Marcum v. City of Rincon, Georgia et al, No. 4:2015cv00234 - Document 47 (S.D. Ga. 2018)
Court Description: ORDER granting 32 Motion for Summary Judgment. This case stands closed. Signed by Chief Judge J. Randal Hall on 3/14/2018. (pts)
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Marcum v. City of Rincon, Georgia et al Doc. 47 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA SAVANNAH DIVISION CORTNEY R. MARCUM, Plaintiff, * V. * CV 415-234 * CITY OF RINCON, GEORGIA, * * Defendant. * ORDER Before judgment. the Court (Doc. 32.) is Defendant's motion for summary The Clerk has given Plaintiff notice of the summary judgment motion and the summary judgment rules, of the right to file affidavits or other materials in opposition, and the consequences of default. Therefore, the notice requirements of Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir. 1985) (per curiam), have been satisfied. For the following reasons. Defendant's motion is GRANTED. I. This case Defendant City Plaintiff claims retaliation for arises of out Rincon's she was filing a BACKGROUND of Plaintiff's Police fired Department because grievance dismissal with of her the (the "CRPD"). gender Equal from and in Employment Dockets.Justia.com Opportunity Commission C'EEOC"). Making all inferences in favor of Plaintiff, the facts of the dispute are as follows. In April 2012, shortly after graduating from the police academy. Plaintiff accepted a position as a police officer for the CRPD. usually {Marcum Dep., Doc. 32-3, at 22.) hired officers with prior law Although Defendant enforcement experience, Phillip Scholl, the CRPD Chief of Police, supported Plaintiff's hiring. (Id. at 23-24.) female year. officer, but two At the time. Plaintiff was the only more women were hired the following (Id. at 24; Scholl Aff., Doc. 32-8, SI 4.) In August 2012, Plaintiff was reprimanded after she backed her patrol car into another driver at the scene of an accident. (Marcum Dep., Ex. Plaintiff's former Plaintiff's fault. 4, at 52.) partner, Officer claims (Moseley the Dep., Joshua accident Doc. 32-5, Moseley, was at not 38-39.) Plaintiff received a second reprimand on February 9, 2013, for failing to complete a case file, sign an arrest submit an incident report in a timely fashion. Ex. 7, at 59.) being rude to Softball game. Plaintiff, months. Zoller, she (Id.) a CRPD warrant, (Marcum and Dep., Around this time. Plaintiff was also accused of a member of the Rincon (Scholl Aff. SI 5.) claimed she However, clerk who had when the not City Council during a When Chief Scholl spoke to been Chief to Scholl councilman said the ballfield mentioned was in Ashley at the game with Plaintiff, game but Plaintiff explained ballfield.^ (Id.) the councilman. that confessed Chief that Scholl she did had not attended specify the which Plaintiff also denied having any contact with (Marcum Dep. at 28.) On February 14, 2013, Plaintiff requested to work off-duty for the Chatham County Sheriff's Department. Chief Scholl based on one-year denied Plaintiff's new hire her request misconduct and and probationary (Scholl Aff. SI 6.) claims that she period.^ his decision was was still her (Id.) on Plaintiff maintains that other male officers were allowed to take off-duty work during most of their these probationary officers had period, prior law but acknowledges enforcement that experience. (Marcum Dep. at 37-38.) Plaintiff received (Id., Ex. 10, at 66.) her third reprimand on April 5, 2013. Plaintiff had been assigned to prepare and perform a PowerPoint presentation on the challenges of being a female police officer, which was due April 4, 2013. Dep. at 46, 57.) Plaintiff concedes she knew (Marcum about the assignment and its formatting requirements but maintains she was not given a due date until 24 hours before the deadline. (Id.) When the deadline came. Plaintiff handed in ""a few pages in Word ^ Plaintiff claims the game was at Giles Park and that when Chief Scholl first spoke with her, he said Macomber Park. (Marcum Dep. at 28.) ^ The email Chief Scholl wrote to Plaintiff only mentioned her probationary status and the 60.) possible liability for Defendant. (Marcum Dep., Ex. 8, at format which looked like they had been put together hurriedly." {Scholl Aff. f 8.) After Chief format, Plaintiff said she had a Scholl {Marcum Dep. at 52-53.) with drive, thumb Chief the When Plaintiff returned Scholl discovered drive was also in Word format. about PowerPoint version on a thumb drive at home. the complained (Id. at 54) the file on the Plaintiff insists that while she made a PowerPoint presentation, she accidentally converted the file by saving her draft in Word format. (Id. at 51.) Plaintiff's June 2013. problems reprimanded (Adams work escalated toward the end of On June 17, Plaintiff was reprimanded for failing to maintain her patrol car. also at Dep., Doc. after 32-7, (Id., Ex. 12, at 71.) calling at 30; in sick Scholl three Plaintiff was days Dep., Ex. in 20, a row. at 47.) When Corporal John Adams, Plaintiff's supervisor, told her she would need a doctor's note. Plaintiff responded, "[f]uck them if they don't like it. There's not a damn thing they can do about it."^ (Marcum Dep., Ex. 11, at 69.) Moreover, when Plaintiff returned to work, her doctor's note only addressed one absence. Plaintiff was given two reprimands for this episode: one for her ^ Plaintiff claims she became upset because Corporal Adams said the doctor's note needed to explain the nature of her illness. (Marcum Decl. 5 5.) insufficient doctor's note and one for her reaction to Corporal Adams. On June 18, 2013, Plaintiff was placed on administrative leave pending an internal affairs investigation into her failure to complete an incident report about a stolen trailer. Ex. 14, at 79.) (Id., The investigators found that Plaintiff failed to follow standard procedure for filing information, and on June 20, Plaintiff was suspended without pay for three days.^ (Id.) When Chief Scholl tried to give Plaintiff her suspension notice, she refused to sign and claimed that CRPD policy entitled her to a copy of the internal affairs report. Chief Scholl ordered Plaintiff to (Scholl Dep. at 43-44.) leave the building but Plaintiff remained outside his office talking on her cell phone until Sergeant premises. Jose Ramirez (Marcum Plaintiff's seventh Dep. at reprimand arrived 68.) and drafted 49.) escort This another without pay, which began on June 26. When to notice of termination. off incident CRPD led to three-day suspension (Id., Ex. 15, at 81.) Plaintiff returned from suspension. her her (Scholl Chief Scholl Dep., Ex. 23, had at However, after talking to Wesley Corbitt, Defendant's City Manager, Chief Scholl agreed to place Plaintiff on a six-month '' Chief Scholl said this reprimand was eventually withdrawn. (Scholl Dep. at 36.) ^ Plaintiff maintains that another officer, who had allegedly started the incident report, was responsible for completing it. Statement of Material Facts, Doc. 30, 5 20.) 5 (Pl.'s Resp. to Def.'s corrective action plan. Plaintiff's probation If (Id. at 45.) would months. (Id.) probation would end in be Plaintiff Pursuant to that plan, extended had no an further additional six misconduct, her January 2014. (Id. at 46.) Plaintiff showed improvement under the corrective action plan. On October 6, work 2013, Plaintiff runaway case. received (Marcum a commendation Dep. at 75.) for her on a Plaintiff also received favorable remarks during her January 2014 review and was taken off probation. (Id. at 79; Scholl Dep. at 48.) Plaintiff presumably began considering legal action against Defendant at some point before December 2013. Sometime during that month, Mr. Corbitt asked Plaintiff if she was considering legal action against Defendant and whether there they could settle the dispute without litigation. at 77.) Plaintiff told Mr. Corbitt that she about the matter and to speak to her attorney. was any way (Marcum Dep. would not talk (Id.) On April 11, 2014, Plaintiff filed a Charge of Discrimination (''Charge") with the EEOC discrimination. Plaintiff claiming she had been the victim of sexual (Id., Ex. 20, at 93.) was terminated on July 7, 2014. Plaintiff's firing was allegedly due to a wrongful detention and a wrongful arrest, both of which occurred in June 2014. 117.) The wrongful detention dispute arose (Id., Ex. 23, at after Plaintiff arrested Jacob McFadden on June 15 for failing to register as a sex offender. {Marcum Dep. at 89.) Four days later, Amy Kendrick, a clerk for the Effingham County Sheriff's Department, told Plaintiff that Mr. McFadden was not required to register as a sex offender and needed to be released. (Id. at 92.) However, Mr. McFadden was not released until July 1, 2014, after his attorney complained to the Chatham County District Attorney. (Ramirez Dep. Sergeant Ramirez Corporal at Adams 62.) Before that she about Mr. satisfy her duty (Marcum Dep. at to did was not remember McFadden, report 93.) she issues Plaintiff fired. whether which up now the claims Plaintiff would chain she told told presumably of command. she told Corporal Adams shortly after speaking with Ms. Kendrick. (Marcum Dep. at 92-93.) The wrongful arrest occurred on June 24, 2014, when Plaintiff arrested Aguilar Tiniguar for unlicensed operation of a motor vehicle. on a (Id. at 97.) private throughway. Chief Scholl believed the arrest unsupported by Georgia law. termination cited this Because Mr. Tiniguar was driving (Scholl Dep. at 55.) event and the detention was The notice of of Mr. McFadden as grounds for firing Plaintiff. (Marcum Dep., Ex. 23, at 117.) Plaintiff authority Adams appealed to about arrest Mr. her termination Mr. Tiniguar and but appeal McFadden her Decl., Ex. 1, at 5; Scholl Aff. 5 15.) claiming that was she that she had told Corporal denied. (Marcum On August 5, 2014, Plaintiff filed her second Charge with the EEOC. (Doc. 19-1, at 2.) ''Notice Right of days had EEOC to Sue," which passed since was On June 2, 2015, she received a terminating explained Plaintiff filed its processing that more than 180 her Charge and that the of Plaintiff's Charge. this against (Id.) On August 25, 2015, Plaintiff filed action Defendant and several individual defendants--who have since been dismissed—alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. and 42 U.S.C. § 1983. Defendant now moves for summary judgment arguing that a reasonable jury could not find that Plaintiff was terminated due to a discriminatory animus or in retaliation for engaging in protected conduct. II. LEGAL STANDARD A motion for summary judgment will be granted if there is no disputed 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 results of the case. Lobby, Inc., 477 U.S. 242, 248 (1986). Anderson v. Liberty The court must view facts in the light most favorable to the non-moving party and draw all inferences in its favor. Ltd. V. Zenith Radio Corp., 475 Matsushita Elec. Indus. Co., U.S. 574, 587 (1986). The movant initially bears the burden of proof and must demonstrate the absence of a disputed material Catrett, 477 U.S. 317, 323 (1986). fact. Celotex v. The movant must also show no reasonable jury could find for the non-moving the essential elements. Corp. party on any of Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1115 (11th Cir. 1993). If the movant carries its burden, the non-moving party must come forward with significant, probative evidence showing there is a material fact in dispute. Id. at 1116. The non-movant must respond with affidavits or other forms of evidence provided by Federal Rule of Civil Procedure 56. non-movant cannot survive summary judgment pleadings or conclusory statements. 1032, 1033-34 (11th Cir. 1981). Id. at 1116 n.3. by relying on The its Morris v. Ross, 663 F.2d After the non-movant has met this burden, summary judgment is granted only if ''the combined body of evidence is still such that the movant would be entitled to a directed verdict at trial - that is, reasonable jury could find for the non-movant." F.3d at 1116. such that no Fitzpatrick, 2 III. Plaintiff claims that DISCUSSION^ her termination violated Title VII because it was inspired by hostility toward her gender and in retaliation for engaging in protected conduct. for summary judgment maintaining that Defendant moves Plaintiff was fired for being a bad police officer. A. Discrimination Claim Under Title VII, an employer may not "discriminate against any individual with conditions, or individual's race, 42 U.S.C. § respect privileges color, to of his compensation, employment, religion, 2000e-2(a)(1). A sex, or plaintiff terms, because of national origin." can show such gender discrimination by presenting direct evidence of discriminatory intent; statistical proof of disparate treatment; or circumstantial evidence sufficient to give rise to an inference of discrimination. Wright 1293 (11th Cir. 1999). discrimination, McDonnell a Southland Corp., 187 F.3d 1287, To establish a prima facie case of plaintiff Douglas Corp. v. can follow v. Green, 411 the U.S. framework 792 (1973). set by Under McDonnell Douglas, the plaintiff must show (1) she is a member of a protected class; (2) she was qualified for the position; ® Plaintiff concedes that summary judgment is appropriate with respect to her hostile work environment and ratification claims. (Pl.'s Resp. to Def.'s Conclusions of Law, Doc. 39, SSI 2, 4.) Therefore, summary judgment for Counts Two and Four is GRANTED. 10 (3) she was subject to adverse employment action; and (4) she was treated less favorably than a similarly situated individual outside her protected class. Maynard v. Bd. of Regents of Div. of Universities of Fla. Dept. of Educ. ex rel. Univ. of S. Fla., 342 F.3d 1281, 1289 (11th Cir. 2003). The fourth prong requires that "the quantity and quality of the comparator's misconduct be nearly identical to employers' reasonable oranges." Maniccia 1999). If the summary judgment prevent courts decisions and v. Brown, 171 from confusing be granted "where discrimination is present." apples with F.3d 1364, 1368 (11th Cir. plaintiff cannot identify a may second-guessing Holified proper no other comparator, evidence of v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). The plaintiff bears the initial burden of establishing a prima facie case of discrimination. at 802. Meeting this standard gives rise to a presumption of discriminatory proffering action. a intent, which legitimate, the defendant nondiscriminatory must rebut reason for by its Texas Dept. of Comty. Affairs v. Burdine, 450 U.S. 248, 254 (1981). The defendant is only required to show that such a reason exists; it does actual McDonnell Douglas, 411 U.S. motive. Walker not need v. 1548, 1556 (11th Cir. 1995). to prove NationsBank of that reason Fla. N.A., was its 53 F.3d If the defendant meets its burden of production, the plaintiff must then show that the defendant's 11 proffered E.E.O.C. (11th reason V. was a Joe^s Cir. pretext for its discriminatory motive. Stone 2002). In Crabs, cases Inc. ^ that 296 F.3d involve 1265, the 1272-73 discriminatory application of workplace rules, a plaintiff can show pretext by proving (a) she did not break the rule or (b) her misconduct was similar to another worker, outside her protected class, who was not punished as severely. Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1363 (11th Cir. 1999). Establishing pretext honest, is a heavy burden, and an employer's but mistaken belief that an employee violated a workplace rule does not give rise to Title VII liability. V. Royal Cir. Atlantic 2010) ("The dissatisfied with Developers, question her for Id. at 1363 n.3; Alvarez Inc., 610 is F.3d whether these or 1253, her other 1266 (11th employers were non-discriminatory reasons, even if mistakenly or unfairly so, or instead merely used [the those complaints discriminating about against her employee] because of as her cover for [protected characteristic]."). Plaintiff gender has failed discrimination. elements of comparator McDonnell who was to establish While Douglas, treated she a satisfied Plaintiff more prima has favorably. facie the not case first three identified Plaintiff of a argues that because she told Corporal Adams, her supervisor, about Mr. McFadden, the fact that she was fired and Corporal Adams was not 12 gives rise determine to a whether look at each presumption of discriminatory an is a employee employee's proper intent. comparator, disciplinary history as To courts well as their alleged misconduct. Jones v. Bessemer Carraway Med. Ctr., 137 F.3d ("Plaintiff 1306, similarly 1312-13, situated employee also claims because that she Clark was frequently a was unprepared for work—she would have curlers in her hair and put makeup on during report—and had a pretty poor tardiness record. This claim, however, ignores that Plaintiff was not terminated only because she was unprepared; instead, she was terminated for being unprepared and insubordinate, in the light of an already deficient employment record." (emphasis in modified Even on other assuming grounds Chief by Scholl 151 F.3d believed original)), opinion 1321 (11th Corporal Cir. Adams 1998). was told about Mr. McFadden,'' Plaintiff has not shown that Corporal Adams had a similar solely because disciplinary she did Plaintiff's termination history. not release was the Plaintiff Mr. was McFadden. culmination Plaintiff had been written fired Instead, of several instances of misconduct with increasingly severe punishments. termination. not up on Before her seven separate occasions, two of which resulted in three-day suspensions. See Section I., supra. While Plaintiff disputes the propriety of many of her reprimands, she concedes that she was insubordinate ^ Corporal Adams has consistently denied that Plaintiff told him about Mr, McFadden. (Adams Dep. at 19; Scholl Aff. f 15; Ramirez Dep. at 36.) 13 on several occasions, Material Facts record history Corporal that unpunished. Resp. 10, 11, 19, 21.) showing or (Pl.'s he Adams Def.'s Statement of There is no evidence in the had engaged to in a comparable such disciplinary misconduct and went Accordingly, Corporal Adams is not an appropriate comparator, and Plaintiff has not set out a prima facie case of discrimination.® Assuming arguendo that Plaintiff established a prima facie case of sex discrimination, appropriate because nondiscriminatory summary she reasons has for judgment not firing would shown her still be Defendant's were pretextual. Defendant submitted evidence showing Plaintiff was fired for the mistaken arrest of Mr. Tiniguar and the mistaken Mr. McFadden. the arrest {Marcum Dep., Ex. 23, at 117.) of Mr. Tiniguar, the record detention of With respect to shows that before Plaintiff was terminated, she told Chief Scholl that her arrest was proper. inquiry is employee's (Ramirez Dep. at 32.) concerned with performance, the not Nevertheless, "the pretext employer's the employee's Hankins v. AirTran Airways, Inc., 237 Cir. 2007); Damon, 196 F.3d at perception 1363 own of the beliefs." F. App'x 513, 522 (11th n.3. Plaintiff needs Plaintiff's Amended Complaint also included an allegation that she was paid less than her male counterparts. Nevertheless, Plaintiff failed to identify a comparator, or even respond to the evidence cited in Defendant's motion showing the employees who were paid more than Plaintiff had more experience. (See Scholl Aff. 1 9.) 14 evidence showing, at the time she was terminated, Chief Scholl could not have honestly believed that were used as grounds for Plaintiff violated her termination. the rules See Cooper v. Southern Co., 390 F.3d 695, 740 (11th Cir. 2004), overruled on other grounds (2006); Good by v. Ash Omni v. Tyson Hotels Foods, Mgmt. *40 (N.D. Ga. Aug. 15, 2008). Inc., 547 Corp., 2008 U.S. WL 454, 11322930, 457 at Accordingly, even if Plaintiff's arrest was lawful. Chief Scholl's mistaken belief would not give rise to Title VII liability. Because Plaintiff has not produced evidence to suggest that Chief Scholl could not honestly believe Plaintiff's arrest was improper, there is no question of fact regarding pretext.^ Because she cannot identify a male comparator. Plaintiff has failed to establish a prima facie sex discrimination claim. Even if Plaintiff met that burden, there is insufficient ® The detention of Mr. McFadden follows the same reasoning. The fact that Plaintiff now claims she told Corporal Adams about Mr. McFadden is irrelevant. What is important is what Chief Scholl knew when Plaintiff was fired. Plaintiff concedes that she told Sergeant Ramirez, who was investigating the incident to determine who was at fault, "I don't know if I notified [Adams]." (Marcum Dep. at 93/ Material Facts SI 30.) Thus, the PI.'s Resp. to Def.'s Statement of evidence in the record shows that when Plaintiff was terminated, Chief Scholl had a good faith belief that Plaintiff alone was responsible for prolonging the wrongful imprisonment of Mr. McFadden. Plaintiff fails to address other methods of establishing a prima facie case, such as the test set forth in Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (llth Cir. 2011). Nevertheless, after reviewing the record. Plaintiff has not presented "*a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker.'" See Smith, 644 F.3d at 1328 (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 733 (7th Cir. 2011)). Additionally, because Plaintiff failed to offer sufficient evidence to create a genuine issue of discrimination, she has also failed to satisfy the "mixed-motive" test. See Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1235 (llth Cir. 2016). 15 evidence reason to for entitled rebut Defendant's terminating to summary legitimate, Plaintiff. judgment nondiscriminatory Accordingly, on Plaintiff's Defendant is discrimination claim. B. Retaliation Claim Plaintiff's case fares retaliation complaint. no better when reframed as a To establish a prima facie retaliation claim, a plaintiff must present evidence showing "'(1) that she engaged suffered in statutorily an adverse protected employment expression; action; and F.3d that (3) that some causal relation between the two events." Assocs. Int'l, 15 (2) she there is Meeks v. Computer 1013, 1021 (11th Cir. 1994). As with discrimination, once the plaintiff has presented a prima facie claim, the defendant nondiscriminatory reason must was then show retaliatory motive. a must for its pretext proffer action, for a which the legitimate, the plaintiff defendant's true Perryman v. Johnson Prod., Inc., 698 F.2d 1138, 1142 (11th Cir. 1983). Assuming arguendo that Plaintiff set out a prima facie case; she has not shown Defendant's nondiscriminatory reason for firing her was pretext. See Section III A., supra. The only evidence Plaintiff has to support pretext is that she was fired three months after filing her EEOC complaint. 16 (Marcum Dep., Ex. 20, at 93; Marcum Dep., Ex. 23, at 117.) While temporal proximity can support finding pretext, a three-month gap is too great without Service, additional Inc., [T]hree-month 615 F. evidence. App'x disparity See 598, alone is Redd 606-07 v. United {11th Parcel Cir. insufficient."); 2015) Matias v. Sears Home Imrpovement Prods., Inc., 391 F. App'x 782, 787 (11th Cir. 2010) (finding a one month gap was insufficient to show pretext); Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007). Moreover, when there is evidence that the employer contemplated adverse action before an employee engaged in protected activity, proximity alone cannot establish pretext. Drago Chief v. Scholl against even Jenne, 453 F.3d considered Plaintiff long drafted a 1301, and Dep., Ex. 23, at 49.) multiple reprimands. took before termination 1308 (11th adverse she filed letter Cir. on her June 2006). Here, employment action EEOC 26, charge. 2013. He (Scholl This letter followed two suspensions and (Scholl Dep., Ex. 19, at 46.) All of this occurred before Plaintiff filed her EEOC complaint on April 11, 2014. (Marcum Dep., Ex. 20, at 93.) Therefore, Plaintiff needed additional evidence beyond temporal proximity to show the nondiscriminatory reasons for firing her were pretextual. The fact that Plaintiff was fired three months after filing an EEOC Charge is not sufficient evidence to support a finding 17 that her termination protected conduct. was in retaliation for engaging in Therefore, Defendant is entitled to summary judgment on Plaintiff's Title VII retaliation claim. IV. CONCLUSION Upon the foregoing and in due consideration. motion for summary judgment (doc. 32) is GRANTED. directed to ENTER JUDGMENT in favor Defendant's The Clerk, is of Defendant and CLOSE this case. ORDER ENTERED at Augusta, Georgia, this day of March, 2018 . :hief judge UNITED/STATES DISTRICT COURT :rn district of Georgia Plaintiff s Amended Complaint also includes a retaliation claim under the Equal Protection Clause of the Fourteenth Amendment, pursuant to 42 U.S.C. § 1983. However, the Eleventh Circuit does not recognize such a cause of action. Watkins v. Bowden, 105 F.3d 1344, 1354-55 (llth Cir. 1997) ("A pure or generic retaliation claim, however, simply does not implicate the Equal Protection Clause."). 18
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