Bostic v. Lauragina Professional Transport, LLC et al, No. 4:2014cv00083 - Document 77 (S.D. Ga. 2015)

Court Description: ORDER granting 57 Motion for Summary Judgment; granting 59 Motion for Summary Judgment. Defendants We Care and LogistiCare are terminated from this case. Bostic is ordered to show cause within 30 days why the case should not be dismissed for want of prosecution. Signed by Judge J. Randal Hall on 6/5/15. (cmr)

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Bostic v. Lauragina Professional Transport, LLC et al Doc. 77 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION * LATORA BOSTIC, * Plaintiff, * * LAURAGINA PROFESSIONAL * TRANSPORT, CV 414-083 * PORTER, LLC; JOSEPH L. SR.; WE CARE * TRANSPORTATION, LLC; and * LOGISTICARE SOLUTIONS, LLC, * * Defendants. * ORDER Before the Court are two motions for Defendants We Care Transportation, LLC Solutions, (Doc. nos. LLC consideration, ("LogistiCare") -1 both motions for summary ("We Care") judgment and LogistiCare 57 & 59,) summary by judgment Upon due are hereby GRANTED. I, A. BACKGROUND Factual Background We Care provided non-emergency services to patients in Georgia. primary office was in Savannah in early 2013. 1 Since consenting to (Doc. no. Fitzgerald, (Id. removal medical Georgia, %% 1-2.) (Doc. 57-1, 1-6), and transportation 1 2.) it We Care's expanded to We Care received clients the remaining defendants, Lauragina Professional Transport, LLC ("Lauragina") and Joseph Porter, Sr., have not filed an answer or any other motions. Dockets.Justia.com from LogistiCare, a "transportation requests to providers. broker" that (Doc. nos. 57-1, f 4; 59-2, referred trip ff 3-6.) We Care provided the transportation (doc. no. 57-2, f 4); LogistiCare coordinated the referrals (doc. no. % 6) . 59-2, LogistiCare verified that the providers with which it contracted to transport patients complied with Georgia licensing, drug screenings, no. UK 59-2, LogistiCare. Latora (Doc. with she We to Care was an independent Bostic Equal left % 18.) her that January 30, with of Opportunity she had 2013, 2011. she filed a charge Commission suffered in ("EEOC"), retaliation and in sexual (Doc. no. 1-1, f 15.) Henry Harris, We Care's owner, hired (Doc. no. 57-1, % She was responsible for billing and marketing in We Care's Savannah office. (Id. % 15.) checks the company received. Two days We (Doc. contractor Lauragina After her departure, Employment alleged employment Bostic as a probationary employee for 90 days. 11.) transportation and criminal background checks. harassment while at Lauragina. On related (Id. f 11.) no. 59-2, the which 7-8.) law Care's Part of her job involved depositing (Id.) after hiring Bostic, office in Fitzgerald, company's billing practices. (Id. Harris asked her to travel to Georgia, % 17.) gas on the way to the Fitzgerald office, late. (Id. f 18.) to learn about the After running out of Bostic arrived two hours She stayed at the office for no more than an hour before returning to Savannah. (Id. f 19.) Her stay Fitzgerald failed to meet Harris's expectations for her visit, he told her so when she returned. On February 7, 2013, and (Id.) Harris spoke with Lauragina Operations (Id. % 22.) Manager Jimmy Duncan. in Duncan told Harris that Bostic had sued Lauragina but did not provide details about the lawsuit. (Id. f 24.) Duncan. On Bostic knew about the (Id. tt 27-28.) March 11, Bostic's lawsuit. tell conversation Harris had with Harris 2013, (Doc. "about conversation. On March Harris no. the and Duncan 57-4 at 35.) sexual spoke checks she 12, 2013, with Bostic Bostic failed Harris insubordinate. harassment did not (Id. to about both deposit. found Bostic f 41.) come during the her to no. 57-1, tardiness % 35.) (Id. be and she was and % 31.) several During disrespectful 57-3, he fired her. U 20.) (Doc. the and After no. 57- After Bostic departed, Harris found billing errors in (Id. K 49.) Procedural History On March with to work, (Doc. her work and undeposited checks in her desk. B. charges" f 40; see also Doc. no. speaking with her for a few minutes, 1, about (Id.) had conversation, again Bostic overheard Duncan late to work the following day as well. Harris spoke the 28, EEOC, 2013, Bostic alleging filed a that We 3 charge Care and of discrimination LogistiCare had retaliated against her because of her previous EEOC charge against Lauragina. letter, (Doc. 59-3 dated December "Logistic Care." 19, no. 2014 (doc. 20, (Id. no. at 41.) 2013, at 43.) 1-1), She received a right-to-sue which included both We Care and Bostic filed this lawsuit on March and LogistiCare removed it to this Court five days later (doc. no. 1). II. "The court shall SUMMARY grant JUDGMENT STANDARD summary judgment that there is no genuine dispute as if the movant to any material fact and the movant is entitled to judgment as a matter of law." 56(a). shows In ruling on summary judgment, Fed. R. Civ. P. the Court views the facts and inferences from the record in the light most favorable to the non-moving party. Corp. , 475 U.S. 1271 (11th See Matsushita Elec. 574, Cir. 587 (1986); 2008). Indus. Reese v. Courts, Co. v. Zenith Radio Herbert, moreover, 527 may F.3d 1253, consider materials in the record, not just those cited by the parties. R. Civ. P. The moving the party district "bears court identifying those portions of interrogatories, affidavits, genuine Fed. 56(c) (3) . informing to all if any, issue of and of the the initial basis for the pleadings, admissions on responsibility file, its motion, depositions, together of and answers with the which it believes demonstrate the absence of a material fact." Reese, 527 F.3d at 1268 (internal Catrett, quotation 477 U.S. The (quoting then [its] of "Amay pleading [s], showing that Fed. exists R. when Civ. Athe not there City of Palm Bay, 2004) (quoting fact omitted) P. return a verdict I.C. Inc., 629 F.3d 1263, 1270 Lobby, Inc., 477 Anderson v. Liberty Corp. the is upon but a . the . issue for genuine "A nonmoving (11th U.S. 860 genuine such that a 242, The motions Clerk for judgment nos. 60 summary rules, materials gave Owen v. (quoting (1986)). 61.) Wainwright, 772 Bostic appropriate judgment including Thus, F.2d A the suit See Anderson, 477 U.S. at 248. 822, and the in opposition and & of reasonable 2011) 248 (11th issue party.'" Cir. mere set fact is material only if it might affect the outcome of under governing law. v. . must 358 F.3d 859, 56(e)). evidence for rest is Fla., jury could Sys., Celotex (1986)). party facts Young v. material 323 or denials specific trial.'" Cir. 317, nonmoving allegations forth marks the right the informed to file consequences notice 825 notice her of 1985) satisfied and the motions are ripe for review. of Defendants' the affidavits requirements (11th Cir. of summary or other default. of (Doc. Griffith (per curiam) v. are Ill, A. DISCUSSION We Care's Motion for Summary Judgment: Bostic alleges that We Care fired her in retaliation for the EEOC charge she filed against Lauragina. (Doc. no. 1-1, UK 45- 55.) 1. Bostic has not provided direct evidence of discrimination. Title VII [s]he has practice prohibits opposed by testified, U.S.C. § treatment by a satisfy Douglas's McDonnell Direct or making this 975 of the (11th "by has a made any VII proving 1081 VII]." 42 "the Crawford (quoting direct an discriminatory (11th Cir. presenting in claim, evidence.'" 2008) charge, manner [Title Title of "because employment under Cir. 907 F.2d 1077, burden in a burden an employee unlawful [s]he hearing ultimate 961, an participated preponderance F.3d made because When *the Champion Int'l Corp., intent to or 2000e-3(a). 529 or proceeding, bears may practice VII], assisted, plaintiff Carroll, any [Title investigation, retaliation against v. Earley v. 1990)). evidence She of an discriminate or circumstantial evidence using McDonnell burden-shifting Douglas evidence Corp. includes framework." v. Green, "Aonly the 411 Id. U.S. most at 975 (citing 792, 802 (1973)). blatant remarks, whose intent could mean nothing other than to discriminate on the basis of some impermissible factor.'" Akouri v. State of Fla. Dep't of Transp., 408 F.3d 1338, Florida, 285 F.3d 1347 1339, 1342 alleged statement suggests, motive, (11th Cir. n.2 but 2005) (11th does Cir. not (quoting Rojas 2002)). prove, "If v. the a discriminatory then it is considered circumstantial evidence." Id. Bostic has presented no direct evidence that her termination was specifically a Lauragina. She provides testimony fails deposition, her of discriminate." motive no for the EEOC charge her own deposition she filed against testimony, but to prove direct evidence of retaliation. the "whose short, of she never claims because statements In result EEOC intent See Akouri, piece of terminating that Harris charge. She could mean told her he has nothing 408 F.3d at 1347 direct Bostic evidence had failed other firing point to than to (quotation omitted). indicates anything In her was to that to that do with Harris's the EEOC charge against Lauragina. Thus, does not taken prove, as a a whole, Bostic's discriminatory testimony motive." See "suggests, id. Since but her testimony provides a mere suggestion of a discriminatory motive, it is circumstantial evidence. 2. Bostic has established a prima facie case of retaliation. "A plaintiff bears case of discrimination circumstantial F.3d 1160, 1174 the burden of establishing a prima facie in Title evidence." (11th Cir. VII Brown 2010) . 7 v. cases that are Ala. Dep't of supported by Transp., 597 When a plaintiff produces only circumstantial evidence, established in McDonnell Juvenile Justice, omitted). present courts use "the burden shifting framework Douglas." 564 F. App'x 421, Mealing 427 (11th Cir. Under the McDonnell Douglas framework, sufficient circumstantial evidence facie claim of retaliation, see Rives v. at 2015), *3 (11th Cir. establish that expression; the (2) adverse Mar. she to Lahood, in Dep't 2014) of (citation a plaintiff must establish which requires engaged Ga. a prima 2015 WL 1320586, a plaintiff statutorily to protected she suffered an adverse employment action; and (3) action was causally Harden Mfg. related Corp., to the 291 F.3d 1307, protected 1311 (11th 2002). Here, first 25, "(1) expression," Weeks v. Cir. v. two neither party disputes that Bostic has established the elements Court agrees: of a prima facie case of retaliation. The she did engage in statutorily protected expression when she filed her EEOC charge against Lauragina, and she also was terminated. See Weeks, in whether Bostic's 291 F.3d at 1311. termination was The disagreement lies causally related to her EEOC charge. Establishing causality is order to retaliation satisfy case, establish that expression at the a often the crux of the debate. ^causal link' prong of plaintiff must, at minimum, a a the defendant was actually aware of the time the defendant took the prima "In facie generally the protected adverse employment action." Raney v. Vinson Guard Serv., (11th Cir. 1997). causation prong, Sch. Dist. v. Harris 7; 532 U.S. 2013, that 268, Bostic "about nos. the (Doc. no. 57-4 (Doc. no. 57-1, 57-1, % 8; v. Cooper (holding at 35.) Two KH 31-41.) sufficient Lighting, that "a 57-4 three at 2013. sexual harassment established causation. and 1197 days Clark Cnty. (2001). had litigation (Doc. 34.) charges" later, over Harris facts issue"' no. the phone.2 Bostic. light most the Court thus finds Bostic has This sort of temporal proximity is to meet Inc., months the 506 burden of F.3d did also Duncan told fired in the on 57-2 at But Harris On that date, Taking the favorable to the non-moving party, close" 273 shortly after he hired her. learned more details on March 11, Harris F.3d 1192, such proximity must be "very close." Breeden, see also Doc. 120 For temporal proximity alone to establish the learned February 7, Inc., 1361, not rise causation. 1364 to (11th the "very Cf. Thomas Cir. 2007) level of "very close") . The Court relation and, finds that therefore, Bostic also has a established prima facie this causal case of discrimination. 2 We Care's Statement of Undisputed Material Facts (doc. no. 57-1) does not mention this conversation. Upon due examination of the entire record, however, the Court nevertheless makes an inference in the light most favorable to Bostic, the non-moving party. See Matsushita Elec. Indus. Co., 475 U.S. at 587. 9 3. We Care has Bostic's articulated nondiscriminatory reasons for termination. Once the plaintiff has established a prima facie case, xx[t]he burden then shifts to the defendant to articulate some legitimate nondiscriminatory reason defendant produces that legitimate the illegal motive." (11th Cir. pretext, such a the 564 F. App'x at 405 F.3d reason 1276, 1289 the was marks discrimination. plaintiff a Advance Sec, must mere Inc., that "To for an 597 establish the proffered reason (quoting Jackson v. Ala. 2005)). the then prove 19 F.3d 586, the employment decision.'" (11th Cir. If pretext omitted). 'must demonstrate true reason for 427 alleged offered (quotation a plaintiff not the reason, Mulhall v. 1994) was for Mealing, State Tenure Comm'n, "If the employer offers more than one legitimate, non-discriminatory reason, the plaintiff must rebut each reason." Id. to be pretext "unless it is and that The plaintiff cannot prove a reason shown Jboth that the reason was false, discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993)(emphasis in original). Since Bostic discrimination, legitimate the attendance presented burden shifts The Mulhall, reasons issues. only produce, not (Doc. prove, a We F.3d forth no. prima Care reason 19 set a to nondiscriminatory discrimination." omitted). has 58 at 597 some marks performance defendant reason." of alleged (quotation "[T]he nondiscriminatory 10 the Bostic's 10.) case "articulate for at are to facie and need Walker v. NationsBank of Fla. N.A. , 53 F.3d 1548, 1556 (11th Cir. 1995). We Care's The Court finds that We Care has done just that. 4* Bostic has failed to demonstrate that reasons are pretextual. Bostic now bears the burden of rebutting We Care's reasons as pretextual. reasons She are cannot both succeed and false that termination was retaliation. at 515. She must which is for not the firing reason, "The a bad reason, reason." as Nix (11th Cir. v. Care Care points (Doc. shows true that Care's for Bostic's Mary's Honor Ctr., 509 U.S. Care's reason We reasons are mere pretext, showing that We Care's had poor reasons employer may fire an employee for a a reason based on erroneous facts, long as WLCY first good or for no its action is not for a discriminatory Radio/Rahall to Commc'ns, 64 at In that Bostic was 58 at 11.) 738 F.2d her 15.) fired due 1181, 1187 and failure That checks toward Harris. checks to the acknowledging requirement of her employment deposit that (see doc. they them were she as (Id.) argues checks 11 to her poor To support its contention, failure to deposit attitude deposit implying irrelevant. no. to Bostic's failed no. argues (Doc. her disrespectful amounts, she 1984) . performance. she the See St. that We same as her. reason at all, We show unless for failed no. expected and Bostic were was 57-1, for admits small unimportant. small to We amounts accomplish 1f 15), is a Bostic fails to demonstrate that We Care's to rebut proffered reason is mere pretext. Bostic also fails disrespectful to Harris. We Care's argument that she was Not only does she admit her disrespect (doc. no. 57-1, % 47), and that she gave him an ultimatum at their last meeting, asking "are you going to fire me or are you going to write me up" (id. % 39), she also misunderstands the nature of the required rebuttal. behavior 15.) and But that She she Bostic's was See Alvarez (11th Cir. v. collected. her behavior (Doc. is no. her 64 at irrelevant to actually believed she was being disrespectful. Atl. employer's beliefs, not about not Developers, inquiry the Inc., into employee's reality as Bostic head."). of misremembered the relevant inquiry ("The maker's and Harris pretextual; Royal on that reason is 2010) it, calm perception showing that We Care's is whether Harris argues it has exists presented 610 pretext beliefs outside no F.3d 1253, centers and, to of the evidence to 1266 on be the blunt decision rebut We Care's contention that Harris actually perceived Bostic's behavior as disrespectful. (See Doc. no. 57-1, %% 40-41.) Thus, Bostic again fails to demonstrate that We Care's reason is mere pretext. Finally, We Care argues that Bostic was fired due to repeated late attendance. Care's outline responds only (Doc. of a no. 58 pattern at of 10.) late Instead of attendance rebutting We (id.), Bostic to the instance in which she ran out of gas and 12 arrived late at the Fitzgerald office (see doc. no. 64 Bostic's explanation for her tardiness implicitly admits at 15) . that she was in fact late while providing no evidence that Harris knew why she was list late of to that other explanations office. instances fall Bostic of short of late also does not attendance. providing a rebut In rebuttal We Care's short, to We her Care's argument that she was fired for poor attendance. Bostic her fails termination Care's alleged are false, See the establish and discrimination termination. Therefore, to St. Court Mary's finds that We Care's given she also fails was the real Honor Ctr., that she has to reasons show reason 509 reasons We her at 515. failed to meet her burden of establishing that We Care's reasons are mere pretext. Care's that for U.S. for are plausible and unrebutted, the Court Since We finds that Bostic has failed to meet her burden under McDonnell Douglas. Therefore, Judgment. B. (Doc. Court no. grants We Care's Motion for Summary 57.) LogistiCare's Motion for Summary Judgment "A plaintiff lawsuit." Ga. the 2003) . must Cooper v. Thus, between two parties, be an ^employee' S. Co. , 260 F. Supp. if an employment to bring 2d 1258, relationship a Title 1263 n.l does not VII (N.D. exist all claims under Title VII must be dismissed. 13 LogistiCare argues that there never was an employment relationship between it and Bostic. 1. The EEOC's warrant Initially, (Doc. no. failure 59-1 at 4-9.) to serve LogistiCare does not dismissal. LogistiCare argues that it never received notice of Bostic's EEOC charge of retaliation against it and that Bostic therefore failed to exhaust her administrative remedies. 2-4.) that (Id. at LogistiCare is correct that the record contains no evidence anyone ever LogistiCare's first place, notice of 5(b). served argument it is with notice insufficient for of the two charge. But reasons. In the it is not the complaining individual's job to serve the charge; LogistiCare it is offers the no EEOC's. See 42 U.S.C. arguments as to why § 2000e- the EEOC's failure should prejudice Bostic's claim. Second, suffered LogistiCare any has failed ill from the effects "A[W]hen an agency neglects failure inflicts no observance of administrative the or to to EEOC's judicial the failure error does action.'" that it serve it. rule but its to follow a procedural significant injury on rule, demonstrate the party entitled to not prevent E.E.O.C. v. Bd. Educ. for City of Savannah & Chatham Cnty. , 643 F. Supp. (S.D. Ga. 1986)(discussing requirements)(quoting 1042 (5th Cir. the E.E.O.C. 1976) ) . EEOC's v. Airguide LogistiCare 14 failure to Corp., does not follow 539 further of Pub. 134, 136 service F.2d identify 1038, any significant Therefore, 2. injury it suffered as a result of not being nothing prevents "further judicial action." served. See id. LogistiCare is not an employer under Title VII. The Court now turns to the question of whether LogistiCare is Bostic's employer. That Bostic is not an employee under Title VII is does undisputed; The she statute defines employer," 42 an U.S.C. not employee as § interpreted to compensation from an Lab, Inc., 163 who 2000e(f), F.3d individuals deemed that mean LogistiCare evidence that only 1236, paid it the see the so. that (11th the who v. employer is the has Mini-Circuits, an Bostic is. receive 1998) record Therefore, Circuit Cir. from she employed by an Eleventh Llampallas statute."). and argue individuals 1243 her, did which compensation under to "an individual those employer, receive 'employees' even attempt does P[0]nly not devoid Court can be argue of finds any that LogistiCare is not an employer under Title VII. 3. LogistiCare is not a joint employer of Bostic. More complicated, LogistiCare was a however, whether as joint employer "concentrate [s] entity of Bostic of determination of whether an entity qualifies degree of question We the employer the with on joint is control an a adverse employment decision on which the Title VII Id. at 1244-45. while the two "are in fact 15 separate has over The the suit is based." This control must be actual control, entities Care. meaning that . . . they share or co-determine conditions Stores, those of matters governing employment." Inc., 128 the Swallows F.3d 990, 993, n.4 essential v. Barnes (6th Cir. terms & Noble and Book 1997) (emphasis in original). Other factors include the entity's authority and power to the control Ltd., employee. 30 F.3d 1350, 1361 Bostic presents that fire her. a (11th Cir. a no. v. Riviera Beach Assocs., 1994). evidence to support her claim joint employer with We LogistiCare (Doc. Virgo two pieces of that LogistiCare was argues See manager, 65 at 4-5.) Allen Care. Davis, First, told she Harris to But Bostic's testimony alone is insufficient to establish that LogistiCare actually possessed the authority Bostic or power misstates "Logisticare' s (Doc. to no. 65 she had no and [sic] at Harris. the make a decision facts in her manager directed We 8.) (Doc. knowledge no. 57-4 of at any 66.) her brief, Care In her deposition, personal about to claiming fire however, this dispute as is to testimony is been offering not the true, a sufficient relevant to issue establish of control. Plaintiff." between Davis testified Harris told her that Davis had told him to fire her. Again, that Bostic admitted conversation She employment. a only (Id. genuine Even if that at 60.) factual Bostic's Davis could have overstepped his authority or suggestion. mistaken about what Davis said. Harris could In short, 16 have been lying or Bostic's argument falls far short of establishing that LogistiCare exercised any kind of control over her termination. Second, requested check, from describes her: her and so forth. are not All Bostic sufficient independent follow these various name, (Doc. her no. contractors state date 65 to establish a information with LogistiCare regulations. (Doc. it patients (Id. ff 7-11.) transport As Bostic 57. ) In addition, relationship. were no. complied acknowledges, LogistiCare's background required 59-2, ^f to 10-11.) the providers with which "mandated solely" by the State of Georgia, S[ a But these requests joint employment verify that to birth, at 3-4.) LogistiCare was required to contracted of LogistiCare with law. requirements the Georgia were not LogistiCare. request for this (Id. information does not demonstrate that it exercised any degree of control over We Care's employees. nothing to do This collection of basic with establishing "the degree of suit is based." Llampallas, 163 F.3d has control an entity has over the adverse employment decision on which VII information at [Bostic's] 1244-45 Title (emphasis added). Other Bostic's undisputed claim of facts also cast joint employment. She significant admits that doubt on LogistiCare never hired her (doc. no. 59-2, f 48), that it never paid her (id. U 49) , that no LogistiCare employee ever told she was an employee (id. K 53) , and that she never 17 entered any agreement with the company (id. f 55). She even testified in her deposition that she was "not contending that" LogistiCare was her employer. (Doc. no. % 60.) 57-4 at 60; see also Doc. no. 59-2, Weighing the undisputed facts in the light most favorable to Bostic, the Court cannot conclude sufficient control over Bostic to that LogistiCare qualify as her joint employer. The evidence Bostic provides is to survive summary judgment. See Walker v. Darby, 1577 the (11th Cir. conclusion LogistiCare. 1990). that We Because a mere Rather, Care the alone Bostic's exercised "scintilla," insufficient 911 F.2d 1573, undisputed evidence was claim Bostic's against compels employer, not LogistiCare is predicated on the existence of an employer-employee relationship, and because no joint employer, matter of law. LogistiCare reasonable jury could find LogistiCare was her see id., her claims against it cannot survive as a After cannot have all, without violated an Title employment VII. relationship, See 42 U.S.C. § 2000e-2. Therefore, Judgment. (Doc. the Court grants no. 59.) IV. For the reasons Motion for Summary GRANTS LogistiCare's LogistiCare's Motion for Summary stated Judgment Motion CONCLUSION herein, (Doc. for the no. Summary 18 Court 57) GRANTS and Judgment the We Care's Court (Doc. no. also 59). The clerk is DIRECTED to TERMINATE each of these parties from the case, as well as all deadlines and motions pertaining to them. Two They have defendants remain: filed no answer entry of default sought an ORDERS Bostic to show Lauragina with the against cause within and Joseph L. Porter, Sr. Court, but Bostic has never them. Therefore, the Court THIRTY DAYS why the case against them should not be dismissed for want of prosecution. ORDER ENTERED at Augusta, Georgia, this day of June, 2015. HONOROTLE J. RANDAL HALL unitedTstates DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 19

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