Equal Employment Opportunity Commission v. Dolgencorp, LLC

Filing 53

ORDER granting in part and denying in part 46 Motion for Summary Judgment. Defendant's motion is denied as to the disability discrimination claim and granted as to retaliation claim. This case will proceed to trial in due course. Signed by Chief Judge J. Randal Hall on 11/29/2018. (pts)

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

EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

Plaintiff,
TERRI T. MOSLEY,

Plaintiff-Intervenor,

*
*

*

V.

CV 617-100

*

DOLGENCORP, LLC, d/b/a DOLLAR
GENERAL,

*
*
*

Defendant.

*
5

ORDER

Pending before the Court is Defendant's motion for summary

judgment.

(Doc. 46.)

Defendant seeks dismissal of Plaintiffs'

disability discrimination and retaliation claims brought under the
Americans with Disabilities Act ('"ADA").

The Clerk of Court gave

Plaintiffs timely notice of Defendant's summary judgment motion
and the summary judgment rules, of the right to file affidavits or
other materials in opposition, and the consequences of default.
(Doc. 47.)

Therefore, the

notice

requirements of Griffith

v.

Wainwriqht, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), have
been

satisfied.

For

the

reasons

set

forth

motion is GRANTED IN PART AND DENIED IN PART.

below.

Defendant's

I.

BACKGROUND

This case arises from an alleged adverse employment action

suffered by Plaintiff-Intervenor Terri T. Mosley (^'Mosley" or
^'Plaintiff"),

alleging

by

Defendant's

disability

agents.

discrimination

Mosley

with

the

filed

Equal

a

charge

Employment

Opportunity Commission {''EEOC" or ''Plaintiff"), which brought this
suit

after

an

investigation

(Compl., Doc. 1, SISI 7-8.)

and

failed

conciliation

effort.

Defendant Dolgencorp, LLC operates

Dollar General stores, including the store in Portal, Georgia where

the alleged adverse employment action occurred.
A.

(Id. SISI 4, 10.)

Mosley's Left Arm Injury

Two years prior to the events underlying this case, Mosley
was involved in a car accident that caused a brachial plexus injury

and nerve damage to her left arm.

(Def.'s St. of Material Facts

("Def.'s SOMF"), Doc. 46-1, SI 10.)

Because of the injury, Mosley

is unable to lift her left arm, grab anything with her left hand,

or lift objects with her left arm.

(Dep. of Terri Mosley ("Mosley

Dep."), Docs. 46-3, 49-3, at 48, 50, 173.)

Typically, Mosley wears

her left arm in a sling while in public because she prefers for
her arm to not simply hang by her side.

(Id. at 48.)

She uses

medication to manage pain in her arm but indicated that she can
still go about her day despite the pain.

(Id. at 114-15.)

Mosley testified that she is able to clean, babysit her
nieces, shop, drive, and work her current job at Sonic, which
includes carrying and unloading boxes.
65.)

(Id. at 76-78, 126, 160-

However, when lifting boxes or other items at work Mosley

does not use her left arm.

(Id. at 173.)

Further,, she does not

consider herself to be disabled, she simply has ''an injury."
at 88.)

(Id.

Mosley stated, "I mean, to be truthful, the only thing

that really holds me back is tying my shoe."

(Id. at 58.)

Doctors

have informed Mosley that it is uncertain whether she will ever

regain ability in her left arm.
B.

(Id. at 113.)

Mosley's Application for Employment at Dollar General

In 2015, Mosley applied for a cashier position at Defendant's

store in Portal, Georgia.

(Compl. 5 14.)

On September 8, 2015,

the Portal store's general manager, Chris Williams,^ called Mosley
to

schedule

an

interview

for

the

following

morning;

Mosley's

grandmother answered the call and relayed the message to Mosley
through another relative.

(Dep. of Chris Williams ("Williams

Dep."), Doc. 49-4, at 62-63; Mosley Dep. at 197.)
Mosley arrived at the store the following morning before it
opened and approached Williams in the parking lot.
at 237-38.)

(Mosley Dep.

When Mosley stated she was here for an interview.

^ As general manager, Williams had the power to hire and fire employees and
manage staff.

(Williams Dep. at 25.)

Williams replied, 'T didn't know that was you. You can't work here
because of your arm."

(Id. at 238.)

Williams went on to say,

''I've got to look out for myself. If you get in there and get hurt
it's all going to fall back on me." (Id. at 246.)

Mosley insisted

that her arm injury would not hold her back and that she was a

good

candidate

transportation.

because

she

lived

(Id. at 238.)

she had to look out for herself.

nearby

and

had

reliable

Williams again pointed out that
(Id.)

When Mosley became visibly

upset, Williams told her to come back in an hour after Williams

had^.an opportunity to speak with her district manager ("DM"). (Id.
at 244-45.)

Mosley did not think Williams would actually reach

out to the DM, and when she returned to the store an hour later
Williams had not done so.

(Id. at 248, 250.)

Williams denies

making the statements to Mosley.2
That same day, Williams made other statements about Mosley to

the Portal store's Assistant Manager Joshua Littles.
arrived at work Williams asked if he

When Littles

knew "a girl named Terri

Mosley" and began to recount the events of that morning stating,
"the woman with the messed up arm? She came in for an interview
this morning.

If I had known it was her, I would not have called

her for an interview."

(Dep. of Joshua Littles ("Littles Dep."),

Doc. 49-6, at 40-41 & Ex. 1, ^ 5.)

Williams went on to say she

2 The parties did not provide the relevant portion of Williams's deposition,
but Defendant indicated in its brief that Williams denies making the statements.

would not hire Mosley and was never going to hire Mosley.

(Id.,

Ex. 1, SI 5.)

Later on September 9th, Mosley called Defendant's customer
hotline and filed a complaint against Williams, claiming that she
had not been given a fair interview. (Def.'s SOME, SI 5.)

The

Portal store's DM Alicia Dixon reached out to Mosley regarding the

complaint. (Id. SI 6.) During that conversation, Mosley told Dixon
what

happened, and

Dixon

assured her that

discriminate and promised to investigate.
C'Dixon Dep."), Doc. 49-5, at 21.)

Defendant does not

(Dep. of Alicia Dixon

Dixon claims that she told

Mosley to return to the store that day and Williams would give her
an interview.

(Id. at 22.)

Alternatively, Mosley testified that

Dixon did not tell her to return to the store to speak with Williams

and ended the conversation by promising to investigate and call
Mosley back.

(Mosley Dep. at 278-79.)

Further,

investigation
responded

Mosley

would

that

treated."3

she

claims

that

not guarantee
^'didn't

(Id. at 270.)

want

Dixon

only

her a
the

job

told

job, to
after

her

which

how

that

an

Mosley

[she]

was

In Defendant's response to the EEOC

Charge, it claimed Dixon told Mosley she would investigate the
matter.

(Decl. of C. Austin Harris (^'Harris Decl."), Doc. 4 9-2,

3 Mosley testified that she only made a complaint because she felt Williams
mistreated her and she "wanted somebody to go take care of Mrs. Williams."
(Mosley Dep. at 270.)
While Mosley wanted "something to be done about the
situation," she no longer wanted the job for herself. (Id. at 270-71.)

Ex. 1 at 3.)

Williams testified that Dixon told her to give Mosley

another chance to interview.

(Williams Dep. at 81.)

returned to the store to discuss the job.

Thus, there
offered

is

Mosley

some

conflicting evidence

another

interview

or

Mosley never

(Mosley Dep. at 279.)

as to

whether

simply

Dixon

promised

to

investigate.

At any rate, Mosley was not hired by Defendant.
took a job working at Sonic in April 2016.

She later

(Id. at 30.)

Four or

five months after the events of September 9th, Mosley was offered

a job at the Statesboro Dollar General store by her cousin Felicia
Johnson, who was the general manager of that location.
280, 283.)

Mosley declined the job offer.

(Id. at

(Id. at 280.)

C. The EEOC Charge and Investigation

Soon after the September 9th incident, Mosley timely filed a
charge of discrimination with the EEOC.

(Harris Decl. SI 3.)

In

that charge, Mosley claimed disability discrimination but did not
check the form's box for a retaliation claim.

(Id. SI 5.)

The

EEOC investigated the charge and found a factual basis to conclude
a retaliation claim was appropriate.

(Id.)

The EEOC heard from

Defendant on the claims and concluded there was reasonable cause

to conclude Mosley was subjected to disability discrimination and
retaliation in violation of the ADA.

(Id., Ex. 2.)

On June 27,

2017, the EEOC issued a Notice of Failure of Conciliation stating

that it was unable to secure an acceptable conciliation agreement
from Defendant.

(Compl., 31 8.)

Shortly thereafter, the EEOC filed

this lawsuit, in which Mosley has successfully intervened as a

plaintiff.

(Order of Oct. 12, 2017, Doc. 15.)

II.

LEGAL STANDARD

Summary judgment is appropriate only if ^^there is no genuine
dispute as to any 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 outcome of the suit under the

governing

substantive

law,

and

a

dispute

is

genuine "if the

evidence is such that a reasonable jury could return a verdict for
the non-moving party."
242, 248 (1986).

Anderson v. Liberty Lobby, Inc., 477 U.S.

The Court must view factual disputes in the light

most favorable to the non-moving party, Matsushita Elec. Indus.
Co. V. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and must draw

"all justifiable inferences in [the non-moving party's] favor."
United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437

(11th Cir. 1991) (en banc) (internal punctuation and citations
omitted).

The Court should not weigh the evidence or determine

credibility.

Anderson, 477 U.S. at 255.

The moving party has the initial burden of showing the Court,
by

reference to

materials on

file, the

basis for

the

motion.

Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

Because the

standard for summary judgment mirrors that of a directed verdict,
the initial burden of proof required by either party depends on
who carries the burden of proof at trial.

Id. at 323.

''When the

moving party has the burden of proof at trial, that party must
show affirmatively the absence of a genuine issue of material fact:
it 'must support its motion with credible evidence that would
entitle it to a directed verdict if not controverted at trial.
'"

Four Parcels of Real Prop., 941 F.2d at 1438 (quoting Celotex

Corp., 477 U.S. at 331 (Brennan, J., dissenting)).

"If the moving

party makes such an affirmative showing, it is entitled to summary
judgment unless the nonmoving party, in response, 'comes forward
with significant, probative evidence demonstrating the existence
of a triable issue of fact.'" Id. (quoting Chanel, Inc. v. Italian
Activewear of Fla., Inc., 931 F.2d 1472, 1477 (11th Cir. 1991)).

When the movant does not carry the burden of proof at trial,
it may satisfy its 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 & Clark, Inc., 929 F.2d 604, 606-08 (11th

Cir. 1991) (citing Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970)
and Celotex

Corp., 477

U.S.

317).

The movant cannot meet its

initial burden by merely declaring that the non-moving party cannot
meet its burden at trial.

Id.

8

If — and only if — the movant carries its initial burden, the
non-movant must ''demonstrate that there is indeed a material issue

of fact that precludes summary judgment."

Id.

When the non-

movant bears the burden of proof at trial, the non-movant must

tailor its response to the method by which the movant carried its
initial burden.
affirmatively

For example, if the movant presented evidence

negating

a

material

fact,

the

non-movant

"must

respond with evidence sufficient to withstand a directed verdict
motion

at

trial

on

the

material

fact

sought

to

be

negated."

Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116 (11th Cir. 1993).

On the other hand, if the movant shows an absence of evidence on
a material fact, the non-movant must either show that the record

contains evidence that was "overlooked or ignored" by the movant
or "come forward with additional evidence sufficient to withstand

a directed verdict motion at trial based on the alleged evidentiary

deficiency." Id. at 1117.

The non-movant cannot carry its burden

by relying on the pleadings or by repeating conclusory allegations
contained in the complaint.
1033—34 (11th Cir. 1981).

See Morris v. Ross, 663 F.2d 1032,
Rather, the non-movant must respond

with affidavits or as otherwise provided by Federal Rule of Civil
Procedure 56.

III.

DISCUSSION

Defendant's motion for summary judgment seeks dismissal of
Plaintiffs' claim for

disability discrimination

and

claim for

retaliation. Defendant contends that Plaintiffs cannot prove all

of the necessary elements of either claim.
A.

Disability Discrimination Claim

The ADA prohibits an employer from discriminating in hiring
an applicant on the basis of disability.

42 U.S.C. § 12112(a).

To establish a claim for discrimination under the ADA the plaintiff

must show:

(1) she

has a disability,

(2)

she is a

qualified

individual, and (3) she was discriminated against because of her

disability.

Jarvela v. Crete Carrier Corp., 776 F.3d 822, 828

(11th Cir. 2015).

Defendant argues that Plaintiffs cannot prove

the first and third elements of the discrimination

claim.^

The

Court will address each in turn.

1. Mosley's Qualification as Disabled Under the ADA

Defendant argues that Plaintiffs cannot establish the first
element of a discrimination claim because Mosley's testimony shows

^ In a footnote, Defendant contends Plaintiffs cannot prove element two.
It
noted that after the Court ruled on Defendant's Rule 35 motion and Mosley
underwent a functional capacity evaluation ("FOE"), it would supplement its
summary judgment motion.
The Court granted Defendant's Rule 35 motion and
ordered Defendant to schedule a FCE. (Order of May 11, 2018, Doc. 47, at 7.)
Defendant, however, has not further addressed the second element, despite filing
a reply brief after the Court granted the Rule 35 motion. As such, the Court
does not consider Defendant's motion to dispute Plaintiffs' ability to prove
the second element of a discrimination claim.

10

that her arm does not inhibit her daily life activities and that
she does not consider herself to be disabled.

Defendant further

argues that it did not consider Mosley to be disabled.

A person qualifies as disabled if she has either (1) "a

physical or mental impairment that substantially limits one or
more major life activities," (2) ''a record of such impairment," or
(3)

is

^'regarded

as

having

such

an

impairment."

42 U.S.C. § 12102(1). In 2008, Congress amended the ADA to ''lessen

the

standard

of

disability."

establishing

whether

an

individual

H.R. Rep. No. 110-730, at 9 (2008).

has

a

The definition

of disability is now to be construed "in favor of broad coverage
of

individuals"

and

should

not

demand

"extensive

analysis."

42 U.S.C. § 12102(4)(A); 29 C.F.R. § 1630.2(j)(1)(iii).

Subsequent regulations promulgated after the 2008 amendments
lay out rules of construction for determining whether an impairment
substantially

limits

a

major

life

activity.

"Substantially

limits" is not a demanding standard and "shall be construed broadly
in

favor

of

expansive

Further, "an impairment

coverage."
need

not

29 C.F.R. § 1630.2(j)(1).

prevent,

or

significantly or

severely restrict, the individual from performing a major life
activity in order to be considered substantially limiting."

Id.

It only needs to limit the plaintiff's ability to perform a major
life

activity

population."

"as

compared

to

Id.
11

most

people

in

the

general

Construing all reasonable doubts about the facts in favor of
Plaintiffs, the Court finds there is a genuine issue of material
fact regarding whether Mosley is disabled under the first prong of
the ADA'S disability definition.

While Mosley testified that she

can perform many daily tasks despite her arm injury, she is unable
to

use

her

left

arm

when

performing

those

activities.

The

inability to use her left arm to carry anything or even grip
anything limits Mosley's abilities compared to most people.
29 C.F.R. § 1630.2(j)(1).

ADA and

See

Moreover, the 2008 amendments to the

subsequent regulations make clear that ^'substantially

limits" should be construed in favor of broad coverage and is not
a demanding standard.

Id.

Even if Plaintiffs could not raise a factual issue regarding

Mosley being disabled under the first prong of the disability
definition, they have carried their burden under the third prong

by showing Defendant regarded Mosley as disabled.

An individual

satisfies the "regarded as" prong where she establishes that a
prohibited action was taken against her "because of an actual or

perceived

physical

or

mental

impairment

whether

or

not

the

impairment limits or is perceived to limit a major life activity."
42 U.S.C. §§ 12102(1)(C),

(3);

see

also

Hartford, 700 F. App'x 924, 926 (11th

Andrews

Cir. 2017).

v.

City

Prohibited

actions include refusal to hire.

29 C.F.R. § 1630.2(1)(1).

where

a

the

employer

establishes

12

defense

to

the

of

action,

Even

the

plaintiff still qualifies as disabled is she was regarded as having
an impairment.
The

Id. § 1630.2(1)(2).

statements

demonstrate

that

Williams

she

made

regarded

to

Mosley

Mosley

as

on

having

September

a

9th

disability.

Williams's remark that Mosley ''can't work here because of your
arm" and her concern that Mosley would injury herself show that

Williams believed Mosley's left arm injury was a disability.
Further, the Portal store's assistant manager testified that

Williams

called

Mosley

"the

woman

with

(Littles Dep. at 40-41 & Ex. 1, ^ 5.)

the

messed

up

arm."

Identifying Mosley solely

by reference to her arm injury shows Williams regarded Mosley as
disabled.

Moreover, when Littles asked Williams why she would not

have called Mosley for an interview, Williams replied "because of
her arm."

prohibited
impairment.

(Id., Ex. 1, SI 5.)

action

against

This comment shows Williams took a

Mosley

because

of

her

physical

Thus, there is evidence that Williams regarded Mosley

as having a disability, and, therefore. Plaintiffs can establish
the first element of their discrimination claim.

In its briefs. Defendant cites to several cases to prove that

Mosley is not disabled and was not regarded as disabled.

However,

most of these cases were decided before the 2008 amendments to the

ADA

and

employed

a

more

demanding

standard for

determining

plaintiff's disability than the one that applies to this case.

13

a

The two post-amendment cases, Prinqle v. Family Dollar Stores

of Georgia, Inc.^ and Ward v. City of Gadsden, ® cited to prove
Mosley is not disabled are both distinguishable.

In Pringle, the

plaintiff underwent corrective surgery for her foot injury and was

cleared by her doctor to return to work without limitation.
at *11.

Id.

In Ward, the plaintiff did not suffer from a physical

injury, but rather was diagnosed with depression.

Id. at *7.

While depression can be a disability under the ADA, the plaintiff
in Ward did not produce any evidence of how his activities had
been substantially limited, relying instead on his diagnosis and
treatment.

Id. at *15.

Additionally,
Advert.,

Inc."^

and

Defendant's
D'Angelo

reliance

v.

ConAgra

on

Carruthers

Foods,

Inc.^

v.
to

Defendant did not regard Mosley as disabled is misplaced.

BSA

prove

Those

cases applied the ''broad range of jobs" standard from Sutton v.
United

Air

Lines,

Inc.,

527

U.S.

471,

491

(1999).

The

2008

amendments to the ADA were intended to abrogate Sutton and lower

the standard for a plaintiff to show she was regarded as being
disabled.

Andrews, 700 F. App'x at 926.

In sum. Plaintiffs have

raised a triable issue as to whether Mosley is disabled under the

first and third prong of the ADA's disability definition.

5 2014 WL 4926386 (S.D. Ga. Sept. 30, 2014).
6 2017 WL 568556 (N.D. Ala. Feb. 13, 2017).
'> 357 F.3d 1213 (11th Cir. 2004).
8 422 F.3d 1220 (11th Cir. 2005).
14

2. Evidence of Disability Discrimination

Next, Defendant argues that Williams's statements^ do not
constitute evidence of direct discrimination because they do not

show

a

refusal

to

Mosley's on-the-job

hire

Mosley,

safety.

merely

Further,

a

general

concern

for

Defendant contends that

Mosley's statements to Dixon prove that she voluntarily withdrew
from the application process before a hiring decision was made.
This withdrawal. Defendant argues, serves as an intervening event
that made Williams's statements irrelevant to the decision-making
process.

Plaintiffs may avoid summary judgment on the discrimination
claim in one of two ways.

They may rely on direct evidence to

create a triable issue on whether Mosley was denied employment
because of her disability.

Morris v. Emory Clinic, Inc., 402 F.3d

1076, 1081 {11th Cir. 2005).

Alternatively, Plaintiffs may use

circumstantial

rely

evidence

and

on

framework^® to create a triable issue.

the

McDonnell

Douglas

Id.

Direct evidence is '"evidence from which a trier of fact could

reasonably

find

that

the

defendant

more

probably

than

not

discriminated against the plaintiff on the basis of a protected
personal characteristic."

Wright v. Southland Corp., 187 F.3d

9 Defendant maintains that Williams denies she made the alleged statements.
McDonnell Douglas Corp. v. Green^ 411 U.S. 792 (1973).
15

1287, 1300 (11th Cir. 1999). The Eleventh Circuit has found direct
evidence where statements of an employer reflect a discriminatory
attitude

correlating

to

the

discrimination

alleged

by

the

applicant.

Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189-90

(11th

1997)

Cir.

discrimination).

(collecting

cases

with

statements

of

direct

In a disability discrimination claim, "where the

non-movant presents direct evidence that, if believed by a jury,
would

be

sufficient to

win

at trial,

summary judgment is

not

appropriate even where the movant presents conflicting evidence."
Id. at 1189 (quoting Mize v. Jefferson City Bd. of Educ., 93 F.3d
739, 742 (11th Cir. 1996)).

In

this

case,

Williams's

evidence of discrimination.

statements

constitute

Williams told Mosley she could not

work at Defendant's store "because of her arm."
238.)

direct

(Mosley Dep. at

Later, Williams referred to Mosley as "the woman with the

messed up arm," she stated she would not have set up an interview
had she known about Mosley's arm, and went on to say that she would

never hire Mosley.

(Littles Dep. at 40-41 & Ex. 1.)

At the time,

Williams, as general manager, was the decisionmaker for hiring
employees at Defendant's Portal store.

Either statement alone is

sufficient to raise a triable issue as to whether Mosley was denied
employment because of her disability.
Summary judgment is not appropriate here because Plaintiffs
have

presented

direct

evidence
16

of

discrimination.

Further,

Defendant's

conflicting

evidence - that Mosley

was

not

hired

because she withdrew her application — cannot overcome the direct
evidence of discrimination.

See Merritt, 120 F.3d at 1189-91.

Indeed, the reason why Mosley did not want the job was because of
Williams's discriminatory statements to her.

(Mosley Dep. at 270

(''And I let [Dixon] know that, you know, I didn't want the job
after how I was treated.").)

Because there is direct evidence of

discrimination, the Court need not address the parties' arguments

regarding

the

Douglas

Defendant's

Accordingly,

McDonnell

motion

burden
for

shifting

summary

framework.

judgment

on

Plaintiffs' discrimination claim is denied.

B. Retaliation Claim

Defendant

takes

the

position

that

Mosley

did

not

administratively exhaust her retaliation claim because her EEOC

charge did not make that claim.

Alternatively, Defendant argues

that Plaintiffs cannot establish a prima facie case of retaliation
because Mosley withdrew

her application before any retaliation

could occur.

1. Administrative Exhaustion Requirement

Prior to filing an ADA discrimination claim, a plaintiff must
first

file

a

charge

of

discrimination

with

the

EEOC.

See

42 U.S.C. § 12117; Gregory v. Ga. Dep't of Hum. Res., 355 F.3d

1277,

1279

(11th

Cir.

2004).

The

17

purpose

of

the

exhaustion

requirement is to permit the EEOC to investigate a claim and
facilitate voluntary compliance or informal resolution.
355 F.3d at 1279.

judicial

complaint

investigation.

Id.

Gregory,

Consistent with this purpose, a plaintiff's

is

limited

by

the

scope

of

the

EEOC

However, "it is unnecessary for a plaintiff

to exhaust administrative remedies prior to urging a retaliation

claim

growing

out

of

an

earlier

charge."

Baker

Cellulose Corp., 856 F.2d 167, 169 (llth Cir. 1988).

v.

Buckeye

The Eleventh

Circuit has adopted the view that "the scope of an EEOC complaint
should not be strictly interpreted."

Gregory, 355 F.3d at 1280

(quoting Sanchez v. Standard Brands, Inc., 432 F.2d 455, 460 (5th
Cir. 1970)).

With regard to Plaintiffs' retaliation claim, Mosley's EEOC

charge and the subsequent investigation satisfy the administrative
exhaustion requirement.

The EEOC investigation revealed Mosley's

complaint to Dixon provided a factual basis to pursue a retaliation
claim.

The EEOC also informed Defendant that a retaliation claim

was appropriate and afforded Defendant an opportunity to respond
to the claim, which Defendant declined to do.

6.)

(Harris Decl.

5-

Because the EEOC investigated the claim and gave Defendant an

opportunity to respond, the purposes of the exhaustion requirement
were satisfied.

While Mosley did not check the box for retaliation

on the charge, this does not bar the claim.

See Gregory, 355 F.3d

at 1280 (failure to check box for retaliation did not bar claim

18

because ""a reasonable EEOC investigator could have concluded that

what [plaintiff] complained about is retaliation").

As such, the

retaliation claim grew out of an earlier charge and is properly
before this Court.
2. Prima Facie Case

The ADA provides, ^"[njo person shall discriminate against any
individual because such individual has opposed any act or practice

made

unlawful by [the ADA] or because such individual made a

charge."

42 U.S.C. §

retaliation

a

statutorily

protected

12203(a).

plaintiff must show
expression,

To

establish

that '"(1)
(2)

she

she

a

claim

for

engaged in

suffered

an

a

adverse

employment action, and (3) the adverse action was causally related
to the protected expression."

Weeks v. Harden Mfg. Corp., 291

F.3d 1307, 1311 (11th Cir. 2002).

As

Defendant

points

out.

Plaintiffs

cannot

establish

the

third element of their retaliation claim.

Mosley admits that by

the

statutorily

time

she

complained

to

Dixon

—

the

protected

activity — she no longer wanted the position at the Portal store.
Mosley only made the complaint because she felt Williams mistreated
her, not because she still wanted the job.

Essentially, the only

adverse employment action suffered by Mosley occurred before she

complained to Dixon about Williams's discriminatory statements.
After the complaint. Defendant took no further actions that could

19

provide a basis for a retaliation claim.

Therefore, the refusal

to hire cannot be causally related to the complaint to Dixon.
The fact that Mosley no longer wanted the job is further
supported by her failure to show up to the interview purportedly

scheduled

by

Dixon.

Although

the

parties

dispute

whether

an

interview was set up or not, the discrepancy is irrelevant because

Mosley told Dixon that she no longer wanted the position.

Put

differently, the factual dispute over an interview offer is not
material to the retaliation claim because Mosley's withdrawal was

an intervening event that broke any causal relationship between
her making the complaint and the refusal to hire.
Plaintiffs have otherwise failed to point to any genuine issue
of material fact that could
retaliation

claim.

As

preclude

such.

summary

Defendant's

judgment on

motion

for

the

summary

judgment on Plaintiffs' claim for retaliation is granted.

IV.

Based

on

the

CONCLUSION

foregoing.

Defendant's

motion

for

summary

judgment (doc. 46) is DENIED as to the disability discrimination
claim and GRANTED as to retaliation claim.

Thus, this case will

proceed to trial on Plaintiffs' disability discrimination claim in
due course.

20

ORDER

ENTERED

at

Augusta,

Georgia,

this

day

of

November, 2018.

J. RANpW^ HALL,' CHIEF JUDGE
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF GEORGIA

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