, pp. 5, 10-11; however, Defendant
waived these arguments, at this stage, by not raising them in her
Motion, Herring v. Sec'y, Dept. of Corrs., 397 F.3d 1338, 1342 (11th
Cir. 2005) ("As we repeatedly have admonished, '[a]rguments raised for
the first time in a reply brief are not properly before a reviewing
court.'" (alteration in original) (quoting United States v. Coy, 19
F.3d 629, 632 n.7 (11th Cir. 1994))).
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absence of any dispute of material fact as to whether the
conduct was harassing under element two.
A. Harassment Based on Her Sex (Element Three)
For an employer's statements or conduct to create a
sexually hostile work environment in violation of Title VII, "a
reasonable inference must be drawn that it occurred because of
sex." Madrid v. Homeland Sec. Sols. Inc., No. 1:14-CV-29 (WLS),
2015 WL 5769230, at *5 (M.D. Ga. Sept. 30, 2015) (citing
Livingston v. Marion Bank & Tr. Co., 30 F. Supp. 3d 1285, 1301
(N.D. Ala. 2014)); see also Oncale v. Sundowner Offshore Servs.
Inc., 523 U.S. 75, 80 (1998) ("Title VII does not prohibit all
verbal or physical harassment in the workplace; it is directed
only at 'discriminat[ion] . . . because of . . . sex.'"
(emphasis omitted) (alterations in original)) . In other words,
a plaintiff must prove that "but for the fact of her sex, she
would not have been the object of harassment." Henson v. Cit
of Dundee, 682 F.2d 897, 904 (11th Cir.1982) (citing Bundy v.
Jackson, 641 F.2d 934, 942-43 (D.C. Cir. 1981), and Tomkins v.
Pub. Serv. Elec. & Gas Co., 568 F.2d 1044, 1047 n.4 (3d Cir.
1977))
In Succar v. Dade County School Board-on which Defendant
relies, see dkt. no. 43, pp. 14-15-the plaintiff, a teacher,
sued the school board under Title VII, alleging a sexual
harassment hostile work environment based on the conduct of a
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fellow teacher with whom the plaintiff had previously had a
consensual sexual relationship. 229 F.3d 1343, 1344 (11th Cir.
2000). Specifically, the fellow teacher had "verbally and
physically harassed [the plaintiff] and sought to embarrass him
in front of colleagues and students" after the termination of
their relationship. Id. The Court of Appeals for the Eleventh
Circuit affirmed the district court's grant of summary judgment
in favor of the school board, holding that, under the
circumstances of that case, "harassment inflicted upon an
employee by a co-worker with whom that employee had a consensual
sexual relationship [was not] actionable under Title VII .
under a 'hostile work environment' theory of recovery." Id.
The Court reasoned that the fellow teacher's harassment of the
plaintiff "was motivated not by his male gender, but rather by
[the plaintiff's] contempt for [him] following their failed
relationship." Id. at 1345.
While this case, like Succar, involves a hostile work
environment claim that is based, in part, on the harassing
behavior of a coworker with whom Plaintiff had engaged in a
prior consensual sexual relationship, SUF,
CJ[ 14, the
similarities between this case and Succar begin and end there.
Unlike the harassing commentary in Succar, Pritchard's offensive
comments were sexual in nature, including that "his dick had
fell [sic] in her mouth" and that "he didn't know how it [had]
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happened," Thomason dep., 116:3-6. See Lipphardt v. Durango
Steakhouse of Brandon, Inc., 267 F.3d 1183, 1188-89 (11th Cir.
2001) (finding that the plaintiff's ex-lover and coworker had
engaged in "inappropriate behavior [that] crosse[d] the line
into Title VII harassment" based on its "sexual . . . nature");
see also Baker v. Int'l Longshoremen's Ass'n, No. CIVA CV205162, 2009 WL 368650, at *3 (S.D. Ga. Feb. 13, 2009) ("[A
coworker] does not get a 'free pass' for such conduct simply
because he once had a romantic relationship with [the
plaintiff]." (citing Lipphardt, 267 F.3d at 1188-89)).
Further distinguishing this case from Succar is that, here,
other employees and prison inmates—none of whom is alleged to
have carried on a previous sexual relationship with Plaintiff—
joined in on the sexually harassing conduct. The record here
reflects that after learning of Plaintiff's sexual activities
with Pritchard, prison officials gestured the act of performing
oral sex when passing by her in the hallway, Pl.'s dep., 158:24,
and made comments that were relayed to her, such as Lieutenant
Arnett's alleged question, "[D]id she swallow?" and admonition,
"Don't go fishing with [Plaintiff]," Thomason dep., 123:23-25;
Officer Bowen's statement regarding "road rash" on her mouth
from performing oral sex, Pl.'s dep., 100:21-101:6; and other
employees' warnings "not to get caught on the pier" with
Plaintiff, Id. at 154:12-18. Notably, nothing suggests that
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these employees made similar comments or gestures toward
Pritchard, despite the fact that he, too, had purportedly taken
part in the sexual activities.
This case thus does not come within the ambit of Succar.
Plaintiff offers evidence that Pritchard and other employees
made harassing comments and gestures that were overtly or
implicitly sexual in nature, and these behaviors could be
construed by a trier of fact as harassing conduct based on
Plaintiff's sex. Accordingly, Plaintiff makes a sufficient
showing under the third element.
B. Severe or Pervasive Harassment (Element Four)
The fourth requirement-that the harassment be severe or
pervasive-contains an objective and a subjective component.
Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1276 (11th
Cir. 2002). To be actionable, the "behavior must result in both
an environment 'that a reasonable person would find hostile or
abusive' and an environment that the victim 'subjectively
perceive(s] . .
to be abusive." Id. (alterations in
original) (quoting Harris, 510 U.S. at 21-22)
Here, Plaintiff subjectively perceived her working
environment to be hostile. Plaintiff was distraught over her
coworkers' actions, suffered from high blood pressure, checked
into a hospital for care, and avoided work for nearly one month.
Pl.'s Dep., 101:7-17. Defendant does not dispute these facts.
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See Dkt. No. 43, pp. 21-22. Rather, at issue is whether
Plaintiff's claim meets the requirement of an objectively
hostile or abusive work environment.
In determining whether a work environment was objectively
hostile, the Eleventh Circuit has found the following factors to
be relevant: "(1) the frequency of the conduct; (2) the severity
of the conduct; (3) whether the conduct is physically
threatening or humiliating, or a mere offensive utterance; and
(4) whether the conduct unreasonably interferes with the
employee's job performance." Mendoza, 195 F.3d at 1246. A
court must evaluate the complained-of conduct "in context, not
as isolated acts, and . . . under the totality of the
circumstances." Id. (citing Allen v. Tyson Foods, 121 F.3d 642,
647 (11th Cir. 1997)); see also Oncale, 523 U.S. at 81-82 ("The
real social impact of workplace behavior often depends on a
constellation of surrounding circumstances, expectations, and
relationships which are not fully captured by a simple
recitation of the words used or the physical acts performed.")
In this case, the first factor—the frequency of her
coworkers' conduct—weighs in Plaintiff's favor. In analyzing
the frequency of the conduct, there is no "magic number" of
insults that precludes summary judgment. Miller, 277 F.3d at
1276 (quoting Shanoff v. Ill. Dep't of Human Servs., 258 F.3d
696, 704 (7th Cir. 2001)). "[R]epeated incidents of verbal
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harassment that continue despite the employee's objections
are indicative of a hostile work environment." Id. (quoting
Shanoff, 258 F.3d at 704). Plaintiff identifies three specific
instances in which FCI Jesup employees made offensive comments
about her, including when Lieutenant Arnett allegedly asked the
"swallow" question, when he made the "(d)on't go fishing" joke,
Thomason dep., 123:23-25, and when Officer Bowen made the "road
rash" statement, Pl.'s dep., 100:21-101:6. Plaintiff also puts
forth evidence that other employees made similar comments, such
as warnings "not to get caught on the pier" with Plaintiff, and
gestured the act of performing oral sex when passing by her,
"every single day" over the course of many months, Pl.'s dep.,
154:12-18, 158:10-159:10. See Miller, 277 F.3d at 1276 n.6 ("In
Johnson, we concluded that 'roughly fifteen separate instances
of harassment over the course of four months' was sufficiently
frequent." (quoting Johnson v. Booker T. Wash. Broad. Serv.
Inc., 234 F.3d 501, 509 (11th Cir. 2000))); cf. Cargo v. Ala.,
Bd. of Pardons & Parole Div., 391 F. App'x 753, 755 (11th Cir.
2010) ("Five or six incidents over the course of three to four
years is hardly frequent conduct.").
Additionally, Plaintiff offers evidence upon which a
reasonable jury could conclude that the behavior of the FCI
Jesup officials was severe and humiliating under the second and
third factors. See Mendoza, 195 F.3d at 1246. Conduct is
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severe when the work environment "is 'permeated with
discriminatory intimidation, ridicule and insult,' not where
there is the 'mere utterance of an . . . epithet.'" Miller, 277
F.3d at 1276-77 (quoting Harris, 510 U.S. at 21). "'[S]imple
teasing,' . . . offhand comments, and isolated incidents (unless
extremely serious) [do] not amount to discriminatory changes in
the 'terms and conditions of employment.'" Faragher, 524 U.S.
at 788 (citation omitted) (quoting Oncale, 523 U.S. at 82) . As
to whether behavior is physically threatening or humiliating, as
opposed to a mere offensive utterance, the Eleventh Circuit has
determined that "the context of the[] statements is critical."
Fortson v. Carlson, 618 F. App'x 601, 608 (11th Cir. 2015)
(citing Oncale, 523 U.S. at 77, 81-82 ("[I]n . . . all[]
harassment cases, [the relevant] inquiry requires careful
consideration of the social context in which particular behavior
occurs and is experienced by its target.")).
In this case, the evidence suggests that the prison
officials' comments and gestures about Plaintiff's sexual
activities surpassed the threshold of tolerable teasing and
insults. Far from "mere utterances" or "isolated incidents,"
the prison employees engaged in these behaviors "every single
day" for a period of many months. Pl.'s Dep., 154:12-18,
158:10-159:10. This conduct so permeated Plaintiff's workplace
that even the prison inmates eventually caught on and joined in
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on the banter. See id. at 147:19-23. While nothing indicates
that these behaviors were physically threatening, the revelation
of Plaintiff's private sexual activity—to the extent that it
became common knowledge among employees and inmates alike—could
have caused a reasonable person in her shoes to be so humiliated
as to render her work environment hostile or abusive.
The fourth factor in this analysis—which considers whether
the conduct unreasonably interfered with job performance—also
swings in Plaintiff's favor at this stage. See Mendoza, 195
F.3d at 1246. The record reflects that Plaintiff, upon hearing
of the derogatory remarks of her coworkers in early December
2011, became sick, visited the hospital for high blood pressure,
and worked only periodically for the rest of that month. Pl.'s
Dep., 101:14-17. The evidence also shows that Plaintiff spent a
number of days at an inpatient psychiatric facility in February
2012. Dkt. No. 51, p. 14. Furthermore, Plaintiff has testified
that inmates began teasing her about her alleged sexual
encounters, Pl.'s dep., 147:19-23—a fact that, if true, could
have undermined her authority and her ability to fulfill her
duties as a correctional officer. Thus, on balance, these
factors suggest that a reasonable jury could find objectively
severe or pervasive harassment on the part of the FCI Jesup
officials.
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C. Vicarious Liability (Element Five)
Where an employee's supervisor behaves in a sexually
harassing manner, and such harassment does not result in a
tangible employment action, the employer-defendant will be
vicariously liable for his conduct except in certain
circumstances. Vance v. Ball St. Univ., 133 S. Ct. 2434, 2442
(2013) . Those circumstances—which provide an affirmative
defense to vicarious liability—include where the employer shows
both that (1) "it exercised reasonable care to prevent and
promptly correct any harassing behavior" and (2) "the plaintiff
unreasonably failed to take advantage of any preventive or
corrective opportunities that were provided." Id. (citing
Faragher, 524 U.S. at 807, and Ellerth, 524 U.S. at 765). Where
it is an employee's coworker, rather than her supervisor, who
perpetrates the sexual harassment, the employer-defendant may be
liable "only if it was negligent in controlling working
conditions." Id. at 2439; see also Ellerth, 524 U.S. at 759
("An employer is negligent with respect to sexual harassment if
it knew or should have known about the conduct and failed to
stop it.").
The evidence in this case presents a jury question as to
whether Defendant may be liable for any sexually harassing
conduct on the part of Pritchard and Lieutenant Arnett as
supervisors. The record reflects that Plaintiff reported her
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affair with Pritchard on November 16, 2011, and that Captain
Carrino immediately ordered Pritchard "to avoid interaction and
contact with [Plaintiff]. " SUF, ¶L 20, 28, 32. Nevertheless,
the evidence shows that when Pritchard made harassing comments
on November 17, 2011, Thomason dep., 114:22-116:6, he still held
the position of Lieutenant, StJF, ¶I 13-14—and that Lieutenant
Arnett similarly made offensive remarks while serving in this
capacity, Thomason dep., 123:23-25. Pritchard has testified
that lieutenants are superior to correctional officers,
Pritchard dep., 20:9-13, and the record shows that lieutenants
hold various responsibilities including generating work
schedules and assigning overtime shifts for FCI Jesup employees,
Thomason dep., 88:18-89:4, 93:14-15. See Vance, 133 S. Ct. at
2443 (supervisors have the power to effect "significant change
in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in
benefits" (quoting Ellerth, 524 U.S. at 761))
Additionally, Plaintiff shows that there is a genuine issue
of material fact with respect to when Defendant had notice of
the allegedly harassing conduct, as it relates to the
reasonableness of Defendant's actions in promptly correcting or
responding to the same. Specifically, the evidence shows that
Pritchard made his harassing comments at a meeting attended by
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several lieutenants and officers in November 2011, and that
Lieutenant Arnett made his "swallow" comment at a "lieutenants
meeting" held shortly thereafter, Thomason dep., 114:22-116:6,
123:12-25. See Miller v. Kenworth of Dothan, Inc., 277 F.3d
1269, 1278 (11th Cir. 2002) (one factor indicative of an
employer's constructive knowledge is "the remoteness of the
location of the harassment as compared to the location of
management" (quoting Allen v. Tyson Foods, Inc., 121 F.3d 642,
647 (11th Cir. 1997))) . The evidence also reflects that within
days of Pritchard's statements at the November 2011 meeting,
multiple officers were reporting to Thomason that they had heard
other employees making derogatory comments and jokes about
Plaintiff, id. at 7:7-10, 120:23-130:21, and these comments
continued "every single day" during the following months, Pl.'s
dep., 154:12-18, 158:10-159:10. See id. at 1278-79 (other
factors bearing on constructive knowledge include "whether the
harassment occurs intermittently over a long period of time" and
"whether there were only a few, discrete instances of
harassment" (quoting Allen, 121 F.3d at 647)). Nevertheless, it
appears that it was not until after Thomason formally reported
this conduct to Warden Haynes on February 15, 2012, that the FCI
Jesup officials initiated an OIA investigation into the matter.
SUF, 9191 36-37. On these facts, a jury could reasonably conclude
that Defendant had constructive knowledge of the harassing
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conduct in November 2011 and failed to take immediate and
appropriate corrective action. As this inquiry is relevant to
Defendant's liability for the actions of both Plaintiff's
supervisors and coworkers, the existence of a genuine factual
dispute in this regard is sufficient for Plaintiff's claim to
survive summary judgment under the fifth and final element.
In sum, Plaintiff puts forth sufficient evidence to create
a jury question on all five elements of her sexual harassment
hostile work environment claim. Defendants thus are not
entitled to summary judgment on this claim, and their Motion to
this effect is DENIED.
II. Retaliation Claim (Count II)
Defendant also moves to dismiss Plaintiff's retaliation
claim, arguing, at the outset, that the Court should not attempt
to conflate Plaintiff's reporting of the affair to the Warden in
November 2011 with engaging in protected EEO activity. Dkt. No.
43, p. 25. Rather, Defendant maintains that Plaintiff did not
engage in any protected activity until her first EEO contact in
January 2012. Id. at p. 26. However, Defendant contends that
Plaintiff cannot sustain a claim for retaliation based on the
prison officials' acts after that time—specifically, their
scrutinizing of her leave request—because Plaintiff has failed
to exhaust her administrative remedies with regard to this
allegation. Id. at pp. 32-35. In any event, Defendant asserts
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that Plaintiff fails to carry her burden of showing that any of
the officials' actions after January 2012 amounted to a tangible
adverse employment decision that was merely pretextual. Id. at
pp. 26-32.
In response to Defendant's Motion, Plaintiff concedes that
her protected EEO activity commenced on January 31, 2012, rather
than in November 2011. Dkt. No. 51, P. 30. Plaintiff also
clarifies that her retaliation claim is based only on the PCI
Jesup employees allegedly having done the following after
learning of Plaintiff's EEO activity: (1) scrutinizing her leave
request, (2) skipping over her in assigning overtime shifts and
medical trips, (3) allowing frivolous disciplinary actions
against her to remain pending, and (4) ignoring or expunging her
inmate incident reports. Id. at pp. 31-35. As to the
scrutinizing of her leave request, Plaintiff counters
Defendant's exhaustion argument by stating that she was not
required to file separate EEO charges for each retaliatory
event. Id. at p. 31. Plaintiff also submits that genuine
issues of material fact regarding each of these events preclude
summary judgment on her retaliation claim. Id. at pp. 30-35.
A. Exhaustion of Administrative Remedies
An action for discrimination in violation of Title VII may
not be brought "unless the alleged discrimination has been made
the subject of a timely-filed EEO[] charge." A.M. Alexander v.
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Fulton Cty., 207 F.3d 1303, 1332 (11th Cir. 2000) (citing 42
U.S.C. § 2000e-5), overruled on other grounds by Manders v. Lee,
338 F.3d 1304, 1328 n.52 (11th Cir.2003). According to EEO
regulations, a charge must set forth, among other things, "[a]
clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment practices."
Id. (alteration in original) (quoting 29 C.F.R. §
1601.12 (a) (3)) . A subsequent judicial complaint is "limited by
the scope of the EEO[] investigation which can reasonably be
expected to grow out of the charge of discrimination." Id.
(quoting Mulhall v. Advance Sec., Inc., 19 F.3d 586, 589 n.8
(11th Cir. 1994)).
Nevertheless, "it is unnecessary for a plaintiff to exhaust
administrative remedies prior to urging a retaliation claim
growing out of an earlier charge." Thomas v. Miami Dade Pub.
Health Tr., 369 F. App'x 19, 23 (11th Cir. 2010) (quoting Gupta
v. E. Tex. St. Univ., 654 F.2d 411, 414 (5th Cir. 1981); then
citing Baker v. Buckeye Cellulose Corp., 856 F.2d 167, 168-69
(11th Cir. 1988)). Rather, "the district court has ancillary
jurisdiction to hear such a claim when it grows out of an
administrative charge that is properly before the court." Id.
(quoting Gupta, 654 F.2d at 414; then citing Baker, 856 F.2d at
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Despite Defendant's suggestion to the contrary, see dkt.
no. 43, pp. 32-35, Plaintiff's second EEO complaint, filed on
July 23, 2012, explicitly cited "her leave requests . . . being
arbitrarily delayed by management" as retaliatory conduct. Dkt.
No. 11, Ex. F, p. 3. Indeed, of the grounds on which Plaintiff
now relies to support her retaliation claim, it is the FCI Jesup
officials' disregarding of her inmate incident reports that was
not mentioned in the second EEO filing. See id. Although
Defendant does not challenge this allegation on exhaustion
grounds, see dkt. no. 43, pp. 32-35, the Court notes that any
attempt to do so would be futile.
Plaintiff claims that the prison officials' actions in
ignoring and expunging her inmate incident reports constituted
unlawful retaliation on account of her pursuing an EEO sexual
harassment charge. See Dkt. No. 51, p. 2. It is undisputed
that Plaintiff contacted an EEO Counselor to initiate the
process of filing a sexual harassment complaint on January 31,
2012, and that Plaintiff finalized the EEO complaint on March
14, 2012. Dkt. No. 11, Ex. C. The record also shows that it
was not until around September 2012—after Plaintiff had taken
steps to pursue the sexual harassment charge—that she noticed
that her previous nine incident reports had been disregarded
without investigation. Pl.'s Dep., 139:7-9. Because Plaintiff
contends that this allegedly retaliatory act grew out of her
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earlier, initiation of an EEO harassment charge, Plaintiff need
not have exhausted her administrative remedies prior to claiming
retaliation on this basis. Thus, Defendant fails to show that
she is entitled to summary judgment based on a failure to
exhaust.
B. Prima Facie Case of Retaliation
Title VII makes it unlawful for an employer to retaliate
against an employee "because
[s]he has opposed any practice made
an unlawful employment practice by [Title VII], or because [s]he
has made a charge, testified, assisted, or participated in any
manner in an investigation, proceeding, or hearing under [42
U.S.C. § 2000e-3(a)]." Little v. United Techs., Carrier
Transicold Div., 103 F.3d 956, 956 (11th Cir. 1997) (quoting 42
U.S.C. § 2000e-3(a)). To establish a prima facie case of
retaliation, a plaintiff must show that (1) she engaged in
statutorily protected activity, (2) she suffered a materially
adverse action, and (3) there was a causal link between these
two events. Butler v. Ala. Dep't of Transp., 536 F.3d 1209,
1212-13 (11th Cir. 2008) . Once a plaintiff makes this showing,
the burden shifts to the defendant-employer "to articulate a
legitimate, nondiscriminatory reason" for the adverse employment
action. Brown v. Ala. Dep't of Transp., 597 F.3d 1160, 1174
(11th Cir. 2010) (citing Rojas v. Florida, 285 F.3d 1339, 1342
(11th Cir. 2002)) . If the defendant is able to do so, then the
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burden shifts back to the plaintiff to offer evidence that the
defendant's proffered reason "is a pretext for illegal
discrimination." Id. (quoting Wilson v. B/E Aerospace, Inc.,
376 F.3d 1079, 1087 (11th Cir. 2004)).
1. Statutorily Protected Activity (Element One)
"Statutorily protected expression includes internal
complaints of sexual harassment to superiors as well as
complaints lodged with the EEOC." Pipkins v. City of Temple
Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir. 2001) (citing
Rollins v. Fla. Dep't of Law Enforcement, 868 F.2d 397, 400
(11th Cir. 1989)). As to EEO complaints, protected activity
includes not only filing the charge but also assisting or
participating in an investigation or other related proceeding.
Green v. Adm'rs of Tulane Educ. Fund, 284 F.3d 642, 657 (5th
Cir. 2002) (citing 42 U.S.C. § 2000e-3(a)). Accordingly, a
plaintiff may establish retaliation under Title VII "if she
c[an] prove the requisite causal nexus between [any] of these
activities and an adverse employment decision." Pipkins, 267
F.3d at 1201 (citing Rollins, 868 F.2d at 400).
Here, the parties agree that Plaintiff first engaged in
statutorily protected activity in contacting the EEO Counselor
regarding the alleged sexual harassment on January 31, 2012.
See Dkt. No. 43, p. 25; Dkt. No. 51, p. 30. Plaintiff also
notes that the following activities fall within the scope of
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protected expression: her filing of the sexual harassment EEO
charge on March 14, 2012; her contacting the EEO Counselor again
on June 4, 2012; her filing a second charge for sexual
harassment and retaliation in July 2012; her participation in
the EEO process as to these charges; and her filing of this
lawsuit. See Dkt. No. 51, p. 30. There is thus ample support
for finding that Plaintiff's retaliation claim satisfies this
element.
2. Materially Adverse Action (Element Two)
To prove a "materially adverse action,"a plaintiff must
demonstrate that the employer took an action that "well might
have 'dissuaded a reasonable worker from making or supporting a
charge of discrimination.'" Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438
F.3d 1211, 1219 (2006)). Whether an employment action is
materially adverse is "a question of fact, although one still
subject to the traditional rules governing summary judgment."
Hyde, 355 F. App'x at 268 (citing Hinson v. Clinch Cty., Ga. Ed.
of Educ., 231 F.3d 821, 830 (11th dr. 2000)). A court
entertaining this inquiry on summary judgment must view the
employment action from "the perspective of a reasonable person
in the plaintiff's position," considering the totality of the
circumstances. Burlinaton N. & Santa Fe Rv. Co., 548 U.S. at
69-70. In doing so, an employer's "petty slights, minor
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annoyances, and simple lack of good manners [do] not create such
deterrence" to Title VII'S remedial mechanisms as to constitute
a materially adverse action. Id. at 68 (citing 2 EEOC 1998
Manual § 8, 8-13)
Plaintiff sustains her burden of proving a materially
adverse action at this stage. Plaintiff puts forth evidence
that the FCI Jesup lieutenants skipped over her in assigning
overtime shifts and medical trips, see Thomason dep., 89:2490:16; Pl.'s aff., 9191 3-8, 10 & exs. A-B, and that doing so
denied Plaintiff overtime pay that she had expected to receive,
Thomason dep., 90:19-21. See Doe v. Dekaib Cty. Sch. Dist., 145
F.3d 1441, 1449-50 (11th Cir. 1998) (employment action is
adverse if it entails a loss of pay or duties (citing Kocsis v.
Multi-Care Mgmt., Inc., 97 F.3d 876, 886 (6th Cir. 1996))).
Additionally, Plaintiff points to evidence that the FCI Jesup
officials have allowed disciplinary charges against her to
remain pending for all but six months out of the past three
years, Pl.'s aff., ¶ 9, rendering her ineligible for a promotion
or transfer during this time, Thomason dep., 83:4-17; Hastings
dep., 106:3-107:6; Pl.'s dep., 42:23-43:5; Pl.'s aff., ¶ 9.
See
Crawford v. Carroll, 529 F.3d 961, 970 (11th Cir. 2008)
(materially adverse action includes an employment decision that,
in some substantial way, deprives an employee of employment
opportunities).
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Further, Plaintiff submits testimonial evidence suggesting
that the FCI Jesup officials expunged or lost her inmate
incident reports without investigation on nine separate
occasions, Pl.'s dep., 139:7-9—including one report that was
"absolutely" troublesome and "should have been processed" for
investigation, Hastings dep., 63:21-64:11, and another that was
recommended for expungement without "any specific evidence" to
support this decision, Pl.'s dep.,
ex. 15, p. 4. See EEOC
Compliance Manual § 8-II.D.1 (1998) ("Suspending or limiting
access to an internal grievance procedure also constitutes an
"adverse action.'"); see, e.g., Johnson v. Palma, 931 F.2d 203,
207 (2d Cir. 1991) (materially adverse action included refusing
to proceed with the employee's grievance until he withdrew his
discrimination complaint).
3. Causal Connection (Element Three)
To establish a causal connection between participation in a
protected activity and an adverse employment action, "a
plaintiff need only show that the protected activity and the
adverse action were not wholly unrelated." Brungart v.
BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000)
(internal quotation marks omitted) (quoting Clover v. Total Sys.
Servs., Inc., 176 F.3d 1346, 1354 (11th Cir. 1999)). To make
this showing, a plaintiff must generally establish "that the
decision maker was aware of the protected conduct at the time of
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the adverse employment action." Id. (citing Goldsmith v. City
of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993), and Raney v.
Vinson Guard Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)).
Close temporal proximity between protected conduct and an
adverse employment action is generally "sufficient
circumstantial evidence to create a genuine issue of material
fact of a causal connection." Huribert v. St. Mary's Health
Care Sys., Inc., 439 F.3d 1286, 1298 (11th Cir. 2006) (quoting
Brungart, 231 F.3d at 799). If the adverse employment action is
taken without knowledge of the protected activity, however,
there can be no retaliation. Gupta v. Fla. Bd. of Regents, 212
F.3d 571, 583 (11th Cir. 2000); see also Goldsmith, 996 F.2d at
1163 ("At a minimum, a plaintiff must generally establish that
the employer was actually aware of the protected expression at
the time it took adverse employment action.")
Plaintiff offers sufficient circumstantial evidence that
the FCI Jesup officials were aware of her EEO activity to
satisfy the causal link requirement of her prima facie case.
Plaintiff shows that she contacted the EEC Counselor on January
31, 2012, and finalized her EEC complaint on March 14, 2012.
Dkt. No. 11, Ex. C. The record reflects that Plaintiff began to
notice that she was being passed over for overtime shifts and
medical trips on March 14, 2012, SUF, ¶ 59; Thomason dep.,
89:24-90:16; that she received a Form B notifying her of a
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disciplinary action against her on April 29, 2012, and again in
October 2013, Pl.'s dep., 129:5-130:5; and that she discovered
sometime around September 2012 that her nine previously filed
inmate incident reports had been expunged or lost, id. at 139:79. Construing all reasonable inferences in Plaintiff's favor,
as the Court must do at this stage, this evidence suggests that
the FCI Jesup officials first engaged in each of these practices
within the one- or two-month period after Plaintiff's EEO filing
and continued to do so in the following months and, in some
cases, years. Cf. Drago v. Jenne, 453 F.3d 1301, 1308 (11th
Cir. 2006) ("[I]n the absence of any other evidence of
causation, a three and one-half month proximity between a
protected activity and an adverse employment action is
insufficient to create a jury issue on causation." (citing
Wascura v. City of South Miami, 257 F.3d 1238, 1248 (11th Cir.
2001)
) ) 6
As Defendant's Motion is premised upon Plaintiff's asserted
inability to establish the causation element of her prima facié
6
To the extent that Plaintiff cites discrepancies between her
"custodial" and "noncustodial" status reflected on her overtime signup screenshots and Defendant's records, respectively, dkt. no. 51, p.
9, this evidence fails to meet the causation requirement. Plaintiff
acknowledges that Defendant's records first classified Plaintiff as
"noncustodial" in November 2011, id., such that any action taken by
the FCI Jesup officials to this end would have preceded Plaintiff's
EEO activity in January 2012, see dkt. no. 11, ex. C. As such,
Plaintiff cannot rely on her misclassification to support her claim
that the officials manipulated the overtime system in this way in
retaliation against her.
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case, and thus does not attempt to justify the adverse actions,
see dkt. no. 43, pp. 25-32, Defendant has waived any arguments,
as they relate to this Motion, regarding the legitimate reasons
for these actions. See Herring, 397 F.3d at 1342 (quoting Coy,
19 F.3d at 632 n.7)). However, even if the Court were to
consider Defendant's arguments insofar as they are set forth in
her Reply brief, see dkt. no. 54, pp. 14-16, the proffered
reasons would be overcome, at this stage, by Plaintiff's
evidence of pretext. See Huribert, 439 F.3d at 1298 ("To show
pretext, a plaintiff must 'come forward with evidence, including
the previously produced evidence establishing the prima facie
case, sufficient to permit a reasonable factfinder to conclude
that the reasons given by the employer were not the real reasons
for the adverse employment decision.'" (quoting Chapman v. Al
Transp., 229 F.3d 1012, 1024 (11th Cir. 2000))).
Defendant cites Plaintiff's misclassification as a
noncustodial employee in November 2011—implying that it was this
preexisting error in the FCI Jesup records, rather than the
later decision making of the lieutenants, that resulted in her
missed overtime opportunities. See Dkt. No. 54, pp. 14-15.
However, Plaintiff submits screenshots of overtime sign-up
sheets reflecting that she was listed as a custodial employee On
two dates on which Defendant's records show Plaintiff as a
noncustodial employee, see Pl.'s aff., exs. A-B, and these
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discrepancies undermine Defendant's showing of a legitimate,
nonretaliatory reason on this basis. Even if these records were
consistent, Plaintiff's evidence that she began missing overtime
shifts around March 2012, SUF, 91 59, and that the lieutenants
purposely skipped over her at the request of other officers,
Thomason dep., 89:24-90:16, suggests that Defendant's asserted
justification is implausible and is merely pretext. See Sparks
v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 1564 (11th Cir.
1987) ("The implausibility of the alleged justification is
sufficient to create a genuine issue of material fact as to
whether [the employer's] articulated reason is pretextual."
(citing Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 900 (3d
Cir. 1987))).
As to the pending disciplinary charges, Defendant points to
Warden Hasting's testimony that there were organizational and
staffing issues at FCI Jesup that caused delays in
investigations during the time period in question. Dkt. No. 54,
p. 15. Plaintiff puts forth the following evidence suggesting
that this justification is pretext: (1) that it was "unusual"
that the FCI Jesup officials initiated investigations in these
instances, Thomason dep., 81:22-82:9; (2) that the officials
ignored her several requests for clearance letters, Pl.'s dep.,
130:1-3, 136:12-16; (3) that the officials delayed in
transferring the first case to closed status following the
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completion of the investigation, dkt. no. 51, ex. 6; and (4)
that the officials have failed to disclose any records of the
investigation into the second charge, id. at p. 12, despite
policies requiring that this type of charge be automatically
referred for investigation and be documented in a report,
Hastings dep., 35:2-24, 53:21-24. See Huribert, 439 F.3d at
1299 ("[A]n employer's deviation from its own standard
procedures may serve as evidence of pretext." (citing Bass v.
Bd. of Cty. Comm'rs, Orange Cty., 256 F.3d 1095, 1108 (11th Cir.
2001) ) )
Defendant does not attempt to offer a legitimate reason for
the FCI Jesup officials having expunged or lost several of
Plaintiff's inmate incident reports following her EEO activity.
See Dkt. No. 54, pp. 14-16. Thus, the record before the Court
at this stage indicates that there is at least a genuine issue
of material fact as to whether the FCI Jesup officials engaged
in retaliatory conduct in denying Plaintiff overtime shifts,
permitting disciplinary charges to remain unresolved, and
disregarding her inmate incident reports. Under these
circumstances, summary judgment is inappropriate. Defendant's
Motion is, therefore, DENIED as it relates to Plaintiff's
retaliation claim.
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CONCLUSION
For the reasons set forth herein, Defendant's Motion for
Summary Judgment (dkt. no. 43) is DENIED in its entirety. All
claims remain pending at this time.
SO ORDERED,
this 22ND day of March, 2016.
LISA GODBEY W CD, CHIEF JUDGE
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
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