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Smith-Jackson v. Chao

United States District Court, N.D. Georgia, Atlanta Division

August 18, 2017

ELAINE CHAO, In her Official Capacity as Secretary of the United States Department of Transportation, Defendant.



         This matter is before the Court on Magistrate Judge John K. Larkins III's Final Report and Recommendation [83] (“R&R”). The R&R recommends the Court grant in part and deny in part Defendant Elaine Chao's (“Defendant”) Motion for Summary Judgment [55]. Also before the Court are Defendant's Motion for Leave to File Excess Pages [88], Partial Objections to the R&R [89] (“Objections”), and Notice of Filing of Corrected Partial Objections to the R&R [92] (“Corrected Objections”).

         I. BACKGROUND

         A. Facts[1]

         Plaintiff Paula Smith-Jackson (“Smith-Jackson”) began her employment with Defendant in 1982 in Peoria, Illinois. ([58] ¶ 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.).

         Smith-Jackson alleges that, on November 8, 2005, she was present when a white male coworker made a racially insensitive comment to a group of visitors. ([58] ¶ 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. ([58] ¶ 31).

         In June 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. ([58] ¶ 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] ¶¶ 13-15).

         In November 2006, Defendant convened a “Reasonable Accommodation Team” meeting to discuss Smith-Jackson. ([58] ¶ 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. ([58] ¶ 52). On August 18, Smith-Jackson was terminated, but retained her workers' compensation payments. (Id. ¶ 53).

         In July 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. ([58] ¶ 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 facts below.

         B. Procedural History

         The 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. ([1], [2]). 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.[2] ([2] ¶¶ 8-9).

         Smith-Jackson 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. ([2] ¶¶ 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.]

         Smith-Jackson 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”). ([2] ¶¶ 44-51).

         On October 12, 2016, Defendant filed her Motion for Summary Judgment, seeking to dismiss all of Smith-Jackson's claims. In her response brief [57], Smith-Jackson abandoned her ADEA claim. ([57] at 9 n.1).

         On July 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.

         On July 17, 2017, Defendant filed her Unopposed Motion for Extension to File Partial Objections to the Magistrate Judge's Final Report and Recommendation [85]. 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.

         On July 21, 2017, the Court issued its Order [86] 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.

         At 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 [89]). 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.

         In her 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.

         The 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.

         On 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. ([92] at 1). Defendant's Corrected Objections, like her original Objections, are not double-spaced, and the left margin is less than one inch.


         The 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 denied.

         Second, 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.[3] (See [91]). 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 decision.”)).

         Third, 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.

         Finally, 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” (citation omitted)).

         The 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 Smith-Jackson's disadvantage.

         Defendant's 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 ...

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