United States District Court, S.D. Georgia, Augusta Division
RANADAL HALL, CHIEF JUDGE.
the Court is Defendant's motion for summary judgment.
(Doc. 22.) In this action, the Clerk of Court gave Plaintiff
notice of the motion for summary judgment and informed her of
the summary judgment rules, the right to file affidavits or
other materials in opposition, and the consequences of
default. (Doc. 23.) Thus, the notice requirements of
Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.
1985) (per curiam), are satisfied. The time for filing
materials in opposition has expired, and the motion is ripe
Vickie Woodward, began working for Defendant, Jim Hudson
Luxury Cars, Inc., on March 10, 2014. (Def.'s St. of Mat.
Facts, Doc. 22-5, ¶ l.) At the outset, Defendant employed
Plaintiff as a service advisor in the new car service
department at its Lexus store. (Id.) The following
year, Defendant promoted Plaintiff to Assistant Service
Manager. (Id. ¶ 2.)
Plaintiff's Transfer from New to Used Car Center
August 2015, Plaintiff received a breast cancer diagnosis and
informed Defendant in September 2015 that she required leave
to undergo a double mastectomy. (Pl.'s St. of Mat. Facts,
Doc. 27-1, ¶¶ 6, 7.) Upon learning of
Plaintiff's forthcoming surgery, Marcus Wideman,
Defendant's Service Manager, commented to Plaintiff that
he wanted to "hug the girls" before Plaintiff's
operation. (Pl.'s St. of Mat. Facts, ¶ 8.) Following
Plaintiff's disclosure of her diagnosis to
Defendant's General Manager, Bill Gibbs, Mr. Gibbs made
the decision to relocate Plaintiff from the new car service
center to the used car service center. (Def.'s St. of
Mat. Facts, ¶ 9; Pl.'s St. of Mat. Facts,
¶¶ 2, 11.) Mr. Gibbs instructed Mr. Wideman to
inform Plaintiff of the transfer. (Pl.'s St. of Mat.
Facts, ¶ 11.) Although the Parties seemingly disagree to
some degree on the date of the transfer, it occurred sometime
between October 1, 2015, and October 5, 2015. (Def.'s St.
of Mat. Facts, ¶ 9; Pl.'s St. of Mat. Facts, ¶
Parties dispute the implications of and reasons for
Plaintiff's employment move. According to Plaintiff, the
transfer equated to a demotion in terms of reputation,
prestige, compensation, and duties and Defendant demoted her
because of her cancer diagnosis and requested leave.
(Id. ¶ 10; Woodward Dep., Doc. 22-2, at
278:1-14, 279:21-280:19, 295:4-24; Pl.'s Resp. to
Def.'s St. of Mat. Facts, Doc. 27-3, ¶ 17 (citing
Woodward Dep., Doc. 22-2, at 274:17-276:7).) Defendant, on
the other hand, disagrees with Plaintiff's classification
of the transfer as a demotion because she operated under the
same title and she experienced no reduction in pay.
(Def.'s St. of Mat. Facts, ¶ 11; Hooks Aff., Doc.
22-1, ¶ 9.) Furthermore, Defendant provides three
reasons for the transfer, none of which involve
Plaintiff's cancer diagnosis: (1) the used car service
center had no managers and needed Plaintiff's experience;
(2) Defendant recently transferred the top service advisor in
the new car service department to the used car service
department resulting in a negative impact on Plaintiff's
commissions; and (3) conflict between Plaintiff and Mr.
Wideman caused a drop in morale and customer service scores
in the new car service department. (Id. ¶¶
5-7.) Plaintiff disputes the legitimacy of each of
Defendant's reasons for the transfer. (Pl.'s Resp. to
Def.'s St. of Mat. Facts, ¶¶ 17-19.)
went on leave effective October 27, 2015, and returned
December 15, 2015. (Def.'s St. of Mat. Facts,
¶¶ 29-30.) Post surgery, chemotherapy side effects
forced Plaintiff to take additional leave beginning January
12, 2016. (Id. ¶ 36.) Plaintiff stated she
needed leave extending until July 1, 2016, however, her
twelve weeks of Family and Medical Leave Act leave expired
February 15, 2016. (Id. ¶¶ 37, 39) At that
point, Defendant granted Plaintiff fourteen weeks of
additional leave under Defendant's company policy.
(Id. ¶ 41) On May 25, 2016, Angela Hooks,
Defendant's Controller and Director of Human Resources,
mailed Plaintiff to inform her that she had exhausted her
discretionary leave and her "eligibility to participate
in [Defendant's] group health plan as an active employee
. . . [would] end [ ]" on May 31, 2016. (Io\. ¶ 44;
May 25, 2016 Letter, Doc. 22-1, at 15.)
did not immediately respond to Ms. Hooks's letter but
subsequently informed Defendant that she received medical
clearance to return to work on July 18, 2016. (Def.'s St.
of Mat. Facts, ¶ 45; Pl.'s Resp. to Def.'s St.
of Mat. Facts, ¶ 45; Woodward Dep., at 286:22-287:5;
Medical Clearance, Doc. 22-2, at 130.) During Plaintiff's
leave, Defendant demolished the used car service center to
construct a new dealership building. (Hooks Aff., ¶ 24.)
On July 18, 2019, Plaintiff returned to the dealership.
(Def.'s St. of Mat. Facts, ¶ 46; Pl.'s Resp. to
Def.'s St. of Mat. Facts, ¶ 46.) Plaintiff met with
Warren Spooner, Manager of the former used car service center
and current "Lot 3." (Def.'s St. of Mat. Facts,
¶ 47; Hooks Aff., ¶ 25.) Mr. Spooner asked
Plaintiff to return the following week to allow him time to
work on a position for her. (Pl.'s St. of Mat. Facts,
¶ 31.) Ms. Hooks, however, intervened and asked
Plaintiff to return the following day, July 19, 2016.
(Pl.'s St. of Mat. Facts, ¶ 33.)
The Social Media Posts
received an email sometime around July 11, 2016, enclosing a
posting Plaintiff allegedly made, associated with her
Facebook profile, on an online arte. (Def.'s St. of Mat.
Facts, ¶ 51; Pl.'s St. of Mat. Facts, ¶ 37;
Social Media Emails, Doc. 22-2, at 131-32, 172-74.) The post
appears to include Plaintiff's name, Plaintiff's
place of employment, and the message: "HANDS UP; THEY
WON'T SHOOT!!! Maybe white people understand proper
English and simple direction better." (Social Media
Emails, at 131-32, 172-74.) The record also contains three
relevant social media posts allegedly made by current and
former employees of Defendant.
Mr. Spooner purportedly posted a meme that states, in part,
"all lives matter" and "put your race card
away." (Spooner Post, Doc. 22-2, at 159.) Second, Mark
Licklider posted an image on his Facebook page containing the
caption, "It's not about color. It's about the
law." (Licklider Post, Doc. 22-2, at 161.)
Third, Charles Cook posted an image depicting a Confederate
flag and black men with sagging pants. The caption above the
flag reads ''this does not offend me" and below
the men read "but this bullshit does." (Cook Post,
Doc. 22-2, at 171.)
returned to the dealership on July 19, 2016, and met with
Karyn Heimes, Defendant's Chief Financial Officer, and
Ms. Hooks. (Def.'s St. of Material Facts, ¶ 52.)
According to Defendant, at this meeting, Ms. Heimes and Ms.
Hooks informed Plaintiff that her employment was terminated
because her position no longer existed. (Hooks Aff., ¶
26.) Further, Defendant claims Ms. Heimes and Ms. Hooks
notified Plaintiff that her online post made her ineligible
for rehire. (IdJ Plaintiff recalls that Ms. Heimes and Ms.
Hooks told her that she was terminated in light of her online
post but said nothing about her eligibility for rehire.
(Woodward Dep., 187:23-188:4, 299:11-20.) At that point,
Plaintiff was presented a severance agreement that she
refused to sign. (Severance Agreement, Doc. 22-2, at 133-35;
July 27, 2016 Email, Doc. 22-2, at 136.)
Equal Employment Opportunity Commission
sent the United States Equal Employment Opportunity
Commission ("EEOC") an unverified letter, dated
April 1, 2016, stating she was discriminated against based on
her gender and disability. (April 1, 2016 Letter, Doc. 22-2,
at 142.) The EEOC responded with a letter on July 13, 2016,
informing Plaintiff the April 1, 2016 letter contained
insufficient information. (July 13, 2016 Letter, Doc. 22-2,
at 144.) The letter enclosed a questionnaire and informed
Plaintiff that if she did not respond within thirty days of
receiving the July 13, 2016 letter, the EEOC would conclude a
lack of intent to file a charge of discrimination.
(Id.) Plaintiff completed the questionnaire, signed
it, and dated it August 3, 2016. (EEOC Questionnaire, Doc.
22-2, at 146-52.) The questionnaire depicts an intake stamp
dated October 17, 2016. (Id. at 145.) The EEOC then
sent Plaintiff a Form 5 charge, which Plaintiff signed and
dated February 7, 2017. (EEOC Form 5 Charge, Doc. 22-2, at
153.) The EEOC received the completed Form 5 on February 15,
2017, and following investigation, the EEOC notified
Plaintiff of its dismissal and Plaintiff's right to sue.
(Right to Sue, Doc. 22-2, at 154-58.) Plaintiff filed the
present action on February 15, 2018. (Compl., Doc. 1.)
SUMMARY JUDGMENT STANDARD
judgment is appropriate only if "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). Facts
are "material" if they could "affect the
outcome of the suit under the governing [substantive] law,
” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986), and a dispute is genuine "if the
non[-]moving party has produced evidence such that a
reasonable factfinder could return a verdict in its
favor." Waddell v. Valley Forge Dental Assocs.,
Inc., 276 F.3d 1275, 1279 (11th Cir. 2001). The Court
must view factual disputes in the light most favorable to the
non-moving party, Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986), and must
"draw all justifiable inferences in [the non-moving
party's] favor." United States v. Four Parcels
of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en
banc) (citation, internal quotation marks, and internal
punctuation omitted). The Court should not weigh the evidence
or determine credibility. Anderson, 477 U.S. at 255.
moving party has the initial burden of showing the Court, by
reference to materials in the record, the basis for the
motion. Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). Because the standard for summary judgment mirrors
that of a directed verdict, the initial burden of proof
required by either party depends on who carries the burden of
proof at trial. Id. at 322-23. When the movant does
not bear the burden of proof at trial, it may carry the
initial burden in one of two ways - by negating an essential
element of the non-movant's case or by showing that there
is no evidence to prove a fact necessary to the
non-movant's case. See Clark v. Coats & Clark,
Inc., 929 F.2d 604, 606-08 (11th Cir. 1991) (citing
Adickes v. S.H. Kress & Co., 398 U.S. 144
(1970); Celotex Corp., 477 U.S. 317) . The movant
cannot satisfy its initial burden by merely declaring that
the non-moving party cannot meet its burden at trial.
Id. at 608.
and only if - the movant carries its initial burden, the
non-movant must "demonstrate that there is indeed a
material issue of fact that precludes summary judgment."
Id. When the non-movant bears the burden of proof at
trial, the non-movant must tailor its response to the method
by which the movant carries its initial burden. For example,
if the movant presents evidence affirmatively negating a
material fact, the non-movant "must respond with
evidence sufficient to withstand a directed verdict motion at
trial on the material fact sought to be negated."
Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1116
(11th Cir. 1993). On the other hand, if the movant shows an
absence of evidence on a material fact, the non-movant must
either show that the record contains evidence that was
"overlooked or ignored" by the movant or "come
forward with additional evidence sufficient to withstand a
directed verdict motion at trial based on the alleged
evidentiary deficiency." Id. at 1116-17. The
non-movant cannot carry its burden by relying on the
pleadings or by repeating conclusory allegations contained in
the complaint. See Morris v. Ross, 663 F.2d 1032,
1033-34 (11th Cir. 1981). Rather, the non-movant must respond
with affidavits or as otherwise provided by Federal Rule of
Civil Procedure 56. In reaching its conclusions herein, the
Court has evaluated the Parties' briefs, other
submissions, and the evidentiary record in this case.
initially asserts that Plaintiff's late-filed EEOC
charge, dated February 7, 2017, time-bars her Title VII and
ADA claims. Plaintiff claims that her initial letter to the
EEOC, dated April 1, 2016, constitutes a charge making all
claims timely. The Court addresses the Parties' competing
Timing of EEOC Charge
is settled law that, under the ADA, plaintiffs must comply
with the same procedural requirements to sue as exist under
Title VII." Zillyette v. Capital One Fin.
Corp., 179 F.3d 1337, 1339 (11th Cir. 1999). "Prior
to filing a Title VII action, ... a plaintiff must first file
a charge of discrimination with the EEOC." Gregory
v. Ga. Dep't of Human Res., 355 F.3d 1277, 1279
(11th Cir. 2004) (per curiam) . 42 U.S.C. § 2000e-5(e)
(1) requires the plaintiff to file the charge within 180 days
after the alleged unlawful employment practice occurred.
Ledbetter v. Goodyear Tire & Rubber
Co., 421 F.3d 1169, 1178 (11th Cir. 2005) ("Under
... 42 U.S.C. § 2000e-5(e)(1), only those 'unlawful
employment practices' that are complained of in a
timely-filed charge of discrimination to the EEOC can form
the basis for Title VII liability."); Wilkerson v.
Grinnell Corp., 270 F.3d 1314, 1317 (11th Cir. 2001)
(noting that as a non-deferral state, Georgia has a 180-day
deadline); see also 42 U.S.C. § 12117(a)
(applying procedures set forth in section 2000e-5 to ADA
actions) . The practice “occurred' on the day it
'happened.'" Ledbetter, 321 F.3d at
1179 (quoting Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 109 (2002)).
"[D]iscrete acts of discrimination" such as
"termination, failure to promote, denial of transfer, or
refusal to hire" are easy to identify, and each
"constitutes a separate actionable 'unlawful
employment practice.'" . . . Because each is an
identifiable violation of Title VII, "each discrete
discriminatory act starts a new clock for filing charges
alleging that act."
Id. (quoting Morgan, 536 U.S. at 114).
Courts in this circuit have interpreted demotion, reduction
in pay, and termination as discrete acts of discrimination.
See, e.g., Fenderson v. Ala. Bd. of Pardons
& Paroles, No. 2:13cv51-CSC, 2014 WL 1017805, at
*13- 14 (M.D. Ala. Mar. 17, 2014); Nzundu-Andi v. NCO
Fin. Sys., Inc., No. 1:09-CV-2138-CAP-JFK, 2009 WL
10701239, at *3 n.2 (N.D.Ga. Dec. 14, 2009); Thomas v.
Ala. Council on Human Relations, Inc., 248 F.Supp.2d
1105, 1115 (M.D. Ala. 2003). Therefore, the Court must
analyze Plaintiff's filings with the EEOC and determine
whether Plaintiff filed a timely charge for each discrete
charge shall be in writing and signed and shall be
verified." 29 C.F.R. § 1601.9. In addition, a
"charge should contain": (1) "The full name,
address and telephone number of the person making the
charge"; (2) "The full name and address of the
person against whom the charge is made"; (3) "A
clear and concise statement of the facts, including pertinent
dates, constituting the alleged unlawful employment
practices"; (4) "If known, the approximate number
of employees of the respondent employer"; and (5)
"A statement disclosing whether proceedings involving
the alleged unlawful employment practice have been commenced
before a State . . . agency." 29 C.F.R. § 1601.12.
The EEOC enjoys "broad discretion to determine in what
form a charge must come and what information it must
contain." Wilkerson, 270 F.3d at 1318. The
burden of establishing a timely filed charge of
discrimination falls on the plaintiff. Jordan v. City of
Montgomery, 283 Fed.Appx. 766, 767 (11th Cir. 2008) (per
curiam) (citing Jackson v. Seaboard Coast Line R.R.
Co., 678 F.2d 992, 1010 (11th Cir. 1982)).
the requirement that a plaintiff file a charge with the EEOC
prior to filing a lawsuit is not jurisdictional, Fort
Bend Cty. v. Davis, 139 S.Ct. 1843, 1850 (2019),
"the filing of a charge of discrimination with the EEOC
is a condition precedent to the bringing of a civil action
under Title VII." Sanchez v. Standard Brands,
Inc., 431 F.2d 455, 460 (5th Cir. 1970). Keeping the
foregoing in mind, it is well-established in the Eleventh
Circuit that courts are "extremely reluctant to allow
procedural technicalities to bar claims brought under Title
VII." Gregory, 355 F.3d at 1280.
Demotion and ...