United States District Court, S.D. Georgia, Savannah Division
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.
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.
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.
City moves to dismiss Cooper's Title VII
claim 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 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
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 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).
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).
that Cooper has pointed to no gap in the facts which
discovery could fill, the characterization of the City's
motion does not 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).
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 stage, if possible.")-
Accordingly, the City's motion to stay discovery pending
resolution of its dispositive motion is GRANTED.
 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 ...