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
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