Marcum v. City of Rincon, Georgia et al
Filing
47
ORDER granting 32 Motion for Summary Judgment. This case stands closed. Signed by Chief Judge J. Randal Hall on 3/14/2018. (pts)
IN THE UNITED STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
CORTNEY R. MARCUM,
Plaintiff,
*
5
V.
*
CV 415-234
*
CITY OF RINCON, GEORGIA,
*
*
Defendant.
*
ORDER
Before
judgment.
the
Court
(Doc. 32.)
is
Defendant's
motion
for
summary
The Clerk has given Plaintiff notice of
the summary judgment motion and the summary judgment rules, of
the right to file affidavits or other materials in opposition,
and
the
consequences
of
default.
Therefore,
the
notice
requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th
Cir. 1985) (per curiam), have been satisfied.
For the following
reasons. Defendant's motion is GRANTED.
I.
This
case
Defendant
City
Plaintiff
claims
retaliation
for
arises
of
out
Rincon's
she
was
filing
a
BACKGROUND
of
Plaintiff's
Police
fired
Department
because
grievance
dismissal
with
of
her
the
(the
"CRPD").
gender
Equal
from
and
in
Employment
Opportunity Commission
C'EEOC").
Making all inferences in favor
of Plaintiff, the facts of the dispute are as follows.
In
April
2012,
shortly
after
graduating
from
the
police
academy. Plaintiff accepted a position as a police officer for
the CRPD.
usually
{Marcum Dep., Doc. 32-3, at 22.)
hired
officers
with
prior law
Although Defendant
enforcement experience,
Phillip Scholl, the CRPD Chief of Police, supported Plaintiff's
hiring.
(Id. at 23-24.)
female
year.
officer,
but
two
At the time. Plaintiff was the only
more
women
were
hired
the
following
(Id. at 24; Scholl Aff., Doc. 32-8, SI 4.)
In August 2012, Plaintiff was reprimanded after she backed
her patrol car into another driver at the scene of an accident.
(Marcum
Dep.,
Ex.
Plaintiff's
former
Plaintiff's
4,
fault.
at
52.)
partner,
Officer
claims
(Moseley
the
Dep.,
Joshua
accident
Doc.
32-5,
Moseley,
was
at
not
38-39.)
Plaintiff received a second reprimand on February 9, 2013, for
failing to complete
a
case file, sign
an
arrest
submit an incident report in a timely fashion.
Ex. 7, at 59.)
being
rude
to
Softball game.
Plaintiff,
months.
Zoller,
she
(Id.)
a
CRPD
warrant,
(Marcum
and
Dep.,
Around this time. Plaintiff was also accused of
a
member
of
the
Rincon
(Scholl Aff. SI 5.)
claimed
she
However,
clerk
who
had
when
the
not
City
Council
during
a
When Chief Scholl spoke to
been
Chief
to
Scholl
councilman
said
the
ballfield
mentioned
was
in
Ashley
at the
game
with
Plaintiff,
game
but
Plaintiff
explained
ballfield.^ (Id.)
the councilman.
that
confessed
Chief
that
Scholl
she
did
had
not
attended
specify
the
which
Plaintiff also denied having any contact with
(Marcum Dep. at 28.)
On February 14, 2013, Plaintiff requested to work off-duty
for the Chatham County Sheriff's Department.
Chief
Scholl
based
on
one-year
denied
Plaintiff's
new
hire
her
request
misconduct
and
and
probationary
(Scholl Aff. SI 6.)
claims
that
his
period.^
was
was
she
decision
still
her
(Id.)
on
Plaintiff
maintains that other male officers were allowed to take off-duty
work
during
most
of
their
these
probationary
officers
had
period,
prior
law
but
acknowledges
enforcement
that
experience.
(Marcum Dep. at 37-38.)
Plaintiff received
(Id., Ex. 10, at 66.)
her third
reprimand on April 5, 2013.
Plaintiff had been assigned to prepare
and perform a PowerPoint presentation on the challenges of being
a female police officer, which was due April 4, 2013.
Dep.
at
46,
57.)
Plaintiff
concedes
she
knew
(Marcum
about
the
assignment and its formatting requirements but maintains she was
not given a due date until 24 hours before the deadline.
(Id.)
When the deadline came. Plaintiff handed in ""a few pages in Word
^ Plaintiff claims the game was at Giles Park and that when Chief Scholl first
spoke with her, he said Macomber Park.
(Marcum Dep. at 28.)
^ The email Chief Scholl wrote to Plaintiff only mentioned her probationary
status and the
60.)
possible liability for
Defendant.
(Marcum
Dep., Ex. 8, at
format which looked like they had been put together hurriedly."
{Scholl
Aff.
f
8.)
After
Chief
format, Plaintiff said she had a
Scholl
{Marcum Dep. at 52-53.)
with
drive,
thumb
Chief
the
When Plaintiff returned
Scholl discovered
drive was also in Word format.
about
PowerPoint version on a thumb
drive at home.
the
complained
(Id. at 54)
the
file
on
the
Plaintiff insists
that while she made a PowerPoint presentation, she accidentally
converted the file by saving her draft in Word format.
(Id. at
51.)
Plaintiff's
June 2013.
problems
reprimanded
(Adams
work
escalated
toward
the
end
of
On June 17, Plaintiff was reprimanded for failing to
maintain her patrol car.
also
at
Dep.,
Doc.
after
32-7,
(Id., Ex. 12, at 71.)
calling
at
30;
in
sick
Scholl
three
Plaintiff was
days
Dep., Ex.
in
20,
a
row.
at
47.)
When Corporal John Adams, Plaintiff's supervisor, told her she
would need a doctor's note. Plaintiff responded, "[f]uck them if
they don't like it. There's not a damn thing they can do about
it."^
(Marcum Dep., Ex. 11, at 69.)
Moreover, when Plaintiff
returned to work, her doctor's note only addressed one absence.
Plaintiff was given two reprimands for this episode: one for her
^ Plaintiff claims she became upset because Corporal Adams said the doctor's
note needed to explain the nature of her illness.
(Marcum Decl. 5 5.)
insufficient doctor's note
and one for her reaction to Corporal
Adams.
On
June
18,
2013,
Plaintiff
was
placed
on
administrative
leave pending an internal affairs investigation into her failure
to complete an incident report about a stolen trailer.
Ex. 14, at 79.)
(Id.,
The investigators found that Plaintiff failed
to follow standard procedure for filing information, and on June
20, Plaintiff was suspended without pay for three days.^
(Id.)
When Chief Scholl tried to give Plaintiff her suspension notice,
she refused to sign and claimed that CRPD policy entitled her to
a copy of the internal affairs report.
Chief
Scholl
ordered
Plaintiff
to
(Scholl Dep. at 43-44.)
leave
the
building
but
Plaintiff remained outside his office talking on her cell phone
until
Sergeant
premises.
Jose
Ramirez
(Marcum
Plaintiff's
seventh
Dep.
at
reprimand
arrived
68.)
and
drafted
49.)
escort
This
another
without pay, which began on June 26.
When
to
notice
of
termination.
off
incident
CRPD
led
to
three-day suspension
(Id., Ex. 15, at 81.)
Plaintiff returned from suspension.
her
her
(Scholl
Chief Scholl
Dep.,
Ex.
23,
had
at
However, after talking to Wesley Corbitt, Defendant's City
Manager, Chief Scholl agreed to place Plaintiff on a six-month
'' Chief Scholl said this reprimand was eventually withdrawn.
(Scholl Dep. at
36.)
^ Plaintiff maintains that another officer, who had allegedly started the
incident report, was responsible for completing it.
Statement of Material Facts, Doc. 30, 5 20.)
5
(Pl.'s Resp. to Def.'s
corrective action plan.
Plaintiff's
probation
If
(Id. at 45.)
would
months.
(Id.)
probation
would end in
be
Plaintiff
Pursuant to that plan,
extended
had
no
an
additional
misconduct,
further
six
her
January 2014. (Id. at 46.)
Plaintiff
showed improvement under the corrective action plan.
On October
6,
work
2013,
Plaintiff
runaway case.
received
(Marcum
a
commendation
Dep. at 75.)
for
her
on
a
Plaintiff also received
favorable remarks during her January 2014 review and was taken
off probation.
(Id. at 79; Scholl Dep. at 48.)
Plaintiff presumably began considering legal action against
Defendant at some point before December 2013.
Sometime during
that month, Mr. Corbitt asked Plaintiff if she was considering
legal action
against
Defendant
and
whether
there
they could settle the dispute without litigation.
at
77.)
Plaintiff
told
Mr.
Corbitt
that
she
was any
way
(Marcum Dep.
not
(Id.)
about the matter and to speak to her attorney.
would
talk
On April
11, 2014, Plaintiff filed a Charge of Discrimination (''Charge")
with
the
EEOC
discrimination.
Plaintiff
claiming
she
had
been
the
victim
of
sexual
(Id., Ex. 20, at 93.)
was
terminated
on
July
7,
2014.
Plaintiff's
firing was allegedly due to a wrongful detention and a wrongful
arrest, both of which occurred in June 2014.
117.)
The
wrongful
detention
dispute
arose
(Id., Ex. 23, at
after
Plaintiff
arrested Jacob McFadden on June 15 for failing to register as a
sex
offender.
{Marcum
Dep.
at
89.)
Four
days
later,
Amy
Kendrick, a clerk for the Effingham County Sheriff's Department,
told Plaintiff that Mr. McFadden was not required to register as
a
sex
offender
and
needed
to
be
released.
(Id.
at
92.)
However, Mr. McFadden was not released until July 1, 2014, after
his attorney complained to the Chatham County District Attorney.
(Ramirez
Dep.
Sergeant
Ramirez
Corporal
at
Adams
62.)
Before
that
she
about
Mr.
satisfy
her
duty
(Marcum
Dep.
at
to
was
not
did
remember
McFadden,
report
93.)
she
issues
Plaintiff
fired.
whether
which
up
now
the
claims
Plaintiff
would
chain
she
told
told
presumably
of
command.
she told
Corporal
Adams shortly after speaking with Ms. Kendrick.
(Marcum Dep. at
92-93.)
The
wrongful
arrest
occurred
on
June
24,
2014,
when
Plaintiff arrested Aguilar Tiniguar for unlicensed operation of
a motor vehicle.
on
a
(Id. at 97.)
private throughway.
Chief Scholl believed the arrest
unsupported by Georgia law.
termination
cited
this
Because Mr. Tiniguar was driving
(Scholl Dep. at 55.)
event
and
the
detention
was
The notice of
of
Mr.
McFadden
as grounds for firing Plaintiff. (Marcum Dep., Ex. 23, at 117.)
Plaintiff
authority
Adams
appealed
to
about
arrest
Mr.
her
termination
Mr.
Tiniguar
and
but
appeal
McFadden
her
Decl., Ex. 1, at 5; Scholl Aff. 5 15.)
claiming
that
was
she
that
she
had
told
Corporal
denied.
(Marcum
On August 5, 2014, Plaintiff filed her second Charge with
the EEOC.
(Doc. 19-1, at 2.)
''Notice
Right
of
days had
EEOC
to
Sue," which
passed since
was
On June 2, 2015, she received a
terminating
explained
Plaintiff filed
its
processing
that more than
180
her Charge and that the
of
Plaintiff's
Charge.
this
against
(Id.)
On
August
25,
2015,
Plaintiff
filed
action
Defendant and several individual defendants--who have since
been
dismissed—alleging violations of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1983.
Defendant
now
moves
for
summary
judgment
arguing
that
a
reasonable jury could not find that Plaintiff was terminated due
to
a
discriminatory
animus
or
in
retaliation
for
engaging
in
protected conduct.
II.
LEGAL STANDARD
A motion for summary judgment will be granted if there is
no disputed material fact and the movant is entitled to judgment
as a matter of law.
Fed. R. Civ. P. 56(a).
Facts are material if
they could affect the results of the case.
Lobby,
Inc.,
477
U.S.
242,
248
(1986).
Anderson v. Liberty
The
court
must
view
facts in the light most favorable to the non-moving party and
draw all inferences in its favor.
Ltd.
V.
Zenith
Radio
Corp.,
475
Matsushita Elec. Indus. Co.,
U.S.
574,
587
(1986).
The
movant initially bears the burden of proof and must demonstrate
the
absence
of
a
disputed
material
Catrett, 477 U.S. 317, 323 (1986).
fact.
Celotex
v.
The movant must also show no
reasonable jury could find for the non-moving
the essential elements.
Corp.
party on any of
Fitzpatrick v. City of Atlanta, 2 F.3d
1112, 1115 (11th Cir. 1993).
If the movant carries its burden, the non-moving party must
come forward with significant, probative evidence showing there
is a material fact in
dispute.
Id. at 1116.
The
non-movant
must respond with affidavits or other forms of evidence provided
by Federal Rule of Civil Procedure 56.
non-movant
cannot
survive
summary
judgment
pleadings or conclusory statements.
1032, 1033-34
(11th
Cir.
1981).
Id. at 1116 n.3.
by
relying
on
The
its
Morris v. Ross, 663 F.2d
After
the
non-movant has
met
this burden, summary judgment is granted only if ''the combined
body of evidence is still such that the movant would be entitled
to
a
directed
verdict
at
trial
-
that
is,
reasonable jury could find for the non-movant."
F.3d at 1116.
such
that
no
Fitzpatrick, 2
III.
Plaintiff
claims
that
DISCUSSION^
her
termination
violated
Title
VII
because it was inspired by hostility toward her gender and in
retaliation for engaging in protected conduct.
for
summary judgment
maintaining
that
Defendant moves
Plaintiff
was fired
for
being a bad police officer.
A.
Discrimination Claim
Under Title VII, an employer may not "discriminate against
any
individual
with
conditions,
or
individual's
race,
42
U.S.C.
§
respect
privileges
color,
to
of
his
compensation,
employment,
religion,
2000e-2(a)(1).
A
sex,
terms,
because
or
plaintiff
of
national
origin."
can
show
such
gender
discrimination by presenting direct evidence of discriminatory
intent;
statistical
proof
of
disparate
treatment;
or
circumstantial evidence sufficient to give rise to an inference
of discrimination.
Wright
1293 (11th Cir. 1999).
discrimination,
McDonnell
a
Southland
Corp.,
187
F.3d
1287,
To establish a prima facie case of
plaintiff
Douglas Corp.
v.
can
follow
v. Green, 411
the
U.S.
framework
792 (1973).
set
by
Under
McDonnell Douglas, the plaintiff must show (1) she is a member
of a protected class; (2) she was qualified for the position;
® Plaintiff concedes that summary judgment is appropriate with respect to her
hostile work environment and ratification claims. (Pl.'s Resp. to Def.'s
Conclusions of Law, Doc. 39, SSI 2, 4.) Therefore, summary judgment for
Counts Two and Four is GRANTED.
10
(3) she was subject to adverse employment action; and (4) she
was treated less favorably than a similarly situated individual
outside her protected class.
Maynard v. Bd. of Regents of Div.
of Universities of Fla. Dept. of Educ. ex rel. Univ. of S. Fla.,
342 F.3d 1281, 1289 (11th Cir. 2003).
The fourth prong requires
that "the quantity and quality of the comparator's misconduct be
nearly
identical
to
employers'
reasonable
oranges."
Maniccia
prevent
1999).
If the
summary
judgment
courts
decisions
and
v. Brown, 171
from
confusing
be
granted "where
discrimination is present."
apples
with
F.3d 1364, 1368 (11th Cir.
plaintiff cannot identify a
may
second-guessing
Holified
proper
no
other
comparator,
evidence
of
v. Reno, 115 F.3d 1555,
1562 (11th Cir. 1997).
The plaintiff bears the initial burden of establishing a
prima facie case of discrimination.
at 802.
Meeting this standard gives rise to a presumption of
discriminatory
proffering
action.
a
intent,
which
legitimate,
the
defendant
nondiscriminatory
must
rebut
reason
for
by
its
Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248,
254 (1981).
The defendant is only required to show that such a
reason exists; it does
actual
McDonnell Douglas, 411 U.S.
motive.
Walker
not need
v.
1548, 1556 (11th Cir. 1995).
to
prove
NationsBank
of
that reason
Fla.
N.A.,
was its
53
F.3d
If the defendant meets its burden
of production, the plaintiff must then show that the defendant's
11
proffered
E.E.O.C.
(11th
reason
V.
was a
Joe^s
Cir.
pretext for its discriminatory motive.
Stone
2002).
In
Crabs,
cases
Inc. ^
that
296
F.3d
involve
1265,
the
1272-73
discriminatory
application of workplace rules, a plaintiff can show pretext by
proving (a) she did not break the rule or (b) her misconduct was
similar to another worker, outside her protected class, who was
not
punished
as
severely.
Damon
v.
Fleming
Supermarkets
of
Fla., Inc., 196 F.3d 1354, 1363 (11th Cir. 1999).
Establishing
pretext
honest,
is
a
heavy
burden,
and
an
employer's
but
mistaken belief that an employee violated a workplace rule does
not give rise to Title VII liability.
V.
Royal
Cir.
Atlantic
2010)
("The
dissatisfied
with
Developers,
question
her
for
Id. at 1363 n.3; Alvarez
Inc., 610
is
F.3d
whether
these
or
1253,
her
other
1266 (11th
employers
were
non-discriminatory
reasons, even if mistakenly or
unfairly so, or instead merely
used
[the
those
complaints
discriminating
about
against
her
employee]
because
of
as
her
cover
for
[protected
characteristic].").
Plaintiff
gender
has
failed
discrimination.
elements
of
comparator
McDonnell
who
was
to
establish
While
Douglas,
treated
she
a
satisfied
Plaintiff
more
prima
has
favorably.
facie
the
not
case
first
three
identified
Plaintiff
of
a
argues
that because she told Corporal Adams, her supervisor, about Mr.
McFadden, the fact that she was fired and Corporal Adams was not
12
gives
rise
determine
to
a
whether
look at each
presumption
of
discriminatory
an
is
a
employee
employee's
proper
intent.
comparator,
disciplinary history as
To
courts
well as their
alleged misconduct.
Jones v. Bessemer Carraway Med. Ctr., 137
F.3d
("Plaintiff
1306,
similarly
1312-13,
situated
employee
also
claims
because
that
she
Clark
was
frequently
a
was
unprepared for work—she would have curlers in her hair and put
makeup on during report—and had a pretty poor tardiness record.
This claim, however, ignores that Plaintiff was not terminated
only because she was unprepared; instead, she was terminated for
being unprepared and insubordinate, in the light of an already
deficient employment record." (emphasis in
modified
Even
on
other
assuming
grounds
Chief
by
Scholl
151
F.3d
believed
original)), opinion
1321
(11th
Corporal
Cir.
Adams
1998).
was
told
about Mr. McFadden,'' Plaintiff has not shown that Corporal Adams
had
a
similar
solely
because
disciplinary
she
did
Plaintiff's termination
history.
not
release
was the
Plaintiff
Mr.
was
McFadden.
culmination
Plaintiff
had
been
written
fired
Instead,
of several instances
of misconduct with increasingly severe punishments.
termination.
not
up
on
Before her
seven
separate
occasions, two of which resulted in three-day suspensions. See
Section I., supra.
While Plaintiff disputes the propriety of
many of her reprimands, she concedes that she was insubordinate
^ Corporal Adams has consistently denied that Plaintiff told him about Mr,
McFadden.
(Adams Dep. at 19; Scholl Aff. f 15; Ramirez Dep. at 36.)
13
on
several
occasions,
Material Facts
record
history
Corporal
that
unpunished.
Resp.
10, 11, 19, 21.)
showing
or
(Pl.'s
he
Adams
Def.'s
Statement
of
There is no evidence in the
had
engaged
to
in
a
comparable
such
disciplinary
misconduct
and
went
Accordingly, Corporal Adams is not an appropriate
comparator, and Plaintiff has not set out a prima facie case of
discrimination.®
Assuming arguendo that Plaintiff established a prima facie
case
of
sex
discrimination,
appropriate
because
nondiscriminatory
summary
she
reasons
has
for
judgment
not
firing
would
shown
her
still
be
Defendant's
were
pretextual.
Defendant submitted evidence showing Plaintiff was fired for the
mistaken arrest of Mr. Tiniguar and the mistaken
Mr. McFadden.
the
arrest
{Marcum Dep., Ex. 23, at 117.)
of
Mr.
Tiniguar,
the
record
detention of
With respect to
shows
that
before
Plaintiff was terminated, she told Chief Scholl that her arrest
was proper.
inquiry
is
employee's
(Ramirez Dep. at 32.)
concerned
with
performance,
the
not
Nevertheless, "the pretext
employer's
the
employee's
Hankins v. AirTran Airways, Inc., 237
Cir.
2007);
Damon,
196
F.3d
at
perception
1363
own
of
the
beliefs."
F. App'x 513, 522 (11th
n.3.
Plaintiff
needs
Plaintiff's Amended Complaint also included an allegation that she was paid
less than her male counterparts.
Nevertheless, Plaintiff failed to identify
a comparator, or even respond to the evidence cited in Defendant's motion
showing the employees who were paid more than Plaintiff had more experience.
(See Scholl Aff. 1 9.)
14
evidence showing, at the time she was terminated, Chief Scholl
could
not
have
honestly
believed
that were used as grounds for
Plaintiff
violated
her termination.
the
rules
See Cooper v.
Southern Co., 390 F.3d 695, 740 (11th Cir. 2004), overruled on
other
grounds
(2006); Good
by
v.
Ash
Omni
v.
Tyson
Hotels
Foods,
Mgmt.
*40 (N.D. Ga. Aug. 15, 2008).
Inc.,
547
Corp., 2008
U.S.
WL
454,
11322930,
457
at
Accordingly, even if Plaintiff's
arrest was lawful. Chief Scholl's mistaken belief would not give
rise to Title VII liability.
Because Plaintiff has not produced
evidence to suggest that Chief Scholl could not honestly believe
Plaintiff's arrest was improper, there is no question of fact
regarding pretext.^
Because she
cannot
identify a
male
comparator.
Plaintiff
has failed to establish a prima facie sex discrimination claim.
Even
if
Plaintiff
met
that
burden,
there
is
insufficient
® The detention of Mr. McFadden follows the same reasoning.
The fact that
Plaintiff now claims she told Corporal Adams about Mr. McFadden is
irrelevant.
What is important is what Chief Scholl knew when Plaintiff was
fired.
Plaintiff
concedes
that
she
told
Sergeant
Ramirez,
who
was
investigating the incident to determine who was at fault, "I don't know if I
notified [Adams]." (Marcum Dep. at 93/
Material
Facts
SI
30.)
Thus,
the
PI.'s Resp. to Def.'s Statement of
evidence
in
the
record
shows
that
when
Plaintiff was terminated, Chief Scholl had a good faith belief that Plaintiff
alone was responsible for prolonging the wrongful imprisonment of Mr.
McFadden.
Plaintiff fails to address other methods of establishing a prima facie
case, such as the test set forth in Smith v. Lockheed-Martin Corp., 644 F.3d
1321 (llth Cir. 2011).
Nevertheless, after reviewing the record. Plaintiff
has not presented "*a convincing mosaic of circumstantial evidence that would
allow a jury to infer intentional discrimination by the decisionmaker.'" See
Smith, 644 F.3d at 1328 (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 733
(7th Cir. 2011)). Additionally, because Plaintiff failed to offer sufficient
evidence to create a genuine issue of discrimination, she has also failed to
satisfy the "mixed-motive" test.
See Quigg v. Thomas Cty. Sch. Dist., 814
F.3d 1227, 1235 (llth Cir. 2016).
15
evidence
reason
to
for
entitled
rebut
Defendant's
terminating
to
summary
legitimate,
Plaintiff.
judgment
nondiscriminatory
Accordingly,
on
Plaintiff's
Defendant
is
discrimination
claim.
B.
Retaliation Claim
Plaintiff's
case
fares
retaliation complaint.
no
better
when
reframed
as
a
To establish a prima facie retaliation
claim, a plaintiff must present evidence showing "'(1) that she
engaged
suffered
in
statutorily
an
adverse
protected
employment
expression;
action;
and
F.3d
that
(3) that
some causal relation between the two events."
Assocs. Int'l, 15
(2)
she
there
is
Meeks v. Computer
1013, 1021 (11th Cir.
1994).
As
with
discrimination, once the plaintiff has presented a prima facie
claim,
the
defendant
nondiscriminatory
reason
must
was
then
show
retaliatory motive.
a
must
for
its
pretext
proffer
action,
for
a
which
the
legitimate,
the
plaintiff
defendant's
true
Perryman v. Johnson Prod., Inc., 698 F.2d
1138, 1142 (11th Cir. 1983).
Assuming
arguendo
that
Plaintiff
set
out
a
prima
facie
case; she has not shown Defendant's nondiscriminatory reason for
firing her was pretext.
See Section III A., supra.
The only
evidence Plaintiff has to support pretext is that she was fired
three months after filing her EEOC complaint.
16
(Marcum Dep., Ex.
20,
at
93;
Marcum
Dep.,
Ex.
23,
at
117.)
While
temporal
proximity can support finding pretext, a three-month gap is too
great
without
Service,
additional
Inc.,
[T]hree-month
615
F.
evidence.
App'x
disparity
See
598,
alone
is
Redd
606-07
v.
United
{11th
Parcel
Cir.
insufficient.");
2015)
Matias
v.
Sears Home Imrpovement Prods., Inc., 391 F. App'x 782, 787 (11th
Cir.
2010)
(finding
a
one
month
gap
was
insufficient to
show
pretext); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364
(11th
Cir.
2007).
Moreover,
when
there
is
evidence
that
the
employer contemplated adverse action before an employee engaged
in protected activity, proximity alone cannot establish pretext.
Drago
Chief
v.
Scholl
against
even
Jenne,
453
F.3d
considered
Plaintiff long
drafted
a
1301,
and
Dep., Ex. 23, at 49.)
multiple reprimands.
took
before
termination
1308
(11th
on
her
June
2006).
Here,
employment
adverse
she filed
letter
Cir.
action
EEOC
26,
charge.
2013.
He
(Scholl
This letter followed two suspensions and
(Scholl Dep., Ex. 19, at 46.)
All of this
occurred before Plaintiff filed her EEOC complaint on April 11,
2014.
(Marcum
Dep.,
Ex.
20,
at
93.)
Therefore,
Plaintiff
needed additional evidence beyond temporal proximity to show the
nondiscriminatory reasons for firing her were pretextual.
The fact that Plaintiff was fired three months after filing
an EEOC Charge is not sufficient evidence to support a finding
17
that
her
termination
protected conduct.
was
in
retaliation
for
engaging
in
Therefore, Defendant is entitled to summary
judgment on Plaintiff's Title VII retaliation claim.
IV. CONCLUSION
Upon
the
foregoing
and
in
due
consideration.
motion for summary judgment (doc. 32) is GRANTED.
directed
to ENTER JUDGMENT in favor
Defendant's
The Clerk, is
of Defendant and CLOSE this
case.
ORDER ENTERED at Augusta, Georgia, this
day of March,
2018 .
:hief judge
UNITED/STATES DISTRICT COURT
:rn
district of Georgia
Plaintiff s Amended Complaint also includes a retaliation claim under the
Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 U.S.C. §
1983.
However, the Eleventh Circuit does not recognize such a cause of
action.
Watkins v. Bowden, 105 F.3d 1344, 1354-55 (llth Cir. 1997) ("A pure
or generic retaliation claim, however, simply does not implicate the Equal
Protection Clause.").
18
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