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Simmons v. Five Star Quality Care, Inc.

United States District Court, S.D. Georgia, Savannah Division

November 19, 2014

BEATRICE B. SIMMONS, Plaintiff,
v.
FIVE STAR QUALITY CARE, INC., GWYNN SPEARMAN, Defendants.

REPORT AND RECOMMENDATION

G.R. SMITH, Magistrate Judge.

Seeking to initiate an employment discrimination lawsuit against Five Star Quality Care, Inc. and one individual, [1] doc. 1, pro se plaintiff Beatrice B. Simmons moved for leave to proceed in forma pauperis ("IFP"). Doc. 2. The Court partially granted it, doc. 3, and she has since paid half of the $400 filing fee.[2] Doe. 4. However, part of her case must be dismissed.

Plaintiff used a pre-printed "Employment Discrimination Complaint" form and, of the three choices of grounds on which to sue - Title VII, the Age Discrimination in Employment Act of 1967 (ADEA) and the Americans With Disabilities Act of 1990 (ADA) - she chose only Title VII. Doe. 1 at 2. She checked off these form options:

Failure to hire me

Failure to promote me

Demotion

Other (specify): Failure to pay me remainder of PTO time.[3] Doe. 1 at 2-3 (footnote added). As will be further detailed below, she in substance pleads a retaliatory demotion if not discharge (her writing is unclear), as well as age and "skin-color" discrimination claims.

I. GOVERNING STANDARDS

"Under Title VII, it is unlawful for an employer to discharge any individual, or otherwise to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of [her] race. 42 U.S.C. ยง 2000e-2(a)(1)." Archie v. Frank Cockrell Body Shop, Inc., 2014 WL 4548061 at *3 (11th Cir. Sept. 16, 2014). For her race-discrimination claims plaintiff must show that: "(1) [s]he belongs to a protected class; (2) [s]he was subjected to an adverse employment action; (3) [her] employer treated similarly situated employees outside of class more favorably; and (4) [s]he was qualified to do the job. McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008)." Archie, 2014 WL 4548061 at * 3 (footnote and emphasis added).

A discriminatory discipline (here, plaintiffs demotion) claim:

requires showing a similarly situated employee, who was engaged in the same or similar misconduct but did not receive similar discipline. See Lathem v. Dept of Children & Youth Serus., 172 F.3d 786, 792 (11th Cir. 1999). We require the quantity and quality of the comparator's misconduct to be "nearly identical" to prevent judges from second-guessing employers' reasonable decisions. Burke-Fowler v. Orange Cnty., 447 F.3d 1319, 1323 (11th Cir. 2006) (per curiam) (citing Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999)).

Id. at * 4.

"To make a prima facie showing of retaliation, the plaintiff must show that: (1) [s]he engaged in statutorily protected conduct; (2) [s]he suffered an adverse employment action; and (3) there was some causal relation between the two events." Dominguez v. Lake Como Club, 520 F.Appx. 937, 939-40 (11th Cir. 2013). And "in both Title VII discrimination and retaliation claims, [courts] require an employee to demonstrate that [s]he suffered a serious and material change in the terms, conditions, or privileges of h[er] employment in order to demonstrate an adverse employment action. Crawford v. Carroll, 529 F.3d 961, 970-71 (11th Cir. 2008)." Id. at 941.

"In the failure-to-promote context, the prima fade case consists of showing these elements: (1) that the plaintiff belongs to a protected class; (2) that she applied for and was qualified for a promotion; (3) that she was rejected despite her qualifications; and (4) that other equally or less-qualified employees outside her class were promoted." Bryant v. Dougherty Cnty. Sch. Sys., 382 F.Appx. 914, 917 (11th Cir. ...


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