United States District Court, N.D. Georgia, Atlanta Division
Order Filed: August 14, 2014
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For Monique Scott, Plaintiff: Nathaniel J. Middleton, LEAD ATTORNEY, Nathaniel J. Middleton, Attorney at Law, Decatur, GA.
For Shoe Show, Incorporated, Kevin Broome, Brenda Greser, Defendants: John R. Hunt, Stokes Roberts & Wagner, ALC, Atlanta, GA.
THOMAS W. THRASH, JR., United States District Judge.
This is an employment discrimination action. It is before the Court on the Report and Recommendation [Doc. 35] of the Magistrate Judge recommending granting the Defendants' Motion for Summary Judgment [Doc. 32]. The Plaintiff was fired for stealing merchandise from her employer. The Court approves and adopts the Report and Recommendation as the judgment of the Court. The Defendants' Motion for Summary Judgment [Doc. 32] is GRANTED.
ORDER FOR SERVICE OF FINAL REPORT AND RECOMMENDATION
RUSSELL G. VINEYARD, UNITED STATES MAGISTRATE JUDGE.
Attached is the Final Report and Recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1), Fed.R.Civ.P. 72(b), and this Court's Local Rule 72.1. Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.
Pursuant to 28 U.S.C. § 636(b) (1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of the receipt of this Order. Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party. The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court. If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review. United States v. Slay, 714 F.2d 1093 (11th Cir. 1983) (per curiam).
The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period.
IT IS SO ORDERED.
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
Plaintiff Monique Scott (" Scott" ) brings this action against defendant Shoe Show, Inc. (" Shoe Show" ), alleging claims of discrimination and hostile work environment in violation of Title VII of the Civil Rights Act of 1964 (" Title VII" ), as amended, 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12101, et seq. See [Doc. 1]. Shoe Show seeks summary judgment, [Doc. 32], which Scott opposes, [Doc. 33]. For the following reasons, it is RECOMMENDED that Shoe Show's motion for summary judgment, [Doc. 32], be GRANTED.
I. FACTS AND PROCEDURAL BACKGROUND
A. Preliminary Procedural Issues
In compliance with Local Rule 56.1(B)(1), Shoe Show, as movant, filed a statement of material facts as to which there is no genuine issue to be tried. [Doc. 31-1]. Scott was required to submit a response under Local Rule 56.1(B)(2)(a), but she failed to do so. Specifically, Local Rule 56.1B(2) requires the non-moving party to include with the responsive brief " [a] response to the movant's statement of undisputed facts . . . [that] contain[s] individually numbered, concise, nonargumentative responses corresponding to each of the movant's numbered undisputed material facts." LR 56.1(B)(2)(a)(1)), NDGa.; see also Linao v. GCR Tire Ctrs.,
Civil Action No. 2:09-CV-134-RWS, 2010 WL 4683508, at *2 (N.D. Ga. Nov. 12, 2010). If the non-moving party fails to respond to a material fact contained in the moving party's statement by directly refuting the fact with concise responses supported by specific citations to evidence, stating a valid objection to the admissibility of the fact, pointing out that the movant's citation does not support the movant's fact, or showing that the movant's fact is not material, the fact will be deemed admitted. See LR 56.1(B)(2)(a)(2), NDGa.; BMU, Inc. v. Cumulus Media, Inc., 366 F.App'x 47, 49 (11th Cir. 2010) (per curiam) (unpublished). Accordingly, the factual statements contained in Shoe Show's statement of material facts as to which there is no genuine issue to be tried, [Doc. 31-1], are deemed admitted. Nevertheless, the Court has disregarded those facts that are not material, are supported by a citation to a pleading rather than to evidence, or are stated as issues or legal conclusions, see LR 56.1(B)(1)-(2), NDGa., and the facts will be construed in the light most favorable to Scott as required on a motion for summary judgment, Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003) (per curiam).
B. Statement of Facts
Shoe Show is a retailer of footwear and accessories that operates retail stores in 38 states, including Georgia. [Doc. 31-3 (Manning Decl.) ¶ 3]. Scott, an African-American, was employed as a Sales Associate at Shoe Show's retail store in Stockbridge, Georgia, from August of 2008 until August of 2010, and again from February of 2011 until September of 2011. [Doc. 28 (Pl.'s Dep.) at 29 p. 29, 32-33 pp. 32-33, 39 p. 39, 41-43 pp. 41-43].
When Scott returned to Shoe Show in 2011, she took several written tests based on materials contained in the company manual, a copy of which was maintained at the store. [Id. at 44-45 pp. 44-45]. The tests covered topics such as sales, service, and shoplifting. [Id. at 46 p. 46]. Scott received a perfect score on each test. [Id. at 45-53 pp. 45-53]. Scott also took and signed a " Greeting Test & Employer-Employee Agreement," which, among other things, stated, " I understand and agree . . . I will not allow anyone to take merchandise and not report it." [Id. at 54 p. 54; Doc. 28-7]. Scott understood that this was the company policy throughout her employment with Shoe Show and that she could be terminated from her employment with Shoe Show for violating this policy. [Doc. 28 at 55-56 pp. 55-56]. In addition, Scott read and understood Shoe Show's Money Policy, which she signed to acknowledge her receipt and understanding of when she returned to work at Shoe Show in February of 2011, [id. at 56-58 pp. 56-58; Doc. 28-8], and she acknowledged that she had taken and passed the test regarding Shoe Show's theft policy, which was in place throughout Scott's employment with Shoe Show, [Doc. 28 at 50-56 pp. 50-56].
As a Sales Associate with Shoe Show, Scott's job duties included greeting customers, assisting customers in finding certain shoes or the correct shoe size, stocking the store's shelves, operating the computerized cash register, and completing a sale, which involved accepting various forms of payments from customers. [Id. at 33-36 pp. 33-36, 62-63 pp. 62-63]. Scott did not experience any difficulties in performing her job duties, and she did not request, nor did she require, any sort of accommodation in order to ...