Bowling v. Shinseki, No. 1:2013cv00055 - Document 27 (S.D. Ga. 2014)
Court Description: ORDER that the Defendant's 16 Motion for Summary Judgment is granted. The Clerk is directed to enter Final Judgment in favor of Defendant. The Clerk shall terminate all deadlines and motions, and close the case. Signed by Judge J. Randal Hall on 11/04/2014. (jah)
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Bowling v. Shinseki Doc. 27 IN THE UNITED FOR THE STATES DISTRICT COURT SOUTHERN DISTRICT OF GEORGIA AUGUSTA DIVISION COLLEEN BOWLING, * Plaintiff, * * * v ERIC SHINSEKI, Secretary, CV 113-55 * Department of Veterans Affairs, * * Defendant. * ORDER Presently before ("Defendant") Plaintiff, Police motion for is Defendant summary Eric judgment. Shinseki's (Doc. 16.) a former police officer with the Veterans Affairs Service, negative the Court alleges employment that reference her termination were acts of and subsequent retaliation for complaints about sexual harassment by her training officer in violation U.S.C. § of Title VII 2000e-3(a) of the ("Title Civil Rights VII"). As Act of 1964, discussed 42 below, Defendant's motion for summary judgment is GRANTED. I. BACKGROUND In May 9, 2010, Plaintiff was hired by the Department of Veterans Affairs Police Department as a police officer. (Doc. 17, of Ex. 1.) Her hiring was subject to completion a Dockets.Justia.com probationary period of one year. (Id.) Plaintiff was assigned to Jerry Moore Shift Supervisor Lieutenant Quinn Bennett Plaintiff's training. On August went to Hearing" the Lieutenant 11, ("Bennett") ("Moore"), responsible was and for (Id., Ex. 3 "Bowling Dep." at 10-11, 13.) 2010, Richmond at 41-42.) while County on duty, firing While there, Plaintiff and range. Bennett (Id. , Ex. 4 "EEO both Bennett and Plaintiff used Veterans Affairs issued firearms and ammunition in order to complete state training certification. "Williford Dep." at 45-48.) (Id.; Doc. 17, Ex. 11 The unauthorized use of government property violated the Veterans Affairs' policy. (See Doc. 17, Ex. 6 at 13-14; Id^, Ex. 17.) Shortly after Plaintiff began her training, before the August 11, 2010 shooting range event, she and Bennett began text messaging each other, though the parties dispute who initiated the messages.1 (IcL, Ex. 9 "Bowling Letter"; Id^, Ex. 7.) text messages were of a mixed work and sexual nature. Letter; Doc. 17, Ex. 7.) These (Bowling And while Plaintiff disputes whether any "relationship" existed, by her own testimony she considered the messaging to be part of a "certain amount of banter that goes into these professions that is not a big deal for me and for several people." (Bowling Dep. at 28.) that Bennett inquired into her sex life, 1 Plaintiff maintains that, initiated any sexual messages. Plaintiff alleges asking personal and although she always responded, she never sexually explicit questions.2 (Bowling Letter.) After Bennett's wife discovered these text messages in September 2010, Plaintiff received an explicit and profane threatening text message from Bennett's wife. (Id.) Plaintiff was when the text was sent and, (Id.; Bowling contacted Bennett and his called to Plaintiff Plaintiff would Dep. wife inform not for training concerned for her health and safety, contacted Officer Kimberly Borresen colleague. in Arkansas at 19-20.) to discuss her receive ("Borresen"), the any Borresen the matter more a friend and threat was texts and then later handled from and Bennett. (Bowling Dep. at 20.) Upon Plaintiff's suggestion, Sergeant return Lyn from Banks Arkansas ("Banks"), and at another Moore's Veterans Affairs employee, told Plaintiff she was no longer permitted to use her personal cell phone at work. (Id. at 20-21.) Plaintiff, visibly upset, and assuming the request had something to do with transpired. the Bennett (Id.) situation, told Banks about what had At this point, Banks instructed Plaintiff that she must report the relationship to Moore or Banks would do so herself. (Id.) On September 30, 2010, Plaintiff submitted a written statement to her supervisor detailing the entirety of her relationship 2 with Bennett. (Bowling Letter.) In the Neither party has provided the Court with documentation of these text messages aside from Plaintiff's letter to her supervisor describing the messages. letter, Plaintiff explained that she "was worried Bennett or his wife would go to the Chief [] be Days there to defend [herself]." Chief Tim Williford (Id.) ("Williford") , Moore's Plaintiff with an EEO Sexual Harassment at 22-23.) following claims about later, the complaint. it was Plaintiff's 23-24 however, the Assistant supervisor, Packet. provided (Bowling Dep. Williford interviewed both Plaintiff3 and Bennett that at [] and [she] would not (Doc. during and this Bennett's 17, Exs. 8, 10.) investigation August trip with id. , Ex. 9.) Plaintiff Defendant that to range, a fact Plaintiff vehemently disputes. 11 that it learned the shooting (Compare id. , Ex. does not dispute, that she and Bennett went to the range and completed state certification, only that her superiors knew long before the investigation into the inappropriate messaging. Hearing at 41-42.) Chief Thomas (EEO Following Williford's investigation, Police Howe submitted a memo to Human Resources recommending that Plaintiff's employment be terminated. 17, Ex. 15.) (Doc. Before Human Resources approved the termination, Plaintiff received a performance appraisal from her supervisor in which she was rated as "fully successful." On November dated 1, October conduct and 2010, 29, Plaintiff received a 2010, improper identifying and unauthorized Plaintiff was interviewed on October 13, 4 (Id., termination "unacceptable use 2010 Ex. of 16.) letter personal Department of Veteran[]s Affairs firing.4 as the cause of her (IdL, Ex. 17.) After The equipment and supplies" EEO being fired, Plaintiff Administrative Hearing initiated Officer EEO proceedings. concluded, after a thorough investigation, that Plaintiff failed to prove disparate treatment on the environment. (December 12, basis of Bowling v. sex, retaliation, Shinseki, EEOC or No. hostile work 410-2011-00326X 2012) . Also after her firing, Plaintiff applied for a job with the Richmond County Sheriff's Department and, on November 19, 2010, signed a "Release of Information Waiver," which authorized "full and complete records."5 disclosure (Doc. 17, Ex. of all 18.) employment and pre-employment On January 6, 2011, Williford completed an employment reference for Plaintiff that described her integrity as "below "[r]eleased during conduct improper and average" probation due and stated to unacceptable and unauthorized use Veteran[]s Affairs equipment and supplies." 4 of that she was personal Department of (Id.) Bennett was also fired following the investigation. (Bowling Dep. at 68.) 5 The waiver also contained the following statement: WI also certify that any person(s) who may furnish such information concerning me shall not be held accountable for giving this information; and I do hereby release said person(s) from any and all liability which may be incurred as a result of furnishing such information." (Doc. 17, Ex. 18.) Based upon these facts, Plaintiff filed two claims in this Court, both asserting that she was retaliated against for her September 30, 2010 complaint of Bennett's sexual harassment. II. Summary genuine SUMMARY JUDGMENT judgment dispute as is STANDARD appropriate to any material only fact if and the entitled to judgment as a matter of law." 56(a). the "there Fed. is no movant is R. Civ. P. Facts are "material" if they could affect the outcome of suit under Liberty Lobby, the governing Inc., 477 U.S. substantive law. 242, 248 (1986). Anderson v. The Court must view the facts 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 [its] favor." U.S. v. Four Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir. 1991) (en banc) (internal punctuation and citations omitted). The moving party has the initial burden of showing the Court, motion. by reference to materials on file, Celotex Corp. v. Catrett, 477 U.S. the basis for the 317, 323 (1986). How to carry this burden depends on who bears the burden of proof at trial. Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993) . When the non-movant has the burden of proof at trial, the movant 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. Coats & Clark, Inc., 929 F.2d 604, 606-08 See Clark v. (11th Cir. 1991) (explaining Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) and Celotex Corp. v. Catrett, Court can evaluate must first 477 U.S. 317 (1986)). Before the the non-movant's response in opposition, consider whether the movant has met its it initial burden of showing that there are no genuine issues of material fact and that Jones v. it City of Columbus, (per curiam) . cannot meet F.2d at is entitled to judgment as 120 F.3d 248, a matter of 254 (11th Cir. law. 1997) A mere conclusory statement that the non-movant the burden at trial is insufficient. Clark, 929 608. If — and only if - the movant carries its initial burden, the non-movant may "demonstrat[ing] that precludes avoid summary judgment only by that there is indeed a material issue of fact summary judgment." Id. bears the burden of proof at trial, When the non-movant the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant negating a material evidence sufficient fact, to presents evidence affirmatively the non-movant withstand a directed "must respond with verdict trial on the material fact sought to be negated." motion at Fitzpatrick, 2 F.3d at 1116. material fact, If the movant shows an absence of evidence on a the non-movant must either show that the record contains evidence that was "overlooked or ignored" by the movant or "come withstand forward a with directed additional verdict motion alleged evidentiary deficiency." cannot carry repeating its the Ross, Id. at 1117. must on the based in the with to on the The non-movant pleadings 1033-34 respond sufficient trial contained 663 F.2d 1032, non-movant at by relying conclusory allegations See Morris v. Rather, burden evidence or by complaint. (11th Cir. 1981). affidavits or as otherwise provided by Federal Rule of Civil Procedure 56. In this action, the Clerk gave Plaintiff appropriate notice of the motion for summary summary judgment rules, judgment and informed her Therefore, the the the right to file affidavits or other materials in opposition, and the consequences of default. 18.) of notice requirements Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) of (Doc. Griffith v. (per curiam), are satisfied. III. DISCUSSION Plaintiff alleges Defendant retaliated against her in the following two ways: (1) her termination on November 1, 2010, and (2) a subsequent negative employment reference. To successfully set forth a claim of retaliation under Title VII, the plaintiff must first establish a prima facie case of retaliation. 1460 (11th Olmstead Cir. 1998) . v. If Taco this Bell Corp., 141 prima facie F.3d case is 1457, met, a presumption of retaliation arises and the burden shifts to the defendant to "proffer a legitimate, the adverse employment action." forth such plaintiff a reason, must the show that non-retaliatory reason for Id. If the defendant presumption the reasons disappears stated were and sets the merely a pretext. Id. ; Masso v. Miami-Dade Cnty., 465 F. Supp. 2d 1260, 1264-54 (S.D. Fla. 2006). "A prima facie case of retaliation contains three elements: xfirst, the plaintiff engaged in statutorily protected conduct; second, the plaintiff suffered an adverse employment action; and finally, the adverse protected expression.'" action was causally related Williams v. Motorola, to the Inc., 303 F.3d 1284, 1291 (11th Cir. 2002) (quoting Farley v. Nationwide Mutual Ins. Co. , 197 F.3d 1322, 1336 (11th Cir. 1999)). In determining whether activity is statutorily protected, the Supreme Court and Eleventh Circuit have recognized two categories of activity: "An employee is protected from discrimination if (1) 'he has opposed any practice made an unlawful employment practice by this subchapter' (the opposition clause) or (2) xhe has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or (the participation clause)." 176 F.3d 1346, 1350 hearing under this subchapter' Clover v. Total Sys. Servs., Inc., (11th Cir. 1999) (quoting 42 U.S.C. § 2000e-3(a)). Plaintiff alleges she was participating activity with her internal complaint. opposition clause, discrimination reasonable opposition When proceeding under the the plaintiff need not prove the underlying claim, belief in but that must the employment practices." demonstrate employer Weeks v. was "a good engaged Harden Mfg. in Corp., faith, unlawful 291 F.3d 1307, 1311 (11th Cir. 2002) (internal quotation marks omitted). It is critical to emphasize that a plaintiff's burden under this standard has both a subjective and an objective component. A plaintiff must not only show that [s]he subjectively (that is, in good faith) believed that [her] employer was engaged in unlawful employment practices, but also that [her] belief was objectively reasonable in light of the facts and record presented. Id. at 1312 (quoting Little v. United Tech., Carrier Transicold Div. , 103 F.3d 956, alleged conduct 960 need (11th Cir. not actually 1997)). be "And although the sexual harassment to support a retaliation claim, the conduct must be close enough to support an objectively reasonably belief that it is." Atlanta Gas Light Co., 138 F. App'x 145, (internal quotation marks omitted). 10 148 Tatt v. (11th Cir. 2005) Plaintiff harassment alleges by her that she training was officer, the victim Lieutenant of sexual Bennett. To support a sexual harassment claim, a plaintiff must show that: (1) she belongs to a protected group; (2) she has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors or other conduct of a sexual nature; (3) the harassment was based on the sex of the employee; (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create an abusive working environment; and (5) a basis for holding the employer liable. Smith v. Am. Online, Inc., 499 F. Supp. 2d 1251, 1260 (M.D. Fla. 2007). In determining whether conduct is "sufficiently severe or pervasive" the identified four conduct, conduct (2) is Supreme Court probative the severity threatening and the factors: (1) of Eleventh the (3) the (4) and whether whether the conduct unreasonably interferes with work performance. v. Forklift Sys., Inc., 510 U.S. 17, 23 have frequency of the the conduct, or humiliating, Circuit Harris (1993); Allen v. Tyson Foods, Inc., 121 F.3d 642, 647 (11th Cir. 1997). Critically, the Supreme Court in Harris held that "if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim's employment, and there is no Title VII violation." Harris, 510 U.S. at 21-22. "[S]exual harassment is subjectively severe and pervasive if the complaining employee perceived it to 11 be at the 1248 1238, 187 time." (11th Cir. 2004); Williams 553, (11th Cir. F.3d Hulsey v. 566 Pride Restaurants, v. LLC, General 1999) 367 Motors (" [T] he 510 U.S. In the Corp., victim subjectively perceive the environment to be abusive[.]" Harris, F.3d must (quoting at 21)). case Plaintiff's favor, at bar, even drawing all inferences in Plaintiff has failed to show that she had any belief that her employer was engaging in severe or pervasive sexual harassment when reasonable, good Plaintiff's supervisor liability, the faith complaint belief. and was made, let alone Even assuming Bennett thus expose Defendant could a was to it is clear that Plaintiff did not take offense to the comments until after Bennett's wife sent a threatening text message, which coincidentally marked the end of all personal messages.6 (See generally Bowling Dep.) Plaintiff, in her September 30, 2010 letter stated that she "took these comments as innocent flirting and dismissed them" and "was not too bothered by the comments because [she] really just didn't care and [] was not offended." (Bowling Letter.) In fact, Plaintiff admittedly texted Bennett once saying "Hey hottie[.]" Furthermore, Chief in Plaintiff's Williford, she stated interview that with she Assistant "played along (IdJ Police just 6 According to Plaintiff's testimony before the EEO Investigator, she did not receive any more phone calls or text messages from Bennett upon her return from Arkansas. (Bowling Dep. at 52-53.) 12 flirting" and emphasized that "[w]hen someone pays attention to you, it is fun for a while [.] " interview with the (Doc 17, EEO investigator, "always respond[ed] to [Bennett's] Ex. Plaintiff 10.) In her stated that she text messages" and that she "laughed [him] off" because "[the text messaging was] not a big dealt.]" (Bowling Bennett's wife's Dep. threat at 28.) Plaintiff When ever asked asked if prior Bennett to to stop, she responded "[n]o, there wasn't anything to tell him to stop. It was not an issue." (Id. at 29-30.) It is clear that it was not Bennett's text messaging, belief that he violated Title VII, that led to and a Plaintiff's complaint to her supervisor, but that the confrontation with his wife might lead him to "set[] up a case for himself and mak[e] it seem (Bowling Plaintiff as though even [Bennett's wife] said had done In Letter.) [Plaintiff] her September "I closing feel the threat something to 30th my wrong." letter, life from took things to a whole other level and after much thought I decided it would be best to let someone know about the situation." (IdJ In fact, during her interview with Williford, Plaintiff said "I want to be fair. [The text messages were] no big deal. I thought I could handle resolving it. I was willing to let it go until his wife got involved and I realized it was out of my control." (Id., Ex. 10.) 13 The complaint circumstances are also that led instructive. up to When Plaintiff's Plaintiff internal was told by Banks not to use her personal phone on duty, Plaintiff inquired as to why and "got immediately upset, because [she] it was in reference threatened." to all these text (Bowling Dep. at 20-21.) assumed that messages and being It was only after Banks told Plaintiff that she must report the situation that Plaintiff contacted her words, supervisor. (Id. at 21.) In Plaintiff's own she did not want to give a statement regarding the text messages dating back to the first day of her employment because "nothing serious threatened[.] " had happened up to that (Id. at 22.) Investigator how she felt Finally, the events point until I was when asked by the EEO created a hostile work environment, Plaintiff responded, "[w]hile I was employed there, the only time I had a hostile work environment [was] when I went to them with my complaint and they put me in a situation of being in the same building with that lieutenant and took no action." (Id^ at 80.) Based on the foregoing, it is abundantly clear to the Court that Plaintiff did not hold a reasonable, good faith belief that she was subjected to severe or pervasive conduct that would alter the terms and conditions of her employment. 138 F. App'x at 148-49 (holding that Compare Tatt, plaintiff failed to establish a good faith belief of sexual harassment where the 14 conduct involved feigned urination on paperwork once a week for two years because the supervisor's conduct did not physically threaten or humiliate plaintiff, with her job performance, the conduct did not interfere and plaintiff failed to report until after she received a negative performance evaluation) it and Mendoza v. Borden, Inc., 195 F.3d 1238, 1247-48 (11th Cir. 1999) (holding that an employer's conduct is not sufficiently severe or pervasive where the employer told the plaintiff "I'm getting fired up," rubbed against her, followed her around, sniffing noises while staring at her) East, LLC, (holding 690 F. that harassment to Supp. the be 2d 1370, plaintiff severe and with EEOC v. 1379-80 (M.D. subjectively pervasive and made SDI Athens Ga. perceived where 2010) the plaintiff's supervisor frequently touched her, sometimes in a sexual manner, and made ashamed, vulgar comments and embarrassed). making plaintiff feel depressed, Plaintiff admittedly found the text messaging to be "so sporadic" and "no big deal" that she only filed a complaint after she was threatened, employee of Defendant. 4.) though not by an (Bowling Dep. at 32; Doc. 17, Ex. 10 at In fact, her "only worry was that it was going to be shown in a negative light, [herself]." and [she would not be] (Bowling Dep. at 50.) there to defend As such, she has failed to show that she believed her employer was engaged in an unlawful employment practice, i.e. sexual harassment, and thus she cannot 15 establish that Accordingly, she engaged in statutorily protected activity. Defendant cannot be held liable for retaliation and summary judgment for Defendant is proper. IV. For the reasons set forth above, motion for summary judgment DIRECTED Clerk to shall enter FINAL terminate CONCLUSION (Doc. JUDGMENT all 16) in deadlines Defendant is GRANTED. favor of November, ENTERED at Augusta, Georgia, this Shinseki's The Clerk is Defendant. and motions, case. ORDER Eric and CLOSE ^L p* 2014. HONORABLE J. RANDAL HALL UNITED STATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 16 day The the of
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