Sprinkle v. City of Douglas, Georgia et al, No. 5:2007cv00056 - Document 99 (S.D. Ga. 2008)
Court Description: ORDER denying 41 Motion for Partial Summary Judgment; granting in part and denying in part 60 Motion for Summary Judgment. Signed by Judge Lisa G. Wood on 11/21/2008. (csr)
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Sprinkle v. City of Douglas, Georgia et al Doc. 99 In the United States District Court for the Southern District of Georgia Waycross Division ROBERT SPRINKLE, Plaintiff, OF capacity, OLIVIA JACKIE individual capacity, in and individual capacity, his GEORGIA, THOMAS, individual her : DOUGLAS, CLIFFORD ACTION : v. CITY CIVIL : PEARSON, WILSON, PAULK, and : her official TONY individual in : in official and and his official and : : in official : capacity, : No. Defendants. CV507-056 ORDER Plaintiff against Thomas, Defendants, Olivia alleging that discriminated claims Robert for he was of denied a of wrongful denial of 1964, of U.S.C. § retaliation 42 U.S.C. 1983; above-captioned Georgia, Wilson, and promotion, his race. Title 2000e, violations et of seq. Equal Paulk, otherwise Plaintiff VII asserts hostile of case Clifford Tony and promotion, under §§ the Douglas, Jackie because Rights 42 City filed against, and and the Pearson, environment, Act Sprinkle the (“Title work Civil VII”), Protection, Dockets.Justia.com intentional plaintiff the of Family (“FMLA”) under his and . 42 race Plaintiff Presently his FMLA all of GRANTED in The into due this and has law is presented employment Bottling 2008) . for and in Court These 29 1983; and U.S.C. §§ to deprive violations 2601 of et seq. attorney’s fees claim for are cross motions for partial summary judgment on summary judgment on for For motion in endeavored keenly moved the partial imposed not connection upon summary a The heft of scholarly and seeks facts, summary cases. 516 responsibilities out judgment turn District all with Consolidated, set judgment to or of, methodically reasons summary below, will be will be part. musings aware for summary for article. discrimination Co. § conspiracy a have DENIED review responsibilities thoroughly asserts claims. theoretical Court Act, moved Defendants’ a to the has motion Court under Leave Defendants part and 1988. Plaintiff’s and rights also before claim. DENIED, not § Plaintiff Plaintiff’s order civil Medical U.S.C. judgment. discrimination, F.3d attain -2- what to and judgment 955, more the address defenses motions v. 979-84 the to is Rather, fulfill, Courts Davis judgment follows asides. claims See all summary in Coca-Cola (11th so Cir. when, as in the present presenting others of to whom and it which twelve some are is is sued in their always second each five official extremely The verbiage, a counts extent–-against not to there separate defendant. homage Davis case, clear they which different and fifty-plus instead of amended relates the capacities, count relates pages that are fulfillment a to defendants–-some individual which complaint follow to are no of the who has command. BACKGROUND I. The Parties Plaintiff been employed March with 1990. Plaintiff police Robert the Sprinkle City Plaintiff’s is currently department, of a Caucasian Douglas Second the having is Amended most held Police senior that male Department Complaint Corporal rank for at since ¶ 13. within the several years. Id. Defendant the at ¶ State 7. persons of department. of Georgia The in City City Id. located of various Douglas is in Douglas a Coffee employs departments, Defendant political Thomas -3- is subdivision County, in Georgia. excess including the Chief of Id. of fifteen its police of Police for the City Mayor is a of of the member Police Manager The for was City City the at ¶ 9. of times and Douglas. relevant at shows ¶ Paulk Defendant Commission City all at evidence and of the and had 17. According his three Of the to August is Id. hereto is the Pearson also the at 10. ¶ the City 11. 9, Id. seniority employed with Id. at ¶ at 24. within the the he department among Officer Officer -4- six promotion to Department. police department exam. and at ¶ had his shift Id. awarded to is Officer African- substantially department, at Id. recommendations Williams years 2006, position, others. was July the the Williams police for for Perkins, promotion 18. the Police the had in for sergeant’s Jerome the ¶ with also McCullough, 2006, applied applicants on Plaintiff, that, Douglas experience score Bart Williams. American. most the four sergeant, Lt. officers, within the highest shift commander, other Sergeant had less Douglas Id. uncontroverted Plaintiff Stacy Douglas. Defendant 8. Promotion 16. On ¶ Id. rank at at Douglas. ¶ of of the the Id. of Plaintiff, Id. of Wilson for The the City Commissioner Defendant II. Douglas. the having time been of his promotion, one year. and having Id. Williams at had Plaintiff. a question alleges Plaintiff sought claim ¶ of Further, Plaintiff the that fact leave in Defendants, for denying Williams his higher score the test scores basis sufficiently a high Id. a for less that sergeant’s had in for VII the hand, than Officer exam than sergeant’s to for but, race deny having discrimination Id. at ¶ 85. considered FMLA-qualifying promotion. more and of benign reasons promoting Officer the to Plaintiff’s promotion Defendants comparison rather, of were applicants continue in also to Plaintiff’s taken exam, which -5- Plaintiff motivated response deserving determine promotion improperly offer promotion, used 25. part Thomas in ¶ the promotion. Williams the score at previously other not denied Title prior applicants to was that more the were between “pass/fail” was on corporal undisputed the was First, he of retaliation claims the he pursue with instead. that on race. in Officer on also Thomas to Plaintiff suggestion scores his Plaintiff awarding is It that promotion connection rank 20. alleges counsel the score Defendant the legal in at because that 19. lower Id. Plaintiff ¶ held on in note to that individual used had the due on a scored a promotion process. Carter Defendants’ Dep. 23-26; Defendant authority to testified Williams qualified,” choice.” reasons Plaintiff that he the and exactly at at some both Police, 7; Judy had the to sergeant, and Officer candidates “equally “would Thomas 44. the that that Chief be the provided questions both better several contrast, Thomas of might also physical showed up would be questions that way that be “too unable stated that toward he a goatee policy. was Officer suggested at and Id. to with that appearance with departmental -6- a confronted testified testified interview in would be interview, “disrespectful” Plaintiff’s violations and Thomas also Plaintiff Plaintiff’s Plaintiff he were Thomas with sideburns, his during of Chief 44-45. because to that responses pleased” responses Chief of Plaintiff Williams at 42-43. promoted both “confrontational,” interview, In 54. situations Plaintiff’s Id. be considered Officer Dep. Chief would he testified to Id. as Dep. Judgment decision. certain sergeant. Chief. while Summary Thomas interviewed answered aggressive” for who, who thought his suggested of he Thomas First, diffuse decide he for Clifford Thomas that and Motion at as some the “not the long 46. Williams’ that Williams was “more resourceful” Plaintiff. Williams Id. 48. presented Plaintiff. Officer at Id. and by himself department] Thomas, the paperwork fill in 123. on his G.E.D., Id. from at 57. seventeen 1 Chief supported Thomas the and was Id. with regarding other that “his [the According is ball to games, caught up in volunteering to out sick. “less of Id. a at team 64. Chief candidates’ at had shown did department,” working Plaintiff at than whenever 122. shift a considered been of at man,” the Williams insights testimony Id. out than Officer testified characteristics, decision. had conduct police help Id. considered Thomas the officer considered Officer Thomas’ to extra another personal he he of that Plaintiff, another Williams. these years an and Williams’ when need when Further, by out stated Thomas than support Officer they promotion while so volunteers.” help that demeanor “available Officer testified making a and shifts than Apart also to Overall, player” overall included over more confrontational also 1 56. F urther, need[ed] this “standing his less Thomas better had, initiative making Chief a at Williams and the 56-57. high the education Plaintiff school fact police Plaintiff’s witnesses. Thomas had diploma. that in the department, personality For in instance, are Lt. McCulloch, another member of the Douglas Police Department, testified that Plaintiff “likes to stir stuff up.” Bart McCulloch Dep. 15. -7- Plaintiff had further,” with his “not while Officer indicated college courses interview. not Id. at at indicate who admits number Plaintiff’s denying looked that of sick City maximum that the used number he maximum times sick –- I of of number also in “The plans. has sick not the taken attendance. 17 years that days with employee at this response attendance -8- to fact to in time as a that he factor in Dep. been have a at doesn’t. Williams, Thomas that 58 in (“I number in the least And who a at had accumulated.”). their of Plaintiff department He to his consideration letter Plaintiff’s records of testimony should time going denied have Stacey that into Thomas the accumulated. compared days into There Officer opposite, was e.g., that Id. leave Quite further Thomas, leave admitted submitted Chief any go the deposition have of at his after sick to See, to checking in think didn’t discrimination: use education testified “was Thomas his “seeking similar promoted. [Plaintiff’s] Defendants had promotion. Douglas, time EEOC, of the days of of was college” According he be he local however, would use him at the advance Thomas that Plaintiff’s deciding a him 122. Importantly, considered Id. to to Williams education.” Williams did attempted both to the charge officers of were considered. Sprinkle injury used . . a .” evidence at of ¶ a EEOC, FMLA the Plaintiff a hostile Id. On Right 9, April to 30, Williams 2006, the which Motion argues 2005 was exerting used 16 for that based box On Robert due to an himself to days sick Partial this his the Plaintiff the race that and both EEOC filed form “race.” Original alleges filed time Summary is a direct in that he was the on,” Doc. No. of Title a 1. to VII. Notice complaint of denied subjected Plaintiff original of Charge wrongfully violation issued his was with based See Complaint. he Charge filed “discrimination for to environment, 2007, entitled the on Plaintiff EEOC. Attachment 27, Sue. of physically Plaintiff’s Plaintiff work part January violation. checked promotion was Plaintiff section charge, time, Stacy to with Discrimination, the he since Histo November in the 1 that sick while 7. Discrimination In days suspect. Procedural On appears Exhibit Judgment III. 36 sustained apprehend . It on of July 2007. On first March time. 7, In 2008, his Plaintiff amended amended complaint, -9- his complaint Plaintiff added for the claims for retaliation retaliation against in claims, for filing violation of Plaintiff amended amended his retaliation the legal in counsel Complaint May summary motion, which 29, Plaintiff considered admits to in the that as of a § case), and claims On April added In another VII. that his Plaintiff’s VII race second this Defendants for 2008, claim In having promotion. Plaintiff’s for new denied sought discrimination Plaintiff his points to that filed FMLA his claims. Defendants’ Plaintiff’s motion In letter use of decision. deposition testimony of Plaintiff’s Finally, Carter, Plaintiff Human to the sick claim Second use of points of EEOC--in time leave the Manager this was also Thomas--who sick to partial Plaintiff Defendant Resources -10- for support promotion Judy 29, for 85. to took these retaliated again. Title (in was the he 1983 he FMLA. alleges Title prior ¶ making consideration. testimony of and that this once Plaintiff a at admit the retaliation 2008, judgment they points with in complaint pursue VII alleges under Plaintiff in to connection On his claim, Title complaint violation promotion Amended his rights in of Plaintiff complaint, retaliation him violation into deposition for the City of Douglas--who sick leave was covered Plaintiff “makes it that use of the consideration Sergeant.” that genuine and, judgment On motion motion In for their issue 30, response judgment, that was Ms. Carter covered Further, did under while Plaintiff’s 2 judgment of use the Id. at as the of sick Support Carter’s testify promoted to of Motion Plaintiff as Court should grant responded all and of to for asserts his FMLA summary motion that into Plaintiff’s filed their own claims. for summary partial with testimony. that to Plaintiff’s Plaintiff’s Defendants Plaintiff’s Defendants’ leave in exists issue acknowledging be factor fact to FMLA. Plaintiff’s negative should judgment, take not in a the together, 10-11. Plaintiff’s Ms. as Accordingly, material summary to FMLA Plaintiff 6. Plaintiff’s taken considered Defendants Defendants characterization the that 2008, summary at of claim. partial evidence, Memorandum Judgment this June for by that 2 FMLA. this whether therefore, on the admitted Defendants Plaintiff’s Summary claim the of claims that authorized Partial no by argues clear leave Plaintiff Chief sick Response Thomas consideration claim leave at 1-2. did take when making It is questionable as to whether Ms. Carter actually admitted this fact. The Court will discuss Ms. Carter’s testimony infra. -11- his promotion one of many Therefore, he would factors Defendants have consideration In argue that all they own judgment are claims, as to well as the Defendants’ Brief at summary of reasons provide at for any 15-23. which a have FMLA evidence Defendants as judgment, a 10-11. fact law to and as assert entitled to that summary of promotion these particular promotion decision. because the that Defendants of denial 2. Thomas’ at material matter are wrongful in Id. only at prove for” Defendants Wilson claims, cannot “but of was Id. leave. issues First, and and that the Chief juror and these state –- Title legitimate, decision, that remaining Thomas Plaintiff’s provided reasonable summary involved to Thomas’ sick judgment this Thomas. Plaintiff of genuine argue Douglas as by that 12-15. next judgment Defendants for to claim promotion use Plaintiff’s not City the Pearson, were Defendants that claims. Defendants the no entitled Paulk, as argue motion Plaintiff’s Defendants considered Plaintiff’s there are Defendants received of their that of decision, are VII -- to because non-discriminatory Plaintiff reasons entitled claims were has failed pretextual. that “[t]here is could conclude that -12- Defendants no evidence Chief to Id. from Thomas’ decision Chief was Thomas Sprinkle’s and on the hostile the City all of work of environment rank the police uniformly Id. deposition testimony, had harmed Defendants claim department comfortable “real § at tense” action and no for are hostile that he not work that has to retained after also to think home,” work in his has denied the of anything job. –- that establish violation In and has a of Id. that he environment to a Plaintiff’s his allegations like environment not 24-27. raise, being point perform sufficient a to establish has received work failed Plaintiff could the law hostile at to on summary Id. evaluations “feels and by a to action. Plaintiff’s longer –- Plaintiff of judgment entitled that ability that are alleging Defendants his summary claims cause where to Accordingly 24. they department, 24. work, at required note good promotion. that at that assert facts Defendants received Id. white. is entitled Plaintiff’s particular, within are argue Defendants type Sprinkle claim.” Defendants environment. allege because promotion Next, judgment made is the not become cause Title of VII 1983. Defendants Plaintiff’s also move retaliation for summary claims. -13- judgment Defendants on claim all that of the retaliation file at claims those 27. claims Defendants the box and because any claim of for the entitled claims to at filing the of the for argue EEOC Plaintiff, provision. Id. Charge for in are Defendants his not by did first law. not Id. check Discrimination, the Charge barred argue his all that as of as a of a about matter matter the certain the his within 32. -14- of claims. charge and VII’s not Id. at cited by his predate the not Id. made claims do to could statements Title law. related actually are retaliation incidents claims Plaintiff EEOC they retaliation therefore, pursuing that Plaintiff’s complaint and, which filing of acts most and for activity” at on claim retaliation documents Thomas “protected Plaintiff claims recovery charge also not did required anything these that of Defendants for EEOC mention alleged retaliation retaliation is because his judgment support these to as Plaintiff 29. grounds in result EEOC, alternative, Plaintiff of on not because that retaliation, Defendants filing the claim did because of with summary constitute 30. he Id. In barred retaliation for law. are be at by a 31. Chief constitute complaint, are anti-retaliation Finally, summary judgment Defendants sick because he entitled consider against him, SUMMARY but Id. Federal affidavits, if material fact a of (1986) . “if and Defendants he that under the because sick under if as a a that the an of paid FMLA “averse the FMLA. Plaintiff FMLA, Chief leave it assert suffered even First, accrued, contemplation considered are Civil the Procedure pleadings, admissions show the law.” Facts of any, and of cover to they are Thomas positive still did negative has not factor factor for STANDARD interrogatories, matter judgment entitled claims. retaliation that the claim use not are 41. Rule judgment for they FMLA does contend instead at JUDGMENT summary claim within Plaintiff’s Williams. a Defendants summary that Next, 38. retaliation to FMLA establish decision” of the at make assert Plaintiff’s that cannot Lastly, sort on Id. cannot employment some claim leave. Plaintiff Id. Defendants there moving Celotex file, genuine party is entitled if -15- Catrett, they could issue to 477 with as to judgment U.S. affect for answers together no v. provides depositions, is Corp. “material” on 56(c) 317, the to the any as 322 outcome of the suit Liberty Lobby, The to the Court Corp., justifiable Parcels of the Inc., must non-moving Radio banc) under governing 477 view U.S. Prop., (internal 242, facts 248 in Matsushita 574, inferences Real the party, 475 U.S. substantive in 941 quotation 587 his the marks light Elec. most Indus. (1986), 1428, Anderson v. (1986). favor.” F.2d law. and 1437 Co. must United favorable v. draw States (11th Zenith Cir. v. “all Four 1991) (en omitted). DISCUSSION I. FMLA Claims Plaintiff Plaintiff’s would be (Count VII) they parties alleging . are by taking FMLA-qualifying to sergeant, under also have moved that there taking that Plaintiff acted Plaintiff for of promoted Defendants FMLA, use claims the for are alleges further of under summary no that FMLA-qualifying leave Defendants color liable sick into § 1983 issues Defendants sick -16- deciding violated law judgment genuine in claims state consideration that, in of In because IX) these Martin . Both fact. against v. the claims, material retaliated leave. FMLA violating (Count on the who him Brevard County Public stated the To Schools, standard prove that FMLA his against the for for exercising claim showing his an that an an an employee faces impermissible FMLA the of Appeals must right. Unlike burden were or an “bringing increased actions retaliatory show discriminated employee employer’s Court retaliation: intentionally claim, retaliation Circuit FMLA retaliation, interference by proving employer him Eleventh a of motivated discriminatory animus.” No. 07-11196, Sept. 30, 2008 2008) Defendants retaliation suffered Defendants While the employee the FMLA an employment The employer against FMLA because would assert not to require use not it of *13-14 citations “cannot cannot an be a Brief entitles entitled for FMLA-qualifying to a he the 38. covered at 39. promote a an at Id. to for that within promotion.” unlawful claim establish employer Cir. omitted). make decision’ FMLA (11th an promotion, employer leave in to making decisions. FMLA to any “the not makes at Defendants’ that otherwise employee’s he employment FMLA.” specifically consider (internal Plaintiff the does 20580, that ‘adverse of LEXIS reinstatement, who Act the further to App. curiam) argue contemplation employee (Per under an U.S. provides, discharge individual or for “[i]t in shall any other opposing -17- be any unlawful manner practice for any discriminate made unlawful by this title.” applicable to promulgated use the based . . the courts for Title Court 1283 in (1999) FMLA claim “The finding direct trial of as trial as v. the . must In . a negative relies his the Farm by Corp. Mutual where the the direct claim. v. Green, Ins. Co., court or . is not to make a States 411 U.S. 193 F.2d presents must assess believed finding decision part court words, [the in maker both the in employment credits -18- of the proffered . . . fact coming factor] direct to upon to finder decision The as ‘relied fact impermissible an credibility plaintiff’s be considerations other a When Circuit United plaintiff make or burden-shifting the trial differs Eleventh traditional announced added). case her in disciplinary upon or cannot factor (emphasis retaliation upon, Douglas or more regulation “employers promotions initially also the whether trial the State whether not motivating If relied must [impermissible] determine as support cases federal Even follows: to or decision.’ is added). provides, FMLA retaliation, judge court an However, evidence whether to one 825.220(c) apply VII . § in McDonnell Graham evidence to FMLA plaintiff evidence evidence case, hiring, proof (1973). a as of the (emphasis leave standard framework direct FMLA C.F.R. directed 1274, the such whether 2615 this 29 circumstantial 792 of to of § .” on Supreme facts pursuant circumstantial has U.S.C. actions, . The the taking employment actions 29 its must played . . . . evidence and finds role in the defendant it would not Peters (M.D. F.3d 928, should direct should apply The attitude 376 reflects F.3d by the 1079, to 977 even F. then proving play a if the that it had role.” Supp. Caye which & 1428, Co., approach Price hand, Douglas claims violation from 1434 Inc., the that and, 52 argue that “direct Court he has therefore, Waterhouse burden-shifting defines the should Court framework. evidence” as ‘a discriminatory or retaliatory the discrimination or retaliation employee.’” 1086 to W.C. FMLA other Circuit correlating of the issue, Plaintiff an substantial 3 to standard McDonnell which complained Inc., factor” on . case. of v. a by decision Haynes as at only Inc., 1995)) evidence the same Comm., Cir. this Eleventh “evidence the disagree Defendants, decision liability (quoting in played discrimination Action parties “motivating apply. made (11th follow evidence avoid such 1997) 932 presented the have Cmty. Ala. the employment can allowed v. The that (11th Wilson Cir. 2004) v. B/E Aerospace, (quoting Damon v. 3 This standard has been referred to as the “motivating factor” standard, and originates from the United States Supreme Court’s decision in Price Waterhouse v. Hopkins, 490 U.S. 228, 258 (1989) (plurality opinion). Although the standard was developed by the Supreme Court in Price Waterhouse in the context of a trial on the issue of liability for a Title VII claim, courts have used the same standard to decide motions for summary judgment on FMLA retaliation claims. See, e.g., Peters. Further, although the standards set forth in Price Waterhouse have been superceded by statute, see Landgraf v. USI Film Prods., 511 U.S. 244 (1994), this only affects the “motivating factor” standard’s application to Title VII cases, and not FMLA cases such as this one. -19- Fleming Cir. Supermarkets 1999)) believed, or . proves Military Eleventh blatant [the] Coll., remarks, [retaliate] Rojas v. whose evidence Florida, in 285 F.3d this under the Defendants’ letter to to to rebut Defendants of sick of of case has EEOC, of as a Exhibit at ¶ numerous times factor 1 7. to in that he that n.2 also his “only -20- Id. for points factor 2001)). evidence of to Defendants in in an attempt Plaintiff’s would Motion to discrimination, considered who than points letter, racial most (quoting Cir. Plaintiff by of 1997). the other direct deposition took Cir. (11th if Trustees impermissible this deciding Plaintiff’s throughout acknowledges Thomas Plaintiff of (11th submitted claims Chief Bd. nothing First, Plaintiff’s that mean 1342 In admit v. presented FMLA. the inference without [retaliation].” 1339, (11th fact 1393 some Charge. Judgment Thomas could 1358 that, [a] 1390, 1354, ‘evidence, Burrell Plaintiff’s leave sergeant. of is F.3d illustrates basis retaliation response F.3d intent the direct Plaintiff (quoting 125 196 evidence precedent on Inc., existence Id. Circuit constitute Fla., “Direct presumption.’” Ga. of to be promoted Partial to Summary fact that, testimony, Chief Plaintiff’s the use use of sick time into consideration Thomas Dep. This proves evidence 376 the to basis Plaintiff the has for argue the The that Plaintiff 4 While evidence of See, it their took an it is a Court FMLA and, e.g., to evidence his of leave suspect. Judgment after he Exhibit at that and, ¶ 1 7. remark, of the the into believed, inference sick fact does EEOC, that not Plaintiff both was Chief suggests on the fact the job Motion Plaintiff’s presented that 4 violate Plaintiff’s has the Defendants injured In therefore, on time consideration to whose retaliation. however, was or Therefore, FMLA use evidence, took if [retaliate] decision to Plaintiff. Id. therefore, letter believes “blatant than attitude” by that, factor.” making violation a of without Plaintiff’s Thomas sick Summary the evidence other that in “retaliatory complained is direct FMLA Chief apprehending Partial a uncontroverted In acknowledge while decision. retaliation nothing presented considered Act. of It impermissible by otherwise. that 1086. Further, mean some covered Thomas his retaliation at Id. Defendants not reflects existence could of the F.3d presumption. intent making 58. correlating Wilson, when the direct “motivating factor” test from Price Waterhouse applies, the Court also believes that the outcome would be the same if it found that this evidence is instead circumstantial in nature and, therefore, applied the McDonnell Douglas burden-shifting framework. -21- deposition Plaintiff sick testimony to leave the as a Court, result while attempting to time, Plaintiff was daily activities physician. 19. this is entitled that FMLA to makes a a affidavit claims injuries he work under or the Dep. presented that and he perform 26-28; this back during this regular treatment to by his other Sprinkle evidence took to that continuing no submitted sustained suspect, to Sprinkle total . the of injury, . . of . provider.” presented involved . . 29 of to 29 U.S.C. evidence does Aff. of ¶¶ suggest § serious a 18- that § 2512 or 2611(11). (a) as by by a health injury contest that Plaintiff -22- 12- condition of (D) the . The illness, that a care health Plaintiff his care this be condition that that employee.” (1) “an Because establishing any functions mental treatment shall during health the condition” treatment shows employee 5 leave perform physical evidence not a of U.S.C. health or eligible workweeks continuing credible 5 Defendant “an unable “serious “continuing the 12 employee.” impairment, involves that [ b ] ecause employee such defines because of was have sworn Plaintiff unable provides period position FMLA a untrue. The month in apprehend and Robert Defendants and made injury provider,” him is has an unable to “eligible perform because the the functions Defendants Court finds Further, at the time have that the of position presented this fact his leave that no Plaintiff took qualifying leave inapposite. promulgated pursuant provide aware at least that the anticipated need not mention the the the There provide of the that if not . . . employer is necessary leave is being details (emphasis is no department nor the leave regulation “An to the be the FMLA- The FMLA inquire shall employer leave, leave. the as employee make more to Defendants, federal should by FMLA. A under have sought and employee or taken.” even further information employee, the about and 28 of obtain C.F.R. § added). indication for here sufficient his leave. knew qualified Plaintiff of to the contrary, it the rights it reasons it The by FMLA-qualifying of the and classified states: duration employee, to Plaintiff sufficient needs assert covered leave, FMLA notice and notification the Because or timing necessary 825.302(c) the employee FMLA FMLA to verbal expressly employee whether is this an evidence was neither as as of the FMLA invoked In to reasons FMLA -23- Plaintiff make fact, leave, the that it by the the for does failed department evidence name. matter If aware suggests Plaintiff’s not to the leave. whether police department required Plaintiff’s department’s Next, was request duty as In Eleventh qualifying or 2001) . during but The employer which is pay.” Id. leave employer then of . benefits. for an employer’s paid . the . paid to F.3d to sick the form than discharge him Act. -24- of to by employee under and the the absence FMLA leave without the misses both his FMLA, his and running the other) sick count “an period could evade the Cir. under (or paid paid that the Labor with an policy for sick had FMLA- (11th hold Act the with stated: qualifies have 1204 the this court protected of employers when by employee’s to leave Board, qualifies employees to rather on Department leave the rejects Sewer but leave further that elect under allow & 1199, went the Otherwise, leave free the their illness could sick be court nor providing in Court an unpaid whose wages was covered employers whether 239 not district permitting liability The Congress the Strickland his 1205. by Works either employee, intended FMLA work in it whether Plaintiff’s was Water choose be escape the at to it The that as FMLA, 4. unprotected.” receiving Neither have FMLA will court cannot FMLA, the absence v. the determine because leave,” at to further. that, sick held policies paid argue Response Circuit leave under investigate Strickland “misinterpreted sick information fell “paid Defendants’ argument. Act, to Defendants classified FMLA. more as would afoul Id. Defendants interpretation Eleventh Circuit Defendants’ the the in this FMLA Court to adopt that was expressly Strickland. The Court, argument that paid sick the rejected therefore, leave is not same by the rejects covered by FMLA. Having FMLA whether 52 the direct in at Defendants will that Next, decision coming maker its have relied in an There disciplinary no of upon the . 29 .” -25- own to prove evidence an leave § the fact- or not the considerations hiring, C.F.R. trial, untruthful. “whether discussed, as at to is record statements course, prohibit such decide in [impermissible] actions, must the indication Of As by believed. FMLA-qualifying . applied Court is factor” be determine Id. Plaintiff’s to opportunity expressly . and Defendants’ proffered must employee’s actions is of “motivating the evidence truthful. decision.” employment the First, direct ample Court regulations considering factor not support Waterhouse Haynes. 932. in apply Price Plaintiff’s the to federal will evidence–-consisting testimony–-is finder in proffered F.3d evidence Court forth Circuit the Haynes, the set Eleventh that found claims, standard and of ask the FMLA employer “as a in and from negative promotions 825.220(c). It or is clear in this Plaintiff’s promotion FMLA his Thomas of of Plaintiff Defendants is should be consideration on also these Further, Chief or Thomas’ claims, FMLA jury of impermissible “motivating” 490 F. Supp. even if Plaintiff impermissible factor in at 1434. can at in making judgment whether factor in 250; in his in favor FMLA Thomas’ played a promotion Haynes, 52 F.3d 7 prove, consideration his his that Plaintiff’s decide factor U.S. leave judgment Instead, to making evidence summary summary to this a in direct his considered 6 law. submitted 977 “motivating” the precluding inappropriate. Waterhouse, Peters, of Thomas factor presented thereby decision. 932; negative considered or at a has “substantial” Price Defendant violation decision, Plaintiff claims in as impermissibly promotion favor that leave decision, Although Chief case employment at was a trial, that “substantial” decision, Defendants 6 Defendants claim that Chief Thomas did not use Plaintiff’s FMLAqualifying leave as a negative factor against Plaintiff, but instead used it as a positive promotion factor decision. in favor Defendants’ of Officer Response at Williams 10. in Binding making his precedent, Aristotelian logic, and plain-old common sense unite to enable the Court to roundly reject Defendants’ argument in this regard. 7 The plurality opinion in Price Waterhouse explained what it meant by a consideration being a “motivating” factor in an employment decision: “In saying that [the impermissible consideration] played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be [the impermissible consideration].” 490 U.S. at 250. -26- can still the avoid same liability decision “by even proving if it impermissible consideration] Waterhouse, U.S. 977 of F. 490 at 1434. Defendants claim the Supp. promotion summary evidence pursuant Chief’s in to in Wilson her summary brief, played decisions, is in she and was that to Wilson did, promote to she is, in fact, that, approve fact, 21-23. As decision. Officer summary played FMLA. admits to to decision the in time entitled promotion required Peters, the promotion Wilson she at because there the Dep. entitled is violated however, decision not claims Price 932; who Manager, have role at made [the role.” Wilson, testimony, policy, the review Williams Therefore, judgment on claims. Defendants sued a a have allowed F.3d Thomas’ to would not 52 City FMLA said Jackie judgment being be Chief’s FMLA However, Douglas it play Defendant deposition Wilson to Defendant his Plaintiff. Plaintiff’s are in cannot promotion Defendant that had Haynes, Plaintiff’s role the 250; the department approve over on notes that fact, and no therefore, Plaintiff In was judgment absolutely and, at that on in Thomas Plaintiff’s their and FMLA individual -27- Wilson claims are entitled insofar capacities. as to they This is because, in individual this capacity liability under 686 Cir. (11th suggesting protected judgment public official sued an ‘employer’ subject to [FMLA] .” Wascura Carver, 169 absolutely no . v. in his individual F.3d 683, 8 because there Defendants these Plaintiff’s is Paulk impermissible activity, 9 on “a not 1999) that Thomas’ is the Finally, Chief Circuit, or Pearson consideration Defendants FMLA played of are evidence any role Plaintiff’s entitled to in FMLA- summary claims. II. Race Discrimination under Title VII and Section 1983 Plaintiff him the next promotion violation Plaintiff of claims in Title further that question VII claims and that Defendants on § the 1983 wrongfully basis of (Counts Defendants his I denied race and violated § in III). 1983 by 8 Although Defendants have not raised this issue, it is appropriate for the Court to do so sua sponte. This is because “where a defendant in an FMLA suit does not meet the statutory definition of ‘employer,’ there is no federal subject matter jurisdiction over the claim against that defendant.” Wascura, 169 F.3d at 685 (citing Douglas v. E.G. Baldwin & Assocs., Inc., 150 F.3d 604, 608 (6th Cir. 1998)). District Courts are obligated to address subject matter jurisdiction sua sponte. See, e.g., Cadet v. Bulger, 377 F.3d 1173, 1179 (11th Cir. 2004). 9 Contrary to Defendants’ contentions, there is, in fact, evidence that Defendants promotion Paulk decision. and See Pearson played Section II, a role infra. in Chief Thomas’ However, their participation, if any, relates to race discrimination and had nothing to do with Plaintiff’s FMLA leave. -28- depriving Plaintiff intentionally race (Count civil V) to , as in one. claims VII under v. where Title VII (m) . race. U.S. serve sex Title See, that the VII e.g., 286-87 as basis proves that 529 claims are the of applies 970 § based such to all v. . A defendant in 42 Cir. 1338 same under violated his they are treatment under the Title same.” 2008) . (11th have set them See Cir. the same facts). employment against Trail § of separate § race, Transp. Title 1983, Title if VII color, 2000e(2) regardless of of of U.S.C. Fe basis analyze are claims the violation -29- rely (11th persons Santa liability will analysis 1983 on five disparate 1334, by claims. individual’s origin.” McDonald for the F.3d and of that up Court discrimination national (1976) make the VI), Plaintiff these claims 961, 210 VII to on assert of the the F.3d Title deprive analysis which “because or all identical prohibits 273, a on to actually “the Dubberly, individual religion, is Carroll, on (Count Plaintiff Defendants complaint, because facts v. . claims 1983 (holding elements any § the Abel 2000) is against judgment these Protection conspiring VI) Plaintiff’s where also by summary This Crawford and (Count Although counts Equal discriminating rights entitled of VII the of (a)- their Co., can 427 also plaintiff while acting under 21, color 25 of state disparate the of Plaintiff’s treatment. disparate City “The treatment Albany, Eleventh 247 Title claim[s] 1172 Hafter v. Melo, 502 U.S. circumstantial evidence Plaintiff for 1182-83 has not McDonnell race appropriate Under v. Green. claims . . . . Denney In the rubric failure to promote, member a qualified for was he less qualified protected of through . the a a and the familiar direct The proof of or direct intentional McDonnell evidence citations the the claims. omitted). evidence of Court Court in Denney Here, intentional will burden-shifting [McDonnell a case plaintiff protected applied and employees class v. Denney, direct Absent prove facie rejected; were established, producing of prima that for Title analyze framework described analysis: he for any under a are 2001) require . Therefore, establish is Cir. circumstantial provided claims Douglas analyzing may (internal discrimination. Plaintiff’s . through Paradigm at are well-settled.” either plaintiff discrimination F.3d is claims intent Douglas for claims held: treatment a VII (11th discriminatory evidence, race e.g., framework F.3d Circuit Disparate 247 See, (1991). Specifically, VII law the the that were promoted.” prove: (2) (1) that not has members these the -30- action . . was (3) equally of or the elements burden non-discriminatory employment that he promotion; other Once defendant legitimate, challenged must for “to discriminatory class; (4) who Douglas], of . of reason If such of the a reason is ultimate pretext 247 F.3d at Here, burden for the of failure protected promotion, qualified promoted. the prima facie at Next, Defendants for this the In who under to produce a by the reasons reason a by prima to the be and for that member facie proving qualified of a admit that case that and he of is applied another the Defendants’ for legitimate, for a for equally protected class Plaintiff meets Motion by for Summary plaintiff] that discrimination.” 1163 (11 th to Cir. are -31- introduce v. have to met non- decision. prove pretextual. asserted Brooks 2006) promotion to reason legitimate, Plaintiff must the shifts Defendants Thomas’ back burden non-discriminatory several Defendants showing the action. Chief shifts [the evidence Douglas, providing offered judgment, 1160, a employment burden F.3d was not McDonnell Therefore, pretext promote, Defendants reasons a to requirements. challenged probative has 16. burden summary then omitted). established was fact, the citations rejected, discriminatory the plaintiff proving class, was employee was Judgment has a discrimination. (internal Plaintiff a of unlawful 1183 discriminatory member produced, “To that avoid significantly reason County is merely Comm’n, 446 To of several the in establish department promotion his promotion exchange that Q. Do Tony this you Q. Do race? you Do black A. and that instance, Danny to Fussell make following the is an Fussell: Thomas] was [Pearson] pressured concerning that they were motivated in part believe person he was that they promoted and were to motivated not to promote see Robert white? Yes. Fussell Court, Director Dep. Carter that the Sprinkle Aff. Bass v. Circuit held that, the alleges and ¶¶ Board indicating Further, City promotion In to 58-59. Plaintiff Judy Plaintiff rise counsel Olivia For Police The belief decision? believe you because maker race. pressured race. [Chief and/or of their statements Yes. Q. race. that was by the I do. A. the believe [Paulk] by Danny Plaintiff’s promotion A. on to indicating Chief Thomas based points motivated Assistant decision by was Chief between Plaintiff officials, decision deposition, testifies a pretext, of Counsel decision County although level that his sworn both Human member was affidavit Josey made on to Resources admitted the basis to of 2-4. of that in a Commissioners, statements promotion direct was made based evidence, -32- by a on they the Eleventh non-decision race can do not provide significant 256 F.3d 1095, evidence of Plaintiff’s summary “of on circumstantial 1105 race burden In Id. that by officials applicants. in Bass Bass, the Id. at concluded defendant] had chief to of policy to satisfy thereby defeating and on and this could based testimony was pressured African-American evidence, reasonably racial of department women evidence promoting consisted fire Based of enough on hiring claims. circumstantial introduced the jury is Such plaintiff promote “a . Plaintiff’s pretext, evidence 1106-7. that a the emphasis This suggesting county 2001) establishing officials’ race.” Cir. for discrimination of judgment. county (11th support the find court that discrimination.” [the Id. at 1107. Here, that was relied Plaintiff deemed upon testimony racial by has provided sufficient Plaintiff provides is has showing that pretext for Bass. that sufficient discrimination. Plaintiff in presented the of a same Although the “significantly discrimination,” and, -33- the circumstantial asserted of non-decision Accordingly, [Defendants’] type evidence testimony maker, evidence Court finds probative reason[s] therefore, this [are] summary of that evidence merely a judgment is not 1983 proper claims. As Paulk, with not rejects Wilson was to the this she to make would in have Pearson’s opportunity, question that, the Fussell’s such trial, Fussell’s over a to and decision not While because the decisions, and Wilson credibility, has See not will summary Thomas to Dep. Thomas for Paulk have or evidence 21- presented that testimony, this Dep. Fussell suggests were decision to pressured it Court she entitled race. they Defendant Chief’s Defendants this The on policy, Plaintiff if § Defendants discussed, promotion on and judgment department testimony rebut claims Pearson based that summary Plaintiff. is VII decision. to Further, decision to approve Wilson influence. at and Paulk claim already Chief’s Title 1° promotion as review claims. made entitled pursuant Defendant fact, 1163. promotion First, Defendants at of Williams promotion In the race-based Defendants are denial fact, these that not 1° Wilson Officer on his 58-59. into in F.3d claims, approve Therefore, evidence 446 argument. did, judgment and and admitted promote 23. FMLA involved has Plaintiff’s wrongful required that to Brooks, Pearson, Plaintiff’s were as to the call raises a Plaintiff asserts several alternative arguments in order to prove pretext. Having already found sufficient evidence of pretext to defeat summary judgment, however, the Court need not deal with these alternative arguments. -34- genuine issue involvement Paulk these and in that, promotion are not Defendants insofar individually, qualified complete clearly which as to Paulk decision. entitled protection and Pearson’s Therefore, Defendants to summary F.3d 872, defense be must of 877 judgment official on for of to qualified things: federal immunity, (1) v. Monroe the that the the and defendant at the County, was the is F.3d -35- the Once analyzing the the is not order show a the to entitled must a in bears In has that did Kesler, alleged engaged not plaintiff he v. of official official violated time 394 time immunity. (2) rights for the plaintiff defendant violate performing occurred. he their established: was the official violation the established” Crosby that at that qualified the he Wood process well law function, that [statutory] right function” The immunity, that demonstrating demonstrate . known.” on offers in not constitutional is qualified established discretionary entitled immunity judgment sued does Paulk against immunity officials have 2003) and recover summary conduct or would Cir. to to “Qualified their establish has of entitled statutory (11th “discretionary violation if Wilson, attempts government person eligible burden are for qualified first Pearson, Plaintiff capacities reasonable Thomas, grounds. established a To as they immunity individual a the fact claims. assert 323 material Pearson Finally, them of to two committed a [statutory] was “clearly it. 1328, 1332 (11th Cir. 2004). First, here the were an Id. that in approval to the acts has been exercised promotion Wilson, the promotion as Pearson and functions. played decisions presented large a the fact, degree of too a this Chief to a less of and Pearson all of as record in Mayor, role, in including testimony and Thomas the and engaged above, Chief case. Police, the direct over and analysis department, that (11th review the were discretionary -36- of Thomas obvious, discussed influence in Commissioner police indicates in as subject they 1263 Defendants less Therefore, engaged 1252, functions albeit as F.3d Although Police role, which decisions. were As of In that is ‘are responsibilities.’” Thomas, Manager. Paulk conclusion decisions. defendants City undertook job decisions, time function, that put the discretionary question specifically at determine 370 discretionary officials “To Harland, in of a employee’s v. function” official engaged defendants promotion the the occurred. a no policy policy in is discretionary the law There Defendants these the Holloman . by supports federal whether were charge of within whether “discretionary engaged fell Department determine was 2004)) Wilson a violation (quoting Cir. must official consider type Court performing alleged whether we the Paulk in his individual functions for purposes Supp. of 16, qualified 23-24 function” is their v. of Fitzgerald, of the does give found an unlawful.” only U.S. of conduct that the be Cooper v. phrase to 818 would (1982) “A F. “high-level . . . state F.3d 1208, is Harlow clearly unlawfulness This standard in question of the that if statutory known.” the conduct the immunity right law, warning’ 403 have . ‘apparent’ specific Dillon, both established preexisting ‘fair 844 “discretionary qualified “clearly unlawful; offic[ial] McGrail, officials.”). person is v. include entitled 800, light to to violate Foster (the level reasonable in require previously only a official’s not not 457 if, “lower See 1994) enough are did which established and they conduct rights Mass. broad decisionmakers” However, (D. immunity. his law was need conduct 1220 (11th is Cir. 2005). In were this “clearly therefore, “patently in case, public Lomax, Circuit 45 the established” they are obvious” not that employment F.3d has rights 402, recently allegedly at the entitled time to intentional, is 407 violated of qualified held, Cir. “the -37- See, 1995) right to . be Defendants actions immunity. race-based prohibited. (11th their by and, It is discrimination e.g., As the free Smith v. Eleventh from racial discrimination established official Fed. have 821, Defendants the public constitutional would App’x in are known.” 823-24 not workplace right of McMillan (11th entitled to [is] which v. Cir. a Dekalb a reasonable County, 2006). qualified clearly 211 Therefore, immunity at this time. III. Title Next, VII, is as VII Plaintiff well hostile further as to employment (1) 49 he Defendants creating terms a “work Complaint “said the Claims hostile and violated Title environment at ¶ 33. Plaintiff environment conditions interfered of that has Plaintiff’s with his job Id. F.3d has the Title 1517, belongs to was characteristic; or a (4) (11th of Cir. protected 1995) must group; on to alter employment -38- Wallace . (2) To he establish has (3) that: been the sufficiently terms thus work Cmty. protected was the and hostile demonstrate the harassment a v. harassment; based the proving Edwards Plaintiff pervasive conditions of VII. unwelcome to harassment burden 1521 environment, subjected severe that employees.” that under work by Environment unreasonably employee environment hostile 1983, white and Work claims altered performance.” College, § alleges significantly The Hostile of and create a a discriminatorily abusive the responsible employer under a is theory of work either environment; for that direct and (5) environment or vicarious liability. Godoy Cir. v. Habersham 2006) 1269, (citing 1275 The (11th conditions “(1) of Miller Cir. following harassment County, v. the the Fed. Kenworth App’x of 850, Dothan, 853-54 Inc., (11th 277 F.3d 2002)). factors objectively of 211 are important altered an in analyzing employee’s whether terms or employment: frequency conduct; physically offensive of the (3) whether threatening utterance; unreasonably conduct; or and (2) the the conduct humiliating, (4) interfere[d] whether with the severity or the a was mere conduct employee’s job performance.” Id. (quoting Eleventh alleged Circuit conduct totality of hostile. do not the is 6, has in 2008 2008) F.3d held and offhand App. (internal 1276) courts to citations Additionally, should determine comments, Jones LEXIS . cumulatively, discriminatory employment.” U.S. at that context Teasing, of 277 circumstances, constitute conditions 12720, Miller, v. 12355, at omitted). -39- an of in at the the incidents terms Lakeland, *13-14 the environment isolated changes City looking if and “consider the (11th and No. Cir. 07- June In support Plaintiff Chief first Thomas, showed in Plaintiff points which other Dep. he to testifies African-American Jerome not also Mac to to Plaintiff deposition that to discipline. also focuses African-American officers of report command and African-American to football Dep. 62-63; Next, in Jerome on were another were violation of suggests of Dep. Id. instances the chief, wear department yet 16-22, disregard to that Sergeant policy, to allowed Fussell African-American alleged allowed with treatment. department to cooperate testimony Perkins Fussell, Williams. special several directly officers games, the and was 35. where chain where plain clothes policy. Fussell 66-67. Plaintiff contributor employees violated instance, Chief testimony deposition that to Officer this including For Assistant failed received the had of claims, African-American matters. Thomas Plaintiff, officials, toward other evidence Anthony, subject and environment department favoritism officers as work disciplining points Perkins officer, in According Plaintiff the hostile that discipline supervisors 68. his alleges officers in of was to the the claims hostile pervasive that the environment involvement -40- of “single suffered greatest by Defendants white Pearson and Paulk police in department Plaintiff’s that operational Reply Pearson participation “wanted more Plaintiff at “had in by negative on to the important to note interference employees At involved most, displayed However, interpreted terms at retained as of 854. his in a conditions Instead, rank as Paulk of behalf of 41. they were and other considerable officers.” these at she allegedly “[t]hese a that Id. Pearson had city.” minority and because that Id. alleged at 43. instances African-American department. shows that African-American Plaintiff acted where the indicating employees.” white evidence “sufficiently and on police to of the advancing employees and within testimony in city none Pearson within employment,” asserts that Plaintiff’s Defendants city morale the favoritism occasions. App’x by as Pearson on and occasions Plaintiff impact of the of cites interest hired three decisions departments government Defendants is personnel Plaintiff strong behalf It where a minorities African-American. actions other 40. city points intervened and and does manner severe of not officers point that or Corporal, -41- to could pervasive employment.” Plaintiff Defendants has one a isolated instance reasonably [as] Godoy, admitted received on have to raise, alter 211 that be Fed. he and has has received fact, has uniformly Plaintiff harmed When the Well, have the the I way it this to don’t me of ones its this that never A. Not Sprinkle that Dep. unwelcome a hostile McGhee LEXIS v. is by plaintiff, work City environment, job, be be as way a are up there, other that it until are I’ve there there new uneasy and their working speak with me, anymore. Even the real standoffish now . work people affected to how responded: of real used 45-46. hostile comfortable speak them a In that articulate comfortable sure it that to at up some officers don’t of to not I’m Id. Plaintiff and to made up, job. particular constituting used well, that I can by a think of plaintiff “real tense” right of that or employees environment Forsyth, *11-12 an as I’m the his in 44-45. . and . else? fellow 90116, or . It’s anything Dep. off. 56-57. Complaints environment . some been Anything is of come Q. his Sprinkle deposition lists Officers do, his [Fussell] very me. environment. until at he of perform advised . Some know opinion I home anymore. to impacted city am think chance incidents expressed with a evaluations. not ability given environment as could his isolated good (M.D. as No. that she a atmosphere he had been insufficient matter of 5:06-CV-397, Dec. African-American alleged that are Ga. the 7, 2007) employee was -42- made to law. In claiming the work to feel constitute See, 2007 . of U.S. Dist. McGhee, hostile discriminatorily e.g. the work disciplined and that work court was ridicule, and to create (quoting 1275 of an in U.S. Lake (“Hurt McGhee, so App. Park, more [was] working of satisfactory employees. judgment failed to Id. in prove discriminatory conditions there of severe sufficiently the of Dothan, is no that of the severe victim’s Inc., favor intimidation, environment.” racial and employment. might have toward already terms LEXIS Fla., feelings are and Further, made or employment Id. 277 at F.3d not F.3d the *12 1269, fact officers does *13-14. 1232, sufficient -43- the that and not to 1242 that the terms African- remarks change of the comments, discriminatory employment.” See to risen offhand constitute case alter jokes of this have to “[t]easing, not at as in offhand conditions 12355, 245 favoritism white do evidence pervasive discussed, incidents the it Kentworth nature isolated changes 2008 As with a 2002)). officers insulting and v. had summary plaintiff that the incidents being equation. of to Plaintiff’s American the abusive Cir. alleged point alter general, granted “permeated Miller (11th McGhee insult, an Similar the so in African-American because and pervasive than in defendant, workplace of employees, environment The the white also Davis (11th establish Jones, v. Cir. a Town 2001) cause of action to . . . the everything Blue the (“Title showing severe Shield VII of does an Title VII employee Ala., not Plaintiff that or the 480 enact and environment,” Plaintiff’s Title In his retaliation Thomas thus to a simply do unhappy.”); F.3d 1287, general Retaliation complaint, not extend Baldwin 1302 (11th civility v. Cir. code for question in retaliation connection Plaintiff claim of sergeant’s with a a alleges race entitled in of to of “sufficiently and conditions abusive summary for to deny VII race “had which claims of work judgment on -44- separate that Defendant the having sought XI) out Ward, legal claim in Specifically, counsel arising Tony . promotion sought discrimination (Count Sgt. two Plaintiff Plaintiff’s promotion he asserts Plaintiff discrimination promotion were burden claims. Plaintiff Title that terms his discriminatorily motivated prior satisfy Claims First, part, pursue the environment in to to Defendants a are was, counsel of create work claims. failed alter Defendants hostile VII has actions pervasive employment in makes of workplace.”). Because IV. that Cross/Blue 2007) protections to of who pursue the is a prior African- American, Thomas was was was aware motivated Complaint promoted ¶ to for (Count with of have allow failed sought him for VII, Defendants charge and to charge to him, failed him claims Title against that his to . . . said Defendant counsel having done that, and have and so.” Defendants retaliating are also in him him while against liable an him under and have on duty Finally, in § the inferior not . in case, within to 71(a)-(d) case that, this overtime, job against this claims openings part-time ¶ in complaint assigned Complaint by complaint new assign a retaliated Plaintiff make to work department. Plaintiff Plaintiff. having particular, available to the EEOC filing have car, refused In for Defendants claims his VIII). retaliation patrol retaliate also filing department Plaintiff’s of 86. Plaintiff him of instead violation 1983 (Count promotion based, X). A. Pre-Charge Retaliation: Plaintiff’s in part, on his discrimination barred as a claim that retention claim matter in of he of was an denied attorney connection law. -45- with the to a pursue prior a Title promotion, VII is “Before under Title remedies. charge her VII, is F.3d in 1264, by reasonably 1275 v. Circuit scope Fulton County, Under this order to alleged of allege be able in the to 1303, claim charge not & must -46- a timely Wilkerson 2001) included Beyond, v. (internal plaintiff (citing of in cannot his Inc., or 508 Alexander Human v. Resources, judicial investigation out omitted) in filing Cir. 1277, although a is (1974)). EEOC retaliation EEOC 47 grow marks bring administrative plaintiff’s the F.3d [his] VII Bath F.3d quotation 207 was 2007) 36, to 355 precedent, specifically Ga. discrimination (11th Title Bed “a expected Ga., a for EEOC.” Department that sue path the that U.S. Georgia discrimination.” (internal this 1317 v. (N.D. 415 held the be lawsuit may exhaust with 1314, Thomas Co., Gregory limited 2004) down “Further, a charge.” Gardner-Denver Eleventh first step omitted). F.Supp.2d In 270 claim EEOC must first Corp., any [he] plaintiff discrimination citations bring potential The of Grinnell a be (11th her can Cir. EEOC that a of Cir. Alexander retaliation, such which (11th (quoting or complaint charge plaintiff his for the 1280 1332 a of the v. 2000)). need not charge the in facts claim of retaliation following In would two cases marked discrimination EEOC 12993, not *13 did but this rule. v. Wellstar he that from Circuit pursuing the her she did mark Feb. 26, not was no taken regarding the *14. of favor the Dowlatpanah that in a pro se specifically for U.S. The LEXIS noted that, in anywhere the him as that court “could EEOC [was] infer a result Id. at nothing in retaliation that reasonably charge,” in charge concluded not in Dist. court basis the the origin” discrimination. to The “retaliation” “there and be granted defendant. In the Gregory, was against allege -47- Inc., “national retaliation plaintiff claim charge. System, distinguished Gregory. retaliation not claims the against that EEOC [his] of . his Therefore, retaliation in 2007) factual was of 2007 mention allow in box 1:05-CV-2752, would out for the held at Health box court facts held not action made grow court the the Id. to Ga. there judgment The though clarify any plaintiff’s expected it help No. Further, report summary out plaintiff that occurred.” the grow did (N.D. complaints *13-14. the and the charge, suggesting of to only charge. at only his expected Dowlatpanah plaintiff his be facts the not her before Eleventh barred from employer, even retaliation in her EEOC charge. Gregory, concluded charge claim the that could for of [R]efused that by to seems bar including after did EEOC than v. Cir. Univ. facts in to those in this retaliation was denied the VII claim. Therefore, of 1280. factual case Fla. charge it claim of she and would 167 closer was as that fired gender lead Fed. Here, as not to to App’x remedies those only in his EEOC in the charge retaliation cannot could be said Plaintiff regarding -48- did charge, an 747, that be 749 Dowlatpanah Plaintiff but there pursuing expected to 355 a was he Title to pre- grow F.3d exhaust pre-charge not that Plaintiff’s Gregory, failed his in suggesting for “reasonably discrimination.” Accordingly, administrative are basis promotion retaliation the reasonably form in retaliation. anywhere no out that when counsel, facts race the court: claims charge the indicated Cent. Gregory. absolutely charge EEOC a case, limited the by EEOC encompass subsequent judicial her about which of a Gregory, claims; Gregory 2006). The mention mark charge of in to significantly in in [plaintiff’s] represented not court extended plaintiff’s not investigation Hillemann have that, complaining discrimination, in However, retaliation plaintiff’s (11th a been to noting plaintiff, inadvertently Id. The alleged reasonably Circuit 1280. at facts retaliation.” Gregory, EEOC F.3d “[t]he have Eleventh scope 355 at his retaliation claim, and Defendants are entitled to summary judgment on this claim. B. Post-Charge In after his other filing Defendants Retaliation: retaliation his EEOC retaliated Specifically, Plaintiff and assigned least for the him to serviceable denied the occasion, on Aff. and with delayed. Id. Defendants to at car patrol the car patrol Plaintiff to police ¶¶ work is car 11 failed to had a he part-time to and “have [Plaintiff].” Id. ¶ removed assigned and requests has than job been one when unreasonably Plaintiff, certain him, VII. ignored. more been case, oldest been on have make the that, Title been that According to of Thomas have work this Plaintiff’s overtime to in among claims department 22-23. he that also requests that which and alleges violation that fleet,” this also to in to available speak him complaint patrol his the have opportunities 11 that and claims on 20. against opportunity duty refused ¶ charge Plaintiff Plaintiff a in maintenance Sprinkle not “from claim, promotion ostracized and 24. In his affidavit, Plaintiff admits that Defendant Thomas eventually approved Plaintiff’s request to work part-time when not on duty with the police department, but claims that Defendant Thomas “unreasonably delayed approval of that request,” causing Plaintiff to lose the opportunity to obtain the part-time job. -49- As an claims them the initial are in not his for filing 1988) . court to had in EEOC not theory, charge the the letter, existing unnecessary prior to charge; such a that is urging a in his Baker, judgment on the claim Plaintiff’s would The claim of in they -50- at an claim 168-69. is in not his entitled retaliation new a amend “it is remedies jurisdiction case are post-charge that of the a or earlier to administrative Id. this out The obtain administrative an court.” file complaint held the Id. under actions, court have because to her Cir. not charge. have new ancillary out did that, growing retaliation that a exhaust has Plaintiff post-charge Defendants to EEOC Corp., (11th claims noting file Id. grows before her allege against 168 court retaliatory either court it in this, retaliation when properly them plaintiff district claim plaintiff raising a 167, the to Cellulose retaliated retaliation alleging and that retaliation failure Buckeye F.2d plaintiff complaint. for the the EEOC 856 the rejected v. for employer argued asserted defendant’s right-to-sue her post-charge barred Baker charge. consider Baker with In that defendant jurisdiction plaintiff charge. alleged an The Plaintiff’s jurisdictionally EEOC plaintiff matter, hear charge Like barred the from complaint. to summary claims. The so-called “participation retaliation It section shall be employer employees he has or a participated proceeding, 42 U.S.C. The To § unlawful in or establish suffered an there some is Once action. has a facie prima As show adverse the employer’s a Computer (internal Plaintiff that (i.e., was filing suffered . . for of . an his because assisted or investigation, [Title]. adverse requirement, the EEOC is a is that pretext 15 and Circuit -51- retaliation. 1021 has (11th Cir. omitted). prima facie As held to for to expression and the that case evidence protected complaint), actions. The employer’s presented statutorily charge employment a claim, light.’ 1013, citations the non- employment the for F.3d has that events established, adverse in the (3) two discrimination Plaintiff in and the ‘exceedingly and that legitimate, the the engaged (2) action; established Eleventh she between a VII Int’l, easily retaliation, that case for are engaged his of demonstrate quotations retaliation. he facie burden then Assocs. has (1) Title exception VII an expression; reason with case proffer proffered Title anti- held: relation prima must must 1994) any or this employment causal plaintiff v. in under Circuit discriminatory Meeks employment manner must the VII’s practice against testified, hearing protected employer show any a statutory . Title 2000e-3(a). Eleventh . for charge, plaintiff . employment discriminate applicants made of provides: an to clause” a that he causation plaintiff need only prove employment F.3d at action 1021. employment has met 988 this Next, this case the have failed for to avoid plaintiff case, (11th to negative Meeks, by 15 presenting effect EEOC Cir. v. of these Reichhold 1993). if must “exceedingly offer one their Plaintiff . with judgment. . . produced sufficient still forward to come “To a provide their light,” legitimate, allegations. a actions. Defendants in non-retaliatory Instead, had Defendants This supplied reason be for is survive simply Court their with evidence summary reasonable with actions, of because pretext judgment, evidence, establishing -52- the inappropriate, sufficient forward evidence permit to burden. Defendants would for actions. non-retaliatory come Defendants reason Plaintiff’s even summary previously satisfied timing.” 1571 alleged meet judgment has to to legitimate, Plaintiff “cumulative shifts is their deny sufficient summary the their 1564, burden burden Further, a F.2d be to and unrelated.” can non-retaliatory categorically not and this explanation completely element as activity burden. legitimate, Although protected not evidence actions Inc., the “are This circumstantial Chems, that including the factfinder prima to the the facie conclude that the reasons Follett Dist. reasons for Higher LEXIS quotation F.3d the 11770, Plaintiff 726 is by adverse Educ. marks 695, given *24 omitted) Inc., (M.D. 2004)) to No. raise a not the March The 7, v. genuine 2006 2006) issue v. U.S. (internal Southern evidence real Tolbert 3:05-CV-159, Cooper . were decision.” Ala. (quoting Cir. sufficient employer employment Group, at (11th the Co., 390 presented of fact by as to pretext. Although entitled to Defendants summary City judgment retaliation claims, Defendants entitled summary judgment to Plaintiff any of has these retaliation. was Chief Sprinkle on were these who no engaged Paulk, claims. evidence involved Plaintiff Thomas Plaintiff’s Pearson, on and not post-charge and This Wilson is are because suggesting that the alleged acts of specifically alleges that it in in are the alleged acts. See Aff. on qualified be free from statutory Fed. fact, Douglas absolutely defendants Thomas Further, 186 presented In of Chief Thomas immunity App’x under 860, not grounds. retaliation right is is Title 864 entitled This is clearly VII.” (11th -53- summary because “the established Gardner Cir. to 2006). v. City as of judgment right a . . to . Camilla, C. Title VII Retaliation under Section 1983: Plaintiff in violation 1983 (Count claim as alleges of X) Title . well. Insofar pre-charge law failure insofar as entitled to also as is for claim it based is is on a summary judgment of on § this on Defendants’ barred as a the Pearson, violation based administrative Defendants summary retaliation constitutes move this exhaust claim only Defendants’ retaliation, to this retaliation, VII Defendants alleged for that matter remedies. alleged Paulk, of However, post-charge and Wilson are judgment. V. Attorney’s Fees Under Title VII and Section 1988 Finally, recover their bringing this VII. § Section 1983, party The a the attorney’s action 1988 court, as attorney’s Because 42 in fee Plaintiff’s fees Court § 42 in discretion, attorney’s they all by that, provision Title that and provided its U.S.C. the claim provides “reasonable identical. of Plaintiffs costs U.S.C. an Title 42 entitled associated § 1988 action may fee.” of are allow brought the U.S.C. VII is and to with Title under prevailing § 1988(b). substantially 2000e-5(k). has VII denied and § -54- summary 1983 judgment claims, the on several Court will have the authority, attorney’s to be fees after and appropriate trial, related at that to award costs, if the it prevailing finds such an party award time. CONCLUSION For summary for the above judgment reasons, (Doc. summary judgment in as DENIED (1) part, As Second to (2) As As to (3) judgment to all as to Tony IV, GRANTED V, and Defendants’ of VI in of motion part, and Plaintiff’s motion for for Second summary and City for these summary Amended judgment Plaintiff’s are motion Douglas and motion for is is in for Olivia GRANTED individual judgment sued summary As Wilson, is their are Second summary DENIED. Jackie summary Defendants motion for judgment sued individuals to Defendants’ of summary Defendants’ As of Thomas individuals as IX Defendants’ Clifford capacity. Paulk, motion VII, motion but Plaintiff’s Defendant these insofar official is partial Defendants’ DENIED. 60) for Defendants. Counts as capacity, II Complaint, Defendants’ DENIED III, Complaint, Defendants insofar No. Defendants’ to Amendment I, Count Complaint, as is motion DENIED. to GRANTED 41) (Doc. Counts is Plaintiff’s follows: Amended judgment No. the in is their Pearson and judgment is GRANTED. (4) As to Complaint, Defendants As to the summary Count VIII Defendants’ City of Douglas remaining judgment of as Plaintiff’s motion for and Clifford Defendants, to Count -55- VIII Second summary Thomas Defendants’ is Amended judgment GRANTED. is as to DENIED. motion for As (5) to judgment As (6) is to the in Count Count is allegations XI, allegations (7) of as to all of as DENIED as to summary for summary claims retaliation Defendants insofar post-charge motion Plaintiff’s pre-charge Thomas for Defendants. Defendants’ insofar motion as they retaliation as City of relate as relate set set forth Douglas to the forth in VIII. As to judgment SO but Defendants’ X, GRANTED Clifford Count XI, GRANTED to judgment and Count is ORDERED Count XII, Defendants’ motion for summary DENIED. this 21st day of November, 2008. ___________________________________ Judge, United Southern -56- States District of District Georgia Court
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