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Smith v. Athens Gastroenterology Association, P.C.

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

November 9, 2017

SHAQUINN SMITH, Plaintiff,
v.
ATHENS GASTROENTEROLOGY ASSOCIATION, P.C., Defendant.

          ORDER

          CLAY D. LAND CHIEF U.S. DISTRICT COURT JUDGE

         Plaintiff ShaQuinn Smith claims that her former employer, Defendant Athens Gastroenterology Association, P.C., discriminated against her because of her race. Plaintiff brought claims against Defendant under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Defendant seeks summary judgment on all of Plaintiff's claims. For the reasons set forth below, Defendant's summary judgment motion (ECF No. 21) is granted.

         SUMMARY JUDGMENT STANDARD

         Summary judgment may be granted only “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). In determining whether a genuine dispute of material fact exists to defeat a motion for summary judgment, the evidence is viewed in the light most favorable to the party opposing summary judgment, drawing all justifiable inferences in the opposing party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). A fact is material if it is relevant or necessary to the outcome of the suit. Id. at 248. A factual dispute is genuine if the evidence would allow a reasonable jury to return a verdict for the nonmoving party. Id.

         Under the Court's local rules, a party moving for summary judgment must attach to its motion “a separate and concise statement of the material facts to which the movant contends there is no genuine dispute to be tried.” M.D. Ga. R. 56. Those facts must be supported by the record. The respondent to a summary judgment motion must respond “to each of the movant's numbered material facts.” Id. “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.

         Defendant submitted a statement of undisputed material facts with its summary judgment motion. Plaintiff, who is proceeding pro se, received a notice regarding the significance of Defendant's summary judgment motion and of her opportunity to respond to the motion and statement of material facts. Notice to Pro Se Party of Mot. for Summ. J., ECF No. 22. Though Plaintiff filed a response brief and some exhibits, Plaintiff did not respond to Defendant's statement of material facts.[1]Therefore, Defendant's statement of material facts is deemed admitted pursuant to Local Rule 56. The Court is still required to review Defendant's citations to the record to determine if a genuine factual dispute exists. Reese v. Herbert, 527 F.3d 1253, 1269 (11th Cir. 2008).

         A review of Defendant's citations to the record reveals that Defendant relied heavily on the fact that Plaintiff did not timely serve her response to Defendant's requests for admission. Defendant contends that because Plaintiff did not timely respond to its requests for admission, the matters set forth in the requests for admission are deemed admitted under Federal Rule of Civil Procedure 36(a)(3). The deadline for Plaintiff to respond to the requests for admission was originally July 24, 2017. Plaintiff asked Defendant's counsel for a forty-five day extension. Defendant denied that extension but granted a ten-day extension, until August 4, 2017. Though Plaintiff's response is dated August 4, 2017, she mailed her response four days late, on August 8, 2017. Pl.'s Resp. Ex. 7, Postage Receipt, ECF No. 23-6 at 1. But Plaintiff did ask the Court to consider her response by attaching it as an exhibit to her summary judgment response; the Court construes this act by a pro se plaintiff as a motion to withdraw the deemed admissions under Federal Rule of Civil Procedure 36(b), which is granted. The Court thus did not consider any of Defendant's fact statements that are supported solely by the now-withdrawn admissions.[2]

         Finally, the Court notes that it reviewed Plaintiff's response brief so that it could understand Plaintiff's arguments. But Plaintiff's response brief is not evidence. At the summary judgment stage, a party asserting that a fact is genuinely disputed “must support the assertion 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 Clerk further explained to Plaintiff: “If you do not respond to the motion for summary judgment on time with affidavits or documentary evidence contradicting the material facts asserted in the motion for summary judgment, the Court may accept the factual assertions in the motion as true.” Notice to Pro Se Party of Mot. for Summ. J. Plaintiff's response brief is not sworn or notarized, and it does not state that it was made under penalty of perjury or that it was made on personal knowledge. Therefore, it is not an affidavit or declaration sufficient to oppose summary judgment. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.”); 28 U.S.C. § 1746 (requiring that an unsworn declaration be made under penalty of perjury to have the same force and effect as a sworn affidavit). And since it is not an affidavit or declaration, it is not evidence.

         FACTUAL BACKGROUND

         Viewed in the light most favorable to Plaintiff, the record reveals the following facts.

         Plaintiff began working for Defendant as a medical assistant in January 2010. In 2012, Plaintiff was transferred to an endoscopy secretary position. Plaintiff had a baby in 2014 and took maternity leave. When she returned from maternity leave, Plaintiff was transferred to a pathology technician position “[d]ue to infractions.” Williams Aff. ¶ 5, ECF No. 5-3. It is undisputed that her pay rate and benefits remained the same. It is also undisputed that Plaintiff received a $500 bonus in 2014, as well as a raise.

         Plaintiff admits that she used the wrong marker to label biopsy cassettes in January 2015; the writing came off during processing, and this mistake resulted in delayed test results. Although Plaintiff appears to believe that someone planted the wrong type of marker in her work area in an attempt to sabotage her, there is no evidence in the present record that Defendant took any action against Plaintiff due to the marker incident.

         At some point, Plaintiff decided to go back to school, and she asked Defendant to allow her to leave work early several days a week so she could attend classes. Defendant accommodated the scheduling request. Plaintiff asserts in her response brief that Defendant did so by placing her on part-time status without health insurance, but she did not point to ...


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