Cooper v. Mayor and Alderman of the City of Savannah

Filing 14

ORDER granting 12 Motion to Stay Discovery Pending Resolution of Its Dispositive Motion. Signed by Magistrate Judge G. R. Smith on 2/28/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
TONIA COOPER,
Plaintiff,
v.
MAYOR AND ALDERMAN OF
THE CITY OF SAVANNAH,
Defendant.

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CV416-329

ORDER
Plaintiff Tonia Cooper filed this employment discrimination action
(Title VII) against her former employer, the City of Savannah, Georgia.

See, generally, doc. 1. The City moves to dismiss, and to stay discovery
pending disposition of that motion. Docs. 5 & 12. Cooper opposes both
motions. Docs. 8 & 13.
Cooper was a City employee from 2008 until she was discharged in
2016. Doc. 1, ¶¶ 13, 21. She alleges that from 2013 to 2015 she was
subjected to unwelcome advances (verbal and physical) from her
supervisor.

Id. ¶¶ 14-15. When she was unreceptive, her supervisor

retaliated. Id. ¶ 16. She complained to the City, through “administrative

review” and reports to Human Resources. Id. ¶ 18. The City discharged
her, she alleges, in retaliation for pursuing her complaints.

Id. ¶ 25.

After exhausting the remedies available to her from the United States
Equal Employment Opportunity Commission (EEOC), she filed this
action for damages. Id. ¶¶ 6, 23-26, Exh. A.
To evaluate stays of discovery pending a ruling on a dispositive
motion, “a court must take a ‘preliminary peek’ . . . to assess the
likelihood that the motion will be granted.” Taylor v. Jackson , 2017 WL
71654 at * 1 n. 2 (S.D. Ga. Jan. 6, 2017) (quoting Sams v. GA West Gate,

LLC , 2016 WL 3339764 at * 6 (S.D. Ga. June 10, 2016)); see S. Motors
Chevrolet, Inc. v. Gen. Motors, LLC , 2014 WL 5644089 at * 1 (S.D. Ga.
Nov. 4, 2014). The Court will do so here.
The City moves to dismiss Cooper’s Title VII claim 1 as time-barred.

See doc. 5-1 at 3-7. Title VII suits must be brought within 90 days after
the EEOC notifies the complainant that its investigation has concluded,
by issuing a “right-to-sue” letter. See 42 U.S.C. § 2000e-5(f)(1). Cooper
alleges that she complied with that requirement, and she has attached a
1

In addition to her Title VII claim, Cooper sues for intentional infliction of
emotional distress, and seeks punitive damages. Doc. 1, ¶¶ 27-28, 33-35. In her
response to the City’s motion to dismiss, she “concedes that [she] cannot go forward”
on those claims. Doc. 8 at 3. Although she has not withdrawn them, the Court’s
evaluation of the motion to stay is limited to her Title VII claim.
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right-to-sue letter. Doc. 1, ¶ 6, Ex. A. The City concedes that, based on
the mailing date of that letter, her Complaint would be timely. See doc.
5-1 at 2 (noting letter indicates mailing date “within ninety days of the
filing of this suit”). But it argues that the Complaint nevertheless is
untimely because Cooper filed an earlier EEOC charge and received an
earlier letter. Id. at 2-3. Cooper counters that the second letter reflects
the EEOC’s “reconsideration,” making its date dispositive of her claim’s
timeliness. Doc. 8 at 2-3.
Cooper also raises a related issue: She contends that the City’s
motion is properly construed as a motion for summary judgment. Doc. 8
at 2. The City argues that the introduction of the documents supporting
its timeliness argument does not necessarily alter the character of its
motion because they “are central to [Cooper’s] case . . . [,] their
authenticity is undisputed, and they are matters of public record.” Doc.
5-1 at 5. Cooper responds that, whether the City’s documents convert
the motion or not, she must introduce her own evidence to effectively
respond, which she does by affidavit and attached exhibits. Doc. 8 at 2;
doc. 8-1 (Cooper’s affidavit and exhibits). The City’s reply introduces
still more evidence, in the form of a single page, apparently selected from

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a multi-page document. See doc. 11-1. Given the extent to which the
parties’ dispute implicates evidence outside Cooper’s pleading, it is likely
that the City’s motion will be converted into one seeking summary
judgment. See Fed. R. Civ. P. 12(d).
To that end, Cooper renews her insistence that she should have
“‘an adequate opportunity for discovery.’”

See doc. 13 at 2 (quoting

Shew v . Horvath , 2016 WL 6650734 at * 2 (M.D. Fla. Nov. 10, 2016).
Discovery, however, is not always required before summary judgment.
The availability of Rule 56(f) relief “shows that a court may grant
summary judgment without the parties having conducted discovery if the
opponent has not sought” such relief. Reflectone, Inc. v. Farrand Optical

Co. , 862 F.2d 841, 843 (11th Cir. 1989). Even assuming conversion of the
City’s motion, her “vague assertions that additional discovery will
produce needed, but unspecified, facts,” are insufficient to justify further
discovery per Rule 56(f).

Id.

In fact, Cooper’s response attaches the

documents she contends support her construction of the EEOC’s letters.

See doc. 8 at 3; doc. 8-1 (Cooper’s affidavit and supporting exhibits).
Given that Cooper has pointed to no gap in the facts which
discovery could fill, the characterization of the City’s motion does not

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affect the Court’s determination whether to stay discovery. Conversion,
if it occurs, will provide Cooper with notice and an additional opportunity
to seek relief under Rule 54(f). See Griffith v. Wainright , 772 F.2d 822,
825 (11th Cir. 1985) (10-day notice requirement for summary judgment
to be strictly enforced).
In the meantime, the City has raised a plausible argument that
Cooper’s Title VII claim is time-barred. See doc. 11 at 2-3. It also argues
that, at best, only her retaliatory dismissal claim is timely, so the rest
must be dismissed. See id. at 5. Those arguments, whether construed as
a motion to dismiss or for summary judgment, have some heft and may
well resolve this case entirely if not considerably narrow its scope. See
doc. 11 at 5. If the case, or any portion of it, is summarily resolved before
discovery, both parties will avoid unnecessary expenses. See Chudasama

v. Mazda Motor Corp. , 123 F.3d 1353, 1368 (11th Cir. 1997) (“If the
district court dismisses a nonmeritorious claim before discovery has
begun, unnecessary costs to the litigants and to the court system can be
avoided. . . . [Thus,] any legally unsupported claim that would unduly
enlarge the scope of discovery should be eliminated before the discovery

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stage, if possible.”). Accordingly, the City’s motion to stay discovery
pending resolution of its dispositive motion is GRANTED .

SO ORDERED , this 28th day of February, 2017.

UNITED STATES MAGISTRATE ILJDGE
SOUTFERN DISTRICT OF GEORGIA

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