Robbins v. Chatham County et al
Filing
45
ORDER granting 20 Motion for Summary Judgment; granting in part and denying in part 23 Motion for Summary Judgment. Signed by Judge William T. Moore, Jr on 3/24/2012. (loh)
IN THE UNITED STATES DISTRICT COURT FOR
THE SOUTHERN DISTRICT OF GEORGIA 7J!
SAVANNAH DIVISION
GWENDOLYN A. ROBBINS,
7111
R 2 3 fj 9: 15
/63/1L4
)
Plaintiff,
V.
CASE NO. CV410-045
CHATHAM COUNTY and LARRY
CHISOLM, Individually and in
his Official Capacity as the
District Attorney for Chatham
County, Georgia,
Defendants.
ORDER
Before the Court are Defendant Chatham County's (Doc.
20) and Larry Chisoim's (Doc. 23) Motions for Summary
Judgment.
Plaintiff has filed responses in opposition to
both motions. (Doc. 31; Doc. 32.) For the reasons that
follow, Defendant Chatham County's motion is GRANTED, and
Defendant Chisolm's motion is GRANTED IN PART and DENIED IN
PART. Plaintiff's claims against Defendant Chatham County
are all DISMISSED. With respect to Defendant Chisolm,
Plaintiff's 42 U.S.C. § 1983 claims, Age Discrimination in
Employment Act ("ADEA") claim, Title VII individual
capacity claims, and Title VII claim for discriminatory
discharge are also DISMISSED. However, Defendant Chisolm's
request for summary judgment is DENIED with respect to
Plaintiff's Title VII claims against him in his official
capacity for both failure to hire and retaliation.
BACKGROUND
This case involves allegations of age and gender
discrimination by the current Chatham County District
Attorney—Defendant Larry Chisolm. On April 17, 2000,
Plaintiff Gwendolyn Robbins was hired by Defendant
Chisoim's predecessor as the Assistant to the District
Attorney for Administrative Support Services for the
Chatham County District Attorney's Office. (Doc. 32 at 2.)
Prior to being hired into that office, Plaintiff was
employed as a law enforcement officer with the City of
Alexandria, Virginia, retiring after serving for twenty-one
years, and as the Parking Services Administrator for the
City of Savannah. (Id.) Once hired by the District
Attorney's office, Plaintiff was required to attend Chatham
County's new employee orientation program and was provided
a copy of the Chatham County personnel and procedures
manual. (Id.) In addition, Plaintiff was eligible to
participate in several benefits programs offered by Chatham
County, including retirement and various insurance plans.
(Id.)
On November 4, 2008, Defendant Chisolm won election as
the District Attorney for Chatham County.
2
(Id. at 5.)
Following his election, Defendant Chisolm began planning to
transition the office, which the prior District Attorney
had led for twenty-eight years (Doe. 33, Attach. 4 3:1921), in preparation for his administration (Doe. 23 at 2).
While assessing the organization of the office, Defendant
Chisoim held several meetings with staff members, including
Plaintiff. (Doe. 32 at 5.) During a November 23, 2008
meeting, Defendant Chisoim asked Plaintiff some preliminary
questions concerning her role in the office and requested
that she bring to the next meeting information regarding
personnel and the office budget. (Id. at 5-6.) According
to Defendant Ch±solm, his review left him dissatisfied with
Plaintiff's knowledge of budgetary procedures, manner of
managing the office budget, and working relationships with
her fellow employees. (Doe. 23 at 2.)
On December 8, 2008, Defendant
Chisolm
contacted
Plaintiff to inform her that, as part of the office
reorganization, her position was one of two being
eliminated. (Doe. 32 at 7.) The eliminated jobs were to
be combined into one new position, which was to be
advertised internally to current employees. (Id.)
This
new position did not include any managerial or supervisory
responsibilities, and paid a salary around $55,000 per
3
year.' (Id.) Defendant Chisolm advised Plaintiff that she
would be required to submit an application to be considered
for this new position. (Id.)
In response to the elimination of her position.
Plaintiff contacted the Chatham County Human Resources
Director on December 10, 2008 to discuss the office
reorganization and her continued employment by Chatham
County. (Id. at 7.) Finding his response insufficient,
Plaintiff contacted the Equal Employment Opportunity
Commission (EEOC") on December 11, 2008. (Id. at 8.) On
the same day, Plaintiff submitted an EEOC intake
questionnaire, which alleged that Defendant Chisoim's
decision to eliminate her position was due to both her age
and gender. (Id.) On December 15, 2008, Plaintiff wrote
to the Chatham County Manager, providing copies to the
Chatham County Board of Commissioners and County Attorney,
stating that she believed the decision to eliminate her
position was the result of age and gender discrimination.
(Id.)
In the letter, Plaintiff requested that Defendant
Chatham County investigate her charge of discrimination.
(Id.)
However, Defendant Chatham County elected not to
pursue the allegations.
(Id.)
1
Meanwhile, Defendant
Plaintiff received a salary of $68,633 per year when her
(Doc. 33 Attach. 2 211:20-22.)
position was eliminated.
4
Chisolm scheduled Plaintiff's position to be eliminated on
January 30, 2009.
(Id. at 9-10.)
On January 21, 2009, Plaintiff applied for the newly
created position, titled Administrative Support Services
Manager. (Id. at 10.) Plaintiff was not selected to
interview for that position. On March 9, 2009, Defendant
Chisolm hired a younger male as the new Administration
Support Services Manager. (Id. at 11.)
Based on Defendant Chisoim's failure to interview or
offer her the new position, Plaintiff filed her first
complaint with the EEOC on April 28, 2009. (Id. at 10-11.)
In this EEOC complaint, Plaintiff alleges that the lack of
interview or offer was due to both improper age and
improper gender discrimination. (Id. at 10.) In response,
Defendant Chisolm stated that Plaintiff was not selected
for an interview because of prior poor performance and
erratic behavior. (Id. at 11-12.) On January 13, 2010,
Plaintiff filed a second complaint with the EEOC, alleging
that the lack of interview or offer for the new position
was also in retaliation for her earlier submission of the
intake questionnaire to the EEOC. 2 (Id. at 12..)
2
Plaintiff also applied for five other positions with
Chatham County. (Doc. 32 at 10.) While Plaintiff was
interviewed for a few of these positions, she was not
In both the EEOC complaint
(Id.)
offered any of them.
5
After receiving her Notice of Right to Sue, Plaintiff
timely filed her complaint in this Court. (Doc. 1.) In
her complaint, Plaintiff has alleged that Defendants'
decision not to interview or select her for the new
position was the result of gender discrimination and as
retaliation for her earlier EEOC filing, in violation of
Title VII of the Civil Rights Act of 1964, 42 U.S.C.
H 2000e to 2000e-17. (Id. ¶ 30.) In addition, Plaintiff
contends that Defendants' actions were based on age
discrimination, in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. 621-634. (Id.
1
40.)
Plaintiff also argues that Defendants' actions, taken under
color of state law, worked to deprive her of her
constitutional rights, in violation of the Civil Rights Act
of 1871, 42 U.S.C. § 1983.
(Id. ¶ 30.)
On May 12, 2011, Defendant Chatham County filed its
Motion for Summary Judgment. (Doc. 20.) In the motion,
Defendant Chatham County argues that Plaintiff's claims
and the complaint filed in this Court, Plaintiff alleged
that Defendant Chatham County's failure to hire her for any
of these five other positions was also improper age and
gender discrimination, and in retaliation for her earlier
EEOC filings. (Id. at 10-11.) However, Plaintiff has
withdrawn those claims, proceeding on her failure to hire
claim based only on Defendant Chisoim's decision not to
hire her for the newly created position. (Id.) Therefore,
the Court will offer no further discussion of these
withdrawn claims.
6
against it must be dismissed because they did not exercise
any control over employment decisions within the District
Attorney's office. (Id. at 2-6.) In addition, Defendant
Chatham County reasons that Plaintiff's claim under § 1983
must fail because she failed to show that it had a policy
or custom of discriminating on the basis of age or gender.
(Id. at 18-20.) In response, Plaintiff contends that she
was employed by Defendant Chatham County (Doc. 32 at 2123), rendering it responsible for Defendant Chisolm's
unlawful employment decisions (id. at 24-35).
On May 16, 2011, Defendant Larry Chisolm filed his
Motion for Summary Judgment. (Doc. 23.) In the motion,
Defendant Chisolm argues that he is immune, in his official
capacity, from Plaintiff's claims brought under the ADEA
and § 1983. (Doc. 23 at 4-6.) Defendant Chisolm contends
that Plaintiff failed to state a claim for individual
liability under § 1983 (id. at 7-8), and that both the ADEA
and Title VII do not impose individual liability for
employment decisions (id. at 8-9). Also, Defendant Chisolm
avers that Plaintiff has failed to establish prima facie
cases of discrimination under either the ADEA or Title VII.
(Id. at 9-22.)
Finally, Defendant Chisolm claims that
Plaintiff also failed to establish a prima facie case of
retaliation under Title VII.
7
(Id. at 22-24.)
In her
response, Plaintiff argues that Defendant Chisoim is not
entitled to immunity (Doc. 31 at 20-29) ; that she has
established a claim for liability under § 1983 (id. at 2930); and that she has established prima facie cases against
Defendant Chisoim for discrimination under the ADEA, and
discrimination and retaliation under Title VII (id. at 19-
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
According to Fed. R. Civ. P. 56(a), '[a] party may
move for summary judgment, identifying each claim or
defense—or the part of each claim of defense—on which
summary judgment is sought." Such a motion must be granted
"if 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." Id. The "purpose of summary judgment is
to pierce the pleadings and to assess the proof in order
to see whether there is a genuine need for trial.'
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 587 (1986) (quoting Fed. R. Civ. P. 56 advisory
committee notes)
Summary judgment is appropriate when the nonmovant
'-'fails to make a showing sufficient to establish the
existence of an element essential to that party's case, and
8
on which that party will bear the burden of proof at
trial."
Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986) . The substantive law governing the action
determines whether an element is essential. DeLong Equip.
Co. v. Wash. Mills Abrasive Co., 887 F.2d 1499, 1505 (11th
Cir. 1989)
As the Supreme Court explained:
[A] party seeking summary judgment always bears
the initial responsibility of informing the
district court of the basis for its motion, and
identifying those portions of the pleadings,
depositions, answers to interrogatories, and
with
the
file,
together
on
admissions
affidavits, if any, which it believes
demonstrate the absence of a genuine issue of
material fact.
Celotex, 477 U.S. at 323. The burden then shifts to the
nonmovant to establish, by going beyond the pleadings, that
there is a genuine issue as to facts that are material to
the nonmovant's case.
Clark v. Coats & Clark, Inc., 929
F.2d 604, 608 (11th Cir. 1991)
The Court must review the evidence and all reasonable
factual inferences arising from it in the light most
favorable to the nonmovant. Matsushita, 475 U.S. at 58788. However, the nonmoving party "must do more than simply
show that there is some metaphysical doubt as to the
material facts."
Id. at 586.
A mere "scintilla" of
evidence, or simply conclusory allegations, will not
9
suffice.
See, e.g., Tidwell v. Carter Prods., 135 F.3d
1422, 1425 (11th Cir. 1998) . Nevertheless, where a
reasonable fact finder may 'draw more than one inference
from the facts, and that inference creates a genuine issue
of material fact, then the Court should refuse to grant
summary judgment."
Barfield v. Brierton, 883 F.2d 923,
933-34 (11th Cir. 1989)
II. PLAINTIFF'S CLAIMS AGAINST DEFENDANT CHATHAM COUNTY
In her complaint, Plaintiff appears to bring claims
under 1983, for age discrimination under the ADEA, and
for gender discrimination and retaliation under Title VII.
(Doc. 1 ¶J 29-41.) In its Motion for Summary Judgment,
Defendant Chatham County argues that it cannot be held
responsible for any alleged discrimination because it
exercised no control over Defendant Chisolm with respect to
employment decisions. (Doc. 20 at 2-6.) In response,
Plaintiff reasons that the circumstances of her employment
render her an employee of Defendant Chatham County and that
it failed to properly oversee Defendant Chisolm's
employment decisions. (Doc. 32 at 21-23.)
A.
§ 1983
Plaintiff's
Chatham County
Claim Against
Defendant
While not entirely clear from the complaint, it
appears that Plaintiff seeks to hold Defendant Chatham
10
County liable under § 1983 for depriving her of procedural
and substantive due process rights under the Fourteenth
Amendment. (Doc. 1 ¶ 32.) However, a local government can
only be held liable under § 1983 for acts of one of its
officers if the plaintiff can establish that an official
local government custom or policy was the "moving force"
behind the deprivation of a constitutional right. Bd. of
Cnty. Comm'rs v. Brown, 520 U.S. 397, 404 (1997) . In this
case, however, Plaintiff has failed to identify any custom
of or policy by Defendant Chatham County that led to
Plaintiff being deprived of her constitutional rights.
Accordingly, any claim by Plaintiff that seeks to impose
liability on Defendant Chatham County based on Defendant
Chisoim's actions must be dismissed.
In her response, it appears that Plaintiff is also
arguing that Defendant Chatham County itself violated her
right to due process by failing to give her a hearing
regarding what she alleged to be the unlawful employment
practices of Defendant Chisoim. (Doc. 32 at 32.)
According to Plaintiff, this hearing is required per the
Chatham County Personnel Ordinance. However, the issue in
this case with respect to Defendant Chatham County is one
of control—did Defendant Chatham County have authority or
control over Defendant Chisoim when he made the allegedly
11
unlawful employment decision? The Georgia Constitution
limits a county's authority over personnel decisions made
by an elected official, Ga. Const. art. IX, § 2, ¶ 1(c)(1),
which includes district attorneys, see id. art. VI, § 8,
¶ 1(a). Indeed, even the possibility that an employee may
be covered under a county's civil service system 11 does
not demonstrate that [the county] exercises active control
over the day-to-day labor practices' " of the elected
official.
Cassells v. Hill, 2010 WL 4616573, at *10 (N.D.
Ga. Nov. 8, 2010) (unpublished) (quoting Redding v. Tuggle,
2006 WL 2166726,
at
*8
(N.D.
Ga.
July 31,
2006)
(unpublished)).
In this case, it is clear that Defendant Chatham
County does not enjoy any authority or control over
Defendant Chisoim with respect to employment decisions for
the District Attorney's office. As a result, it is
difficult to understand what purpose a hearing would have
served. Defendant Chatham County lacked any authority to
mandate that Defendant Chisoim rehire Plaintiff or prohibit
him from eliminating Plaintiff's position while
restructuring his office. As a result, it would be odd to
hold Defendant Chatham County liable for failing to hold a
hearing that would have no effect on the outcome of
Plaintiff's allegations.
12
Furthermore, it does not appear that the District
Attorney's office was subject to the provisions of the
Chatham County Personnel Ordinance. Even Plaintiff
recognizes that the District Attorney's office never
affirmatively adopted the ordinance. (Doc. 32 at 32
("Chatham County is correct that [the previous District
Attorney] did not sign the documents presented to him by
Chatham County concerning the Ordinance.").)
Rather.
Plaintiff appears to reason that the previous District
Attorney implicitly adopted the ordinance. (Id. at 33
('[The previous District Attorney] believed he had 100%
discretion to adopt the policies and principles set forth
in the Ordinance, and he had a right to conform the
Ordinance to fit the particular need of his office.").) It
is entirely speculative, contrary to Plaintiff's
conclusion, that the previous district attorney would have,
'at a minimum, granted [Plaintiff] the right to a hearing."
(Id.) In any event, the Georgia Constitution and the facts
of this case clearly establish that Defendant Chatham
County was not required to give Plaintiff a hearing
regarding her allegations concerning Defendant Chisolm's
employment decisions. 3 For all these reasons, Plaintiff's
To the extent that Plaintiff is arguing that the previous
District Attorney created a right to a hearing by adopting
13
§ 1983 claim against Defendant Chatham County must be
dismissed.
B.
Plaintiff's ADEA and Title VII Claims Against
Defendant Chatham County
In her complaint. Plaintiff appears to bring claims
for age discrimination under the ADEA, and gender
discrimination and retaliation under Title VII.
(Doc. 1
30, 40.) In its Motion for Summary Judgment, Defendant
Chatham County argues that these claims should be dismissed
because it is not Plaintiff's employer (Doc. 20 at 2-6) and
the claims lack merit (id. at 6-17) . In response,
Plaintiff contends that she was employed by Defendant
Chatham County and that she has established prima fade
claims for age and gender discrimination, and retaliation.
(Doc. 32 at 20-32.)
Both the A]JEA and Title VII impose liability for
discriminatory behavior on employers. 29 U.S.C. § 623; 42
U.S.C. § 2000e-2. While there are many tests to determine
whether an entity is an employer under various federal
employment discrimination statutes, the Eleventh Circuit
Court of Appeals has identified one common inquiry:"all of
unwritten internal policies, that argument is without
merit. Even assuming the accuracy of this factual
allegation, Defendant Chatham County would not be liable
under § 1983 for any failure to grant a hearing because it
is not the county that has provided that protection, but
rather the District Attorney's office.
14
them seek to determine who (or which entity) is in control
of the fundamental aspects of the employment relationship
that gave rise to the claim." Lyes v. City of Riviera
Beach, Fla., 166 F.3d 1332, 1345 (11th Cir. 1999) (citing
several examples) . Under this inquiry, the lack of
authority or control possessed by one entity over another's
employment decisions precludes a finding of liability
because the entity lacking control does not meet the
definition of an employer under the requisite statute.
After reviewing the record in this case, the Court is
convinced that Defendant Chatham County does not possess
any authority or control over Defendant Chisolm's
employment decisions. As noted above, the Georgia
Constitution dispossesses Defendant Chatham County of any
authority or control regarding Defendant Chisolm's
decisions with respect to how and with whom to staff his
office. See Ga. Const. art. IX, § 2, ¶ 1(c) (1) . Plaintiff
points to several facts that she believes establish that
she was an employee of Defendant Chatham County: her
paycheck is from Chatham County; her W-2 tax form lists
Chatham County as her employer; she participated in Chatham
County insurance and retirement plans; she signed Chatham
County's Drug-Free Workplace Certification; her separation
report was from Chatham County and signed by the Chatham
15
County Director of Human Resources Services; the Georgia
Department of Labor listed Chatham County as her employer;
and the prior District Attorney considered her an employee
of Chatham County. (Doc. 32 at 21-22.) While the Court
has little doubt as to the accuracy of these allegations,
they are of little consequence with respect to her ADEA and
Title VII claims against Defendant Chatham County. As
previously discussed, these statutes impose liability on
entities that enjoy authority or control over employment
decisions. The facts Plaintiff has cited are related to
particular administrative aspects of her employment, but
are of no moment when assessing whether Defendant Chatham
County possessed a level of control over Defendant
Chisolm's personnel decisions that would render it liable
under either the ADEA or Title VII. This simple fact
remains uncontroverted: Defendant Chatham County lacked any
authority to prevent Defendant Chisolm from either
reorganizing his office or electing not to employ
Plaintiff . 4
Accordingly, Plaintiff's ADEA and Title VII
claims against Defendant Chatham County must be dismissed.
Employing some sleight of hand, Plaintiff argues that
Defendant Chatham County controls personnel decisions
because it approves employee requests from the District
Attorney's office, funds the position, and then determines
whether to assign an employee to that office. (Doc. 32 at
22.) This, however, does little to change the fact that it
16
III. PLAINTIFF'S CLAIMS AGAINST DEFENDANT CHISOLM
In her complaint, Plaintiff appears to bring claims
under § 1983, for age discrimination under the ADEA, and
for gender discrimination and retaliation under Title VII.
(Doc. 1 ¶J 29-41.) In his Motion for Summary Judgment,
Defendant Chisolm argues that he is entitled to immunity
from all claims against him in his official capacity, with
the exception of Plaintiff's claims under Title VII.
(Doc.
23 at 4-7.) In addition, he contends that Plaintiff has
failed to establish any claim for due process violations
under § 1983, and that the ADEA and Title VII do not impose
individual liability. (Id. at 7-9.) Finally, Defendant
Chisoim reasons that Plaintiff's discrimination and
retaliation claims fail because Plaintiff cannot show that
his legitimate non-discriminatory reasons for taking the
employment actions are merely pretextual (id. at 9-22), and
that Plaintiff cannot establish a prima facie case of
retaliation (Id. at 22-24) . In response, Plaintiff avers
that Defendant Chisoim is not entitled to immunity (Doc. 31
at 20-29), that she was entitled to due process in
connection with her termination (id. at 29-30), and that
is the District Attorney himself that makes the
determination on whom to employ or not employ—the decision
of who fills any Chatham County funded position still rests
exclusively with the District Attorney.
17
she has offered evidence sufficient to establish that
Defendant Chisoim's reasons for his employment decisions
were merely pretextual (id. at 19-20)
A.
Claim Against
1983
Plaintiff's
Chisolm
Defendant
In her complaint, Plaintiff alleges that Defendant
Chisoim's actions deprived her of procedural and
substantive due process in violation of the Fourteenth
Amendment.
(Doc. 1
I
According to Plaintiff,
32.)
Defendant is liable under
1983 for this constitutional
deprivation. (Id.) While not clear from the complaint,
the briefing by the parties suggests that Plaintiff's basis
for this claim rests on Defendant Chisoim's failure to
provide her with a hearing prior to terminating her
employment. (See Doc. 23 at 7-8; Doc. 31 at 29-30.) In
his Motion for Summary Judgment, Defendant Chisoim contends
both that he is entitled to immunity on this claim in his
official capacity (Doc. 23 at 4-7), and that Plaintiff was
not entitled to due process (id. at 7-8) . In response,
Plaintiff reasons that Defendant Chisolm is not entitled to
immunity because he was not acting within the scope of his
authority when he terminated Plaintiff's employment.
31 at 20-29.)
(Doc.
In addition, Plaintiff argues that she was
entitled to due process protections because the prior
18
District Attorney extended to his employees the County's
policy of providing a hearing prior to termination. (Id.
at 29-30.)
In this case, the Court need not decide whether
Defendant Chisolm is protected by immunity because there
was no due process violation. To establish a due process
violation for terminating public employment without a
hearing, the employee "must show that [she] had a protected
property interest in [her] employment." Brett v. Jefferson
Cnty., Ga., 123 F. 3d 1429, 1433 (11th Cir. 1997). State
law determines whether a public employee holds a protected
property interest in her position. Id. (quoting Warren v.
Crawford, 927 F.2d 559, 562 (11th Cir. 1991)) . In Georgia,
a state employee holds no property interest in her
employment absent inclusion under a civil service system
that only allows her employment to be terminated for cause.
Id. (citing Warren, 927 F.2d at 562) . While employees of
elected county officials are typically not covered under a
county's civil service system, Section 35-1-21(b) of the
Georgia Code provides that the elected official may subject
their employees to such a system "upon written application
of the elected county officer."
accord Brett, 123 F.3d at 1434.
O.C.G.A. § 36-1-21(b);
Following application by
the elected official, the county must then adopt an
19
ordinance or resolution formally providing that those
positions are subjected to the county civil service system.
O.C.G.A. § 36-1-21(b); Brett, 123 F.3d at 1434. Failing to
comply with these statutory requirements is fatal to any
attempt to create a protected property interest in an
employee's continued employment.
Brett, 123 F.3d at 1434
("While protected property interests in continued
employment can arise from the policies and practices of an
institution, a property interest contrary to state law
cannot arise by informal custom. In the absence of
satisfaction of the requirements of section 36-1-21(b), the
deputy sheriffs were at-will employees with no protected
property interest in continued employment."
(citations
omitted)).
In this case, the record is devoid of any indication
that either the required application was submitted to
Chatham County, or that Chatham County formally accepted
the application by ordinance or resolution. In addition,
Plaintiff's attempts to establish that the prior District
Attorney extended the County's right to a hearing to his
employees is clearly foreclosed by the Eleventh Circuit's
opinion in Brett. In that case, the plaintiffs argued they
were subject to the county civil service system because the
sheriff made that request orally and the county passed the
20
necessary resolution or ordinance subjecting them to the
system. Brett, 123 F.3d at 1434. The Eleventh Circuit,
finding the record to be unclear, held that even assuming
the county passed the required ordinance or resolution, the
sheriff had not made the necessary written application to
the county—the oral request was insufficient. Id.
Therefore, the Eleventh Circuit concluded that the deputies
were not included under the county's civil service system
because the sheriff and county had failed to meet the
necessary conditions outlined in the statute. Id. In
light of the Eleventh Circuit's holding in Brett, it is
difficult for this Court to see how Plaintiff had a
property interest in her continued employment, thus
affording her due process protection, where neither the
District Attorney requested inclusion in Chatham County's
civil service system, nor Chatham County formally adopted
an ordinance or resolution incorporating District Attorney
office employees into the civil service system.
Accordingly, this Court concludes that Plaintiff's § 1983
claim against Defendant Chisolm must be dismissed because
there was no due process violation.
B.
Plaintiff's ADEA Claims Against Defendant Chisolm
In her complaint, Plaintiff has brought claims against
Defendant Chisoim, in both his official and individual
21
capacities, for discrimination on the basis of age, in
violation of the ADEA. (Doc. 1 § 40.) In his Motion for
Summary Judgment, Defendant Chisolm argues that he is not
subject to Suit in either his official or individual
capacity for age discrimination under the ADEA.
at 4-9.)
(Doc. 23
In addition, he contends that Plaintiff has
failed to establish a prima facie case of age
discrimination. (Id. at 9-17.) In response. Plaintiff
reasons that Defendant Chisolm is not entitled to any
immunity from ADEA claims (Doc. 31 at 20-29) and that she
has established a prima facie case of age discrimination
entitling her to a trial on this claim (Id. at 19-20)
With respect to liability under the AJJEA for Defendant
Chisolm acting in his official capacity, Plaintiff's claim
is clearly foreclosed by the Supreme Court's decision in
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 82-91 (2000)
(finding that official capacity ADEA claims must be
dismissed because ADEA did not validly abrogate States'
sovereign immunity) . Indeed, Plaintiff appears to concede
as much in her response, failing to offer any argument to
the contrary other than offering the conclusory statement
that Defendant Chisolm's actions violated the ADEA.
31 at 20.)
(Doc.
Accordingly, Plaintiff's ADEA claim against
Defendant Chisolm in his official capacity is dismissed.
22
Similarly, Plaintiff's ADEA claim against Defendant
Chisolm in his individual capacity must be dismissed. In
Busby v. City of Orlando, the Eleventh Circuit concluded
that individual capacity Suits were not appropriate under
Title VII. 931 F.2d 764, 772 (11th Cir. 1991) (citing
Clanton v. Orleans Parish Sch. Bd., 649 F.2d 1084, 1099 &
n.19 (5th Cir. 198 1) ) . In arriving at its determination,
the court looked to the statutory language of Title VII,
concluding that the act only applied to violations by
employers, as defined by the statute. Id. The Court held,
therefore,
that Title VII precluded liability for
violations by individuals. Id. Recognizing that the
statutory language is similar in both Title VII and the
ADEA, the Eleventh Circuit later extended its ruling in
Busby to individual capacity claims brought under the ADEA..
Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996)
Smith v. Lomax, 45 F.3d 402, 403 n.4 (11th Cir. 1995). In
Mason, the Eleventh Circuit explicitly held that "the
Disabilities Act does not provide for individual liability,
only for employer liability." 82 F.3d at 1009. Bound by
this authority, Plaintiff's ADEA claims against Defendant
Chisolm in his individual capacity must be dismissed.5
In Busby, the Eleventh Circuit did state that the "proper
method for a plaintiff to recover under Title VII is by
23
C.
Plaintiff's Title VII Claims Against Defendant
Chisolm
In her complaint, Plaintiff has brought Title VII
claims, based on gender discrimination and retaliation,
against Defendant Chisolm. (Doc. 1 ¶f 25, 30.) In his
Motion for Summary Judgment, Defendant Chisolm argues that
Title VII does not allow for suits based on individual
liability. (Doc. 23 at 8-9.) With respect to Plaintiff's
official capacity claims, Defendant Chisolm contends that
Plaintiff has failed to establish the required prima facie
case to avoid summary judgment. (Id. at 17-24.) In
response, Plaintiff reasons that Defendant Chisolm is
subject to suit in his individual capacity for violations
of Title VII (Doc. 31 at 20-29), and that she has
established a prima facie case of gender discrimination and
suing the employer, either by naming the supervisory
employees as agents of the employer or by naming the
employer directly." 931 F.2d at 772. At first blush this
may seem to open up supervisory employees to suit under the
ADEA and Title VII. However, this argument was foreclosed
by the Eleventh Circuit in Mason. In that case, the court
agreed with the Seventh Circuit that the agent language of
Title VII was included to "to ensure respondeat superior
liability of the employer for the acts of its agents, a
theory of liability not available for 42 U.S.C. § 1983
claims." Mason, 82 F.3d at 1009 (emphasis added). The
Eleventh Circuit made clear that public officials could not
be held liable in their individual capacities under the
AREA. Id. (concluding that "[t]he County Commissioners
could not be held liable in their individual capacities for
any violation of the Disabilities Act").
24
retaliation, entitling her to a trial on these claims (id.
at 19-20)
As discussed above, see supra Analysis.PartIII.3,
Defendant Chisolm is not subject to suit in his individual
capacity for violation of Title VII. See Busby, 931 F. 2d
at 772. Accordingly, Plaintiff's Title VII claims against
Defendant Chisolrn in his individual capacity are dismissed.
The parties appear to agree, however, that Defendant
Chisolm in his official capacity is subject to suit under
Title VII.
1.
Plaintiff's Gender Discrimination Claim
A plaintiff may establish a claim of unlawful gender
discrimination
by
presenting
either
direct
or
circumstantial evidence of discrimination. Underwood v.
Perry Cnty. Comm'n, 431 F.3d 788, 793 (11th Cir. 2005). To
assess a claim based on circumstantial evidence, such as
Plaintiff's claim in this case, the Court must employ the
framework established by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Underwood,
431 F.3d at 794. Under this test, a plaintiff must
establish a prima facie case of gender discrimination by
proving four elements: (1) she was a member of a protected
class; (2) she was qualified for the job; (3) she suffered
25
an adverse employment action; 6 and (4) she was replaced by
someone outside the protected class. Cuddeback v. Fla. Bd.
of Educ., 381 F.3d 1230, 1235 (11th Cir. 2004) (citing
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
142 (2000)) . If a plaintiff can demonstrate the elements
of a prima facie case, then a burden of production falls to
the employer to articulate a legitimate non-discriminatory
reason for the adverse employment action.
Alexander v.
Fulton Cnty. , Ga., 207 F.3d. 1303, 1336 (11th Cir. 2000)
If the employer articulates a. legitimate non-discriminatory
reason, the burden then shifts back to the plaintiff to
demonstrate that the employer's stated reason was a pretext
for discrimination. Id. Should the plaintiff, at this
point, fail to establish the presence of a genuine issue of
material fact that the employer's reason was merely
pretextual, then the employer is entitled to summary
judgment in its favor. Cuddeback, 381 F.3d at 1235.
a.
Discriminatory Discharge
In this case, Plaintiff has established the four
elements of a prima facie case on her claim for
6
In this case, Plaintiff brings both claims for
discriminatory discharge based on the elimination of her
position and for failure to hire based on Defendant
Chisolm's decision not to hire her for the newly created
position. Therefore, Plaintiff claims to have suffered two
separate adverse employment actions.
26
discriminatory discharge by showing that (1) she is female;
(2) she was qualified for the position; (3) her employment
was terminated; and (4) she was replaced by a male
employee. (Doc. 31 at 19-20) . Defendant Chisoim has
articulated a legitimate non-discriminatory reason by
stating that Plaintiff's position, along with a second
administrative position, was redundant and enjoyed an
excessive salary when compared to other administrative
positions in the District Attorney's office.
19j
(Doc. 23 at
Therefore, Defendant Chisolm eliminated the two
positions and created a new administrative position, which
carried a lower salary. (Id.) According to Defendant
Chisolm, these employment decisions were motivated by
budgetary and efficiency concerns. (Id. at 18-19.)
Plaintiff fails in her response, however, to advance
any argument, much less create a genuine issue of material
tact, that Defendant Chisoim's proffered non-discriminatory
reason for eliminating her position was merely pretextual.
In a conclusory sentence, Plaintiff states that she has
established a prima facie case because "Mr. Chisolm
abolished her position
(Doc. 31 at 20.)
. . because of [her] gender."
However, this tails to even address or
' Defendant Chisoim does not dispute that Plaintiff has
established these elements. (See Doc. 23 at 17-21.)
27
offer any evidence as to the pretextual nature of Defendant
Chisolms non-discriminatory reason for eliminating her
position—budgetary and efficiency concerns. Plaintiff does
provide a litany of reasons in a section discussing
Defendant Chisolm's entitlement to qualified immunity.
(Id. at 20-28.) Even assuming, as the Court will below,
that these arguments are designed to attack the legitimacy
of Defendant Chisoim's employment decisions, they all
allege that Defendant Chisoim falsely or wrongly accused
Plaintiff of erratic behavior or poor job performance, none
of these argument address Defendant Chisolm's purported
reason for eliminating Plaintiff's position. As a result,
Plaintiff has completely failed to show that budgetary or
efficiency concerns were pretext for Defendant Chisoim's
unlawful gender discrimination when eliminating her
position. Based on this failure, Defendant is entitled to
summary judgment on Plaintiff's Title VII discriminatory
discharge claim.
b.
Discriminatory Failure to Hire
In this case, Plaintiff has established the four
elements of a prima facie case on her claim for
discriminatory failure to hire by showing that (1) she is
female; (2) she was qualified for the position for which
she applied; (3) she was not considered for the position
28
despite being qualified; and (4) the position was filled by
an equally or less qualified male.S
(Id. at 19-20.)
Defendant Chisoim has articulated legitimate nondiscriminatory reasons by stating that he did not select
Plaintiff for the new position because he noticed several
deficiencies in her lob performance within the first month
he took office. (Doc. 23 at 20.) Specifically, Defendant
Chisoim was not satisfied with Plaintiff's oversight and
tracking of the office's budget, her displeasure with the
reorganization plan, her inability to work well with others
in the office, and her prior threatening statements. (Id.)
While somewhat unclear, it appears that the litany of
reasons in a section arguing that Defendant Chisolm is not
entitled to qualified immunity is meant to attack
Defendant's purported non-discriminatory reason for failing
to hire Plaintiff for the new position.
(See Doc. 31 at
21-28.) In this section, Plaintiff presents evidence that
she contends shows that Defendant Chisoim's proffered nondiscriminatory reason may be 'unworthy of credence." Tex.
Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 256
(1981) .
Generally, Plaintiff contends that Defendant
Chisolm's opinion as to her performance and her
Again, Defendant Chisolm does not dispute that Plaintiff
has established these elements. (See Doc. 23 at 17-21.)
29
relationship with fellow employees is incorrect. (Doc. 31
at 21-28.) For example, Plaintiff has presented affidavits
from her supervisor and the previous District Attorney, who
both state that Plaintiff was
'never disciplined,
reprimanded or counseled and that they never had a problem
with her performance."
(Id. at 22; accord Doc. 34, Attach.
3 14:20 to 15:20; Id., Attach. 4 12:14 to 13:22.) In
addition, Plaintiff offers statements from several people
stating that, contrary to Defendant Chisolm, her behavior
in the workplace was not erratic. (Doc. 31 at 22; Doc. 34,
Attach. 4 33:6 to 34:31; id., Attach. 3 24:14 to 26:23;
Id., Attach. 19 36:17 to 37:18.) With respect to Defendant
Chisolm's contention that Plaintiff mismanaged the office
budget, Plaintiff submits statements from several
individuals, including the Finance Director for Chatham
County and the previous District Attorney, indicating that
there were no problems with Plaintiff's handling of the
office's complex budget. (Doc. 31 at 25-26; Doc. 34,
Attach. 6 16:24 to 17:16, 20:15 to 22:6; Id., Attach. 3
13:23 to 14:10; Id., Attach. 4 11:20 to 12:24.)
While it is inevitably for a jury to decide, the
statements presented by Plaintiff, if believed, call Into
question the various incidents that Defendant Chisolm cites
as non-discriminatory reasons for her termination.
30
If a
jury were to accept this testimony, it would be entitled to
find that Defendant Chisoim manufactured the alleged poor
job performance and working relationship with fellow
employees as pretext for terminating Plaintiff because of
her gender. For this reason, the Court finds that
Plaintiff has created a genuine issue of material fact that
her termination was a result of gender discrimination.
Accordingly, Defendant Chisolm in his official capacity is
not entitled to summary judgment on this issue.
2.
Plaintiff's Retaliation Claim
Plaintiff has brought a retaliation claim under Title
VII based on Defendant Chisolm's failure to hire Plaintiff
for the newly created position. 9 (Doc. 1 ¶ 23.) To
establish a prima facie case of retaliation, a plaintiff
must show (1) that she engaged in statutorily protected
activity; (2) that she suffered a materially adverse
action; and (3) that there was a causal connection between
Defendant Chisoim appears to believe that Plaintiff is
also basing her retaliation claim on the elimination of her
position. (See Doc. 23 at 23.) The Court, however, does
not read Plaintiff's complaint in that manner. Indeed, it
would be strange that Plaintiff would allege that her
position was eliminated in retaliation for filing a
complaint about her position being eliminated. Even
Plaintiff, in her response, does not raise any argument in
support of a claim for retaliation based on the elimination
of her position. (See Doc. 31 at 30-32.) Accordingly, the
Court will not address Defendant Chisoim's arguments
regarding the retaliatory elimination of Plaintiff's
employment.
31
the two events.
E.g., Little v. United Tech., 103 F.3d
956, 959 (11th Cir. 1997) 10 To establish the necessary
causal connection, 'a plaintiff merely has to prove that
the protected activity and the negative employment action
are not completely unrelated."
E.E.O.C. v. Reichhold
Chem., Inc., 988 F.2d 1564, 1571-72 (11th dr. 1993) .
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." Goldsmith v.
City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)
Evidence of the employer's awareness, coupled with a close
temporal proximity between the employee's protected conduct
and the adverse employment action,
is
sufficient
circumstantial evidence to create a genuine issue of
material fact on a causal connection. Brungart v.
BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th dir.
2000); Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322,
1337 (11th Cir. 1999) (seven weeks constituted temporal
proximity sufficient to demonstrate a causal nexus between
10
Title Vii's anti-retaliation provision, 42 U.S.C. 2000e3 (a), provides that "[ii t shall be an unlawful employment
practice for an employer to discriminate against any of his
employees or applicants for employment . . . because he has
opposed any practice made unlawful by [42 U.S.C. § 2000e],
or because he has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding,
or hearing under this subchapter."
32
protected activity and adverse employment action in an ADA
case). Should a plaintiff establish a prima fade case of
retaliation, 'the employer has the burden of articulating a
legitimate non-discriminatory reason for the challenged
employment decision." Id. The plaintiff must then
demonstrate that the proffered non-discriminatory reason is
mere pretext for the unlawful retaliation. Id. (quoting
Stewart v. Happy Herman's Cheshire Bridge, Inc., 117 F. 3d
1278, 1287 (11th Cir. 1997)
In his Motion for Summary Judgment, Defendant Chisolm
argues that Plaintiff has failed to establish that he was
aware of Plaintiff's EEOC complaint when he decided not to
hire her for the new position. (Doc. 23 at 23.) However,
it is difficult for the Court to accept this proposition
based on Defendant Chisolm's deposition, during which he
appears to testify that he knew in January of 2009 that
Plaintiff had filed an EEOC complaint.
(Doc. 34, Attach.
16 83:10 to 84:17.) To be fair, Defendant Chisolm later
testified unequivocally that he did not know Plaintiff had
filed an EEOC complaint when he declined to consider her
for the new position. (Id. 111:8-22.) Based on the
apparent discrepancy in Defendant Chisolm's testimony, the
Court concludes that summary judgment is inappropriate
because there is a genuine issue of material fact
33
concerning whether Defendant Chisolm knew of the EEOC
complaint when he decided not to consider Plaintiff for the
new position.
In his Motion for Summary Judgment, Defendant Chisoim
also argues that Plaintiff cannot show that his nondiscriminatory reason is pretextual, advancing the same
arguments he employed with respect to Plaintiff's Title VII
claim for discriminatory failure to hire. (Doc. 23 at 24.)
As the Court has previously determined that Plaintiff has
identified genuine issues of material fact regarding
whether Defendant Chisolm's reasons were pretextual, see
supra Analysis.PartIII.C.1.b, the Court need not address
them again here. Accordingly, Defendant Chisoim in his
official capacity is not entitled to summary judgment on
this claim.
CONCLUSION
For the above reasons, Defendant Chatham County's
Motion for Summary Judgment (Doc. 20) is GRANTED and
Defendant Chisolm's Motion for Summary Judgment (Doc. 23)
is GRANTED IN PART
and DENIED IN PART. Plaintiff's claims
against Defendant Chatham County are all DISMISSED. With
respect to Defendant Chisoim, Plaintiff's 42 U.S.C. § 1983
claims, Age Discrimination in Employment Act (ADEA")
claim, Title VII individual capacity claims, and Title VII
34
claim for discriminatory discharge are also DISMISSED.
However, Defendant Chisoim's request for summary judgment
is DENIED with respect to Plaintiff's Title VII claims
against him in his official capacity for both failure to
hire and retaliation.
SO ORDERED this
2#day
of March 2012.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
35
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