United States District Court, S.D. Georgia, Augusta Division
HONORABLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE
case arises out of Plaintiff's employment with Defendant
Augusta, Georgia. After over thirty years of service, Augusta
demoted Plaintiff for violating workplace policies. It then,
according to Plaintiff, forced her into retirement. In
response, Plaintiff sued Augusta and three Augusta employees
under a number of federal employment statutes and the
Fourteenth Amendment. But because the Court does not sit as a
"super-personnel department assessing the prudence of
routine employment decisions, " Flowers v. Troup
Cty., Ga, Sch. Dist., 803 F.3d 1327, 1338 (11th Cir
2015) (citation omitted) (internal quotation marks omitted),
most of Plaintiff's claims fail. Only her Title VII
retaliation claim will proceed.
began working for Augusta in 1980. Eventually, she became an
operations manager in the Recreation, Parks, and Facilities
("Parks and Recreation") department. As part of her
duties, Plaintiff managed over twenty employees and was
responsible for the day-to-day operations of over sixty city
facilities. And as an operations supervisor, Plaintiff was
classified as an exempt employee under the Fair Labor
Standards Act ("FLSA"). Thus, she did not receive
overtime compensation for working more than forty hours in a
workweek. But according to Plaintiff, she also performed a
significant amount of manual labor, which she believed
entitled her to overtime pay under the FLSA.
point, certain Parks and Recreation officials began allowing
exempt employees to accrue "comp time" when they
worked more than forty hours in a workweek. When employees
worked certain special events that ran late into the night,
for example, Parks and Recreation would allow them to record
that time. The employees would later be permitted to use the
comp time as paid time off from work. Plaintiff participated
in this program.
1999, Plaintiff asked her supervisor for permission to use
some of her comp time. But Plaintiff's request was denied
because, as an exempt employee, she was not permitted to
accrue comp time. (Doc. 31, PI. Dep. at 83-86.) Plaintiff
contested this decision to the director of human resources,
who allowed Plaintiff to use the time she had accrued. (Doc.
31-4.) Specifically, in a letter to the director of Parks and
Recreation, the human-resources director noted that Plaintiff
was in fact prohibited from accruing comp time because she
was an exempt employee. (Id.) But he determined that
because Plaintiff had been allowed to accrue the time,
"there [was] no other option other than to compensate
her for this time." (Id.) Thus, Augusta
permitted Plaintiff to use the time she had accrued.
this incident, the director of Parks and Recreation, Tom
Beck, instructed Plaintiff to stop recording comp time on her
payroll records. (PI. Dep. at 87.) Mr. Beck told her that she
was instead required to record only 7.5 hours, regardless of
how many hours she worked in a day. (Id. at 89.)
Plaintiff disagreed with Mr. Beck's instruction, so she
implemented her own method for tracking comp time.
(Id. at 8 9-90.)
timecards at the time contained three sheets - a white sheet,
a blue sheet, and a yellow sheet. On the white copy,
Plaintiff would record the 7.5 hours she was required to
record. (Id. at 8 9.) This copy went to the payroll
department. On the blue and yellow copies, Plaintiff would
record the actual time she worked. (Id. at 90.) And
when Plaintiff wanted to use her comp time, she would fill
out a request form and request her supervisor's
approval. (Id. at 93.) Plaintiff followed
this practice from 1999 until 2012, when she was demoted.
2000, Augusta adopted an ordinance that created an employee
policy manual. (Doc. 31-5.) In 2011, Augusta amended its
policy manual. (See Doc. 31-7.) The 2011 version
specifically provides that "comp time shall only be
applicable to non-exempt employees." (Doc. 31-8 at 20.)
2011, Plaintiff took a leave of absence from work for medical
reasons. (PI. Dep. at 118-19.) She received leave with pay
from early July until August 19, 2011. (Id. at 119.)
But in August, Plaintiff ran out of leave time. (Id.
at 120.) Plaintiff then attempted to use the comp time she
had purportedly accrued to continue her leave with pay.
(Id. at 123.) Her request was denied, however,
because the human-resources department did not have a record
of her comp time. (Id. at 128.)
Plaintiff had run out of sick leave, some of her coworkers
donated leave to her through Augusta's catastrophic-leave
program. (Id. at 148-49.) Under this program,
employees could request leave donations from other employees.
But out-of- work employees were permitted to make these
requests only if they had exhausted all of their own leave.
Plaintiff received catastrophic-leave pay from September 9
through December 2. (Id. at 153.) She returned to
work on December 5, 2011. (Id. at 154-55.)
Plaintiff returned to work, she immediately began having
trouble working with another employee, Sam Smith, with whom
she had previously had issues. (See id. at 160-61.)
Plaintiff spoke with Dennis Stroud, her supervisor at the
time, about Mr. Smith the first day she returned, but this
proved unproductive. Two weeks later, she approached Mr.
Stroud again. (Id. at 170-71.) This time, Plaintiff
and Mr. Stroud got into a heated argument, and Plaintiff left
work. (Id. at 171-72.) When she got home, Plaintiff
called Mr. Stroud and asked to use her accrued comp time so
she could have a few days to clear her head. (Id. at
172.) Mr. Stroud agreed, and Plaintiff took four days off.
(Id. at 178.) Notably, while she was out,
Plaintiff's timecard showed that she worked those days.
(Id. at 180.)
spring of 2011, the human-resources department began an
investigation into Plaintiff's use of comp time.
According to Bill Shanahan, the interim director of human
resources and of the Parks and Recreation department, Lisa
Hall, an employee from Parks and Recreation, complained to
human resources about Plaintiff's use of comp time. (Doc.
41-1, Shanahan Dep. at 18.) Specifically, Mr. Shanahan
contends that Ms. Hall questioned why Plaintiff was able to
use comp time after returning to work when Plaintiff had
previously requested catastrophic leave, which is only
available when an employee has exhausted all other leave
options. (Id. at 18.) Ms. Hall denies that she made
this complaint and instead claims that others complained to
her about Plaintiff's use of comp time. (Doc. 91-1, Hall
Dep. at 26-27.)
event, Plaintiff learned about the investigation in February
2011 when Mr. Shanahan and other human-resources employees
arrived at her office to review Plaintiff's records. (PI.
Dep. at 180.) Soon thereafter, Plaintiff spoke with Mr.
Shanahan and explained her timekeeping process to him.
(Id. at 187.)
result of Mr. Shanahan's investigation, Plaintiff was
demoted to the position of maintenance worker. (Id.
at 190.) She began work in that position in early May 2011.
(Id. at 204-205.) Around the same time, Plaintiff
also appealed her demotion. (Id. at 190.) As part of
the appeal process, Plaintiff was granted a hearing in front
of Fred Russell, Augusta's administrator. (IcL at 194.)
At the hearing, however, Mr. Russell did not allow Plaintiff
to present witnesses. (Doc. 37-1, Russell Dep. at 33-34.) Mr.
Russell claims that the appeal was an "administrative
review" and that Plaintiff should have been afforded an
opportunity to present witnesses at a prior hearing.
(Id. at 34.) But Mr. Russell was apparently unaware
that Plaintiff had not been given a prior hearing.
worked as a maintenance worker until May 31, 2011. (PI. Dep.
at 213.) At that time, she went out of work with an injury.
(Id. at 219.) Plaintiff remained out of work for
over a year, and in late 2012, she underwent back surgery.
(Id. at 223-25.) Not long after her surgery, someone
from Augusta contacted Plaintiff and requested that she
return to work by January 2013. (Id. at 225-26.) She
did not return in January, and in February 2013, Plaintiff
met with someone in Augusta's human-resources office.
(Id. at 226.) During that meeting, Plaintiff claims
that she was presented with three options: (1) she could
"retire and freeze [her] pension"; (2) she could
retire and face a penalty for drawing from her pension early;
or (3) she could choose not to act, in which case Augusta
would choose for her. (Id. at 227.) Whether on
purpose or not, Plaintiff apparently chose option three
because she soon learned that Augusta had retired her without
her permission. (Id. at 228.)
began this litigation in May 2014 when she filed suit against
Augusta, Fred Russell, Bill Shanahan, and Sam Smith. In her
complaint, she alleges that: (1) she was retaliated against
in violation of the Family and Medical Leave Act
("FMLA"); (2) she was retaliated against in
violation of the FLSA; (3) she was denied due process; and
(4) she was denied equal protection.
complaint, however, did not include all of the claims she
intended to bring. In November 2012, Plaintiff filed a charge
of discrimination with the EEOC alleging that her demotion
was the result of race and gender discrimination and
retaliation. (Doc. 28-7.) In April 2013, Plaintiff filed a
second EEOC charge alleging that she was fired based on her
disability and in retaliation for filing her first EEOC
charge. (Doc. 28-10.) Plaintiff did not receive her
right-to-sue letters until January 2015. (Doc. 28-14.) So
Plaintiff filed a second lawsuit against Augusta in August
2015. (CV 115-123.) In her second complaint, Plaintiff
alleges: (1) that Augusta discriminated against her based on
her race and gender in violation of Title VII; (2) that
Augusta discriminated against her based on a disability; (3)
that Augusta retaliated against her for filing her November
2012 EEOC charge; and (4) a claim of hostile work
environment. (CV 115-123, Doc. 6.)
Plaintiff's request, the Court consolidated her two
cases. The Court also allowed the parties time to complete
discovery and file dispositive motions on the claims raised
in the second case before ruling on the dispositive motions
that were already pending in the original case. All of the
parties' motions are now ripe for review.
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. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The Court
must view the facts 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 [its] favor."
United States v. Four Parcels of Real Prop., 941
F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal
punctuation and citations omitted).
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).
How to carry this burden depends on who bears the burden of
proof at trial. Fitzpatrick v. City of Atlanta, 2
F.3d 1112, 1115 (11th Cir. 1993) . When the non-movant has
the burden of proof at trial, the movant may carry the
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). Before the
Court can evaluate the non-movant's response in
opposition, it must first consider whether the movant has met
its initial burden of showing that there are no genuine
issues of material fact and that it is entitled to judgment
as a matter of law. Jones v. City of Columbus, 120
F.3d 248, 254 (11th Cir. 1997) (per curiam) . A mere
conclusory statement that the non-movant cannot meet the
burden at trial is insufficient. Clark, 929 F.2d at
and only if - the movant carries its initial burden, the
non-movant may avoid summary judgment only by
"demonstrat[ing] 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. If the movant presents
evidence affirmatively 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, 2 F.3d
at 1116. 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. See
Morris v. Ross, 663 F.2d 1032, 1033-34 (11th Cir. 1981).
Rather, the non-movant must respond with affidavits or as
otherwise provided by Federal Rule of Civil Procedure 56.
action, the Clerk of the Court gave the parties notice of the
motions for summary judgment and informed them of the
summary-judgment rules, the right to file affidavits or other
materials in opposition, and the consequences of default.
(Docs. 59, 60, 139, 142.) Thus, the notice requirements of
Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.
1985) (per curiam), are satisfied.
noted, Plaintiff asserts a number of claims. Defendants move
for summary judgment on all of Plaintiff's claims, and
Plaintiff moves for summary judgment on two of the claims.
The Court addresses the parties' arguments below.
A. Race and Gender Discrimination Plaintiff
contends that Defendants discriminated against her based on her
race and gender. She asserts equal protection claims under 42
U.S.C. § 1983 (and the Fourteenth Amendment) and
employment-discrimination claims under Title VII. Because
Plaintiff's gender- and race-discrimination claims are
based on the same facts, the Court addresses them together.
And the Court analyzes Plaintiff's equal protection and
Title VII claims together because "the analysis of
disparate treatment claims under § 1983 is identical to
the analysis under Title VII where the facts on which the
claims rely are the same." Crawford v. Carroll,
529 F.3d 961, 970 (11th Cir. 2008). Also, Plaintiff asserts
her claims both under a single-motive theory and a
mixed-motive theory, and the Court addresses these theories
Plaintiff's single-motive theory
disparate-treatment case based on circumstantial evidence,
such as this one, courts apply the familiar burden-shifting
framework derived from McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). Under this framework, a
plaintiff must first establish a prima facie case of
discrimination, which requires that she show: (1) that she
belongs to a protected group; (2) that she suffered an
adverse employment action; (3) that her employer treated
similarly situated employees outside of her class more
favorably; and (4) that she was qualified for the job. See
Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.
1997). Comparators under the fourth prong must be
"similarly situated in all relevant respects."
plaintiff successfully establishes a prima facie case of
discrimination, the burden shifts to the employer to
articulate a legitimate, nondiscriminatory reason for its
actions. See Brown v. Ala. Dep't of Transp., 597
F.3d 1160, 1174 (11th Cir. 2010). But "[t]he employer
need not persuade the court that it was actually motivated by
the proffered reasons." Id. (citation omitted)
(internal quotation marks omitted). Rather, once the employer
articulates a nondiscriminatory reason for its actions, then
the burden shifts back to the employee to show that the
reason was merely pretext for discrimination. See
burden-shifting analysis, however, is not "the sine
qua non for a plaintiff to survive a summary judgment
motion in Title VII cases." Flowers v. Troup Cty.,
Ga., Sch. Dist., 803 F.3d 1327, 1336 (11th Cir. 2015)
(citation omitted) (internal quotation marks omitted). It
does not "relieve Title VII plaintiffs of their burden
to put forth evidence of discrimination, " id.,
and "[t]he critical decision that must be made is
whether the plaintiff has "'create [d] a triable
issue concerning the employer's discriminatory intent,
" id. (citation omitted) (internal quotation
Plaintiff has failed to establish a prima facie case of
the fourth prong of the prima facie case is contested in this
case: Defendants contend that Plaintiff has failed to
identify any similarly situated employees outside of her
protected class who were treated more favorably. In response,
Plaintiff names a number of other employees who she claims
were treated more favorably. Plaintiff specifically names (1)
Donnell Conley, (2) Chris Scheuer, (3) Ron Houck, and (4) Sam
Smith. These individuals, however, are not similarly
argues that Mr. Conley, Mr. Scheuer, and Mr. Houck are all
exempt employees who used comp time but were not disciplined.
In an affidavit, Mr. Conley stated that, even though he was
an exempt employee, he accrued comp time while Mr. Shanahan
was the interim director of Parks and Recreation and that his
coworkers in Augusta's Athletic Department routinely did
the same. (See Doc. 68-1.) Mr. Scheuer similarly
testified that exempt employees in the Athletic Department
were routinely permitted to accrue comp time, including while
Mr. Shanahan was the interim director. (See Doc.
114-1.) And Mr. Houck testified simply that he was aware that
some exempt employees in the Parks and Recreation department
were permitted to accrue comp time. (See Doc.
bottom, this evidence shows that some employees in the Parks
and Recreation department had been permitted to accrue comp
time. And some of these employees may have accrued and used
comp time while Mr. Shanahan was the interim director of the
department. But it does not show - nor does Plaintiff argue
that is shows - that Mr. Shanahan approved of this behavior
or that he was aware of any specific individuals who accrued
or used comp time while he was the interim director. And more
notably, Plaintiff has not shown that any of these
individuals' timecards indicated that they were working
when they were not.
has likewise failed to show that Mr. Smith is an apt
comparator. Plaintiff contends that, because Mr. Smith was
not disciplined for his violations of Augusta's policies,
he is a similarly situated employee who was treated more
favorably. But Plaintiff has not pointed to any evidence that
Mr. Smith engaged in similar conduct as Plaintiff. See
Burke-Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th
Cir. 2006) (per curiam) ("When a plaintiff alleges
discriminatory discipline, to determine whether employees are
similarly situated, we evaluate whether the employees are
involved in or accused of the same or similar conduct and are
disciplined in different ways." (citation omitted)
(internal quotation marks omitted)).
Plaintiff argues that Mr. Smith improperly covered up another
employee's bad behavior and that he spent several hours
at his home during work hours without permission. Plaintiff
does not, however, argue that Mr. Smith ever improperly
accrued or used comp time (with or without Mr.Shanahan's
knowledge) or that he ever misrepresented whether he was
working on his timecard. Furthermore, it is not clear from
the record that Mr. Smith was not disciplined. Plaintiff
instead argues that Mr. Smith was not demoted - that is, he
did not receive the same punishment as Plaintiff. Thus, Mr.
Smith is not similarly situated to Plaintiff.
Plaintiff has failed to rebut Defendants' legitimate,
nondiscriminatory reason for demoting her.
Plaintiff could establish a prima facie case of
discrimination, her claim would still fail because she has
failed to show that Defendants' reason for demoting her
was pretext for discrimination. Defendants argue that they
demoted Plaintiff because she accrued and used comp time and
submitted a timecard that fraudulently stated that she worked
days that she did not. Plaintiff argues that Defendants'
proffered reasons are pretext for discrimination because: (1)
Mr. Shanahan lied about what triggered the investigation into
Plaintiff's practices; (2) Mr. Shanahan and Mr. Russell
knew that certain employees had previously received comp
time; and (3) Mr. Shanahan and Mr. Russell did not adequately
determine whether Plaintiff knew she could no longer use comp
support her first argument, Plaintiff points out that Lisa
Hall disputes Mr. Shanahan's position that Ms. Hall
raised the concern surrounding Plaintiff's use of comp
time. Thus, Plaintiff contends, Mr. Shanahan fabricated that
interaction so he could launch an investigation into
Plaintiff's employment practices for the sole purpose of
having Plaintiff demoted. But there is no evidence that this
is what happened. Instead, there is at worst a discrepancy in
the record about who posed the question that prompted the
investigation, which is insufficient to create a triable
issue on pretext. See Flowers, 803 F.3d at 1339
("Allowing the plaintiff to survive summary judgment
would be inappropriate, for example, if . . . the plaintiff
created only a weak issue of fact as to whether the
employer's reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination
had occurred.'7 (citation omitted) (internal quotation
her second and third arguments, Plaintiff contends that,
because Mr. Shanahan and Mr. Russell knew that some exempt
employees were permitted to accrue comp time, they should
have known that Plaintiff was acting innocently. She also
argues that Mr. Shanahan and Mr. Russell may have known that
she did not willingly violate any policy. She contends, for
example, that Mr. Shanahan and Mr. Russell were not certain
that Plaintiff ...