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Strang v. City of Albany

United States District Court, M.D. Georgia, Albany Division

March 8, 2017

KATHLEEN STRANG, Plaintiff,
v.
THE CITY OF ALBANY, GEORGIA, et al., Defendants.

          ORDER

          LESLIE J. ABRAMS, JUDGE

         Before the Court is Defendants' Motion for Summary Judgment. (Doc. 109 (the “Motion”).) For the reasons articulated below, the Motion is GRANTED.

         BACKGROUND

         Plaintiff initiated this action pro se on May 10, 2012, against Defendants Willie Adams, Dorothy Hubbard, Christopher Pike, Roger Marietta, Bob Langstaff, Tommie Postell, Alfred Lott, C. Nathan Davis, and the City of Albany, referred to herein collectively as “Defendants.” (Doc. 1.) Defendants include the City of Albany, the Mayor of the City, members of the City Commission, the City Manager, the City Attorney, and other employees of the City. Plaintiff subsequently filed the First Amended Complaint and the Second Amended Complaint (Doc. 35 (the “SAC”)), which is the operative complaint. Plaintiff alleges therein that she is a “white female citizen of the State of Georgia, ” who “worked as assistant city attorney at Defendant City of Albany from March 2006 to June 2010.” (Doc. 35 at 2-3.) She claims she was terminated and subjected to “public ridicule and humiliation” for exercising her First Amendment right to free speech when she reported her discovery of a handgun in a desk in the City Attorney's Office. (Doc. 35 at 3-4.) Plaintiff alleges that Defendants retaliated against her by “attempt[ing] to damage her future employment prospects by publicly and falsely labeling her a negligent attorney.” (Doc. 35 at 3.) Furthermore, Plaintiff claims she was subjected to racial discrimination through a hostile work environment and disparate treatment, and was “replaced by a significantly younger black female.” (Doc. 35 at 3.) Plaintiff asserted her claims against the individual defendants in their personal capacities. (Doc. 35.)

         In response, Defendants filed two motions to dismiss the SAC. (Docs. 37, 39.) These motions were granted in part on September 12, 2013. (Doc. 66.) The Court[1] explained that it “glean[ed] the following causes of action from [Plaintiff's] complaint: (1) First Amendment retaliation arising from her termination; (2) First Amendment retaliation arising from other alleged retaliatory acts; (3) race-based hostile work environment; and (4) race-based disparate treatment.” (Doc. 66 at 6.) Upon ruling on the motions to dismiss and a subsequent motion for reconsideration, the Court concluded that Plaintiff's case would proceed on the following claims: (1) First Amendment retaliation against Alfred Lott in his personal capacity and against the City of Albany arising from Plaintiff's termination; (2) First Amendment retaliation against C. Nathan Davis in his personal capacity arising from retaliatory acts other than Plaintiff's termination; (3) First Amendment retaliation against Willie Adams, Dorothy Hubbard, Christopher Pike, Roger Marietta, Bob Langstaff, Tommie Postell, Lott, and Davis in their personal capacities arising from the decision to hold closed, executive sessions and news reports about Plaintiff's employment and her alleged racism and negligence as an attorney; (4) Race discrimination from a hostile work environment under 42 U.S.C. § 1983 against Davis in his personal capacity; and (5) Race discrimination from disparate treatment under 42 U.S.C. § 1983 against Lott in his personal capacity and against the City of Albany. (Docs. 66 at 19-20; 69 at 3.)

         On March 15, 2016, Defendants filed the Motion for Summary Judgment on Plaintiff's remaining claims. (Doc. 109.) Plaintiff filed her response on May 13, 2016 (Doc. 134), and Defendants filed their reply on May 25, 2016 (Doc. 136).

         LEGAL STANDARD

         Federal Rule of Civil Procedure 56 allows a party to move for summary judgment when the party contends that no genuine issue of material fact remains and the party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56. “Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Maddox v. Stephens, 727 F.3d 1109, 1118 (11th Cir. 2013). “A genuine issue of material fact does not exist unless there is sufficient evidence favoring the nonmoving party for a reasonable jury to return a verdict in its favor.” Grimes v. Miami Dade Cty., 552 F. App'x 902, 904 (11th Cir. 2014) (citing Chapman v. AI Transp., 229 F.3d 1012, 1023 (11th Cir. 2000) (en banc)).

         “An issue of fact is ‘material' if it is a legal element of the claim under the applicable substantive law which might affect the outcome of the case.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). “It is ‘genuine' if the record taken as a whole could lead a rational trier of fact to find for the nonmoving party.” Tipton v. Bergrohr GMBH-Siegen, 965 F.2d 994, 998 (11th Cir. 1992) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). On a motion for summary judgment, the Court must view all evidence and factual inferences drawn therefrom in the light most favorable to the nonmoving party and determine whether that evidence could reasonably sustain a jury verdict in its favor. See Celotex, 477 U.S. at 322-23; Allen, 121 F.3d at 646. The Court shall, however, “grant summary judgment if the movant shows that 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).

         The movant bears the initial burden of showing, by reference to the record, that there is no genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Barreto v. Davie Marketplace, LLC, 331 F. App'x 672, 673 (11th Cir. 2009). The movant can meet this burden by presenting evidence showing that there is no genuine dispute of material fact or by demonstrating that the nonmoving party has failed to present evidence in support of some element of its case on which it bears the ultimate burden of proof. See Celotex, 477 U.S. at 322-24; Barreto, 331 F. App'x at 673. Local Rule 56 further requires that “documents and other record materials relied upon by [the moving party] be clearly identified for the court.” M.D. Ga. L.R. 56. “Material facts not supported by specific citation to particular parts of materials in the record and statements in the form of issues or legal conclusions (rather than material facts) will not be considered by the court.” Id.

         “When that burden has been met, the burden shifts to the nonmovant . . . to go beyond the pleadings and to present competent evidence in the form of affidavits, answers to interrogatories, depositions, admissions and the like, designating specific facts showing a genuine issue for trial.” Lamar v. Wells Fargo Bank, 597 F. App'x 555, 556-57 (11th Cir. 2014) (internal citations omitted). “All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.” M.D. Ga. L.R. 56; see also Mason v. George, 24 F.Supp.3d 1254, 1260 (M.D. Ga. 2014).

         “In the Eleventh Circuit, a district court cannot grant a motion for summary judgment based on default or as a sanction for failure to properly respond.” U.S. v. Delbridge, 2008 WL 1869867, at *3 (M.D. Ga. Feb. 22, 2008) (citing Trustees of Central Pension Fund of Int'l Union of Operating Eng'rs and Participating Emp'rs v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039 (11th Cir. 2004)). Rather, the Court is “required to make an independent review of the record” and assess the merits of the arguments before deciding the summary judgment motion; however, “[t]here is no burden upon the district court to distill every potential argument that could be made based upon the materials before it on summary judgment.” Mason, 24 F.Supp.3d at 1260-61 (explaining that a court is not obligated to “read minds” or “construct arguments or theories” that a party did not raise).

         STATEMENTS OF MATERIAL FACTS

         Plaintiff's Response to Defendants' Statement of Undisputed Facts is comprised almost entirely of responses that fail to comply with the Local Rules. Per Local Rule 56, Plaintiff was to submit a response “to each of the movant's numbered material facts.” M.D. Ga. L.R. 56. “All material facts contained in the movant's statement which are not specifically controverted by specific citation to particular parts of materials in the record shall be deemed to have been admitted, unless otherwise inappropriate.” Id. Further, Plaintiff, as the respondent, “may not assert insufficient knowledge to admit or deny a material fact asserted by the movant unless the respondent has complied with the provisions of Rule 56(d) of the Federal Rules of Civil Procedure.” Id.

         Plaintiff repeatedly disputes Defendants' statements on the ground that she “[l]ack[s] sufficient knowledge to admit or deny.” (E.g., Doc. 134-3 ¶¶ 11, 23, 30, 100-10, 157-61.) As such responses do not comply with Rule 56(d) or Local Rule 56, the Court deems admitted each of Defendants' statements to which Plaintiff responded by asserting she lacked sufficient knowledge. Plaintiff also repeatedly responded to Defendants' statements by merely stating, “Deny” (e.g., Doc. 134-3 ¶¶ 241-43, 245-47, 251-52), and by “[a]dmit[ting] in part” without providing any explanation about what part Plaintiff admits or about what the basis is for her response (e.g., Doc. 134-3 ¶¶ 91, 95, 98, 115, 116). Likewise, each of Defendants' statements to which Plaintiff merely responded by admitting in part or by merely denying without explanation is deemed admitted.

         In conjunction with her response to Defendants' Statement of Undisputed Facts, Plaintiff submitted her own Statement of Material Facts in Dispute. (Doc. 134-2.) Theses statements improperly are asserted in the form of issues and legal conclusions. (E.g., Doc. 134-2 ¶¶ 1 (“Whether the major and city defendants participated in the decision to terminate Plaintiff's employment.”), 4 (“Whether defendant Lott engaged in racially discriminatory practices at the City.”), 8 (“Whether defendant Davis actively encouraged officer ‘disruption' and animosity against Plaintiff after she reported a crime he committed.”).) Local Rule 56 provides that any party's statements of “[m]aterial facts . . . in the form of issues or legal conclusions (rather than material facts) will not be considered by the court.” M.D. Ga. L.R. 56. Accordingly, the Court does not consider the assertions in Plaintiff's Statement of Material Facts in Dispute. See M.D. Ga. L.R. 56. The Court has, however, considered the record evidence cited in Plaintiff's Statement of Material Facts in Dispute, which she claims demonstrate that genuine issues of material fact exist in this matter.

         SUMMARY OF FACTS

         The municipal government of the City of Albany (“the City”) consists of six commissioners and the mayor, who collectively comprise the Board of City Commissioners (“the Board”). (Docs. 109-1 ¶ 1; 134-3 ¶ 1.) During the relevant time, the Board appointed and set the compensation for certain City officers, including the City Manager and the City Attorney. (Docs. 109-1 ¶¶ 2, 3; 134-3 ¶¶ 2, 3.)

         In August 2005, the Board appointed Defendant Lott, a black man, as the City Manager. (Doc. 109-11 at 2; see also Docs. 109-1 ¶¶ 41, 43; 134-3 ¶¶ 41, 43.) The City Manager had the power and duty to appoint and employ all necessary employees of the City, except for (1) those officers and employees whom the Board appointed or elected and (2) employees of the departments outside of the City Manager's jurisdiction. (Docs. 109-1 ¶ 6; 134-3 ¶ 6.) As to those employees under the City Manager's jurisdiction, the City Manager had the power to fix their compensation, subject to the Board's supervision, control, or disapproval, and the power to terminate their employment without the Board's consent and without assigning any reason therefor. (Docs. 109-1 ¶¶ 8, 9; 134-3 ¶¶ 8, 9.) All City officers and employees who were appointed and employed by the City Manager were at-will employees of the City. (Docs. 109-1 ¶ 7; 134-3 ¶ 7.)

         Defendant Davis, a white man, was appointed by the Board as City Attorney on July 1, 2003.[2] (Docs. Docs. 109-1 ¶¶ 29, 30; 109-8 at 9; 134-3 ¶¶ 29, 30.) The City Attorney acted as legal advisor, attorney, and counsel to the City and its officers in matters related to their official duties, and was also appointed as the City's legal representative in litigation concerning the City (Docs. 109-1 ¶¶ 15-17; 134-3 ¶¶ 15-17.) Davis was directly responsible to the Board and was not under the City Manager's supervision. (Doc. 109-8 at 9; see also Docs. 109-1 ¶ 32; 134-3 ¶ 32.) The Board provided him an office and a single staff member-Stacie H. Mote, a white woman, who was an administrative secretary. (Doc. 109-8 at 10; see also Docs. 109-1 ¶ 34; 134-3 ¶ 34.) In 2005, Mote began serving as the paralegal and real estate specialist for the City Attorney's office, and Christine Washington, a black woman, was hired as the administrative legal secretary for the City Attorney's office. (Doc. 109-8 at 10-11; see also Docs. 109-1 ¶¶ 35-36, 38-39; 134-3 ¶ -36, 38-39.) The staff of the City Attorney's office, while under the City Attorney's immediate supervision, fell under the ultimate jurisdiction, supervision, and control of the City Manager. (Docs. 109-1 ¶¶ 19, 37; 134-3 ¶¶ 19, 37.)

         I. Plaintiffs Employment as an Assistant City Attorney

         In early 2006, the City approved the hiring of an Assistant City Attorney, whose duties would include representing the City's interests in court and administrative agencies, interpreting and ensuring department compliance with laws, and initiating actions necessary to correct violations. (Doc. 109-8 at 11; see also Docs. 109-1 ¶¶ 52, 53; 134-3 ¶¶ 52, 53.) Plaintiff Kathleen Strang, a white woman, applied for the position and accepted an offer on March 2, 2006. (Docs. 109-1 ¶¶ 44, 54; 134-3 ¶¶ 44, 54.) Davis recommended the hiring of Plaintiff and his recommendation was approved by Lott. (Docs. 109-1 ¶¶ 44, 54; 134-3 ¶¶ 44, 54.) As set forth in the job description for the Albany Assistant City Attorney posted in February 2006, Plaintiffs express job duties were to: “Interpret laws, rulings and regulations for the City and/or its employees”; “[ensure] departmental compliance with all applicable City codes, laws, rules, regulations, standards, policies and procedures”; “initiate [] any actions necessary to correct violations”; and “[perform] the duties of City Attorney in absence of same.” (Docs. 109-1 ¶¶ 83; 134-3 ¶ 83.)

         As part of her duty to ensure compliance with city codes, laws, rules, etc., Plaintiff made several reports regarding infractions by various city employees. For example, Plaintiff reported to Davis that:

• A police officer of the City was unqualified for the position of police captain in part because the officer had purchased a term paper written by another person. (Docs. 109-1 ¶¶ 85-86; 134-3 ¶¶ 85-86.) Plaintiff reported the police officer because “it was a clear wrongdoing that suggested to me that the person should not have been a candidate for a promotion to captain.” (Docs. 109-1 ¶ 86; 134-3 ¶ 86.)
• A City building inspector was issuing fraudulent housing inspections and then offering to correct the alleged construction problems he identified by moonlighting as a general contractor. (Docs. 109-1 ¶ 87; 134-3 ¶ 87.) Plaintiff immediately reported the scheme to Davis upon learning of it because “[Davis] was the City Attorney and it was wrongdoing.” (Docs. 109-1 ¶ 88; 134-3 ¶ 88.)
• The Risk Manager at the time had committed an act of “finger jabbing” a subordinate employee and that “(b)y law, the finger jabbing would constitute misdemeanor assault.” (Docs. 109-1 ¶ 89; 134-3 ¶ 89.)

         At the end of 2006, because Plaintiffs office was cluttered with her storage of to-be-recycled material and because Plaintiff left for vacation without first cleaning her office, Davis asked Mote, Washington, and Strum, Plaintiffs secretary, to clean Plaintiffs office and discard the accumulated materials. (Docs. 109-1 ¶ 66; 134-3 ¶ 66.) Davis asked Plaintiff on several prior occasions to clean her office and to do something about the accumulated materials, but Plaintiff failed to do so. (Docs. 109-1 ¶¶ 65, 66; 134-3 ¶¶ 65, 66.) Plaintiff returned to her office in January 2007 and “was very, very upset” and “felt extremely violated” that her recycling and other materials inside her desk had been discarded. (Docs. 109-1 ¶¶ 67, 68; 134-3 ¶¶ 67, 68.) She repeatedly stated loudly, “I feel raped; I feel raped; I feel raped, ” so that the entire office could hear her. (Docs. 109-1 ¶ 68; 134-3 ¶ 68.)

         In March of 2008, Jenise Shicole Smith, a black woman, began an unpaid internship in the City Attorney's office while she sought to pass the Georgia Bar examination. (Doc. 109-8 at 12-13; see also Docs. 109-1 ¶¶ 73-76; 134-3 ¶¶ 73-76.) Davis was pleased with Smith's performance during the internship and, with Lott's approval, hired Smith as an Assistant City Attorney at the end of her internship. (Doc. 109-8 at 13; see also Docs. 109-1 ¶ 81; 134-3 ¶ 81.) This offer of employment was made despite the description for the position requiring that a candidate have at least three years of experience practicing law, which Smith did not have. (Doc. 134-1 at 3.) Smith was paid a paralegal's salary until she attained admission to the Georgia Bar, at which time her salary increased. (Doc. 109-8 at 13; see also Docs. 109-1 ¶ 81; 134-3 ¶ 81.)

         In 2009, Shurell Byrd, a black woman and friend of Plaintiff, had a conversation with Plaintiff about racism exhibited by her immediate boss, who routinely used a racial slur. (Docs. 109-1 ¶ 94; 134-3 ¶ 94.) Because there was “zero tolerance” for this improper behavior, Plaintiff reported to Davis that Byrd's boss called black people, “N****rs.” (Docs. 109-1 ¶ 95; 134-3 ¶ 95.) Plaintiffs comment to Davis was overheard by Smith, who talked to Plaintiff afterwards and asked Plaintiff to refrain from using that term. (Docs. 109-1 ¶ 96; 134-3 ¶ 96.) Thereafter, Plaintiff immediately entered Mote's office because she was “furious” and “said the word ‘N****r, N****r, N****r, N****r, N****r, N****r, N****r' just like George Carlin did his, you know, five - seven dirty words in the English language.” (Docs. 109-1 ¶ 97; 134-3 ¶ 97.) Plaintiff testified that this “had nothing to do with calling Jenise Smith a N****r.” (Docs. 109-1 ¶ 97; 134-3 ¶ 97.) Plaintiff was “ridiculing” the fact that, even though Smith knew the context and that Plaintiff “was not using a racial slur, ” Smith “still came to [Plaintiff] as if [Plaintiff] had.” (Docs. 109-1 ¶¶ 98, 99; 134-3 ¶¶ 98, 99.) Beginning in the fall of 2009, Plaintiff openly and actively sought employment elsewhere. (Docs. 109-1 ¶ 117; 134-3 ¶ 117.)

         II. Plaintiff's Coaching Plan

         On January 4, 2010, the Board met with Davis to evaluate his yearly performance as City Attorney. (Doc. 109-8 at 14-15; see also Docs. 109-1 ¶¶ 101, 102-04; 134-3 ¶¶ 101, 102-04.) The Board reminded Davis that the major issue in his past review was Plaintiff's bad behavior. (Id.) The Board asked Davis whether Plaintiff's behavior had improved, noted that certain department heads would not work with Plaintiff, and noted that she had been insensitive to other employees' feelings regarding her reading aloud of the “N” word. (Doc. 109-8 at 14-15; see also Docs. 109-1 ¶¶ 101, 102-04; 134-3 ¶¶ 101, 102-04.) The Board directed Davis to share with Plaintiff the Board's concerns about her behavior, to explain that Davis was being held responsible for such behavior, to place Plaintiff on a six-month improvement plan, and to report her progress to the Board. (Doc. 109-8 at 15-16; see also Docs. 109-1 ¶ 106; 134-3 ¶ 106.)

         Davis, together with EEO Manager Niger Thomas and the HR Director, crafted a Coaching Plan for Plaintiff, effective January 8, 2010, informing her that Davis had received numerous and continuing complaints about her behavior. (Doc. 109-8 at 16-17; see also Docs. 109-1 ¶ 108; 134-3 ¶ 108.) The Coaching Plan further stated that, because of these complaints and Davis' observation of Plaintiff's poor working relationships, City officials required Plaintiff to (1) attend or schedule to attend a training class focused on conflict resolution or team building within 30 days and (2) develop a written strategy within 90 days to strengthen her ability to create a collegial atmosphere. (Doc. 109-8 at 17; see also Docs. 109-1 ¶ 109; 134-3 ¶ 109.) Plaintiff was informed that immediate disciplinary action, including possible dismissal, would result if she was the subject of continued complaints, if she did not attend twelve counseling sessions, or if she exhibited poor involvement in any phase of the 90-day Coaching Plan. (See Doc. 109-8 at 17; see also Docs. 109-1 ¶ 110; 134-3 ¶ 110.)

         Plaintiff's relationship with Davis and Smith deteriorated during the term of her Coaching Plan. Davis asked Plaintiff to socialize with Smith and make her feel welcome in the office, but Plaintiff thought this was inappropriate for Davis to dictate. (Docs. 109-1 ¶ 115; 134-3 ¶ 115.) Plaintiff was also unhappy about the distribution of work, alleging that Davis assigned tasks to her that would normally be given to a beginning attorney and gave Smith the things that would be given to a senior attorney. (Docs. 109-1 ¶ 118; 134-3 ¶ 118.) Plaintiff alleges Davis “shoveled . . . twelve cases” to Smith, an “incompetent and inexperienced attorney.” (Docs. 109-1 ¶ 119; 134-3 ¶ 119.) Davis allowed Smith to handle an employment termination matter that Plaintiff believed she should have been able to handle given her experience and her belief that Smith was incompetent, inexperienced, and ...


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