Garner v. Ross et al

Filing 42

ORDER denying as moot 19 Motion to Dismiss; granting 27 Motion for Summary Judgment. The Court directs the Clerk to enter final judgment in favor of Defendants and close this case. Signed by Judge J. Randal Hall on 03/28/2016. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

LAWANDA GARNER,

*
*

Plaintiff,

*
*

v.

*

TERRY ROSS

IN HIS OFFICIAL

CAPACITY AS

CV 214-166

*

CHIEF OF CAMDEN

COUNTY BOARD OF ASSESSORS,

*

and *

THE CAMDEN COUNTY BOARD

*

OF COMMISSIONERS,

*
*

Defendants.

*

ORDER

Plaintiff
supervisor

Lawanda

Terry

Commissioners

Ross

Garner
and

asserts
the

claims

Camden

County

for discrimination under Title

VII

Rights Act of 1964, 42 U.S.C. §2000e et.

seq,

1981.

motion

The

judgment

Court

(doc.

27)

GRANTS
because

Defendants'
(1)

Plaintiff's

Camden County Board of Tax Assessors

County
less
Title

Board

than
VII

separate

of

Commissioners

fifteen
and
and

§

employees
1981;

distinct

and

and

falls

County

entities

for

which

of

the

of

Civil

for

summary
is

the

not the Camden

the

outside

the

Board

employer

(2)

(3)

her

and 42 U.S.C. §

("Board"),

("County");

against

the
and

Board
scope
Board

aggregation

has
of
are
to

satisfy the numerosity reguirement

is improper.

The Court

DENIES AS MOOT Defendants' motion to dismiss (doc. 19).
I.

Plaintiff

Real

Property

is

an

FACTUAL BACKGROUND

African-American

Appraiser

Defendant Terry Ross,

under

1,

2010,

direct

Chief Appraiser for

11, "PL's Am. CompL," ff 3,
November

the

female

to work

8.)

who

works

as

supervision

the

Board.

a

of

(Doc.

Mr. Ross hired Plaintiff on

for the Board as

an Administrative

Clerk and promoted her to Apprentice Appraiser I in February
2013.

(Doc.

On

27-1,

March

discrimination
Opportunity
employer.

H

4-5.)

12,

2014,

against

Commission
(Doc.

27-2,

Plaintiff

filed

A.)

On

November

("EEOC"),
Ex.

3,

2.)

2014,

against the County and Mr.

Chief Appraiser,1

1The

Board

is

Ross

alleging Mr.

a

charge

the Board with the Equal
listing

the

On August

6,

issued Plaintiff a Notice of Right to Sue.
Ex.

a

defendant

Plaintiff

in his

Ross

Employment

Board
2014,

as
the

her
EEOC

(PL's Am. CompL
filed

this

lawsuit

official capacity as

treated

because

of

Plaintiff

Plaintiff

named

less

Mr.

Ross in his official capacity.
See Busby v. City of Orlando,
931 F.2d 764, 772 (11th Cir. 1991) (explaining that Title VII
plaintiff may name employer or supervising employee as agent
of employer) .

favorably

than

colleagues.

similarly
ff

(Id.

situated

12-13.)

Caucasian

and

male

The Board has less than fifteen

employees by itself, but more than fifteen if merged with the
County and treated as a single employer.
II.

Summary
genuine

judgment

dispute

entitled to

56(a).

SUMMARY JUDGMENT

as

is

to

judgment

as

STANDARD

appropriate

any

material

a matter

(Doc. 33-1, p. 1.)

only
fact

of

if
and

law."

"there
the

Fed.

movant

is

Civ.

P.

Facts are "material" if they could affect the outcome

Liberty Lobby,

Inc.,

view the facts
party,

477 U.S. 242,

574,

Prop.,

587
in

248

(1986).

Anderson v.

The Court must

in the light most favorable to the non-moving

Matsushita Elec.

inferences
Real

no

R.

of the suit under the governing substantive law.

U.S.

is

(1986),

[its]

941

Indus.

and

favor."

F.2d

1428,

Co.

v.

Zenith Radio Corp.,

must

draw

"all

United States v.
1437

(11th

475

justifiable

Four Parcels of

Cir.

1991)

(en

banc)

(internal punctuation and citations omitted).
The

Court,
motion.

How to

moving

party

by reference

to

Celotex Corp.

carry this

proof at trial.

has

the

initial

materials
v.

on

Catrett,

burden depends

burden

file,

477

U.S.

of

the

basis

317,

on who bears

Fitzpatrick v. City of Atlanta,

showing

323

for

the

the

(1986).

the burden of

2 F.3d 1112,

1115

(11th Cir.

1993).

When the non-movant has the burden of

proof at trial, the movant may carry the initial burden in one
of

two

ways—by

negating

an

essential

element

of

the

non-

movant' s case or by showing that there is no evidence to prove
a fact necessary to the non-movant's case.

See Clark v. Coats

&

(11th

Clark,

F.2d

604,

(explaining Adickes v. S.H.

Kress

and

Inc.,

Celotex

evaluate
first

929

Corp.,

the

477

U.S.

non-movant's

consider

whether

the

at

606-08
& Co.,

323).

response
movant

398

has

1991)

144

(1970)

U.S.

Before

in

Cir.

the

Court

opposition,

met

its

it

initial

can

must

burden

of showing that there are no genuine issues of material fact
and that it is entitled to judgment as a matter of law.

v. City of Columbus,
curiam).

A

cannot meet

mere

conclusory

burden

at

(11th Cir.

statement

trial

is

that

the

insufficient.

1997)

(per

non-movant
Clark,

929

If—and only if—the movant carries its initial burden,

the

F.2d at

the

120 F.3d 248, 254

Jones

608.

non-movant may avoid summary judgment only by "demonstrat[ing]
that

there

is

indeed a material

summary judgment."

of proof at trial,

Id.

issue of

fact

that precludes

When the non-movant bears the burden

the non-movant must tailor its response to

the method by which the movant carried its initial burden.

If

the movant presents evidence affirmatively negating a material
fact,

the non-movant "must respond with evidence sufficient to

withstand

a

directed

verdict

motion

at

trial

fact sought to be negated."

Fitzpatrick,

the movant

of

the

shows

non-movant

evidence

that

an absence

must

was

either

on

that

"overlooked or

the

material

2 F.3d at 1116.

evidence

show

on

a material

the

ignored"

record

by

the

If

fact,

contains

movant

or

"come forward with additional evidence sufficient to withstand

a

directed

verdict

motion

evidentiary deficiency."

at

trial

based

Id. at 1117.

on

the

alleged

The non-movant cannot

carry its burden by relying on the pleadings or by repeating
conclusory allegations contained in the complaint.
v.

Ross,

663 F.2d 1032,

1033-34

III.

(11th Cir.

See Morris

1981).

DISCUSSION

In their motion for summary judgment,

Defendants argue:

(1)

Plaintiff's employer is the Board and not the County;

the

Board

falls

outside

County
Georgia
(4)

does

and
law

the

the

Board
for

Plaintiff

against

not

have

fifteen

purview

are

which

failed

of

or

Title

separate,

exhaust

County because

she

VII

employees

and

independent

aggregation
to

more

of

her

§

1981;

is

administrative

Board as

thus

(3)

entities

employees

named the

and

(2)

the

under

improper;
remedies

the

sole

respondent
promoted

in

to

her

the

EEOC

Charge;

position

of

and

(5)

Appraiser

Plaintiff
II

was
of

because

not
the

legitimate, nondiscriminatory reason that she did not have the

requisite two years of field experience as an appraiser.

The

Court

the

need not

undisputed

address

facts

show

arguments

Defendants

four

are

and

five

entitled

because

to

summary

judgment with respect to arguments one through three.

A.

Plaintiff's Employer is the Board, not the County.

Title VII makes it unlawful "for an employer ... to
discriminate

sex,

and

against any

it

also

individual" on account of race and

protects

an

employee

retaliation for claiming discrimination.

from

employer

42 U.S.C.

§ 2000e-

3(a).

For discrimination claims under both Title VII and 42

U.S.C.

§ 1981,

an

"employer"

is

a person

engaging

in

an

industry affecting commerce who has fifteen or more employees
for each working day in each of twenty or more calendar weeks.

42 U.S.C. § 2000e(b); Bush v. Houston Cty. Comm'n, 414 F.App'x
264, 266 (11th Cir. 2011)

("In the employment context, § 1981

. . . claims require the same elements of proof and involve
the same analytical

framework as Title VII

claims.").

This

definition of employer includes local and state governmental
entities.

42 U.S.C.

§ 2000e-2(a).

The employee numerosity

requirement is an element of a plaintiff's claim for relief
rather than a jurisdictional issue.
546 U.S. 500,

515

Arbaugh v.

Y & H Corp.,

(2006).

The amended complaint alleges

Plaintiff is employed by

the Camden County Tax Assessor's Office as a Real Property

Appraiser.
lists

(PL's Am.

the

Board

as

ff

Compl.
her

3,

6-7.)

employer.

The EEOC charge

(Doc.

27-2,

p.

1.)

Plaintiff now argues at summary judgment that the County is

her employer and the Board "is considered to be a department
within the County.7'

(Doc. 33-1, pp. 1, 4.)

This belief is at

odds with the statutory framework in Georgia
board of tax assessors

establishing a

within each county that is

separate

and distinct from the county commission.

Georgia

law establishes

administration

provides
assist

for

the

O.C.G.A.

and

the

§

of

has

appraisers

and enter

Fulford,

298(a).

tax

48-5-290 (a).

assessors

v.

equalization

employment

board

495

the

a comprehensive

sole

of

property

staff

within

assessors.

In

each

authority

into contracts

S.E.2d

of

6,

7

(Ga.

system for

each

O.C.G.A.

county,
to

the

hire

with them.
1998);

taxes,

§

and

county

to

48-5-260;

board
and

the

of

fire

tax
tax

See Chambers

O.C.G.A.

§

County commissions do not have this authority.

48-5-

See

Spell

v.

Blalock,

254

S.E.2d

842,

843

(Ga.

1979)

("The

authority to hire and fire appraisers ... is not a power
vested

dealing

in

the

with

commissioners.") .

county tax

Indeed,

appraisers

it is

"in

all

matters

the board of tax

assessors and not the board of commissioners which acts as the

'governmental board [which] has the authority to act for the
county.'"

Chambers,

495 S.E.2d at 7.

Consistent with

this

framework, the board of tax assessors is considered to be the

employer of tax appraisers for purposes of Title VII, not the
county commission.

Ballard v.

Chattooga Cty.

Bd.

of

Tax

Assessors, 615 F. App'x 621, 622 (11th Cir. 2015).

Plaintiff points out that the County posts job openings

at the Board and those postings list the Board as a County
department.
employment

She also references boilerplate language in her
forms

containing

an acknowledgment

of "at-will"

employment by the County instead of the Board.

(Doc. 33-1,

pp. 2-3; PL's Decl. f

4.)

Because these summary judgment

exhibits are not properly authenticated and verified, they are
not admissible in opposition to the summary judgment motion.
Saunders v. Emory Healthcare, Inc., 360 F.App'x 110, 113 (11th

Cir. 2010); Lugue v. Hercules, Inc., 12 F. Supp. 2d 1351, 1356
(S.D. Ga.

1997).

That the

Board and County share employment

website for job postings,

forms

and a

and in so doing reference the Board

in a manner that does not reflect its true legal nature,

does

not

as

trump

separate

the
and

statutory
distinct

scheme

legal

establishing

entity.

the

Plaintiff

Board
contends

job postings prove the County itself hired Plaintiff,

her

job

description,

policy for leave.

established

her

rate

None of these conclusions

of

pay,

a

the

defined

and

set

follow from the

job postings Plaintiff has submitted, and the statutory scheme
described

above

contentions.

proves

At most,

the

opposite

of

Plaintiff's

these job postings establish that the

County advertises vacancies at the Board.

Plaintiff also claims the Board and County have the same

human

resources

department.

But

this

in

no

way establishes

Plaintiff is an employee of the County rather than the Board.
Nor

does

it

matter

that

the

County pays

Plaintiff's

salary.

This is consistent with the Georgia statutory scheme directing
the use of county funds to pay appraisers.

263(c).

The

minimum

level

mandated at the state level.

615 F. App'x at 624.

of

funding

O.C.G.A.

§

is

O.C.G.A.

§ 48-5-

established

48-5-263(c);

and

Ballard,

The undisputed facts and statutory scheme thus direct a

summary judgment finding that the Board,

and not the County,

is Plaintiff's employer.

C.

The County and the Board Are Separate and Distinct
Entities and Cannot Be Aggregated for Title VII
Purposes.

Plaintiff

employer,

alternately argues

that,

if

the

Board

is

her

the County and Board should be treated as a single

employer to

satisfy the numerosity requirement of

fifteen or

more employees because the County and Board are "inextricably
interrelated."
Beach,

Fla.,

(Doc. 33-1,
166

F.3d

p. 3.)

1332

In Lyes v. City of Riviera

(11th

Cir.

1999),

the

Eleventh

Circuit held that "[w]here a state legislative body creates a
public

entity

and

declares

it

to

be

separate

and

distinct,

that declaration should be entitled to a significant degree of

deference,
is
166

indeed

amounting to
separate

F.3d at

a presumption that

and distinct

the public entity

for purposes

of

Title

1344.

There are two ways to rebut this presumption.

plaintiff
maintained

VII."

may
for

discrimination

prove

the

governmental

the

purpose

law.

Id.

of
As

entity

was

avoiding

federal

Defendants

aptly

First,

created

a

or

employment
point

out,

Plaintiff cannot demonstrate such evasion because enactment of

10

the Georgia statutes establishing the board of assessors

for

each county occurred decades prior to the enactment of Title
VII.

(Doc.

explained

35,

in

pp.

3-4.)

Lyes,

"it

is

And

as

the

unlikely

Eleventh

that

a

Circuit

state

would

structure its state and local entities with that purpose in

mind . . . ."166 F.3d at 1344.

Plaintiff has provided no

evidence of such an intent.

Second,

a plaintiff may present evidence

convince a reasonable

sufficient to

fact finder that the presumption is

clearly outweighed by "factors manifestly indicating that the
public entities are so closely interrelated with respect to

control

of

the

fundamental

aspects

of

the

employment

relationship that they should be counted together under Title
VII."

Id.

at

1345.

interrelationship

labor operations;
discipline

or

of

(2)

Factors
operations

to
and

consider

centralized

authority to hire,

discharge;

(3)

include:

authority

control

transfer,
to

of

promote,

establish

schedules or direct work assignments; and (4)

(1)

work

the obligation

to pay or the duty to train the charging party.

Id.

These

factors are not all inclusive because the analysis considers
the

totality

of

the

circumstances.

Id.

The

standard

is

whether a fact finder could reasonably conclude "the plaintiff
11

has

clearly overcome

original)

The

the

adverb

presumption."

"clearly"

derives

concerns and is meant to be limiting.
the scale,

Id.

(emphasis

from

Id.

in

federalism

"It is a thumb on

and sometimes it will be decisive.

. . ."

Id.

In Ballard v. Chattooga Cty. Bd. of Tax Assessors, 615 F.

App'x 621, 622 (11th Cir. 2015), the Eleventh Circuit applied
the Lyes analysis and held that a Georgia county and board of
tax assessors are not so closely interrelated that they should

be counted together under Title VII.

After describing the

Georgia statutory framework discussed infra § I,

the Ballard

court explained its reasoning in the following passage.
From the foregoing recitation of Georgia law,
it is clear that Georgia has established the Board
as

a

separate

entity,

independent

of

the

local

county
government,
thus
triggering
the
Lyes
presumption.
. . Applying Lyes's four guiding
factors to the facts of this case as established by
Georgia law, it is clear that the presumption is not
rebutted.

Rather,

application

overwhelmingly indicates that
the County-which has "control

aspects

of

the

employment

of

the

factors

it is the Board-not
over the fundamental

relationships."

See

id.

Chambers makes it clear that it is the Board-not the

County-which has control of labor operations [Lyes
factor number 1]; the authority to hire, transfer,
promote, discipline or discharge [factor number 2];
and the authority to establish work schedules or
direct work assignments [factor number 3] . See 495
S.E.2d at 8. With respect to factor number 4—the

obligation to pay or the duty to train the charging
authority—the
rate
appraiser,
O.C.G.A.

of
§

12

compensation
48-5-263(a) (1),

for
and

each
the

training,

id.

§

48-5-268,

are

determined

at

the

state level. While county funds comprise the major
source

of

funding,

at

least

funding is established,

the

O.C.G.A.

minimum

level

of

§ 48-5-263(a)(1),

and mandated, id. § 48-5-263(c), at the state level.

Thus, the four factors listed by Lyes overwhelmingly
establish that it is the Board-not the County-that
controls the fundamental aspects of the employment
relationships.

Looking at the totality of the circumstances,

it is true that the County provides the building in
which the tax appraisers
work,
maintains
the
building,
provides payroll and human resources
services,
and
other
administrative
services.

However, such administrative services are tangential
to the "fundamental aspects of the employment

relationships" and fall far short of creating a
genuine issue of fact with respect to plaintiffs'
heavy burden to "clearly overcome the presumption."
See Lyes 166 F.3d at 1345.

Ballard, 615 F.App'x at 624-25.

The Ballard court's analysis applies fully here.
the Board and County are
aggregated

under

the

separate entities

single

employer

test,

Because

and cannot be
Plaintiff

has

failed to meet Title VII's employee-numerosity requirement, an
element of her claim.

See Arbauqh, 546 U.S. at 515.

summary judgment for Defendants is appropriate.

Thus,

See Fender,

295 F. App'x at 959 (affirming grant of summary judgment where
plaintiff did not satisfy Title VII's numerosity requirement).

13

IV.

CONCLUSION

The Court GRANTS Defendants' motion for summary judgment
(doc.

27)

(doc.

19).

and DENIES AS
The

Court

MOOT

Defendants'

DIRECTS

the

motion

Clerk

to

to dismiss
enter

FINAL

JUDGMENT in favor of Defendants and CLOSE this case.

SO ORDERED this JPfi^day of March, 2016, at Augusta,
Georgia.

HONORABI^J. RANDAL" HALL
UNITED S/TATES DISTRICT JUDGE
SOUTHERN DISTRICT OF GEORGIA

14