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Clark v. Judicial Alternatives of Georgia Inc.

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

March 31, 2017

TRICIA Y CLARK, Plaintiff,



         Defendant Judicial Alternatives of Georgia (JAG) has moved for summary judgment. Doc. 28. For the following reasons, the motion is GRANTED.

         I. BACKGROUND

         Plaintiff Tricia Clark, a female, was employed as a probation officer for JAG, a private probation company, from on or about June 26, 2012 to January 14, 2014 in Milledgeville, Georgia. Docs. 1 at 1-2; 28-3 ¶  7. In October 2013, she was promoted to Senior Probation Officer. Doc. 28-3 ¶  9. As a part of her job, she worked closely with Dray Swicord, who was then Chief of the Milledgeville Police Department. Docs. 28-6 ¶¶ 3-4; 30-10 ¶ 6. In fact, Clark says she was promoted in part to soothe tensions between JAG and Swicord. Doc. 30-10 ¶ 4. According to Clark, on the day she was promoted, Kenneth Kight, JAG founder and Chief Financial Officer, told her that Swicord can be difficult and for Clark to let Kight know if she had any problems with Swicord. Doc. 30 at 2. On January 13, 2014, Clark called Swicord and left him a voicemail about a probationer he had released. Docs. 28-6 ¶ 5. When Swicord called Clark back, tensions arose because Swicord felt Clark was questioning his judgment. Id. According to Swicord, Clark raised her voice towards him and was “unrelenting” leading him to abruptly end the phone call. Docs. 28-3 ¶¶ 15-16; see also Doc. 28-6 ¶ 5. Clark, however, persisted and again called Swicord, which did not assuage the tension between the two. Doc. 28-6 ¶  5. After the second phone call ended, Clark called John Moss, her supervisor at JAG, and complained that Swicord was rude. Doc. 28-5 at 50:25-51:2, 53:25-54:15. Clark then spoke with Kight, who told her he would “take care of it.” Id. at 55:10-16. Moss then called Swicord who told him “[Clark] had been rude and unprofessional [during their conversation].” Doc. 28-6 ¶ 5. Swicord then sent a text message to Kight to “advise him [of the] interaction.” Id. In response, Kight called Swicord about the incident. Id. The next day, Kight met with Swicord to discuss the incident. Doc. 28-3 ¶ 18. Kight stated that, after meeting with Swicord and hearing his account of the conversation, he decided to fire Clark. Id. ¶ 19. That same day, Kight met with Clark and informed her she was being fired. Doc. 28-5 at 59:12-60:7. In that meeting, Kight referenced the incident with Swicord, stating Clark was “too strong, ” and insinuated he had to fire Clark because his contract with the city was in jeopardy. Id. at 62:7-24. In her deposition, when asked if she believed she was fired because of her gender, Clark testified that she believed she was fired “based on the words [of] Dray Swicord.” Doc. 28-5 at 87:20-23.

         On May 14, 2015, Clark filed suit against JAG alleging gender discrimination pursuant to Title VII of the 1964 Civil Rights Act, 42 U.S.C. § 2000e et seq.


         A court shall 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). A factual dispute is not genuine unless, based on the evidence presented, “‘a reasonable jury could return a verdict for the nonmoving party.'” Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224 (11th Cir. 2002) (quoting United States v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991)); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant may support its assertion that a fact is undisputed by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A).

         The burden then shifts to the non-moving party, who must rebut the movant's showing “by producing . . . relevant and admissible evidence beyond the pleadings.” Josendis v. Wall to Wall Residence Repairs, Inc., 662 F.3d 1292, 1315 (11th Cir. 2011) (emphasis added). The non-moving party does not satisfy its burden “if the rebuttal evidence ‘is merely colorable, or is not significantly probative' of a disputed fact.” Id. (quoting Anderson, 477 U.S. at 249-50). Further, where a party fails to address another party's assertion of fact as required by Rule 56(c), the Court may consider the fact undisputed for purposes of the motion. Fed.R.Civ.P. 56(e)(2). However, “credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . . The evidence of the non- movant is to be believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at 255.


         Without direct evidence of discrimination, as here, a plaintiff must prove her case with circumstantial evidence pursuant to the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). McCann v. Tillman, 526 F.3d 1370, 1373 (11th Cir. 2008). First, a plaintiff must establish a prima facie case of discrimination, the test for which differs slightly depending on the nature of the claim. Id. at 802. If a plaintiff does so, the burden of production, but not the burden of persuasion, shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employment action. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).

         The plaintiff then has the opportunity to show that the employer's stated reason is in fact pretext for discrimination. See McDonnell Douglas, 411 U.S. at 804. The critical issue “is whether the plaintiff has ‘create[d] a triable issue concerning the employer's discriminatory intent.'” Flowers, 803 F.3d at 1336 (alteration in original) (quoting Smith v. Lockheed-Martin Corp., 644 F.3d 1321, 1328 (11th Cir. 2011)). “[A] plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 148 (2000); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 517 (1993) (“[P]roving the employer's reason false becomes part of (and often considerably assists) the greater enterprise of proving that the real reason was intentional discrimination.”).

         A. Prima Facie Case

         There is no dispute that Clark is (1) in a protected class based on her gender; (2) was qualified for the position she held; and (3) was subjected to an adverse employment action. See Crisman v. Fla. Atl. Univ. Bd. of Trustees, 659 F.App'x 472, 578 (11th Cir. 2016) (quoting Rice-Lamar v. City of Ft. Lauderdale, 232 F.3d 836, 842- 43 (11th Cir. 2000)) (listing the elements of a prima facie case of gender discrimination). However, to prove a prima facie case, Clark must also prove that her employer treated a similarly situated male employee differently or that she was replaced by a male employee. See Crisman, 659 F.App'x at 578; Maynard v. Bd. of Regents of Div. of Univs. of Florida Dep't of Educ. ex rel. Univ. of S. Florida, 342 F.3d 1281, 1289 (11th Cir. 2003). Clark attempts to make both of these showings.

         In his affidavit, Kight states that a female employee was promoted to take Clark's position. Doc. 28-3 ¶  20. In response, Clark avers that she was replaced by a male employee whom she claims to have met while visiting JAG's office two years after she was fired. Doc. 30-10 ¶ 20. Other than this bare assertion, Clark offers nothing to support this claim. For example, ...

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