United States District Court, M.D. Georgia, Athens Division
D. LAND CHIEF U.S. DISTRICT COURT JUDGE
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.
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.
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.
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.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).
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.
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).
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.
in the light most favorable to Plaintiff, the record reveals
the following facts.
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.
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.
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 ...