United States District Court, N.D. Georgia, Atlanta Division
OPINION AND ORDER
WILLIAM S. DUFFEY, JR. UNITED STATES DISTRICT JUDGE
matter is before the Court on Magistrate Judge John K.
Larkins III's Final Report and Recommendation 
(“R&R”). The R&R recommends the Court
grant in part and deny in part Defendant Elaine Chao's
(“Defendant”) Motion for Summary Judgment .
Also before the Court are Defendant's Motion for Leave to
File Excess Pages , Partial Objections to the R&R
 (“Objections”), and Notice of Filing of
Corrected Partial Objections to the R&R 
Paula Smith-Jackson (“Smith-Jackson”) began her
employment with Defendant in 1982 in Peoria, Illinois. (
¶ 2). In January 2005, Smith-Jackson moved to Atlanta
and began training at the air traffic control tower in
Atlanta (“Atlanta Tower”). (Id. ¶
4). Smith-Jackson had previously been fully certified to work
as an air traffic controller at a level 8 facility, but
Atlanta had a level 12 facility, which required additional
training. (Id. ¶¶ 3-4). In May 2005,
Smith-Jackson withdrew from training for the operational air
traffic controller position in Atlanta because of an
inability to perform the required training. (Id.
¶ 10). At that time, Smith-Jackson requested a
reassignment to a lower level facility. (Id.).
alleges that, on November 8, 2005, she was present when a
white male coworker made a racially insensitive comment to a
group of visitors. ( ¶ 28). That incident caused
Smith-Jackson's psychological injury, and she suffered
from anxiety, depression, and post-traumatic stress disorder.
([57.1] ¶ 4). Following that incident, Smith-Jackson
began receiving a monthly payment from the Office of
Workers' Compensation. ( ¶ 31).
2006, Smith-Jackson was declared medically disqualified from
working as an air traffic controller. ([57.1] ¶ 6). In
September 2006, Defendant proposed to remove Smith-Jackson
due to her failure to maintain her medical certification.
( ¶ 36). In October 2006, Smith-Jackson requested a
permanent reassignment within the Atlanta “commuting
area.” (Id. ¶ 38). Later in October,
Smith-Jackson turned down a job that was offered to her
because it required her to drive more than 30 miles, contrary
to her doctor's restrictions. (Id. ¶ 41).
Smith-Jackson offered to accept the same position if it were
available within her driving range. ([57.1] ¶¶
November 2006, Defendant convened a “Reasonable
Accommodation Team” meeting to discuss Smith-Jackson.
( ¶ 42). The parties dispute the actions of
Defendant in attempting to accommodate Smith-Jackson,
discussed in more detail below. The parties agree that, from
December 2006 through June 2008, Smith-Jackson applied for
numerous vacant positions throughout the agency. ([57.1]
¶ 10). In July 2007, Defendant notified Smith-Jackson
that it was removing her from service effective August 18,
2007, for failing to maintain medical certification. (
¶ 52). On August 18, Smith-Jackson was terminated, but
retained her workers' compensation payments.
(Id. ¶ 53).
2008, following some amount of internal administrative
proceedings, Defendant offered Smith-Jackson a clerical
position, but then withdrew the offer. ([57.1] ¶ 20). In
August 2008, Smith-Jackson was placed in a permanent position
as a secretary. ( ¶ 63). In July 2011, an
administrative judge issued a bench decision on an Equal
Employment Opportunity Commission (“EEOC”)
complaint that Smith-Jackson had filed, in which the
administrative judge awarded her some damages but in which he
did not find race, age, gender, or intentional disability
discrimination. (Id. ¶¶ 64-66). In
September 2011, an EEOC administrative judge increased the
amount of damages awarded. (Id. ¶¶ 67-69).
Defendant paid Smith-Jackson the money awarded by the initial
administrative judge, but not the final EEOC decision.
(Id. ¶ 73). The Court sets forth additional
procedural history of this case is long and involves many
layers of administrative review. Where relevant, that history
is discussed above and in the analysis. In this Court,
Smith-Jackson filed a complaint and an amended complaint in
May 2015. (, ). The complaint alleges that, in May
1997, Smith-Jackson overheard racially derogatory comments in
the workplace, which was later determined to have caused a
compensable workplace injury. ( ¶¶ 8-9).
alleges that, beginning in October 2006, she sought a
reasonable accommodation in the form of a transfer to allow
her to continue working after she was found medically
disqualified to work as an air traffic controller. (
¶¶ 12-14). She further alleges that Defendant
ignored her requests while they transferred younger, white
males when they became medically disqualified. (Id.
¶¶ 16-17). She alleges that, after she was fired in
August 2007, she sought review from an internal agency panel,
which directed Defendant to find her a vacant position.
(Id. ¶¶ 21-23.]
raised claims under Title VII, for race and gender
discrimination (“Count I”); the ADEA, for age
discrimination (“Count II”); Title VII, for
retaliation (“Count III”); and the Rehabilitation
Act, for disability discrimination (“Count IV”).
( ¶¶ 44-51).
October 12, 2016, Defendant filed her Motion for Summary
Judgment, seeking to dismiss all of Smith-Jackson's
claims. In her response brief , Smith-Jackson abandoned
her ADEA claim. ( at 9 n.1).
5, 2017, the Magistrate Judge issued his R&R. Because
Smith-Jackson abandoned her ADEA claim, the Magistrate Judge
recommends the Court grant summary judgment on this claim.
The Magistrate Judge next determined that Smith-Jackson is
not barred from bringing suit under the
acceptance-of-benefits doctrine, but that money she received
from the administrative proceedings below likely must be
deducted from any award she receives in this litigation. The
Magistrate Judge found that Smith-Jackson presented
sufficient evidence to make out a prima facie case of
retaliation. With respect to Smith-Jackson's
Rehabilitation Act claim, the Magistrate Judge found an issue
of fact exists as to whether she was qualified for the
positions to which she sought reassignment. The Magistrate
Judge determined Defendant is not entitled to summary
judgment on Smith-Jackson's Title VII claim, because
Smith-Jackson pointed to a comparator who was working in a
similar role to her, became medically unable to perform his
job, and who was reassigned to a different position until he
was medically able to work again as an air traffic
controller. Accordingly, the Magistrate Judge recommends the
Court deny summary judgment on all of Smith-Jackson's
claims other than her ADEA claim.
17, 2017, Defendant filed her Unopposed Motion for Extension
to File Partial Objections to the Magistrate Judge's
Final Report and Recommendation . Defendant requested an
extension up to and including August 21, 2017, in which to
file objections to the R&R, stating that she required the
transcript of the June 14, 2017, oral argument (“June
14th Hearing”) held before the Magistrate Judge, which
she claimed could take up to two weeks to receive.
21, 2017, the Court issued its Order  granting
Defendant's motion in part, and ordering her to file, on
or before August 4, 2017, her objections to the R&R. The
Court noted that Defendant, without explanation, filed her
motion and requested the transcript of the June 14th Hearing
three (3) days before the expiration of the fourteen (14) day
objections deadline. The Court noted that the transcript
would be completed on July 26, 2017, and that an extension of
over a month was excessive. The Court also stated that no
further extensions would be granted.
midnight on August 5, 2017, Defendant filed her Objections.
The docket indicates that Defendant's Objections were
filed on August 4, 2017, but were entered on the docket on
August 5, 2017. (See ). This unusual occurrence
indicates that Melaine A. Williams, attorney for Defendant,
began the filing process of Defendant's Objections in the
CM/ECF system prior to midnight, but did not finally submit
her Objections until midnight on August 5, 2017.
Defendant's Objections are thirty-eight (38) pages long,
not double-spaced, and the font size and type is inconsistent
throughout the brief.
Objections Defendant argues the Magistrate Judge erred in
finding that Plaintiff made out a prima facie case of gender,
age, and disability discrimination. Defendant next contends
that the Magistrate Judge erred in finding that Plaintiff
proved direct evidence of retaliation. Finally, Defendant
argues the Magistrate Judge erred in finding that the
acceptance of benefits rule does not preclude Plaintiff from
filing an appeal of the administrative judgment with this
Court. The Objections contain several new arguments not
raised before the Magistrate Judge.
same day she filed her Objections, Defendant filed her Motion
for Leave to file Excess Pages, seeking to file Objections in
excess of the twenty-five page limitation set forth in Local
Rule 7.1(D), NDGa.
August 16, 2017, Defendant, without seeking leave of the
Court, filed her Corrected Objections. Defendant states that
her Corrected Objections (a) correct typos, numbers, and
minor edits with word additions in italics; (b) add citations
to the record; (c) update a chart to fill in missing dates;
(e) add two exhibits that were cited but not attached to the
original filing; and (f) reduces the memorandum to conform
with the page limitations in Local Rule 7.1(D) without making
substantive changes. ( at 1). Defendant's Corrected
Objections, like her original Objections, are not
double-spaced, and the left margin is less than one inch.
CONSIDERATION OF OBJECTIONS
Court strikes Defendant's Objections and Corrected
Objections for several reasons. First, Defendant filed her
Motion for Leave to file Excess Pages on the same day she
filed her Objections. Defendant's Objections are
thirty-eight (38) pages long. The Court's Standing Order
Regarding Civil Litigation provides that the Court
“generally does not approve extensions of page
limitations[, ]” and requires that parties
“seeking an extension of the page limit must do so at
least ten (10) days in advance of their filing
deadline.” Standing Order Regarding Civil Litigation at
3. Further, “[i]f a party files a motion to extend the
page limit at the same time their brief is due, the extension
request will be denied absent a compelling and unanticipated
reason to exceed the page limit.” Id.
Defendant's Motion for Leave to File Excess Pages states
she requires additional pages to address the 47 jobs for
which Smith-Jackson claimed she was qualified. This is not an
“unanticipated” reason to exceed the page limit.
Defendant's Motion for Leave to File Excess Pages is
Defendant's Objections and Corrected Objections were
filed late, and Defendant did not provide any explanation for
her late filing of either. Rule 72(b)(2) of the Federal Rules
of Civil procedure required Defendant to file and serve her
written objections to the R&R no later than fourteen (14)
days after the R&R was served on her. Rule 6(b)(1)(B)
authorized the Court, on Defendant's motion, to extend
the time for filing objections for good cause if Defendant
had “failed to act because of excusable neglect.”
The Court extended the time period in which Defendant could
file her Objections through and including August 4, 2017.
Defendant did not file and serve her objections until August
5, 2017. Defendant did not provide any justification for her
late filing either in her Objections or in her Corrected
Objections, even after the Court noted in its August 15,
2017, Order, that the Objections were late. Defendant's
late filing of her Objections caused the deadline for
Plaintiff's response to the Objections to be
extended. (See ). Under these
circumstances, the Court is within its discretion to strike
the late-filed Objections and Corrected Objections. See
Mathis v. Adams, 577 F. App'x 966, 967-68 (11th Cir.
2014) (“The district court did not abuse its discretion
in determining that [plaintiff] failed to file a motion as
required for an after-the-fact extension under Rule
6(b)(1)(B) and because” the plaintiff's failure was
within his own control) (citing Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd., 507 U.S. 380, 395 (1993)
(considering “whether [the delay] was within the
reasonable control of the movant” in determining
whether it resulted from excusable neglect); Young v.
City of Palm Bay, Fla., 358 F.3d 859, 863 (11th
Cir.2004) (“The district court has a range of options;
and so long as the district court does not commit a clear
error in judgment, we will affirm the district court's
Defendant's Objections and Corrected Objections fail to
meet multiple requirements of the Court's Local Rules.
The Objections are not double-spaced, as required by Local
Rule 5.1(C). Further, the font size and type is inconsistent
throughout the Objections, in violation of Local Rule 5.1(C),
which requires computer documents “must be prepared in
one of the following fonts . . . .” LR 5.1B,
NDGa (emphasis added). Counsel's certificate of
compliance with the font requirements of the Local Rules is
thus false. Defendant's Corrected Objections likewise are
not double-spaced, as required in Rule 5.1(C). Further, the
Corrected Objections fail to comply with the margin
requirements of Rule 5.1(D), which requires all pleadings and
other documents to have a top margin of “not less than
one and one-half  inches and a left margin of not less than
one (1) inch.” The Corrected Objections have a left
margin of less than one inch. Counsel's flouting of these
rules in the Corrected Objections is a blatant attempt to
belatedly meet the 25-page limitation counsel failed to meet
in the original Objections.
Defendant included in her Objections and Corrected Objections
new evidence and argument not previously raised before the
Magistrate Judge. This is improper, and the Court declines to
consider the new evidence and arguments. See Williams v.
McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (a district
judge has discretion to decline to consider evidence and
arguments that were not presented to the magistrate judge
because a contrary rule “would effectively nullify the
magistrate judge's consideration of the matter and would
not help to relieve the workload of the district court”
Court admonishes Defendant's counsel that strict
compliance with the Federal Rules of Civil Procedure, the
local rules, and the standing orders of this Court is
required. To not enforce them creates an unlevel playing
field for litigants. To do so in this case would create a
playing field that is substantially tiled to
counsel has now had two opportunities in which counsel has
failed, egregiously, to comply with multiple rules. The Court
declines to allow Defendant's counsel a third bite at the
apple (another game of whack-a-mole), even if counsel were to