Opinion
CIVIL ACTION FILE NO. 4:19-CV-096-HLM-WEJ
2021-11-01
Kayla FRANKS, Plaintiff, v. Scott CHITWOOD, in his official capacity as Sheriff of Whitfield County, GA, and Paul Woods, in his individual capacity, Defendants.
Alan Howard Garber, Marc N. Garber, The Garber Law Firm, P.C., Marietta, GA, for Plaintiff. Robert Harris Smalley, III, McCamy Phillips Tuggle & Fordham, Dalton, GA, Ronald R. Womack, Ryan L. Ray, Steven M. Rodham, Womack, Rodham & Ray, P.C., Lafayette, GA, for Defendants Scott Chitwood, Paul Woods.
Alan Howard Garber, Marc N. Garber, The Garber Law Firm, P.C., Marietta, GA, for Plaintiff.
Robert Harris Smalley, III, McCamy Phillips Tuggle & Fordham, Dalton, GA, Ronald R. Womack, Ryan L. Ray, Steven M. Rodham, Womack, Rodham & Ray, P.C., Lafayette, GA, for Defendants Scott Chitwood, Paul Woods.
ORDER
Harold L. Murphy, SENIOR UNITED STATES DISTRICT JUDGE
This case is before the Court on the Motion for Summary Judgment filed by Defendants Scott Chitwood ("Defendant Chitwood") and Paul Woods ("Defendant Woods") [109], on Plaintiff's Motion for Summary Judgment [110], on the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [124], on Defendants’ Objections to the Final Report and Recommendation [126], and on Plaintiff's Objections to the Final Report and Recommendation [127].
I. Standard of Review
1228 U.S.C. § 636(b)(1) requires that in reviewing a magistrate judge's report and recommendation, the district court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). The Court therefore must conduct a de novo review if a party files "a proper, specific objection" to a factual finding contained in the report and recommendation. Macort v. Prem, Inc. , 208 F. App'x 781, 784 (11th Cir. 2006) ; Jeffrey S. by Ernest S. v. State Bd. of Educ. , 896 F.2d 507, 513 (11th Cir. 1990). If no party files a timely objection to a factual finding in the report and recommendation, the Court reviews that finding for clear error. Macort , 208 F. App'x at 784. Legal conclusions, of course, are subject to de novo review even if no party specifically objects. United States v. Keel , 164 F. App'x 958, 961 (11th Cir. 2006) ; United States v. Warren , 687 F.2d 347, 347 (11th Cir. 1982).
II. Background
A. Procedural Background
On May 14, 2019, Plaintiff filed this lawsuit. (Compl. (Docket Entry No. 1).) On June 27, 2019, Plaintiff filed an Amended Complaint. (Am. Compl. (Docket Entry No. 10).) Plaintiff asserted claims against Defendant Chitwood, the Sheriff of Whitfield County, Georgia, in his official capacity under Title VII of the Civil Rights Act of 1964 for sex discrimination and retaliation. ( Id. Counts 2, 4, 6, and 8.) Plaintiff also asserted an individual capacity claim against Defendant Woods, a Captain with the Whitfield County Sheriff's Office (the "WCSO") under 42 U.S.C. § 1983 for deprivation of her right to equal protection of the law as guaranteed by the Fourteenth Amendment. ( Id. Count 9. )
Plaintiff also asserted claims against Whitfield County, Georgia. (Am. Compl. Counts 3, 5, and 7.) Plaintiff filed a Stipulation of Dismissal as to those claims. (Stipulation of Dismissal (Docket Entry No. 91).) Whitfield County is no longer a party to this action.
On May 20, 2021, Defendants Chitwood and Woods filed their Motion for Summary Judgment. (Defs.’ Mot. Summ. J. (Docket Entry No. 109).) On that same day, Plaintiff filed her Motion for Summary Judgment, seeking summary judgment that Defendant Woods could not assert the qualified immunity defense as to her claim against him. (Pl.’s Mot. Summ. J. (Docket Entry No. 110).)
On September 30, 2021, Judge Johnson issued his Final Report and Recommendation. (Final Report & Recommendation (Docket Entry No. 124).) Judge Johnson recommended that the Court deny Defendants’ Motion for Summary Judgment as to Plaintiff's claims against Defendant Chitwood for a sexually hostile work environment ("SHWE"), as alleged in Count 4 and for retaliation, as alleged in Count 8. ( Id. ) Judge Johnson also recommended that the Court deny summary judgment on qualified immunity to Defendant Woods on Plaintiff's claim against him for deprivation of her Fourteenth Amendment Equal Protection Clause rights, as alleged in Count 9. ( Id. ) Judge Johnson, however, recommended that the Court grant summary judgment to Defendant Chitwood on Plaintiff's claim for constructive discharge, as contained in Count 2, as well as Plaintiff's claim for disparate treatment, as alleged in Count 6. ( Id. ) Judge Johnson also recommended that the Court deny Plaintiff's Motion for Summary Judgment. ( Id. )
The Parties filed Objections to the Final Report and Recommendation. (Defs’ Objs. (Docket Entry No. 126); Pl.’s Objs. (Docket Entry No. 127).) The time for responding to those Objections has expired, and the Court finds that the matter is ripe for resolution.
B. Statement of Facts
The Court follows the same procedures and rules that Judge Johnson followed when evaluating the Parties’ Statements of Material Fact. (Final Report & Recommendation at 2-5.) The Court finds that Judge Johnson properly evaluated Defendants’ Statement of Material Facts in support of their Motion for Summary Judgment ("DSMF"), Plaintiff's response to DSMF ("PR-DSMF"), Plaintiff's Statement of Additional Material Facts relating to Defendants’ Motion for Summary Judgment ("PSAMF"), and Defendants’ response to PSAMF ("DR-PSAMF"). Judge Johnson also correctly evaluated Plaintiff's Statement of Undisputed Material Facts in support of Plaintiff's Motion for Summary Judgment ("PSUMF"), as well as Defendants’ response to PSUMF ("DR-PSUMF"). Finally, Judge Johnson properly found that Plaintiff was not entitled to file a Statement of Additional Material Facts in support of her own Motion for Summary Judgment, and he correctly struck that filing. ( Id. at 3-4.)
Plaintiff did not object to this conclusion. (See generally Pl.’s Objs.)
C. Factual Background
Judge Johnson accurately set forth the factual background for this case, including evaluating the Parties’ various proposed facts and responses. (Final Report & Recommendation at 5-36.) The Court incorporates the factual background portion of the Final Report and Recommendation into this Order as if set forth fully herein.
Defendants did not make specific objections to this portion of the Final Report and Recommendation. (See generally Def.’s Objs.) Plaintiff objected specifically only as to note 18 of the Final Report and Recommendation, arguing that Blake Smith executed his declaration before he sat for his deposition. (Pl.’s Objs. at 9.) Mr. Smith executed his declaration on March 25, 2021. (Decl. of Blake Smith (Docket Entry No. 110-7) at 7.) The transcript for Mr. Smith's deposition indicates that he sat for his deposition on May 14, 2021. (Dep. of Andrew Blake Smith (Docket Entry No. 117-3) at 1.) The Court therefore agrees with Plaintiff that Mr. Smith's declaration preceded his deposition, and it sustains Plaintiff's Objection to the portion of note 18 relating to the order of those events. This conclusion, however, has no practical effect because Judge Johnson found that the proposed statement of material fact that relied upon Mr. Smith's declaration was cumulative.
III. Discussion
A. Summary Judgment Standard
The Court applies the same summary judgment standard as set forth in the Final Report and Recommendation. (Final Report & Recommendation at 36-38.)
B. Plaintiff's Claims
1. Title VII SHWE Claim
3 Judge Johnson accurately set forth the law governing Plaintiff's Title VII SHWE claim. (Final Report & Recommendation at 39-55.) Judge Johnson correctly found that a genuine dispute remains as to whether the alleged harassment was based on sex, even though the alleged comments were not directed at Plaintiff. ( Id. at 40-41.) Judge Johnson also properly concluded that a genuine dispute remained as to whether the alleged harassment was severe or pervasive. ( Id. at 41-50.) Finally, the Court agrees with Judge Johnson that a genuine dispute remains as to whether Plaintiff can establish a basis for employer liability. ( Id. at 50-55.)
With all due respect to Defendants, nothing in their Objections warrants rejecting this portion of the Final Report and Recommendation. (Defs.’ Objs. at 3-19.) Contrary to Defendants’ arguments, Plaintiff presented enough evidence to show that the harassment was based on her sex, to demonstrate that the harassment was sufficiently severe and pervasive, and to show employer liability. The Court therefore adopts this portion of the Final Report and Recommendation, overrules Defendants’ corresponding objections, and denies Defendants’ Motion for Summary Judgment as to this claim.
2. Constructive Discharge
The Court agrees with Judge Johnson that Plaintiff abandoned her separate Title VII constructive discharge claim against Defendant Chitwood. (Final Report & Recommendation at 55-56.) Plaintiff does not appear to object to this portion of the Final Report and Recommendation. ( See generally Pl.’s Objs.) The Court therefore adopts this portion of the Final Report and Recommendation and grants Defendants’ Motion for Summary Judgment as to this claim.
3. Title VII Disparate Treatment
Judge Johnson accurately set forth the law governing Title VII disparate treatment claims. (Final Report & Recommendation at 57-71.) The Court agrees with Judge Johnson that Plaintiff did not produce direct evidence of discrimination. ( Id. at 58-59.) Judge Johnson correctly found that no genuine dispute remained as to Plaintiff's claim using the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). ( Id. at 59-67.) Specifically, Plaintiff did not suffer an adverse employment action for purposes of her disparate treatment claim. ( Id. ) For the same reason, Plaintiff's disparate treatment claim fails under the "convincing mosaic" framework ( id. at 68-69), as well as under the "mixed motive" framework ( id. at 70). Plaintiff does not appear to object to this portion of the Final Report and Recommendation. ( See generally Pl.’s Objs.) The Court therefore adopts this portion of the Final Report and Recommendation and grants Defendants’ Motion for Summary Judgment as to Plaintiff's Title VII disparate treatment claim.
4. Title VII Retaliation Claim
Judge Johnson found that Plaintiff's retaliation claim against Defendant Chitwood, as pleaded, failed because the evidence demonstrated that Defendant Chitwood did not know of Plaintiff's protected conduct. (Final Report & Recommendation at 72-74.) Judge Johnson, however, concluded that Plaintiff could assert a retaliation claim against Defendant Woods. ( Id. at 74 & n.59). Plaintiff and Defendants objected to this portion of the Final Report and Recommendation. (Pl.’s Objs. at 4-8; Defs.’ Objs. at 19-22.)
Defendants argue that Judge Johnson improperly recommended that the Court allow Plaintiff to amend her First Amended Complaint to assert a Title VII retaliation claim against Defendant Woods, and they contend that a party may not amend a complaint through argument in response to a summary judgment motion. (Defs.’ Objs. at 19-22.) Defendants also point out that Title VII does not provide for relief against individual employees. ( Id. at 21-22.)
Plaintiff, for her part, agrees that Title VII retaliation claims may proceed only against an employer and not against an individual employee. (Pl.’s Objs. at 5-7.) Plaintiff contends that she never intended to assert a retaliation claim against Defendant Woods or Defendant Chitwood in their individual capacities, and that she did not offer a new theory of recovery in response to Defendants’ Motion for Summary Judgment. ( Id. at 5-8.) Instead, according to Plaintiff, her First Amended Complaint asserted a retaliation claim against Defendant Chitwood in his official capacity as her employer, based on Defendant Woods's conduct as her supervisor. ( Id. at 4, 7-8.) Plaintiff argues that she did not allege that Defendant Chitwood personally took retaliatory action against her. ( Id. at 7.)
Given Plaintiff's statements in her Objections, the Court finds that Plaintiff did not intend to assert a Title VII retaliation claim against Defendant Woods in response to Defendants’ Motion for Summary Judgment. The Court therefore sustains the Parties’ Objections to the portion of the Final Report and Recommendation construing Plaintiff's response to Defendants’ Motion for Summary Judgment as an attempt to amend her First Amended Complaint to assert such a claim.
The Court also agrees with Plaintiff that, considering Plaintiff's First Amended Complaint as a whole, Plaintiff did not intend to assert a Title VII retaliation claim against Defendant Chitwood in his individual capacity or to allege that Defendant Chitwood personally took any action to retaliate against Plaintiff. (Pl.’s Objs. at 7.) Paragraph 5 of the First Amended Complaint states:
Defendant SCOTT CHITWOOD is sued in his official capacity as Sheriff of Whitfield County, GA, together with any successors in office automatically substituted for him as a defendant by operation of Fed. R. Civ. P. 25(d) ("Defendant CHITWOOD").
(First Am. Compl. (Docket Entry No. 10) ¶ 5 (capitalization in original).) In paragraph 34, Plaintiff alleges that Defendant Woods discriminated against her by transferring "her from the 8:00 a.m.-4:00 p.m. shift to the 12:00 p.m.-8:00 p.m. shift ... in retaliation for [her] complaints about [his] unwelcome sexually offensive comments." ( Id. ¶ 34.) Paragraph 73 states: "PLAINTIFF immediately confronted Defendant WOODS and complained about his sexually vulgar comment." ( Id. ¶ 73.) In paragraph 92, Plaintiff states that, on February 21, 2008, Defendant Woods, in retaliation for her "complaint about his outrageous and offensive sexual comments," threatened to transfer Plaintiff "to the 12:00 p.m.-8:00 p.m. shift that [he] knew she could not work unless [she] met [his] illegal quota of traffic stops per day." ( Id. ¶ 92 (emphasis in original).)
Paragraph 98 of the First Amended Complaint states, in relevant part:
On February 22, 2018, Defendant WOODS transferred PLAINTIFF from the 8:00 a.m.-4:00 p.m. to 12:00 p.m.-8:00 p.m. shift, purportedly and disingenuously because in carrying out her duties as a deputy sheriff PLAINTIFF spoke to a patrol supervisor whom Defendant WOODS did not like—punishment that was in fact ... in retaliation for PLAINTIFF's complaint about his unwelcome outrageous and offensive sexual comments.
(First Am. Compl. ¶ 98 (capitalization in original).) In paragraph 104, Plaintiff alleges:
Defendant WOODS's transfer of PLAINTIFF to the late shift was Defendant WOODS's first opportunity to take punitive action against PLAINTIFF since becoming Captain over CID—because, previously, Capt. Swiney (now retired) had prohibited Defendant WOODS from transferring PLAINTIFF to the late shift ....
( Id. ¶ 104 (emphasis and capitalization in original).)
Count 8 of the First Amended Complaint contains Plaintiff's Title VII retaliation claim. (First Am. Compl. ¶¶ 193-97.) The heading for that Count indicates that Plaintiff asserts the claim against Defendant Chitwood. ( Id. at 40.) Plaintiff alleges:
193. Paragraphs 1-142 above are re-alleged and incorporated by reference as if fully set forth herein.
194. By engaging in the conduct described above in Paragraphs 17-142, Defendant CHITWOOD unlawfully retaliated against PLAINTIFF for complaining about Defendant WOODS's sexually inappropriate and vulgar comments by transferring PLAINTIFF's shift from 8:00 a.m.-4:00 p.m. to 12:00 p.m.-8:00 p.m., withholding from PLAINTIFF essential and potentially life-saving equipment, and other terms, conditions and benefits of employment, all in violation of Title VII.
195. As a result of Defendant CHITWOOD's unlawful actions, PLAINTIFF has suffered and is continuing to suffer injury including, but not limited to, incurring pecuniary losses, emotional pain, suffering, humiliation, inconvenience, mental anguish, loss of enjoyment of life, and other non-pecuniary losses.
196. PLAINTIFF seeks compensatory and nominal damages, pre-judgment and post-judgment interest, declaratory and injunctive relief, and reasonable attorney's fees and costs of this action, all through the date of entry of a final non-appealable judgment, all pursuant to Title VII, and in an amount to be determined as specified by law.
197. PLAINTIFF's complaint about Defendant WOODS's sexually inappropriate and vulgar comments was the reason Defendant CHITWOOD transferred PLAINTIFF's shift from 8:00 a.m.-4:00 p.m. to 12:00 p.m.-8:00 p.m., withheld from PLAINTIFF essential and potentially life-saving equipment, and other terms, conditions and benefits of employment, all in violation of Title VII.
( Id. ¶¶ 193-97 (emphasis and capitalization in original).)
Viewing Plaintiff's First Amended Complaint as a whole, the Court concludes that Plaintiff intended to assert her Title VII retaliation claim against Defendant Chitwood in his official capacity as her employer, not in his individual capacity. Paragraph 5 indicated that Plaintiff brought this action against Defendant Chitwood in his official capacity, and that Plaintiff intended to define the term "Defendant CHITWOOD" to refer to Defendant Chitwood in his official capacity. (First Am. Compl. ¶ 5 (capitalization in original).) Accepting Plaintiff's definition of that term, the Court interprets Count 8 as asserting a Title VII retaliation claim against Defendant Chitwood in his official capacity as Plaintiff's employer. The First Amended Complaint, viewed as a whole, indicates that Plaintiff intended to assert that Defendant Woods's allegedly retaliatory actions against her were attributable to Defendant Chitwood in his official capacity as her employer. ( Id. ¶¶ 5, 34, 73, 92, 98, 104, 193-97.)
Plaintiff could have avoided confusion by including language in Count 8 itself specifically stating that she asserted this claim against Defendant Chitwood in his official capacity as her employer, rather than simply incorporating all the First Amended Complaint's preceding allegations into Count 8.
The Court finds that a genuine issue remains as to Plaintiff's Title VII retaliation claim. First, Judge Johnson accurately set forth the framework governing Title VII retaliation claims that proceed under the burden-shifting analysis. (Final Report & Recommendation at 71-72.) Second, a genuine dispute remains as to whether Plaintiff can establish a prima facie case concerning her retaliation claim. ( Id. at 74-83.) Third, Defendants set forth a legitimate, non-retaliatory reason for changing Plaintiff's shift. ( Id. at 84.) However, a genuine dispute remains as to whether that legitimate, non-retaliatory reason was a pretext for discrimination. ( Id. at 84-85.) The Court therefore cannot grant summary judgment in Defendants’ favor on this claim.
In sum, the Court finds that Plaintiff did not intend to assert a Title VII retaliation claim against either Defendant Woods in his individual capacity or Defendant Chitwood in his individual capacity. The Court therefore sustains Defendants’ Objections and Plaintiff's Objections to the portion of the Final Report and Recommendation concluding that Plaintiff asserted a Title VII retaliation claim against Defendant Woods in his individual capacity. The Court, however, concludes that a genuine dispute remains as to Plaintiff's Title VII retaliation claim asserted against Defendant Chitwood in his official capacity as Plaintiff's employer. The Court therefore denies Defendants’ Motion for Summary Judgment as to Plaintiff's Title VII retaliation claim against Defendant Chitwood in his official capacity as Plaintiff's employer.
5. § 1983 and Equal Protection Claims Against Defendant Woods
In Count 9, Plaintiff alleges that Defendant Woods violated her Equal Protection Clause rights by constructively discharging her, by creating a SHWE, and by discriminating against her on the basis of sex. The Court agrees with Judge Johnson that no genuine disputes remain as to the constructive discharge and sex discrimination claims, because Plaintiff did not suffer an adverse employment action. (Final Report & Recommendation at 85-86 & n.63.) Judge Johnson properly found that Defendant Woods was not entitled to summary judgment in his favor on Plaintiff's SHWE claim based on qualified immunity. ( Id. at 86-94.) The Court also agrees with Judge Johnson that Plaintiff is not entitled to summary judgment in her favor on the qualified immunity defense. ( Id. at 94-96.) The Court therefore adopts this portion of the Final Report and Recommendation, denies summary judgment in Defendant Woods’ favor as to Plaintiff's § 1983 Equal Protection Clause SHWE claim based on qualified immunity, and denies Plaintiff's Motion for Summary Judgment.
Plaintiff does not appear to object to this portion of the Final Report and Recommendation. (See generally Pl.’s Objs.)
Defendants objected to this conclusion, arguing that Defendant Woods acted within his discretionary authority and that no jury issue existed as to whether Defendant Woods created a SHWE. (Defs.’ Objs. at 22-24.) The Court finds that Judge Johnson properly evaluated those issues, and it overrules Defendants’ Objections.
Defendants also objected to the Final Report and Recommendation to the extent that it allowed Plaintiff to assert a retaliation claim against Defendant Woods under § 1983. (Defs.’ Objs. at 25.) The portion of the Final Report and Recommendation addressing Plaintiff's § 1983 Equal Protection Clause claim did not recommend permitting that claim to proceed under a theory of retaliation. (Final Report & Recommendation at 85-96.) The Court therefore finds that this objection is moot, and it overrules it.
Plaintiff did not object to this portion of the Final Report and Recommendation. (See generally Pl.’s Objs.)
IV. Conclusion
ACCORDINGLY, the Court ADOPTS IN PART the Final Report and Recommendation of United States Magistrate Judge Walter E. Johnson [124]. The Court SUSTAINS Plaintiff's Objections to the Final Report and Recommendation [127]. In particular, the Court SUSTAINS Plaintiff's objection as to the order of events in note 18 of the Final Report and Recommendation, and it finds that Mr. Smith's declaration pre-dated his deposition. The Court SUSTAINS Plaintiff's objection as to the portion of the Final Report and Recommendation concluding that Plaintiff intended to assert Title VII retaliation claims against Defendants Woods and Chitwood in their individual capacities.
The Court SUSTAINS IN PART AND OVERRULES IN PART Defendants’ Objections to the Final Report and Recommendation [126]. The Court SUSTAINS Defendants’ Objections as to the portion of the Final Report and Recommendation concluding that Plaintiff could assert a Title VII retaliation claim against Defendant Woods in his individual capacity, as Plaintiff has indicated that she never intended to assert such a claim. The Court OVERRULES the rest of Defendants’ Objections.
The Court GRANTS IN PART AND DENIES IN PART Defendants’ Motion for Summary Judgment [109]. The Court GRANTS the Motion with respect to Plaintiff's constructive discharge claim against Defendant Chitwood (Count 2) and with respect to Plaintiff's disparate treatment claim against Defendant Chitwood (Count 6). The Court DENIES the Motion as to Plaintiff's SHWE claim against Defendant Chitwood (Count 4), as to Plaintiff's retaliation claim (Count 8), which the Court interprets as being asserted against Defendant Chitwood in his official capacity as Plaintiff's employer, and as to Plaintiff's § 1983 Equal Protection Clause claim against Defendant Woods based on a SHWE (Count 9). The Court DENIES Plaintiff's Motion for Summary Judgment [110].
The Court ORDERS the Parties to file their proposed consolidated pretrial order WITHIN THIRTY (30) DAYS AFTER the date of this Order. The Court DIRECTS the Clerk to RE-SUBMIT this action to the Court if the Parties fail to file their proposed consolidated pretrial order as directed.
IT IS SO ORDERED, this the 1st day of November, 2021.
FINAL REPORT AND RECOMMENDATION
WALTER E. JOHNSON, UNITED STATES MAGISTRATE JUDGE
Plaintiff, Kayla Franks, asserts claims against Whitfield County Sheriff Scott Chitwood in his official capacity under Title VII of the Civil Rights Act of 1964 for sex discrimination (specifically, constructive discharge, sexually hostile work environment ("SHWE"), and disparate treatment) and retaliation. (See First Am. Compl. [10] ("FAC") Counts 2, 4, 6, 8, respectively.) She also asserts an individual capacity claim against Captain Paul Woods of the Whitfield County Sheriff's Office ("WCSO") under 42 U.S.C. § 1983 for deprivation of her right to equal protection of the law as guaranteed by the Fourteenth Amendment. (Id. Count 9.)
After a period of discovery, defendants Chitwood and Woods filed a Motion for Summary Judgment [109].1 Ms. Franks also filed a Motion for Summary Judgment [110] which seeks to deprive Captain Woods of the qualified immunity defense he asserted to her SHWE claim.2 The parties have fully briefed these Motions and they are ripe for decision. Accordingly, for the reasons stated below, the undersigned RECOMMENDS that Defendants’ Motion be GRANTED IN PART and DENIED IN PART , and that Plaintiff's Motion for Partial Summary Judgment be DENIED .
I. STATEMENT OF FACTS
To assist with framing the undisputed material facts, Local Civil Rule 56.1 requires certain filings by the parties in conjunction with a summary judgment motion. Defendants as movants on their Motion filed a Statement of Material Facts [109-1] ("DSMF"), to which plaintiff responded. (See Pl.’s Resp. to DSMF [116-1] ("PR-DSMF").) As allowed by the Local Civil Rules, plaintiff as respondent filed a Statement of Additional Material Facts [116-2] ("PSAMF"), to which defendants responded. (See Defs.’ Resp. to PSAMF [122-1] ("DR-PSAMF").)3
Plaintiff, as movant on her Motion seeking partial summary judgment against defendant Woods's assertion of qualified immunity to her SHWE claim, filed a Statement of Undisputed Material Facts [110-2] ("PSUMF"), to which he responded. (See Def. Woods's Resp. to PSUMF [117-1] ("DR-PSUMF").)
Although plaintiff is the movant on her Motion for Partial Summary Judgment, she also filed a Statement of Additional Material Facts that Present a Genuine Issue for Trial [110-3]. Defendant Woods filed a Response [117-2] to that Statement of Additional Material Facts, but he objected to it, asserting that Local Civil Rule 56.1(B)(2)(b) only allows the respondent to file a statement of additional material facts. Defendant Woods is correct.
Local Civil Rule 56.1(B)(1) requires the movant to file "a separate, concise, numbered statement of the material facts to which the movant contends there is no genuine issue to be tried." N.D. Ga. Civ. R. 56.1(B)(1). The respondent then must file a response to the movant's statement of undisputed facts. Id. 56.1(B)(2)(a). The respondent may also file a "statement of additional facts which the respondent contends are material and present a genuine issue for trial." Id. 56.1(B)(2)(b). Finally, if "respondent provides a statement of additional material facts, then, within the time allowed for filing a reply, the movant shall file a response to each of the respondent's facts." Id. 56.1(B)(b)(3). The Local Civil Rules make no provision for a movant like Ms. Franks to file a statement of additional material facts. Such a filing is reserved only for a respondent. Because Ms. Franks is not a respondent on her own Motion, her Statement of Additional Material Facts that Present a Genuine Issue for Trial [110-3] is inappropriate. Accordingly, the Court STRIKES that Statement [110-3] and will not consider it or defendant Woods's response thereto [117-2].
The Court uses the parties’ proposed facts and responses as the basis for the Statement of Facts under the following conventions. When a party admits a proposed fact (in whole or in part), the Court accepts that fact (or the part admitted) as undisputed for the purposes of this Report and Recommendation and cites only to the proposed fact. When a party denies a proposed fact (in whole or in part), the Court reviews the record cited and determines whether that denial is supported, and if it is, whether any fact dispute is material. To reflect the record more accurately, the Court sometimes modifies a proposed fact per the record cited by the party or in the opposing party's response. The Court also includes facts drawn from its review of the record, see Fed. R. Civ. P. 56(c)(3), excludes immaterial proposed facts, and rules on objections to proposed facts. See N.D. Ga. Civ. R. 56.1(B)(1)(c). The parties sometimes propose facts that are nearly identical. To avoid repetition, the Court cites to one proposed fact and employs a "see also" signal to the other. Finally, the Court views all proposed facts in light of the standards for summary judgment set out infra Part II.
A. The Parties
Defendant Scott Chitwood is the duly elected and acting Sheriff of Whitfield County, Georgia, and is currently serving his eighth term. (DSMF ¶ 1.) Sheriff Chitwood employs personnel, including deputies, who perform duties related to various aspects of his law enforcement function. (Id. ¶ 2.)4 In terms of organizational structure for personnel, Major John Gibson oversees day-to-day operations at the WCSO and reports directly to Sheriff Chitwood. (Id. ¶ 3.)5 Underneath Major Gibson in the chain of command are captains who report directly to him and oversee the four separate divisions of Sheriff Chitwood's office, which include (1) Court Services, (2) Detention, (3) Uniform Patrol, and (4) the Criminal Investigation Division ("CID"). (Id. ¶ 5.)6
Defendant Paul Woods began working for Sheriff Chitwood in July 1995. (DSMF ¶ 23.) He held various other positions until January 2017, when he became a Lieutenant in the CID. (Id. )
Plaintiff, Kayla Franks, began working for Sheriff Chitwood in July 2010 as a detention officer. (DSMF ¶ 25; see also PSUMF ¶ 1, modified per record cited.)7 On August 16, 2011, Franks applied for (and received) a position as a deputy sheriff within Uniform Patrol. (DSMF ¶ 27.) Franks continued to work in Uniform Patrol, and the majority of the time, between 2011 and 2015, was scheduled on third shift, which was from 7:00 p.m. until 7:00 a.m. (Id. ¶ 31.) During 2015, Franks transferred to the CID and began working as an evidence technician (discussed in more detail, infra ). (Id. ¶ 33.) Franks never received any negative performance evaluations while employed by Sheriff Chitwood. (Id. ¶ 34.)
Given the nature of law enforcement, it is necessary for deputy sheriffs to work schedules covering all hours of the day and night. (DSMF ¶ 9.) The Court overrules plaintiff's denial of this fact (see PR-DSMF ¶ 9) as the record she cites fails to contravene it.
B. Anti-Harassment Policies and Employee Training
Sheriff Chitwood maintains a Policy & Procedure Manual containing an article entitled "Fair Employment Practices," which includes anti-harassment provisions. (DSMF ¶ 15.) Sheriff Chitwood's policy strictly prohibits sexual harassment and contains the following examples of conduct that may constitute sexual harassment:
(a) Unwelcome sexual advances, whether they involve physical touching or not.
(b) Sexual epithets, jokes, written or oral references to sexual conduct, gossip regarding one's sex life, comment on an individual's body, comment about an individual's sexual activity, deficiencies, or prowess.
(c) Displaying sexually suggestive objects, pictures, or cartoons.
(d) Unwelcome leering, whistling, brushing against the body, sexual gestures, suggestive or insulting comments.
(e) Inquiries into one's sexual experiences or discussion of one's sexual activities.
(Id. ¶ 16; see also PSUMF ¶ 9.)
Sheriff Chitwood's policy further provides that employees who become aware of sexual harassment have an affirmative responsibility to report the harassment through channels to Sheriff Chitwood, and that employees who believe they have been subjected to sexual harassment should file a complaint, either orally or in writing, with a supervisor of the employee's choosing. (DSMF ¶ 17; see also PSUMF ¶ 10.) Finally, Sheriff Chitwood's policy prohibits retaliation against employees who report or complain about harassment. (DSMF ¶ 18, modified per record cited.)
In addition, Sheriff Chitwood's employees are covered by Whitfield County's civil service system and are thus subject to following certain policies adopted by Whitfield County. (DSMF ¶ 19.) Whitfield County maintains an anti-harassment policy which states that sexual harassment occurs if an employer or Department Head makes the granting of sexual favors a condition of continued employment or promotion in Whitfield County, or if a hostile or embarrassing atmosphere is created in the workplace as a result of lewd remarks and obscene language and provides examples of sexual harassment, including:
The Court overrules the objections asserted in PR-DSMF ¶ 19(b).
explicit sexual propositions, sexual innuendo, suggestive comments, sexual oriented "kidding," or "teasing," "practical jokes," jokes about gender-specific traits, foul or obscene language or gestures, displays of foul or obscene printed or visual material, and physical contact, such as patting, pinching, or brushing against another's body.
(Id. ¶ 20.)
Whitfield County's policy also provides the following complaint procedure:
All employees are responsible for helping to assure that we avoid harassment. If you feel that you have experienced or witnessed harassment, either general or sexual, you are to notify immediately (preferably within 24 hours) your immediate supervisor or Department Head, or the Human Resources Department, or other Whitfield County officials. If any of the above named is the harasser, then obviously, you would bypass that person and go to higher Whitfield County officials. You will be asked to put your complaint in writing and any retaliation against anyone who reports harassment is forbidden.
(DSMF ¶ 21.) A copy of Whitfield County's anti-harassment policy, which was adopted on July 12, 1994, is posted on a bulletin board within the break room inside Sheriff Chitwood's office. (Id. ¶ 22.)
The Court overrules the objections asserted in PR-DSMF ¶ 22(b).
On September 4, 2007, Woods signed an acknowledgment indicating that he had viewed a video called "In this Together – an engaging look at harassment and respect," had received a copy of Whitfield County's anti-harassment policy and understood it, and understood that he was required to comply with Whitfield County's anti-harassment policy. (DSMF ¶ 40.) On May 29, 2008, Woods received four hours of sexual harassment training. (Id. ¶ 41.)
On July 6, 2010, Franks signed an acknowledgement of understanding regarding Whitfield County's employee handbook. (DSMF ¶ 42.) At the time of her hire in 2010, Franks received a copy of Sheriff Chitwood's Policy and Procedure Manual, and was aware of its "Fair Employment Practices" article. (Id. ¶ 43, modified per record cited.)
On July 6, 2010, Franks signed an acknowledgment indicating that she had viewed a video called "In this Together–an engaging look at harassment and respect," had received a copy of Whitfield County's anti-harassment policy and understood it, and understood that she was required to comply with Whitfield County's anti-harassment policy. (DSMF ¶ 44.) On May 10, 2011, Franks received sexual harassment training with materials provided by Whitfield County. (Id. ¶ 45.)
On November 26, 2013, Woods completed a comprehensive quiz, consisting of true or false questions, assessing his understanding of workplace respect and harassment administered by Whitfield County's Human Resources Department. (DSMF ¶ 46.) On November 26, 2013, Franks completed a comprehensive quiz, consisting of true or false questions, assessing her understanding of workplace respect and harassment administered by Whitfield County's Human Resources Department. (Id. ¶ 47.) Within the quiz, Franks responded that it was true that if she was exposed to harassment she could chose to talk to a supervisor within her department's chain of command or the Director of Human Resources depending upon which person made her feel more comfortable. (Id. ¶ 48.)
On April 28, 2017, Franks signed an acknowledgement of understanding regarding Whitfield County's employee handbook, which included the anti-harassment policy. (DSMF ¶ 49.) On May 1, 2017, Woods signed an acknowledgement of understanding regarding Whitfield County's employee handbook, which included the anti-harassment policy. (Id. ¶ 50.)
C. The CID
As noted above, Franks joined the CID in 2015. Woods transferred to the CID in January 2017 with the rank of Lieutenant; at that time, Rick Swiney served as the Captain in charge of the Division. (DSMF ¶ 51.) As a Lieutenant, Woods was plaintiff's supervisor. (PSUMF ¶ 3.)
Defendants dispute the above proposed fact (see DR-PSUMF ¶ 3), but plaintiff's 2017 performance evaluation ([116-5], at 1) lists "Lt. Paul Woods" as her "Supervisor."
Because plaintiff and Woods worked in the CID, the Court addresses what it is and what it does. The CID is responsible for investigating alleged crimes, which includes collecting, inventorying, and preserving evidence gathered from crime scenes for later use in the investigation and prosecution of crimes. (DSMF ¶ 12.) During the relevant time period, the CID employed two deputy sheriffs designated with the job title of "evidence technician," who were directly responsible for collecting, inventorying, and preserving evidence from crime scenes. (Id. ¶ 13.) Since criminal investigations require the preservation of the chain of custody for evidence, if an evidence technician is not in the office to directly receive and inventory the evidence, it must be placed within a storage locker to be later inventoried by an evidence technician. (Id. ¶ 14.)
The two evidence technicians during the relevant time frame were Franks and Jason Cooley. (PSUMF ¶ 2.) Cooley began working for Sheriff Chitwood in June 1997. (DSMF ¶ 37.) He became an evidence technician in 2011 or 2012. (Id. ¶ 38.) At the time Woods transferred to the CID, both Cooley and Franks worked a schedule of Monday through Friday, from 8:00 a.m. to 4:00 p.m. (Id. ¶ 52.) In addition to the standard weekly schedule, the two evidence technicians rotated on-call responsibilities every other week. (Id. ¶ 53.)
While working as an evidence technician, Cooley became divorced and was granted custody of his minor son every other week. (DSMF ¶ 39.)
D. The CID's Daily Morning Meeting
From January 2017 until her last day as a deputy in February 2018, Franks attended the mandatory Monday to Friday morning CID meeting with Woods, Sheriff Chitwood, Captain Swiney, and other CID deputies. (PSUMF ¶ 5; see also PSAMF ¶ 1.) From around mid-March 2017 until late-February 2018, Franks was the only female deputy attending those mandatory meetings. (PSUMF ¶ 6; see also PSAMF ¶ 1.)
Franks contends that during these mandatory meetings, on a near-daily basis from January 2017 until late-February 2018, she overheard Woods make the following comments:
• He wanted to have sex with CID Secretary Jillian Owenby;
• "I'd hit that" in reference to Jillian Owenby—slang for wanting to have sex with her;
• "I'd love to get Jillian drunk because [in a sexually suggestive tone] I'm sure she'd be fun";
• "I don't know how her husband [Jillian's] gets out of bed; I'd stay in bed all day";
• "Jillian's mother is hot";
• "I'd love to have a massage by her [Jillian Owenby's mother ]";
• Jillian Owenby has a "hot body";
• Jillian Owenby's body looks "hot" in a uniform;
• "I like the way Jillian's ass looks in the new uniform";
• "Jillian's ass looks hot in the uniform";
• "I wished my wife looked like Jillian"; and
• He likes going to the gym so he can watch women's buttocks while they road stationary bicycles in spin class.
It was well known in the WCSO that Ms. Owenby's mother worked as a masseuse. (Rivera Dep. [109-9] 123-24.)
Plaintiff's proposed fact used the word "asses" instead of buttocks, but in both her FAC and deposition plaintiff used the word "buttocks." (See FAC ¶ 46(k); Franks Dep. [109-5] 135.) The Court substitutes the correct word above.
(PSAMF ¶ 2, modified per record cited ; see also DSMF ¶ 65.)
Defendants object that the evidence cited in PSAMF ¶ 2 is inadmissible because plaintiff never testified that any of the above-listed comments were directed at her. (DR-PSAMF ¶ 2.) The Court has removed the word "directed" to make clear that these alleged statements were made in her presence.
Franks further contends that Woods, on a daily basis and sometimes multiple times a day, starting in January 2017 and extending until late-February 2018, did or said the following in front of her and other WCSO deputies and personnel near the CID meeting room and around the office:
• Leered in a sexual way at Jillian Owenby, looking up and down her body with "elevator eyes" whenever she walked by and when she was standing up;
• Talked about wanting to have sex with Jillian Owenby, especially when she walked by or was standing up; and
• Made sexually-suggestive comments to Jillian.
(PSAMF ¶ 4.)
Finally, starting in January 2017 and continuing through late-February 2018, plaintiff claims that she heard nearly every day from WCSO deputies and female staffers (i.e., Blake Smith, Jessica Elsmore, and Brandi Holden) regarding what they had heard or observed:
• Woods wanted to "fuck" Jillian Owenby;
• Woods asked how Jillian would "taste";
• Woods leered in a sexual way at Brandi Holden's body, staring at her breasts and moving his eyes up and down her body, instead of making any eye-contact, whenever he talked to her ;
• "I don't know how her [Jillian's] husband sleeps next to her every night, and he doesn't fuck her every night";
• Woods wanted to have sex with other women not his wife;
• Woods called a vagina a "lunch box," and said he was going to go home and "eat out of his lunch box"; and
• Woods said how "hot" a certain Chick-Fil-A delivery girl—a teenager—was who came by the WCSO from time to time on deliveries.
The Court sustains defendants’ objection to plaintiff's insertion of the word "always" in this paragraph between "Woods" and "leered" because it is not supported by the Holden Declaration. (See DR-PSAMF ¶ 5.)
Defendants object to this paragraph of the proposed fact because they contend that Ms. Elsmore did not testify that Woods called the delivery girl "hot." (DR-PSAMF ¶ 5.) However, she did testify that Woods used that term. (Elsmore Dep. [116-4] 36.)
Defendants show that while Blake Smith's Declaration [110-7] claims that he heard all of the above-listed comments, he testified to the contrary in a deposition [117-3] given in a case he filed in Whitfield County Superior Court against Sheriff Chitwood and others. (See DR-PSAMF ¶ 5.) In that deposition, Smith identified only two comments he heard Woods make; he denies that he ever told Franks about any comments he heard Woods make; and he denies that Franks ever told him that she heard Woods make inappropriate comments. The contradictions between Smith's deposition and subsequent Declaration are blatant and grounds to exclude it. See Van T. Junkins & Assocs., Inc. v. U.S. Indus., Inc., 736 F.2d 656, 657 (11th Cir. 1984). Although plaintiff asserts that this Court cannot consider Smith's state court deposition given Federal Rule of Civil Procedure 32(a)(1)(4) (see Pl.’s Reply Br. [123] 15), a Court should disregard an obviously fabricated Declaration. Nevertheless, even if the Court struck Smith's Declaration, PSAMF ¶ 5 is supported in part by the Declarations of Elsmore and Holden. In any event, PSAMF ¶ 5 is cumulative evidence. Plaintiff's testimony about what she claims she actually heard (see PSAMF ¶¶ 2, 4) is more relevant than what she claims these persons told her they had heard or seen.
By making inappropriate sexual comments and lewd gestures in front of both plaintiff and male officers and deputies, defendant Woods:
• Treated plaintiff as if she was invisible;
• Showed no respect for plaintiff as a deputy or a woman;
• Signaled plaintiff's supervisors and male co-workers they did not need to respect her;
• Caused plaintiff to feel inferior and that nothing she did at work mattered;
• Made plaintiff feel unwanted and uncomfortable in the office;
• Caused plaintiff to lose sleep and dread going to work every day knowing Woods would say or do something sexually offensive; and
• Forced plaintiff to avoid Woods whenever possible.
The Court sustains defendants’ objections to portions of the above proposed fact as contradicted by plaintiff's deposition testimony. (See DR-PSAMF ¶ 20.) For example, while plaintiff proposes that Woods's comments caused her to gain weight, she actually testified that she gained weight after she quit work. (Franks Dep. [109-5] 221.) Similarly, while plaintiff proposes that she was depressed, she actually testified that when she visited a health care provider after she quit, she responded to the nurse practitioner's question whether she depressed by saying that she did not know but that she could be. (Id. ) Because the plaintiff's testimony is unclear as to when Woods's alleged comments caused her to lose sleep (id. at 220), the Court leaves that assertion in the above proposed fact.
E. Plaintiff's Complaints
In January 2017, after first hearing Woods's sexually offensive comments, Franks complained to CID Supervisor Sgt. Darren Pierce that Woods's remarks were offensive, inappropriate, and uncalled for because he should not talk about women that way. (PSAMF ¶ 6.) Throughout 2017, Franks stopped working many times to make additional complaints to Sgt. Pierce that, as the only female deputy in the CID, Woods's ongoing sexual comments and leering were offensive, degrading, humiliating, and depressing. (Id. ¶ 7.)
Defendants admit the above proposed fact (see DR-PSAMF ¶ 6), but propose their own fact asserting that plaintiff never reported any of the alleged comments she heard Woods make. (DSMF ¶ 66.) This is obviously a disputed fact.
Although not relevant to resolution of these Motions, Sgt. Pierce denies that plaintiff ever complained to him. (Pierce Dep. [116-8] 8-9.)
F. Lt. Woods's Attempt to Change the Evidence Techs’ Schedule
In June 2017, Lt. Woods told both plaintiff and Cooley in the same meeting that, subject to Captain Swiney's approval, he (Woods) proposed changing their identical schedules by putting them on alternating weekly schedules of (a) 8:00 a.m. to 4:00 p.m. in the evidence room, and (b) 12:00 p.m. to 8:00 p.m. on patrol with on-call responsibilities. (PSAMF ¶ 8; see also DSMF ¶ 54.) During their June 2017 meeting, plaintiff and Cooley both told Lt. Woods the late shift would not work for the identical reasons—they each had children who required after-school care, and they both already worked hard schedules. (PSAMF ¶ 9; see also DSMF ¶¶ 55-56, modified per record cited.) Also in this June 2017 meeting, Lt. Woods mocked plaintiff—but not Cooley—that her then-10-year-old step-daughter should be in daycare (which she told him did not exist for 10-year-olds) and for what Lt. Woods labeled her "so-called" family conflict. (PSAMF ¶ 10.) Captain Swiney told Lt. Woods that he could not implement his proposed schedule change. (DSMF ¶ 57, modified per record cited.)
G. September 2017 Incident Regarding a Video
In September 2017, Lt. Woods walked into the office of CID Analyst Jessica Elsmore while she and Franks were both reviewing evidence in a rape case (a sexually explicit video) on Elsmore's computer. After looking briefly at the video, Lt. Woods stated, "Can I just say this? You know, all pussies and clits look different." (PSAMF ¶ 11; see also DSMF ¶ 61.) According to Franks, she then told Lt. Woods that his statement was not "okay." Lt. Woods did not say anything in response and simply left the room. (DSMF ¶ 62.) Plaintiff contends that Lt. Woods had no legitimate law-enforcement reason for making that statement. (PSAMF ¶ 13.) H. 2017 Incident Regarding a Search Warrant
Although defendants admit the above proposed fact, they object on the grounds that viewing such videos was outside of Franks's job responsibilities. (DR-PSAMF ¶ 11; see also DSMF ¶ 60.) Plaintiff contends that this was within her job responsibilities. (PSAMF ¶ 12.) The parties also dispute when plaintiff joined Elsmore at her computer. (Compare DSMF ¶¶ 58-59, with PR-DSMF ¶¶ 58-59.) Any disputes over whether viewing this video was outside of plaintiff's job responsibilities or when she joined Elsmore at her computer are immaterial.
Lt. Woods's denial that he used that vulgarity and that he meant something else (DSMF ¶ 63) is immaterial. (See PR-DSMF ¶ 63.)
Sometime in 2017, while executing a search warrant with plaintiff and several male deputies from the CID, Lt. Woods found photographs of the suspect's girlfriend, stared at them, and—with plaintiff standing beside him—said the girlfriend was "hot" and "she carries basketballs on her chest" because she had large breasts. (PSAMF ¶ 14.) On seeing more photos during the 2017 search, Lt. Woods remarked in front of plaintiff, "Oh, let's see if there are naked pics of [the girlfriend] in here." (Id. ¶ 15.)
Defendants do not challenge plaintiff's story but object because she did not know the date of this incident when asked about it at her deposition. (DR-PSAMF ¶¶ 14-15.) Because the date of the event is not material, the Court overrules the objection.
I. Deployment of Plaintiff's Husband
In late-November 2017, Franks learned that her husband, a Sergeant First Class in the United States Army Reserves, would be deployed to Tampa, Florida, from some time in December of 2017 until September of 2018. (DSMF ¶ 72.) In December 2017, Franks told Lt. Woods in a one-on-one meeting about her husband's deployment, and that she would be the only parent caring for their 11-year-old stepdaughter. (PSUMF ¶¶ 7-8; PSAMF ¶ 16, all modified per record cited.) In response, Lt. Woods reportedly said, "You're free to do whatever you want now." (PSAMF ¶ 17, modified per record cited.) Plaintiff interpreted Lt. Woods's statement as a suggestion that she could have a sexual affair. (DSMF ¶ 64.)
The Court has modified the duplicative proposed facts to match the record cited (i.e., there is no factual support for the assertion that plaintiff would be the family's sole source of economic support), but overrules the materiality objections asserted in DR-PSUMF ¶¶ 7-8.
PSAMF ¶ 17 asserts that Lt. Woods "propositioned" plaintiff to have an affair with him. That allegation is not in the FAC. Moreover, when questioned about Lt. Woods's comment that she was free to do whatever she wanted, plaintiff testified that she inferred that he was seeking sexual relations based on his prior comments and the "mischievous look on his face." (Franks Dep. [109-5] 134.) Plaintiff expands on this testimony in her First Declaration, asserting that she "rejected" Lt. Woods's inferred proposition and told him that she "did not do that kind of thing." (Franks First Decl. [110-4] ¶ 18(d).) Even construing the evidence in a light most favorable to the non-movant, the Court cannot draw the inference that Lt. Woods propositioned Franks based on the comment she attributes to him; moreover, given that there was no proposition, her claim that she rejected it is nonsensical. Therefore, the Court has modified PSAMF ¶ 17 above and excludes PSAMF ¶¶ 18-19, which are based on similar improper inferences. Given the testimony, plaintiff's denial of DSMF ¶ 64 (see PR-DSMF ¶ 64) is not supported by the record; thus, the Court deems DSMF ¶ 64 admitted.
J. Plaintiff Assigned to Patrol Duties
On February 13, 2018, Franks was assigned to perform patrol duties in the Westside area of Whitfield County. (DSMF ¶ 73; see also PSAMF ¶ 21.) Sgt. Rivera, Franks's immediate supervisor, told her that Lt. Woods said she had better be "productive"—which, according to Lt. Woods, required her to make a quota of at least five traffic stops per day as a pretext to investigate possible burglary suspects in the Westside area. (PSAMF ¶ 22.) Lt. Woods imposed no "traffic stop" quota on Cooley or any other male CID deputy. (Id. ¶ 23.) Lt. Woods did not issue a "ticket book" to Franks, which all deputies used to write traffic citations, or a WCSO vehicle with a dashboard camera. (Id. ¶ 24.) However, only a small percentage of Sheriff Chitwood's patrol vehicles were equipped with dashcams, and neither the vehicle assigned to Franks nor the vehicle assigned to Cooley were equipped with dashcams. (DSMF ¶ 76.)
According to Sgt. Rivera, because there was not enough work for the evidence technicians during February 2018, he felt that something needed to be done. (Rivera Dep. [109-9] 83-84.) While he was trying to figure out what to do, Franks took it upon herself on February 12 to request to go back to performing some patrol duties. (Id. at 38, 66, 84.) At the time, there was an uptick in criminal activity on the usually quiet Westside of the County; Sgt. Rivera believed assigning Franks to patrol that area could keep her busy and assist in solving that crime spike. Therefore, he ran the idea by Lt. Woods, who approved it. (Id. at 38-39.) However, Franks remained in the CID and still reported to Sgt. Rivera. (Id. at 102.)
The Court overrules the objections asserted in DR-PSAMF ¶¶ 22-23.
According to Sheriff Chitwood, testifying as a Rule 30(b)(6) witness, Lt. Woods—as plaintiff's supervisor—should not have put her in the field on patrol unless she had all the equipment she needed to perform her patrol duties, which included a dashboard camera, proper patrol lights, and a taser. (PSAMF ¶ 25.) Nevertheless, the assignment of equipment to deputies is based on each deputy's job duties and the resources of the Sheriff's Office. (DSMF ¶ 11.)
Plaintiff was not provided a taser when she was began working patrol on February 13. (DSMF ¶ 73.) Tasers were not standard issue equipment for other deputies on patrol, because they are expensive and every deputy, even those on patrol, were not assigned a taser at the time Franks was employed due to budgetary concerns. (Id. ¶ 74.)
On February 13, 2018, Franks told Sgt. Rivera that she wanted a dash camera and a taser; on February 21, 2018, she told him that she needed more lights on her vehicle. (DSMF ¶ 77, modified per record cited in PR-DSMF ¶ 77.) At the time Franks requested a taser, Cooley was not assigned a taser and, indeed, there was only one other deputy in CID, a male detective, who had been assigned a taser. (Id. ¶ 78.) According to Sgt. Rivera, the vehicle driven by Cooley in February 2018 had "additional back lights" that plaintiff's vehicle did not have. (PSAMF ¶ 26; see also DSMF ¶ 75, modified per record cited in PR-DSMF ¶ 75.) When plaintiff requested more lights on her vehicle, Sgt. Rivera spoke with Lt. Woods who arranged for lights to be ordered, and he directed a detective within the CID to turn in his taser so that it could be provided to Franks. (DSMF ¶ 79.)
K. Woods Becomes Captain over the CID
On February 17, 2018, following Captain Swiney's retirement, defendant Woods became Captain over the CID with control over the duties, assignments, and schedule of both Franks and Cooley. (PSUMF ¶ 4; see also DSMF ¶ 24; PSAMF ¶ 27.) Between January 2017 and February 2018, Woods was heard to say: "Women should not have jobs in law enforcement." (PSAMF ¶ 52.)
Plaintiff avers that WCSO Deputy Angela Lowery heard this comment by Woods and relayed it to her. (Franks Second Decl. [116-3] ¶ 3.) The Court excludes PSAMF ¶ 51 as immaterial.
Woods gave Franks a positive performance evaluation during the time he served as Captain over the CID, including evaluating her as a "dependable" employee. (DSMF ¶ 35.) Franks's job performance as an evidence technician was praised by other employees, and she was considered the "go-to employee" for the CID's evidence room. (Id. ¶ 36.)
On the morning of February 21, 2018, at about 10:37 a.m., Patrol Supervisor Sgt. Darren Pierce was helping plaintiff and two deputies in WCSO's Patrol Division under Captain Clay Pangle with a warrant problem when all four received a radio call that a school resource officer needed immediate assistance in Sector-2. (PSAMF ¶ 28.) The two Patrol Division deputies left to respond, while Sgt. Pierce instructed plaintiff to stay to discuss the warrant issue—which she did in accordance with WCSO policy and because Captain Woods had previously told her that when on patrol, she was required to follow the patrol supervisors’ instructions. (Id. ¶ 29.) According to Captain Woods, however, an officer-needs-assistance call "means everybody goes." (Id. ¶ 30.)
On the afternoon of February 21, 2018, when Sgt. Rivera told Franks that Captain Woods said he was dissatisfied with her "productivity" for not meeting her daily quota of five traffic stops, she told Sgt. Rivera that the quota was unfair—because a legal traffic stop requires probable cause and she should not have to break the law by making illegal traffic stops to look productive. (PSAMF ¶ 32.) In any event, Franks had more arrests during the February 12-20, 2018 time period than her colleague, Deputy Cooley, including the arrest of a suspect in the Westside burglaries. (Id. ¶ 33.)
The Court overrules the objections in DR-PSAMF ¶¶ 29 and 32 because they are based on evidence that disputes plaintiff's version of what transpired.
L. Plaintiff's Transfer to the Noon to 8:00 p.m. Shift
On Thursday, February 22, 2018, Captain Woods sent an email to Sgt. Rivera stating as follows:
After careful consideration and planning we will be making changes to Evidence personnel schedules to better serve the road deputies. This will go into effect on March 12, 2018. Please get with your employees in Evidence at your earlier [sic] convenience to advise them of the schedules changes.
Shannon Brewer will work 8:00 am – 4:00 pm – In office Jason Cooley will work 8:00 am – 4:00 pm – Out of office Kayla Franks will work 12:00 pm – 8:00 pm – In office
Ms. Brewer was a non-sworn, civilian employee of the WCSO with the title of administrative technician. (Woods Dep. [109-6] 167-68.) However, the two evidence technicians (Franks and Cooley) trained her on how to do their jobs. (Id. at 168.)
(Woods's email of Feb. 22, 2018 [109-6], at 322; DSMF ¶ 84; see also DSMF ¶ 80, modified per record cited.)
That same day (February 22, 2018), Sgt. Rivera advised plaintiff of the upcoming change to her work schedule. (DSMF ¶ 85.) Franks discussed the schedule change with Sgt. Rivera, who told her that he would look into finding an accommodation because Franks indicated she could not work the proposed schedule due to childcare issues. (Id. ¶ 86.) On Friday, February 23, 2018, Franks again discussed the schedule change with Sgt. Rivera, who advised her that he would attempt to find a solution to the issue. (Id. ¶ 87.)
Plaintiff's argumentative denials of the above proposed facts (see PR-DSMF ¶¶ 84-85) fail to contravene them.
Captain Woods claimed he did not consider personal preferences or needs when making assignment and scheduling decisions, only what was best for the WCSO. (PSAMF ¶ 48.) Captain Woods asserts that he made the change to plaintiff's work schedule (1) because she showed that she "lacked the fortitude to do her job" by not responding to the officer-needs-assistance call on February 21, 2018 ; (2) because she had been hiding behind buildings instead of working while on patrol from July 2017 to November 2017 and again in February 2018 ; (3) because she was not productive, including not making enough traffic stops ; (4) because she had less seniority than Cooley; and (5) based on the business needs of the WCSO (i.e., so that the evidence room would be available for more hours per day for the patrol and narcotics units). (Id. ¶ 35, modified per record cited in DR-PSAMF ¶ 35; see also DSMF ¶¶ 82-83.) According to Sheriff Chitwood, testifying as a Rule 30(b)(6) witness, WCSO's policies and procedures prohibit supervisors from transferring deputies to a different shift as punishment. (PSAMF ¶ 37.)
Captain Woods did not change the assignments, duties, or schedules of any male CID deputy for failing to respond to the officer-needs-assistance call on February 21, 2018. (PSAMF ¶ 42.) The Court sustains defendants’ objection to PSAMF ¶ 31 regarding her assertion that Captain Woods and Sgt. Rivera failed to respond to that officer-needs-assistance call. Plaintiff fails to show why a CID Captain needed to respond when patrol officers were available; moreover, Sgt. Rivera was not on duty at the time. (See DR-PSAMF ¶ 31.)
According to Sheriff Chitwood, testifying as a Rule 30(b)(6) witness, if a deputy was "hiding" while on patrol, then her supervisor needed to document that activity as an infraction and bring it to the deputy's attention. (PSAMF ¶ 38.) Only one incident of plaintiff "hiding" while on patrol—in July 2017—was documented by Woods or any other supervisor, while no GPS records exist for any time period supporting Captain Woods's claims that plaintiff was "hiding" while on patrol, and plaintiff denies any hiding after July 2017. (Id. ¶ 39.) Captain Woods testified that in February 2018, Sgt. Rivera monitored plaintiff's patrolling using GPS tracking and then reported what he saw to him. (Id. ¶ 40.) But Sgt. Rivera testified that in February 2018, Defendant Woods himself was supposedly monitoring plaintiff using GPS tracking based on their conversations and because he (Rivera) was not even working from February 14-16, 2018. (Id. ¶ 41.)
Woods admitted that no metrics exist for measuring plaintiff's productivity for traffic stops and arrests. (PSAMF ¶ 36.)
M. Plaintiff's Resignation Letter
On Friday, February 23, 2018, Franks wrote a resignation letter addressed to Sheriff Chitwood in which she stated that she was quitting because the proposed change to her work schedule created a hardship for her family due to her husband's deployment, but she did not mention any sexually discriminatory or harassing conduct by Captain Woods. (DSMF ¶ 88.) The resignation letter provides as follows:
Please accept this letter as my formal notice of resignation. My last day of employment will be Friday March 9, 2018 as this allows for a two-week notice.
I sincerely regret that I have to inform you of this decision, unfortunately I was left with no other option. My work schedule changing from 8-4 to 12-8 creates a hardship for my family, due to the fact that my husband is currently deployed. This is a difficult decision for me to make, especially when I saw myself retiring from this county with 30 years of law enforcement experience under my belt.
I want to graciously thank you for the last almost eight years of employment with this department and the opportunities I have been given. I have grown and matured with the people in this department and it is a true honor to have them as a part of my "blue" family. You personally, have always been willing to go above and beyond to get to know your employees. I am proud to say that I have worked for Sheriff Scott Chitwood.
(Franks Dep. Ex. 5 [109-5], at 488.)
N. Plaintiff's Resignation
On Monday, February 26, 2018, Sgt. Rivera told plaintiff that in his conversation with Captain Woods on Friday, February 23, 2018, the Captain had said that he would not offer plaintiff a transfer out of the CID—even though there were open patrol and detention positions, jobs she had performed in the past—or allow her stay on the day shift doing anything. (PSAMF ¶ 45.) Sgt. Rivera also told plaintiff that Captain Woods knew that she would have to resign if she could not remain on the early shift. (Id. ¶ 44, modified per record cited.) Plaintiff thus felt compelled to resign her employment with the WCSO. (PSUMF ¶ 11; see also DSMF ¶ 89, modified per record cited.)
Defendants object to PSAMF ¶¶ 45-47 (see DR-PSAMF ¶¶ 45-47), but those proposed facts are generally supported by plaintiff's Second Declaration [116] or the deposition testimony she cites. The Court has removed the editorial flourishes added by plaintiff's counsel so as to better reflect the record cited.
Captain Woods did not transfer Cooley to the evidence office late shift in February 2018—even after learning plaintiff would need to resign if required to work the late shift—because Cooley did not want the late shift either, as he also had a school-age child to care for every other week after school. (PSAMF ¶ 49.) But, if Woods transferred Cooley to the later shift, there would not be sufficient coverage for the 8 a.m. to 4 p.m. shift.
Plaintiff believed that if she did not resign on February 26, 2018, then she would have been fired on March 12, 2018, for not remaining at her post in the WCSO evidence office past 4:00 p.m. until her new shift ended at 8:00 p.m. She also believed that being fired would have damaged her job prospects, especially in law enforcement, because (1) a termination would have triggered an automatic review of her peace officer certification by the State of Georgia Police Officer Standards & Training Council and (2) she would have to explain on any job application why she walked off a law-enforcement job mid-shift. (PSAMF ¶ 47.) Although defendants object to this proposed fact as speculative (see DR-PSAMF ¶ 47), it is undisputed that these were plaintiff's subjective reasons.
Plaintiff then gave Sgt. Rivera the resignation letter she had drafted the prior Friday (quoted above) to deliver to Captain Woods, which gave the WCSO two weeks’ notice. (Pl.’s Second Decl. [116-3] ¶ 14(g).) Sgt. Rivera responded to plaintiff that he would again pitch to Captain Woods the option of allowing her to transfer before handing over the resignation letter. (Id. ¶ 14(h).) Before he left his office, Sgt. Rivera asked plaintiff, "If something changes, will you reconsider?"—and she answered, "Absolutely!" (Id. ¶ 14(i).) Sgt. Rivera then left to meet with Captain Woods. (Id. ¶ 14(j).) After talking with Sgt. Rivera, Captain Woods took plaintiff's resignation letter, which Sgt. Rivera had given to him, to Major Gibson, who said, "Okay, we accept it." (PSAMF ¶ 46, modified per record cited.) Not long thereafter, Sgt. Rivera returned to his office and informed plaintiff that her resignation was accepted and that she had to be packed and out of the WCSO by 11:00 a.m. that day. (Pl.’s Second Decl. [116-3] ¶ 14(k); see also DSMF ¶ 90.)
Plaintiff claims that in late-2017, then Lt. Woods offered then-CID Sgt. Darren Pierce a transfer out of CID, without knowing if any openings existed, after Woods told Pierce that he was moving Pierce to a late-hours shift—after Pierce told Woods that he (Pierce) did not want to work those hours. (PSAMF ¶ 50.) The Court overrules defendants’ objection to the proposed fact (see DR-PSAMF ¶ 50) because the record cited supports it.
Plaintiff's proposed transfer to the later shift entailed no change to her job title, pay, or benefits. (DSMF ¶ 81.) However, plaintiff would no longer be assigned patrol duties and would work exclusively in the WCSO evidence office performing the same work as administrative technician Brewer. (PR-DSMF ¶ 81; PSAMF ¶ 34, both modified per record cited.) O. Plaintiff's Contact with Whitfield County HR
Plaintiff claims that Captain Woods transferred her to perform a "worse" job than she had been doing and one Cooley also did not want. (PSAMF ¶ 34.) As defendants correctly note, Cooley did not testify that the later shift was a worse job; the evidence shows only that he did not want it. (DR-PSAMF ¶ 34.) The only evidence that the later shift was a "worse" job came from former WCSO Deputy Blake Smith. (See Smith Decl. [110-7] ¶ 15.) However, Smith's conclusory assertion lacks foundation as there is no evidence that he ever performed the jobs held by Franks or Cooley. He is no position to judge which job is better or worse.
On February 26, 2018, after resigning her employment, Franks visited the office of Jackie Carlo, the Human Resources Director for Whitfield County, and reported that Captain Woods had made inappropriate sexual comments in the workplace. (DSMF ¶ 91, modified per record cited in PR-DSMF ¶ 91.) Carlo asked Franks to provide additional specific details regarding her allegations in writing so that she could investigate her claims, and although Franks later brought her a generic written statement, it did not have any further details other than those she had already told Carlo. (Id. ¶ 94.) Since Whitfield County provides human resources services to Sheriff Chitwood in conjunction with the WCSO's inclusion in Whitfield County's civil service system, Carlo conducted an investigation of Franks's allegations even though she had already quit. (Id. ¶ 95.) During her investigation, Carlo interviewed various WCSO employees, including Captain Woods. (Id. ¶ 96.)
Defendants assert that plaintiff's visit to Ms. Carlo's office was the first time she reported Captain Woods's inappropriate comments. However, the record shows that she had complained earlier to Sgt. Pierce. The Court further sustains plaintiff's objection to DSMF ¶ 92 because the record cited does not support it. (See PR-DSMF ¶ 92.) Plaintiff actually testified that she did not go directly to Sheriff Chitwood while still employed at the WCSO to tell him what was going on out of fear of retaliation. (Franks Dep. [109-5] 157.) The Court excludes DSMF ¶ 93 as unsupported by the record cited.
Plaintiff denies the above proposed fact (see PR-DSMF ¶ 96), but the record she cites fails to contravene it. In any event, any dispute over the quality or extent of Carlo's investigation is immaterial.
Franks was not aware of other employees in the WCSO who had "reported up the chain of command" that Captain Woods made sexually-offensive comments in the workplace. (DSMF ¶ 67, modified per record cited.) Franks never told Sheriff Chitwood directly that Captain Woods made sexually-offensive comments in the workplace (id. ¶ 68), but as plaintiff correctly points out, the Sheriff's policy did not require that she do so. (PR-DSMF ¶ 68.)
Sheriff Chitwood asserts that he did not personally hear Captain Woods make any sexually-inappropriate comments in the workplace and that he received no reports that he had done so. (DSMF ¶ 69.) Plaintiff disputes that assertion. (See PR-DSMF ¶ 69; see also PSAMF ¶ 3.) Plaintiff supports PR-DSMF ¶ 69 and PSAMF ¶ 3 with citations to her deposition (Franks Dep. [109-5] 123:2-10, 171:18-24, 222:6-223:4) and to paragraph 13 of her First Declaration [110-4]. At page 123 of her deposition, plaintiff states only that Sheriff Chitwood attended the mandatory morning CID meetings. (Franks Dep. [109-5] 123.) At page 171 of her deposition, plaintiff makes no mention of Sheriff Chitwood. (Id. at 171.) However, on the next page (which she does not cite), plaintiff concedes that she could not say what Sheriff Chitwood heard. (Id. at 172.) At pages 222-23 of her deposition, plaintiff testified that, after Woods made comments about Ms. Owenby's appearance, she had seen Sheriff Chitwood "chuckle a few times." (Id. at 222-23.) Given that deposition testimony, plaintiff's claim in her First Declaration ([116-2] ¶ 13), which states, "I know Defendant Chitwood heard Defendant Woods's sexually offensive comments ... because [he] laughed in response to them," exaggerates the record and contradicts her deposition testimony.
Plaintiff also disputes defendants’ claim that she made a sexually-inappropriate comment to a co-worker. (Compare DSMF ¶¶ 70-71, with PR-DSMF ¶¶ 70-71.)
P. Plaintiff's Charge and Defendants’ Statement of Position
On July 3, 2018, Franks filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"). (DSMF ¶ 97.) Sheriff Chitwood's explanation to the EEOC for Captain Woods's February 22, 2018 decision transferring Franks to the later shift to work fulltime in the WCSO evidence office was "the importance of having a deputy on duty in the afternoon as evidence came in to be processed" and "she had less seniority than [Cooley]." (PSAMF ¶ 43.)
Q. Plaintiff's Replacement
Starting in September 2018, Deputy Maria Pack did not work the same evidence technician position with the same duties with the same hours as Captain Woods ordered plaintiff to work effective March 12, 2018, because Captain Woods assigned plaintiff to spend 100 percent of her time in the WCSO evidence office, eliminated her patrol duties, and transferred her to the late shift on Monday through Friday—whereas Deputy Pack, from Monday to Thursday, had patrol duties for fifty percent of her time, from 12:00 p.m. to 4:00 p.m., then worked in the WCSO evidence office the other fifty percent from 4:00 p.m. to 8:00 p.m., and on Fridays, Deputy Pack worked the day shift from 8:00 a.m. to 4:00 p.m. (PSAMF ¶ 53; see also DSMF ¶ 98, modified per record cited.) The evidence technician who later replaced Pack, also a female, currently works the noon to 8:00 p.m. schedule that had been proposed for plaintiff. (DSMF ¶ 100.)
Ms. Pack did not begin working alone in the evidence office until September 2018 because she had to complete training. (DSMF ¶ 99.)
II. SUMMARY JUDGMENT STANDARD
A "court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." See Fed. R. Civ. P. 56(a). The party moving for summary judgment bears the initial burden of "informing the court of the basis for its motion and of identifying those materials that demonstrate the absence of a genuine issue of material fact." Rice-Lamar v. City of Fort Lauderdale, 232 F.3d 836, 840 (11th Cir. 2000) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ). Those materials may include "depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials." Fed. R. Civ. P. 56(c)(1)(A). "Only when that burden has been met does the burden shift to the non-moving party to demonstrate that there is indeed a material issue of fact that precludes summary judgment." Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).
The non-moving party is then required "to go beyond the pleadings" and present competent evidence "showing that there is a genuine issue for trial." Celotex, 477 U.S. at 324, 106 S.Ct. 2548. Generally, "[t]he mere existence of a scintilla of evidence" supporting the non-movant's case is insufficient to defeat a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If in response the non-moving party does not sufficiently support an essential element of his case as to which he bears the burden of proof, summary judgment is appropriate. Rice-Lamar, 232 F.3d at 840. "In determining whether genuine issues of material fact exist, [the Court] resolve[s] all ambiguities and draw[s] all justifiable inferences in favor of the non-moving party." Id. (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ).
In deciding a summary judgment motion, the court's function is not to resolve issues of material fact but rather to determine whether there are any such issues to be tried. Anderson, 477 U.S. at 251, 106 S.Ct. 2505. The applicable substantive law will identify those facts that are material. Id. at 248, 106 S.Ct. 2505. Facts that are disputed, but which do not affect the outcome of the case, are not material and thus will not preclude the entry of summary judgment. Id. Genuine disputes are those in which "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. For factual issues to be "genuine," they must have a real basis in the record. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). When the record as a whole could not lead a rational trier of fact to find for the non-movant, there is no "genuine issue for trial." Id. at 587, 106 S.Ct. 1348.
III. ANALYSIS
Plaintiff sues Sheriff Chitwood under Title VII for (1) SHWE; (2) constructive discharge; (3) disparate treatment based on her sex; and (4) retaliation. Plaintiff sues Captain Woods under Section 1983 for his alleged violation of her right to equal protection of the law as guaranteed by the Fourteenth Amendment. Defendants seek entry of summary judgment in their favor on all of plaintiff's claims. Plaintiff seeks entry of partial summary judgment preventing Woods from asserting a qualified immunity defense to the SHWE claim she makes against him.
A. Plaintiff's Title VII SHWE Claim
Title VII makes it unlawful for an employer "to discriminate against any individual with respect to [her] compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). Although this provision does not mention a SHWE, courts have recognized that " ‘[t]he phrase terms, conditions, or privileges of employment evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment,’ which includes requiring people to work in a discriminatorily hostile or abusive environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (quoting Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (some internal quotation marks omitted)).
To establish a SHWE claim under Title VII based on harassment by a supervisor, an employee must show: (1) that she belongs to a protected group; (2) that the employee has been subject to unwelcome sexual harassment, such as sexual advances, requests for sexual favors, and other conduct of a sexual nature; (3) that the harassment was based on the sex of the employee; (4) that the harassment was sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment; and (5) a basis for holding the employer liable. Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th. Cir. 1999) (en banc).
Sheriff Chitwood contends that Franks has not created triable issues on elements three, four, and five, listed above. Specifically, Sheriff Chitwood argues that Franks cannot recover against him because (1) she was not harassed because of her sex (element three); (2) any alleged harassment was not sufficiently severe or pervasive to alter the conditions of her employment and create an abusive working environment or she did not subjectively perceive Woods's conduct as severe or pervasive (element four); and (3) she cannot establish a basis to hold him liable for the alleged conduct by, or comments of, Captain Woods (element five). (Defs.’ Br. [109-2] 2-29.) Plaintiff disagrees with each of those arguments. (Pl.’s Resp. [116] 15-26.)
1. Whether Alleged Harassment Was Based on Sex
Sheriff Chitwood argues that, since none of Woods's alleged comments were "directed" at plaintiff (i.e., that she was neither the subject nor object of his comments), then plaintiff must show that Woods was " ‘motivated by general hostility to [the presence of] women in the workplace.’ " (Defs.’ Br. [109-2] 3, quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) ).
In Oncale, the Supreme Court outlined three ways a plaintiff can show that the conduct to which she was allegedly subject was based on sex: (1) the challenged conduct was motivated by sexual desire; (2) she was harassed "in such sex specific and derogatory terms ... as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace"; or (3) "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace." 523 U.S. at 80-81, 118 S.Ct. 998.
Plaintiff has raised a triable issue on this third element because she has shown that Woods was motivated by general hostility to the presence of women in the workplace. After he became Captain, Woods was overheard saying, "Women should not have jobs in law enforcement." (PSAMF ¶ 52.) In any event, Oncale also noted as follows: " ‘The critical issue, Title VII's text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ " Oncale, 523 U.S. at 80, 118 S.Ct. 998 (quoting Harris, 510 U.S. at 25, 114 S.Ct. 367 ). There is a disputed issue of material fact over whether Woods exposed Franks to disadvantageous terms or conditions of employment given his constant sex-based comments.
In Reeves v. C.H. Robinson Worldwide, Inc., 594 F.3d 798 (11th Cir. 2010) (en banc), the Circuit reversed a summary judgment that had been entered for the defendant because the "derogatory language in the office was not directed at [the plaintiff] in particular." Id. at 806. The Circuit held that "words and conduct that are sufficiently gender-specific and either severe or pervasive may state a claim of a hostile work environment, even if the words are not directed specifically at the plaintiff." Id. at 811. The words attributed to Woods here are sufficiently gender specific.
2. Severe or Pervasive
The Eleventh Circuit has stated that the "severe or pervasive" requirement "is the element that tests the mettle of most sexual harassment claims." Gupta v. Fla. Bd. of Regents, 212 F.3d 571, 583 (11th Cir. 2000), abrogated on other grounds as recognized by Crawford v. Carroll, 529 F.3d 961, 974 (11th Cir. 2008) (citation omitted). Determining whether the alleged conduct or comments are severe or pervasive such that they alter the terms and conditions of a plaintiff's employment involves a two-pronged inquiry: (1) whether the employee subjectively perceived the harassing conduct as severe or pervasive; and, if so, (2) whether the employee's perception is objectively reasonable. Mendoza, 195 F.3d at 1246.
Sheriff Chitwood challenges whether plaintiff subjectively perceived the alleged comments as severe or pervasive because she did not report Woods until after she resigned and she made a sex-based joke in the workplace. (Defs.’ Br. [109-2] 16-17.) As noted above, plaintiff shows that she reported Woods to her supervisor in line with Sheriff Chitwood's policy early on, so she did register her subjective perception that his comments were offensive. Moreover, there is a fact dispute over whether plaintiff made the joke attributed to her. Thus, plaintiff may be able to show that she subjectively perceived the alleged comments to be offensive.
Sheriff Chitwood also argues that it is "preposterous" for plaintiff to argue that she was offended by Woods's comment that "all pussies and clits look different" when she was watching a pornographic video. (Defs.’ Br. [109-2] 16.) However, there is a disputed issue of fact concerning whether it was within plaintiff's job duties to be watching that video.
Sheriff Chitwood also challenges whether any subjective perception was objectively reasonable. (Defs.’ Br. [109-2] 6-15.) As for this second inquiry, a court must determine whether a reasonable person in plaintiff's position would find the harassment severe or pervasive. Johnson v. Booker T. Washington Broad. Serv., Inc., 234 F.3d 501, 509 (11th Cir. 2000). "This ‘inquiry requires careful consideration of the social context in which particular behavior occurs and is experienced by its target.’ " Wilborn v. S. Union State Cmty. Coll., 720 F. Supp. 2d 1274, 1296 (M.D. Ala. 2010) (quoting Oncale, 523 U.S. at 81, 118 S.Ct. 998 ).
A court must consider "four factors when evaluating whether harassment was objectively hostile: ‘(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's job performance.’ " Fernandez v. Trees, Inc., 961 F.3d 1148, 1153 (11th Cir. 2020) (quoting Mendoza, 195 F.3d at 1246 ). Although these factors help guide the inquiry, "the objective element is not subject to mathematical precision." Bryant v. Jones, 575 F.3d 1281, 1297 (11th Cir. 2009). The Court must view the evidence "cumulatively and in the totality of the circumstances." Reeves, 594 F.3d at 808.
In analyzing the "sufficiently severe or pervasive" element of a sexual harassment case, courts emphasize that Title VII is not a federal " ‘civility code.’ " Mendoza, 195 F.3d at 1245 (quoting Oncale, 523 U.S. at 81, 118 S.Ct. 998 ); see also Jones v. UPS Ground Freight, 683 F.3d 1283, 1297 (11th Cir. 2012) ("It is a bedrock principle that not all objectionable conduct or language amounts to discrimination under Title VII.") (quotation marks and citation omitted). Along this line, the Eleventh Circuit's en banc opinion in Reeves made clear the following:
[W]e reaffirm the bedrock principle that not all objectionable conduct or language amounts to discrimination under Title VII. Although gender-specific language that imposes a change in the terms or conditions of employment based on sex will violate Title VII, general vulgarity or references to sex that are indiscriminate in nature will not, standing alone, generally be actionable.
Reeves, 594 F.3d at 809.
With these standards in mind, the Court turns to Franks's allegations to determine whether Woods's comments, judged from the perspective of a reasonable person in the plaintiff's position, created a SHWE based on (1) their frequency; (2) their severity; (3) whether they were physically threatening or humiliating or mere offensive utterances; and (4) whether they unreasonably interfered with her job performance.
The frequency factor weighs in plaintiff's favor. She alleges that she heard Woods make sexually-inappropriate comments or do inappropriate things on a daily or near-daily basis for about thirteen months. Plaintiff also contends that male and female co-workers told her on a near-daily basis about sexually-inappropriate comments they heard Woods make or inappropriate things they saw him do. (PSAMF ¶¶ 2, 4-5.) Although defendants contend that plaintiff's evidence is too vague (Defs.’ Reply Br. [122] 2-3), the Eleventh Circuit holds otherwise. See Fernandez, 961 F.3d at 1153-54 (rejecting defendant's argument that plaintiff's allegation that his supervisor made harassing comments " ‘every other day’ or ‘nearly every day’ " was conclusory and could not establish the requisite frequency for a hostile work environment claim).
With regard to severity, the Court notes that (fortunately) there is no probative evidence showing that Woods ever touched plaintiff, made sexual advances toward her, or made requests for sexual favors from her. Instead, he regularly made gender-specific offensive comments. Twelve of the fifteen comments that plaintiff overheard in or around daily CID meetings were about Woods's sexual desire for Jill Owenby. Two others were about Ms. Owenby's mother. The remaining comment dealt how he liked to go to the gym to watch women's buttocks while they rode stationary bikes in spin class. Similarly, three of the seven additional gender-specific comments others told plaintiff they had heard dealt with Ms. Owenby. In the others, Woods leered at Brandi Holden; said he wanted to have sex with women other than his wife; called a vagina a "lunch box" and claimed he was going home to eat out of his lunch box; and called a delivery girl "hot." Finally, outside the context of CID meetings, Woods once told plaintiff that "all pussies and clits look different" and compared a suspect's girlfriend's breasts to basketballs.
That Woods never touched plaintiff is relevant because "harassment involving an element of physical invasion is more severe than harassing comments alone." Hawkins v. Anheuser-Busch, Inc., 517 F.3d 321, 334 (6th Cir. 2008) (internal quotation marks and citation omitted). Moreover, numerous cases in this Circuit replete with comments and touching were found to fall short of the threshold level of "severe or pervasive." For example, in Gupta, the harasser placed his hand on the inside of the plaintiff's thigh, lifted the hem of her dress, unbuckled his pants and tucked in his shirt in front of her, stared at her twice, called her frequently at home, told her she looked beautiful, and repeatedly asked her to lunch, but the court held that this conduct did not meet the severe or pervasive requirement. 212 F.3d at 584-86. Similarly, in Mendoza the Eleventh Circuit rejected the plaintiff's claim that she was subjected to a SHWE where she identified the following comments and conduct:
(1) one instance in which Page said to Mendoza "I'm getting fired up"; (2) one occasion in which Page rubbed his hip against Mendoza's hip while touching her shoulder and smiling; (3) two instances in which Page made a sniffing sound while looking at Mendoza's groin area and one instance of sniffing without looking at her groin; and (4) Page's "constant" following and staring at Mendoza in a "very obvious fashion."
195 F.3d at 1247 ; see also Guthrie v. Waffle House, Inc., 460 F. App'x 803, 807-08 (11th Cir. 2012) (per curiam) (harasser "grabbed" the plaintiff's buttocks on two occasions; "talked dirty" to her, including "saying five times that he wanted to ‘fuck’ her and ‘lick’ her ‘all over’; and asked the plaintiff on a date "10 to 20 times," but court held that this conduct fell short of the severe or pervasive standard); Lockett v. Choice Hotels Int'l, Inc., 315 F. App'x 862, 866 (11th Cir. 2009) (per curiam) (alleged sexual remarks and two incidents of brief touching over four-month period fall below the minimum level of severity or humiliation needed to establish sexual harassment); Mitchell v. Pope, 189 F. App'x 911, 913-14 (11th Cir. 2006) (per curiam) (affirming summary judgment where, over four year period, supervisor made 13 inappropriate comments and committed three unwanted touchings—including attempting to kiss plaintiff, lifting her over his head, and rubbing against her and reaching across her chest).
What separates the instant work environment from those the Circuit held were not actionable is the pervasiveness of Woods's comments and conduct. See Reeves, 594 F.3d at 808 ("Either severity or pervasiveness is sufficient to establish a violation of Title VII."). Plaintiff had no escape from the constant sex-based comments allegedly uttered daily for about thirteen months by Woods in the CID mandatory meetings. As the Reeves court noted, "[a] member of a protected group cannot be forced to endure pervasive, derogatory conduct and references that are gender-specific in the workplace." Id. at 810 ; see also Abeita v. TransAmerica Mailings, Inc., 159 F.3d 246, 252 (6th Cir. 1998) (supervisor's sex-related comments that were commonplace, ongoing, and continual established jury question over pervasiveness element of SHWE).
Although defendants argue that Woods's alleged comments were neither physically threatening nor humiliating but merely offensive utterances (Defs.’ Br. [109-2] 15), a reasonable jury could disagree. Plaintiff declares that Woods's constant sex-based comments humiliated her. He treated her as if she were invisible; showed no respect for her as a deputy or a woman; signaled to plaintiff's supervisors and male co-workers that they did not need to respect her; caused plaintiff to feel inferior and that nothing she did at work mattered; made plaintiff feel unwanted and uncomfortable in the office; and caused plaintiff to lose sleep and dread going to work every day knowing Woods would say or do something sexually offensive. A jury can decide whether what Woods said or did would be humiliating to a reasonable person in plaintiff's position as the only woman in a room otherwise populated by men.
Finally, defendants argue that Woods's conduct did not unreasonably interfere with plaintiff's job performance, apparently because he gave her a positive job evaluation while supervising her. (Defs.’ Br. [109-2] 15.) A good job evaluation does not measure whether the alleged harassment interfered with the plaintiff's job performance. See Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1277 (11th Cir. 2002) ("The Supreme Court has cautioned that harassment need not be shown to be so extreme that it produces tangible effects on job performance in order to be actionable."). Plaintiff declares that the harassment forced her to avoid Woods whenever possible. (First Franks Decl. [110-4] ¶ 23.) That obviously makes an employee's job more difficult. See Summers v. ProCore Sols., LLC, No. 1:04-CV-2360-ODE-WEJ, 2006 WL 8431640, at *19 (N.D. Ga. Nov. 8, 2006), R. & R. adopted, 2007 WL 9700531 (N.D. Ga. Mar. 22, 2007) (plaintiff shut off her office lights and locked her door to avoid harasser). Plaintiff also had to spend time away from work complaining to Sgt. Pierce about Woods. (First Franks Decl. [110-4] ¶ 21.) Thus, a jury issue exists over whether Woods's conduct or comments unreasonably interfered with plaintiff's job performance.
3. Basis for Employer Liability
As noted above, the fifth element of a SHEW case requires a showing of employer liability. Mendoza, 195 F.3d at 1245. With regard to element five, one must categorize the type of harassment that occurred and the status of the individual accused of misconduct. Harassment falls into two categories: (1) harassment that results in tangible job detriment to the claimant and (2) harassment that does not. Johnson, 234 F.3d at 508. Tangible job detriment or tangible job action is " ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.’ " Id. at 512 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) ).
All harassment by a co-worker necessarily falls into the first category, as a co-worker can neither dock another's pay nor demote another. Actions that constitute tangible job detriment fall within the special province of a supervisor. Johnson, 234 F.3d at 512 (citing Ellerth, 524 U.S. at 762, 118 S.Ct. 2257 ). In cases of co-worker harassment, "the employer will be held directly liable if it knew or should have known of the harassing conduct but failed to take prompt remedial action." Miller, 277 F.3d at 1278. "Thus, a victim of co-worker harassment must show either actual knowledge on the part of the employer or conduct sufficiently severe and pervasive as to constitute constructive knowledge to the employer." Id.
Conversely, harassment by a supervisor can fall into either category. If the supervisor caused the victim tangible job detriment, then the employer is strictly responsible under principles of vicarious liability. Miller, 277 F.3d at 1278. If, however, the supervisor took no tangible job action against the claimant, then the employer may escape liability if it can successfully prove a two-pronged affirmative defense. Id. Under this affirmative defense, the employer is not liable if it " ‘exercised reasonable care to prevent and correct promptly any [sexually] harassing behavior, and ... [the employee] unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.’ " Id. (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 807, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) ).
"Plaintiff is not claiming that Woods's harassment resulted in a tangible job action." (Pl.’s Resp. [116] 15 n.2.)
As for the first part of the first prong of the affirmative defense, "an employer does not always have to show that it has a formal ... harassment policy to meet its burden of proof on this element. At the same time, an employer's showing that it has a ... harassment policy does not automatically satisfy its burden." Frederick v. Sprint/United Mgmt. Co., 246 F.3d 1305, 1313-14 (11th Cir. 2001) (citations omitted). As for the second part of the first prong, "an employer need not act instantaneously, but must act in a reasonably prompt manner to respond to the employee's complaint." Id. at 1314. As for the second prong, "an employer's showing that the plaintiff-employee failed to follow its complaint procedures will often be sufficient to satisfy its burden." Id. "However, in some cases, the proof will show that the employee's non-compliance was reasonable under the circumstances and, in these cases, the defendant cannot satisfy the second element of the affirmative defense." Id.
Sheriff Chitwood argues that Woods was not plaintiff's supervisor; thus, he cannot be liable because he had no notice of the alleged SHWE. Sheriff Chitwood further argues that, even if Woods had been plaintiff's supervisor, because she suffered no job detriment, he can successfully assert the Faragher / Ellerth affirmative defense. (Defs.’ Br. [109-2] 18-29.)
As noted above, there is a fact dispute over whether Woods was plaintiff's supervisor based on a performance evaluation he completed on her. Regardless of this dispute,
in regard to both the direct liability standard and the employer's affirmative defense to vicarious liability, the employer's notice of the harassment is of paramount importance; if the employer had notice of the harassment (which is required for direct liability but not required for vicarious liability), then it is liable unless it took prompt corrective action.
Dees v. Johnson Controls World Servs., Inc., 168 F.3d 417, 422 (11th Cir. 1999).
Therefore, plaintiff must raise a triable issue on notice. She has done so. Sheriff Chitwood's policy states that employees who believe they have been subjected to sexual harassment should file a complaint, either orally or in writing, with a supervisor of the employee's choosing. (DSMF ¶ 17.) Plaintiff complied with that policy when she complained to Sgt. Pierce, who was the supervisor she chose. Thus, Sheriff Chitwood is deemed to have had actual knowledge of the alleged harassment. See Breda v. Wolf Camera & Video, 222 F.3d 886, 889 (11th Cir. 2000) ("When an employer has a policy for reporting harassment that is clear and published to its employees, and an employee follows that policy, the employer's notice of the harassment is established by the terms of the policy."); Coates v. Sundor Brands, Inc., 164 F.3d 1361, 1364 (11th Cir. 1999) (per curiam) (if an employer has a policy designating the person or persons to whom an employee should report instances of suspected sexual harassment, once the employee complains to the designated person or persons, the employer is deemed to have actual notice of the harassment). There is also no evidence that the Sheriff took prompt, remedial action to end the alleged misconduct.
Sheriff Chitwood complains that allowing Franks to establish notice under the Breda standard is problematic because it leaves too much discretion in the hands of a supervisor, who may not know if what he heard needs reporting. (Defs.’ Reply Br. [122] 16.) Assuming that is a problem, the solution is for the Sheriff to write a policy that designates someone in whom the Sheriff has more confidence to receive complaints, such as a human resources manager or himself.
Sheriff Chitwood also argues that he should not be deemed to have actual notice of the alleged harassment despite plaintiff's adherence to his policy because she failed to follow Whitfield County's policy. (Defs.’ Reply Br. [122] 16-17.) The Sheriff cites no law allowing an employer who promulgated two policies to require an employee to follow the one it selects. But there is no principled difference between the Sheriff's policy (quoted above) and Whitfield County's policy, which provides as follows: "If you feel that you have experienced or witnessed harassment, either general or sexual, you are to notify immediately (preferably within 24 hours) your immediate supervisor or Department Head, or the Human Resources Department, or other Whitfield County officials." (DSMF ¶ 21.) Plaintiff complied with this policy when she reported the harassment to Sgt. Pierce, who was her immediate supervisor at the time.
In sum, the undersigned reports that there are disputed issues of material fact over whether plaintiff was subjected to a SHWE and whether the Sheriff is liable for allowing it to exist. Therefore, the undersigned recommends that Defendants’ Motion for Summary Judgment on plaintiff's SHWE claim against Sheriff Chitwood (FAC Count 4) be DENIED .
B. Plaintiff's Title VII Constructive Discharge Claim
"Constructive discharge occurs when an employer deliberately makes an employee's working conditions intolerable and thereby forces him to quit his job." Bryant v. Jones, 575 F.3d 1281, 1298 (11th Cir. 2009) (internal quotation marks and citation omitted); see also Hill v. Winn-Dixie Stores, Inc., 934 F.2d 1518, 1527 (11th Cir. 1991) ("Before finding a constructive discharge, this court has traditionally required a high degree of deterioration in an employee's working conditions, approaching the level of ‘intolerable.’ "). "The standard for proving constructive discharge is higher than the standard for proving a hostile work environment." Hipp v. Liberty Nat'l Life Ins. Co., 252 F.3d 1208, 1231 (11th Cir. 2001) (per curiam). Indeed, "employee resignations are presumed to be voluntary." Hargray v. City of Hallandale, 57 F.3d 1560, 1568 (11th Cir. 1995) (per curiam) (noting that presumption will prevail unless the employee comes forward with sufficient evidence to establish that the resignation was involuntarily extracted).
Franks alleged a constructive discharge claim against Sheriff Chitwood in Count 2 of the FAC. The Sheriff sought summary judgment on that claim, arguing that the undisputed material facts failed to show that plaintiff's working conditions were so intolerable that she was forced to resign her job. (Defs.’ Br. [109-2] 29-33.) However, plaintiff did not respond to that argument. Instead, she argues that her alleged constructive discharge satisfies the "adverse employment action" element of a prima facie case under the McDonnell Douglas burden-shifting framework. (Pl.’s Resp. Br. [116] 38-41.)
Because plaintiff failed to address constructive discharge independent of the McDonnell Douglas framework, she has abandoned constructive discharge as a separate claim. Therefore, the undersigned recommends that Defendants’ Motion for Summary Judgment on plaintiff's "Sex Discrimination-Constructive Discharge" claim against Sheriff Chitwood (FAC Count 2) be GRANTED because it has been abandoned. See Kramer v. Gwinnett Cnty, 306 F. Supp. 2d 1219, 1221 (N.D. Ga.) ("[A] party's failure to respond to any portion or claim in a motion indicates such portion, claim or defense is unopposed."), aff'd, 116 F. App'x 253 (11th Cir. 2004) (table decision).
The Court will address constructive discharge infra Part III.C as plaintiff argues it. (See Pl.’s Br. [116] 28.)
C. Plaintiff's Title VII Disparate Treatment Claim
Count 6 of the FAC alleges that Sheriff Chitwood unlawfully discriminated against plaintiff because of her sex with respect to transferring her shift from the 8:00 a.m. to 4:00 p.m. day shift to the 12:00 p.m. to 8:00 p.m. late shift, withholding from her essential and potentially life-saving equipment, and other terms, conditions, and benefits of employment, all in violation of Title VII. (FAC ¶ 174.)
"In order to survive summary judgment, a plaintiff alleging intentional discrimination must present sufficient facts to permit a jury to rule in her favor." Lewis v. City of Union City, Ga., 918 F.3d 1213, 1220 (11th Cir. 2019) (en banc). A plaintiff may do so by (1) presenting direct evidence, (2) satisfying the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or (3) demonstrating a "convincing mosaic" of circumstantial evidence that warrants an inference of intentional discrimination. Lewis, 918 F.3d at 1220 & n.6. Plaintiff seeks to travel down all three paths here.
1. Direct Evidence
With regard to the first path, plaintiff contends that Woods's comment that women should not have jobs in law enforcement constitutes direct evidence of discrimination. (Pl.’s Resp. [116] 32.) Direct evidence is evidence which, if believed, proves the existence of a fact without inference or presumption. Schoenfeld v. Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). "In contrast, circumstantial evidence only ‘suggests, but does not prove, a discriminatory motive,’ and may be evaluated under the burden-shifting test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)." Jefferson v. Sewon Am., Inc., 891 F.3d 911, 921-22 (11th Cir. 2018) (citation omitted). "[D]irect evidence is composed of only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of some impermissible factor." Rojas v. Fla., 285 F.3d 1339, 1342 n.2 (11th Cir. 2002) (per curiam) (quoting Schoenfeld, 168 F.3d at 1266 ). Finally, "remarks that are not tied to a challenged employment decision or are made by non-decisionmakers do not qualify under [the Eleventh Circuit's] definition of direct evidence of discrimination." Robertson v. Riverstone Cmtys., LLC, 849 F. App'x 795, 801 (11th Cir. 2021) (per curiam); see also Scott v. Suncoast Beverage Sales, Ltd., 295 F.3d 1223, 1228 (11th Cir. 2002) (remark not direct evidence because it was not "directly related" to the plaintiff's termination). The Court agrees with Sheriff Chitwood that, under the above standards, the remark attributed to Woods is not direct evidence of sex discrimination, because it was not tied to the change to the start time of plaintiff's shift.
"The plaintiff must show that an adverse employment action was taken against him regardless of whether he is relying on direct evidence of discrimination or employing the burden-shifting approach established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), for cases in which only circumstantial evidence is available." Hipp, 252 F.3d at 1230 n.34. Thus, even if this comment constituted direct evidence, plaintiff's claim nevertheless fails given that she suffered no adverse employment action when Captain Woods proposed changing the start time of her shift. See infra Part III.C.2.
2. McDonnell Douglas Framework
McDonnell Douglas established a three-part framework to analyze Title VII discrimination claims. Quigg v. Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1237 (11th Cir. 2016). If the plaintiff establishes a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for its employment decision. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). If the employer meets this burden, the inference of discrimination drops out of the case, and the plaintiff has the opportunity to show by a preponderance of the evidence that the proffered reason was pretextual. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993 ).
Under the McDonnell Douglas framework, a plaintiff can establish a prima facie case of sex discrimination by showing that (1) she belongs to a protected class; (2) she suffered an adverse employment action; (3) she was qualified for the position; and (4) she was treated less favorably than a similarly-situated individual outside his protected class. Lewis, 918 F.3d at 1220-21. Sheriff Chitwood argues that plaintiff's disparate treatment claim fails because she cannot establish a prima facie case (i.e., she suffered no adverse employment action (element 2) and was not treated less favorably than a similarly-situated male employee (element 4)); and even if she could establish a prima facie case, the employment decisions plaintiff challenges were based upon legitimate, non-discriminatory reasons that she has not shown to be pretextual. (Defs.’ Br. [109-2] 33-41.)
"When a complained-of adverse employment action is not an ‘ultimate employment decision,’ such as a termination, failure to hire, or demotion, the conduct at issue must substantially alter ‘the employee's compensation, terms, conditions, or privileges o[f] employment, [or] deprive him or her of employment opportunities.’ " McQueen v. Ala. Dep't of Transp., 769 F. App'x 816, 821 (11th Cir. 2019) (per curiam) (quoting Crawford v. Carroll, 529 F.3d 961, 970-73 (11th Cir. 2008) ).
The proposed change in plaintiff's start time was not an ultimate employment decision. Thus, plaintiff must show that the proposed change in her start time substantially altered her compensation, terms, conditions, or privileges of employment, or deprived her of employment opportunities. McQueen, 769 F. App'x at 821. It is undisputed that the change in plaintiff's start time would not have altered her compensation. Also, given that plaintiff would be performing the same job with the same responsibilities after the change to her start time, no reasonable jury could conclude that the terms, conditions, or privileges of her employment were substantially altered. Finally, there is no evidence that the proposed change in plaintiff's start time deprived her of employment opportunities. "[A] Title VII claim requires the employee to establish that [s]he experienced ‘a serious and material change in the terms, conditions, or privileges of employment.’ " Hall v. Dekalb Cnty. Gov't, 503 F. App'x 781, 787 (11th Cir. 2013) (per curiam) (quoting Crawford, 529 F.3d at 970-71 ). Plaintiff cannot meet that standard given the undisputed material facts.
Plaintiff makes the exaggerated claim that Captain Woods also "stripped" her of patrol duties. Beginning in early-November 2017, plaintiff was assigned to work in the CID evidence office only, performing her evidence technician job, with no patrol duties. (First Franks Decl. [110-4] ¶ 35.) Sgt. Rivera temporarily assigned patrol duties to plaintiff on February 13, 2018 (at her suggestion) when office work was slow and the County faced a crime spike. When Captain Woods announced that plaintiff would resume working only in the evidence office, with no patrol duties, he simply restored the status quo. As noted supra, the claim that working in the evidence office was a "worse" job than working in the evidence office and temporarily patrolling is factually unsupported. While plaintiff may believe that it is more "prestigious" to have some patrol duties, courts have not recognized this as a factor in judging whether a shift change impacts the terms, conditions, or privileges of employment. See Davis v. Town of Lake Park, Fla., 245 F.3d 1232, 1244-45 (11th Cir. 2001) (rejecting an employee's claim that a change in his work assignments, resulting in a "loss of prestige," constituted a materially adverse employment action), overruled on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006) ; see also Tallman v. City of Fairburn, Ga., No. 1:04-CV-2589-WSD, 2006 WL 8431476, at *16 (N.D. Ga. Jan. 30, 2006) ("Whether Plaintiff disliked the patrol assignment or felt some subjective loss of prestige is irrelevant.").
Because moving the start time of a shift does not seriously and materially change the terms, conditions or privileges of employment, courts are unanimous in finding that it is not an adverse employment action. See Jackson v. Hall Cnty. Gov't, 518 F. App'x 771, 773 (11th Cir. 2013) (per curiam) (changes to shift assignments or work schedules are insufficient to establish an adverse employment action); Hall, 503 F. App'x at 787 ("In the majority of instances, an employee alleging a change in work assignments, without any tangible harm, will be outside the protection provided by Title VII's anti-discrimination clause."); Grube v. Lau Indus., Inc., 257 F.3d 723, 728-29 (7th Cir. 2001) ("[An employer's] decision to change an [employee's] working hours certainly does not rise to the level of an adverse employment action. ... Title VII simply was never intended to be used as a vehicle for an employee to complain about the hours she is scheduled to work or the effect those hours have upon the time an employee spends with family members."); Benningfield v. City of Houston, 157 F.3d 369, 377 (5th Cir. 1998) ("Merely changing [the plaintiff's] hours, without more, does not constitute an adverse employment action."); Solomon v. Jacksonville Aviation Auth., No. 3:16-CV-1453-J-20PDB, 2018 WL 10667639, at *6 (M.D. Fla. May 9, 2018) (evidence showing that plaintiff's schedule was altered on seven instances to change the start time of his shift by somewhere between one and four hours did not rise to the level of adverse action where no change was made to his duties, compensation, or any other material aspect of his job), aff'd, 759 F. App'x 872 (11th Cir. 2019) ; Smith v. Integrated Cmty. Oncology Network, LLC, No. 3:08-CV-1196-J-25 MCR, 2010 WL 3895571, at *6 (M.D. Fla. June 18, 2010) (plaintiff's claim that employer forced him to work early shift on a permanent basis and ended rotation of department employees through all three shifts was not an adverse employment action because "a shift change of this character does not ordinarily amount to a tangible job consequence"), aff'd, 428 F. App'x 886 (11th Cir. 2011) ; Araya v. Fulton-DeKalb Hosp. Auth., No. 1:08-CV-1732-TCB-AJB, 2009 WL 10664777, at *9 (N.D. Ga. Aug. 19, 2009) (change in plaintiff's start and end times was not an adverse employment action), R. & R. adopted, 2009 WL 10664857 (N.D. Ga. Nov. 5, 2009) ; Puckett v. Potter, 342 F. Supp. 2d 1056, 1067 (M.D. Ala. 2004) (changing start time of plaintiff's shift was not adverse employment action).
Had Captain Woods announced that he was moving plaintiff to a totally different shift instead of just moving her start time, she still would have suffered no adverse employment action. See Allen v. U.S. Postmaster Gen., 158 F. App'x 240, 244 (11th Cir. 2005) (per curiam) ("Allen can only complain of a change in shift and having to drive farther to work, which are not adverse employment actions."); Lawson v. City of Pleasant Grove, No. 2:14-cv-0536-JEO, 2016 WL 2338560, *8 (Feb. 16, 2016) ("The City is also correct that Lawson's reassignment from the evening shift (2 p.m. to 10 p.m.) to the night shift (10 p.m. to 6 a.m.) is not itself an adverse employment action, given that Lawson has not shown any difference in pay, benefits, responsibility level, prestige, or duties."); Dixon v. Palm Beach Cnty. Parks & Rec. Dep't, No. 07-80528-CIV, 2009 WL 200013, at *5 (S.D. Fla. Jan. 26, 2009) (transfer of plaintiff from bicycle patrol on the day shift to vehicle patrol on the night shift not adverse employment action); Braswell v. Allen, 586 F. Supp. 2d 1297, 1307 (M.D. Ala. 2008) (transfer from day shift to morning shift did not constitute an adverse employment action); Burdette v. Fed. Express Corp., No. 1:97-CV-2935-TWT, 1999 WL 1788188, at *8 (N.D. Ga. Nov. 8, 1999) (change in shift assignment from morning to evening was not adverse employment action), aff'd, 233 F.3d 578 (11th Cir. 2000) (table).
Plaintiff seeks to avoid the above-listed case authorities by arguing that the proposed start time change was an adverse employment action in her particular situation. Because she could not work past 4:00 p.m. given her childcare responsibilities (which Woods knew), plaintiff contends that assignment of a later start time presented her with an impermissible take-it-or-leave-it choice. Therefore, her decision to resign was, in effect, a constructive discharge. (Pl.’s Resp. [116] 28-29.)
Plaintiff cites three cases to support her claim that she was presented with an impermissible "take-it-or-leave-it" choice when her start time was changed. (Pl.’s Resp. [116] 29-30, citing Rowell v. BellSouth Corp., 433 F.3d 794 (11th Cir. 2005), Anderson v. Sumter Cnty. Sch. Dist., 449 F. Supp. 3d 1329 (M.D. Ga. 2020), and Seisser v. Platz Flowers & Supply, Inc., 129 F. Supp. 2d 1130 (N.D. Ill. 2000).) However, those cases are in apposite. Woods did not offer plaintiff a quit or be fired choice. He proposed moving her start time. Although plaintiff may have faced a difficult choice due to her personal circumstances, she was not given an impermissible take-it-or-leave-it one.
See Rowell, 433 F.3d at 806-07 (because plaintiff's decision to accept a severance benefit over the possibility of remaining employed, while a difficult choice, was not a take it-or-leave-it proposition, no constructive discharge occurred); Anderson, 449 F. Supp. 3d at 1340-41 (plaintiff sufficiently alleged constructive discharge where she was given an impermissible take-it-or-leave-it choice between resigning or receiving poor scores on her annual evaluation, which would have led to the loss of her state teaching certification); Seisser, 129 F. Supp. 2d at 1135 (triable issue existed over whether plaintiff resigned voluntarily when supervisor told her that he wanted her to take an early retirement, and when she asked if there were any other options, he replied that there were not).
The Seventh Circuit in Grube faced a scenario very much like the one presented here. In that case, the employer asked the plaintiff to move from first-shift supervisor to second-shift supervisor. Grube, 257 F.3d at 725. However, she resigned, explaining that a transfer to second shift would interfere with her ability to care for her husband, who was undergoing treatment for leukemia. Id. at 726. Plaintiff then sued under Title VII, alleging five instances of claimed sex discrimination, one of which was the transfer. Id. at 727. The district court granted summary judgment, finding, inter alia, that plaintiff had not established a prima facie case because the transfer was not an adverse employment action. Id. On appeal, plaintiff argued that she had suffered an adverse employment action because she was constructively discharged. Id. at 728. She claimed that her employer's request that she transfer to second shift would have caused a reasonable employee to quit and thus constituted constructive discharge. Id. The Circuit rejected that argument as follows:
But were we to hold that a mere change in working hours would rise to the level of creating a condition so objectively unbearable as to allow an employee to quit and then bring a claim of constructive discharge, employers would be in a most precarious position in adapting and maintaining employee's work schedules to fit within the parameters of their business needs. While we have previously held that a transfer to another city to a position that seemed far from secure might support a claim of constructive discharge, Lau's decision to change Grube's working hours certainly does not rise to the level of an adverse employment action. Grube's pay and job title remained the same, and she suffered no significantly diminished job responsibilities. Grube offers little support, indeed she fails to offer a single citation to a case from any circuit, including ours, for the proposition that a mere transfer from a first to a second shift, unaccompanied by a reduction in pay or significantly diminished job responsibilities, can support a constructive discharge claim. Instead, Grube offers only conjecture, rooted in stereotypes regarding the roles of men and women in the family, to support her position.
Grube, 257 F.3d at 728 (citation omitted).
Like Ms. Grube, Ms. Franks suffered no constructive discharge here. Therefore, plaintiff did not suffer an adverse employment action when Woods proposed moving her start time. Given that plaintiff has failed to establish the third element of her prima facie disparate treatment case, summary judgment should be entered for Sheriff Chitwood on Count 6 of the FAC. See Turlington v. Atlanta Gas Light Co., 135 F.3d 1428, 1433 (11th Cir. 1998) ("[S]ummary judgment against the plaintiff is appropriate if he fails to satisfy any one of the elements of a prima facie case.").
Defendants cited Grube and discussed it extensively (see Defs.’ Br. [109-2] 35-36), but plaintiff failed to address it in her Response [116].
3. Convincing Mosaic
Plaintiff claims that even if she cannot proceed using the McDonnell Douglas framework, she can survive summary judgment on her disparate treatment claim because she can present a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination. (Pl.’s Resp. [116] 41.) Assuming that plaintiff has such circumstantial evidence, her inability to establish that she suffered an adverse employment action renders the convincing mosaic irrelevant. See Lackey v. La Petite Acad., Inc., No. 2:18-CV-00429-RDP, 2020 WL 1285828, at *5 (N.D. Ala. Mar. 16, 2020) (plaintiff must establish that she suffered an adverse employment action whether she seeks to prove intentional discrimination through use of direct evidence, application of the McDonnell Douglas framework, or by presenting a convincing mosaic of circumstantial evidence); Johnson v. La Petite Acad., Inc., No. 5:17-CV-01202-MHH, 2020 WL 2840090, at *9 (N.D. Ala. June 1, 2020) (because plaintiff did not demonstrate that she suffered an adverse employment action, her discrimination claim fails under both the McDonnell Douglas framework and the convincing mosaic standard); Redding v. Fanning, No. 5:14-CV-407 (MTT), 2016 WL 6821098, at *2 n.5 (M.D. Ga. Nov. 17, 2016) (plaintiff's failure to demonstrate an adverse employment action is fatal to his claim, regardless of whether he proceeds under the McDonnell Douglas framework or by presenting a convincing mosaic of circumstantial evidence). Given that plaintiff cannot establish that she suffered an adverse employment action, the convincing mosaic standard cannot be used to infer intentional discrimination.
In Smith v. Lockheed-Martin Corp., 644 F.3d 1321 (11th Cir. 2011), the Circuit recognized that the McDonnell Douglas framework is not the only way to use circumstantial evidence to survive a motion for summary judgment. "A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents a ‘convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decision maker.’ " Id. at 1328 (footnote omitted) (quoting Silverman v. Bd. of Educ., 637 F.3d 729, 734 (7th Cir. 2011) ). The Seventh Circuit has since overruled Silverman and other cases which applied the "convincing mosaic" standard. See Ortiz v. Werner Enters., Inc., 834 F.3d 760 (7th Cir. 2016).
Other cases which hold that establishing an adverse employment action is essential even where a plaintiff seeks to use the convincing mosaic standard include Truesdale v. CSX Transportation, Inc., No. 3:15-CV-1373-J-32PDB, 2017 WL 4182327, at *5 (M.D. Fla. Sept. 21, 2017) ("Nor does the Court find Truesdale has presented ‘a convincing mosaic of circumstantial evidence’ from which a jury could infer intentional discrimination as the basis for CSXT taking adverse employment action against her."), and Long v. McHugh, No. 1:13-CV-01577-MHH, 2016 WL 4379430, at *6 (N.D. Ala. Aug. 17, 2016) ("A triable issue of fact exists if the record, viewed in a light most favorable to the plaintiff, presents ‘a convincing mosaic of circumstantial evidence that would allow a jury to infer intentional discrimination by the decisionmaker’ " that caused the adverse employment action.") (citation omitted).
4. Mixed Motive
Plaintiff also argues that she can show "mixed motive" gender discrimination even if other factors also motivated the decisionmaker here. (Pl.’s Resp. [116] 43-44.) Discrimination can be shown by direct or circumstantial evidence under a mixed-motive framework, where both legitimate and illegitimate reasons motivated the employer's adverse employment decision. See Quigg, 814 F.3d at 1235. Under this framework, the question is whether there is evidence that (1) the employer took an adverse employment action against the plaintiff, and (2) a protected characteristic was "a motivating factor" for that action. Id. at 1239.
As shown in the preceding paragraph, establishing a mixed-motive case requires, just as with the other ways of proving intentional discrimination discussed above, the plaintiff to have suffered an adverse employment action. As already discussed at length, moving the start time of plaintiff's shift was not an adverse employment action. Accordingly, she cannot pursue a mixed-motive case either.
5. Conclusion Regarding Disparate Treatment Claim
Because the undisputed material facts show that plaintiff suffered no adverse employment action, she cannot establish a disparate treatment claim. Therefore, Defendants’ Motion for Summary Judgment against plaintiff's Title VII sex discrimination claim asserted against Sheriff Chitwood in Count 6 of the FAC should be GRANTED .
D. Plaintiff's Title VII Retaliation Claim
In the absence of direct evidence, retaliation claims are analyzed under the same McDonnell Douglas burden-shifting framework as discrimination claims, which means that the plaintiff must first establish a prima facie case. See Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir. 1998). A prima facie case for a retaliation claim requires plaintiff to establish that (1) she engaged in protected activity, (2) she suffered a materially adverse employment action, and (3) there was a causal connection between the two events. Manley v. DeKalb Cnty., Ga., 587 F. App'x 507, 512 (11th Cir. 2014) (per curiam).
With regard to the first element,
[a]n employee is protected from discrimination if (1) "he has opposed any practice made an unlawful employment practice by this subchapter" (the opposition clause) or (2) "he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter" (the participation clause).
Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1350 (11th Cir. 1999) (quoting 42 U.S.C. § 2000e-3(a) ). Because plaintiff had not filed a charge of discrimination at the time she resigned, her claim arises (if at all) under the opposition clause. See Muhammad v. Audio Visual Servs. Grp., 380 F. App'x 864, 872 (11th Cir. 2010) (per curiam) (opposition clause protects activity that occurs before the filing of a charge with the EEOC, such as submitting an internal complaint of discrimination to an employer or informally complaining of discrimination to a supervisor).
With regard to the second element, an adverse employment action in the context of a retaliation claim is one that action causes a serious and material change in the terms, conditions, or privileges of employment and " ‘must be harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ " Clark v. S. Broward Hosp. Dist., 601 F. App'x 886, 891-92 (11th Cir. 2015) (per curiam) (quoting Burlington, 548 U.S. at 57, 126 S.Ct. 2405 ). With regard to the third element, a plaintiff satisfies it if she provides sufficient evidence that the decision maker was aware of the protected conduct and that there was close temporal proximity between this awareness and the adverse employment action. Farley v. Nationwide Mut. Ins. Co., 197 F.3d 1322, 1337 (11th Cir. 1999).
Plaintiff alleged that Sheriff Chitwood retaliated against her for complaining about Woods's sexually inappropriate comments by transferring her shift from 8:00 a.m. to 4:00 p.m. to 12:00 p.m. to 8:00 p.m., withholding from her essential and potentially life-saving equipment, and other terms, conditions and benefits of employment, all in violation of Title VII. (FAC ¶ 194.) Plaintiff argues that the Sheriff heard what Woods said in the CID meetings and that she repeatedly complained to Sgt. Pierce about Woods's comments. Thus, she contends that both scenarios put Sheriff Chitwood on notice that she was opposing unlawful employment practices so as so satisfy the first element of her prima facie retaliation case. (Pl.’s Resp. [116] 45-46.)
It is undisputed, however, that plaintiff did not complain in the CID meetings about the comments Woods allegedly made and that she never complained about them to the Sheriff. Therefore, even if the Sheriff heard Woods make inappropriate comments in the CID meetings, plaintiff voiced no opposition to them. He could not assume that she was offended and therefore opposed them. The Court ruled supra that the Sheriff cannot assert the Faragher / Ellerth affirmative defense because he is deemed to have been on notice of plaintiff's complaints about Woods's comments given that she followed his policy and went to Sgt. Pierce. However, there is no evidence that Sgt. Pierce passed along plaintiff's opposition to Woods's comments to Sheriff Chitwood. Because there is nothing to show that Sheriff Chitwood was aware of plaintiff's protected activity, which is the only way he could have formed an intent to retaliate against her, this claim as pled fails. See Brungart v. BellSouth Telecomms., Inc., 231 F.3d 791, 799 (11th Cir. 2000) (The requirement that the decision maker be aware of the protected activity "rests upon common sense. A decision maker cannot have been motivated to retaliate by something unknown to him.").
Although not pled in the FAC, plaintiff now contends that Woods also retaliated against her for engaging in protected activity. (See Pl.’s Resp. Br. [116] 45-47.) She asserts two protected oppositional acts: (1) her rejection of Woods's proposition for an affair; and (2) her reproval of his vulgar comment that "all pussies and clits look different." (Pl.’s Resp. [116] 45.)
" ‘A plaintiff may not amend her complaint through argument in a brief opposing summary judgment.’ " Lightfoot v. Henry Cnty. Sch. Dist., 771 F.3d 764, 779 (11th Cir. 2014) (quoting Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam)); see also PCI-U, LLC v. Fair Isaac Corp., No. 1:17-CV-02650-ELR, 2019 WL 10837768, at *4 (N.D. Ga. Aug. 5, 2019) (declining to consider new theory not plead in complaint when ruling on summary judgment motion). Although the Court could refuse to consider this new claim against Woods, defendants have not objected and have responded to it. (Defs.’ Reply Br. [122] 26-28.) Therefore, the Court considers it.
With regard to plaintiff's first oppositional act, when she informed Woods that her husband would be away for an extended period, he remarked, "You're free to do whatever you want now." Plaintiff alleges that she then rejected his proposition. However, as discussed supra, plaintiff claims she said "No" to a statement that no reasonable person would construe as a proposition. Thus, while refusing sexual advances may be protected activity under Title VII, see Roberts v. Cnty. of Cook, No. 01 C 9373, 2004 WL 1088230, at *5 (N.D. Ill. May 12, 2004), Woods's words could not reasonably be construed as a sexual advance.
Other district courts have held that refusing a supervisor's sexual advances does not constitute protected activity. They have rejected such claims because "otherwise, every harassment claim would automatically state a retaliation claim as well." Del Castillo v. Pathmark Stores, Inc., 941 F. Supp 437, 438-39 (S.D.N.Y. 1996).
With regard to plaintiff's second oppositional act, she contends that she told Woods it was "not okay" for him to make a vulgar comment. In an opposition clause claim, a plaintiff must demonstrate "a good faith, reasonable belief that the employer was engaged in unlawful employment practices." Little v. United Techs., Carrier Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). A plaintiff "must not only show that he subjectively ... believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented." Id. "The objective reasonableness of an employee's belief that her employer engaged in an unlawful employment practice must be measured against existing substantive law." Clover, 176 F.3d at 1351.
If the gender-specific vulgar comment plaintiff attributes to Woods had been the only one he ever uttered, then the substantive law would hold that her opposition to this a single comment was not protected activity, as one comment cannot create a SHWE. See Flynn v. CB&I Maint., LLC, No. CV 17-029-CG-B, 2018 WL 3624984, at *7 (S.D. Ala. July 30, 2018) (reasonable employee in plaintiff's position could not believe that a Title VII sexual harassment claim would be supported by the comment made on a single occasion). However, the comment to which plaintiff objected was not Woods's first. Comments of this type had been going on regularly for months. Therefore, a triable issue exists over whether plaintiff's statement to Woods that it was "not okay" to make such comments was protected activity. See Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178-80 (2d Cir. 1996) (complaint about a co-worker's sexually-vulgar comment could be protected activity where plaintiff could have had a reasonable belief that it contributed to the creation of a SHWE in light of earlier sexually discriminatory remarks and conduct, even if one could not reasonably think that the final comment alone violated Title VII); Livingston v. Marion Bank & Tr. Co., 30 F. Supp. 3d 1285, 1316 (N.D. Ala. 2014) (complaint made to the harassing supervisor, accompanied by a demand that he cease engaging in sexually harassing conduct generally, may be protected where the employee could reasonably believe that the supervisor's harassment, viewed cumulatively, was unlawful under Title VII).
Given that plaintiff may have engaged in protected activity, then the issue becomes whether she can establish the second and third elements of her prima facie retaliation case, i.e., whether she suffered a materially adverse employment action and a causal connection between those two events. At Part III.C.2., supra, the undersigned recommended summary judgment be entered against plaintiff's disparate treatment sex discrimination claim because she could not establish that moving the start time of her shift was an adverse employment action under that cause of action. However, the reasoning employed there does not apply to plaintiff's Title VII retaliation claim. With regard to adverse employment actions, "the type of employer conduct considered actionable [in a retaliation context] has been broadened from that which adversely affects the plaintiff's conditions of employment or employment status to that which has a materially adverse effect on the plaintiff, irrespective of whether it is employment or workplace-related." Crawford, 529 F.3d at 973. A materially adverse action means one that might have dissuaded a reasonable employee from making or supporting a charge of discrimination. Id.
As plaintiff correctly asserts, in Smith v. City of Greensboro, 647 F. App'x 976 (11th Cir. 2016) (per curiam), the Circuit recognized a shift change in what constitutes an adverse employment action in the retaliation context. (Pl.’s Resp. [116] 57.) In Smith, the plaintiff police officer had worked only the night shift for six years. During the day he drove a school bus. Smith, 647 F. App'x at 978. Smith and his boss (Chief Hudson) got into a conflict, leading Smith to write a letter stating that the Chief was bullying him and threatening to put him on the day shift so that he could not drive his bus route. Id. After some additional conflict between them, Chief Hudson told Smith that he could no longer work the night shift exclusively but would rotate shifts as other officers did. Smith complained that Chief Hudson should reverse that decision because he needed to work both jobs to support his family. Id. at 979. When Chief Hudson did not change his position, Smith stopped coming to work and was terminated. Id. Smith then sued, asserting (1) a First Amendment freedom of association retaliation claim; (2) a race discrimination claim under § 1983 and Title VII; and (3) a Title VII retaliation claim. Id. at 979-80. The district court granted summary judgment, and Smith appealed.
The Circuit first considered whether Smith had established that he suffered an adverse employment action, which was a necessary element of all three claims. Smith, 647 F. App'x at 980. Smith argued that he had suffered two adverse employment actions: a coerced resignation and a shift change. Id. After quickly rejecting the notion that Smith's resignation had been coerced, the Circuit concluded that the shift change could not support a § 1983 or Title VII discrimination claim, but could constitute an adverse employment action for purposes of Smith's retaliation claims. Id. The Circuit reasoned as follows:
For his race discrimination claims under Title VII or § 1983, Smith must prove that his employer took actions that materially changed the terms, conditions, or privileges of employment. Smith argues that being placed on the day-shift prevented him from working his day job, but he does not argue, nor does he support with evidence, that the shift change materially altered the terms, conditions, or privileges of his employment as a police officer with the City. Thus, Smith failed to show he suffered an adverse employment action to support his race discrimination claim under Title VII or § 1983. ...
In contrast, the shift change could support Smith's retaliation claims against Chief Hudson. "[T]he type of employer conduct considered actionable [in the retaliation context] has been broadened from that which adversely affects the plaintiff's conditions of employment or employment status to that which has a materially adverse effect on the plaintiff, irrespective of whether it is employment or workplace-related." To determine whether the shift change had a materially adverse effect, we consider the totality of circumstances "judged from the perspective of a reasonable person in the plaintiff's position."
Smith produced evidence that the shift change—after his six years of working only nights—made it impossible for him to keep his day job as a bus driver, a job he needed to support his family. Based on the evidence in the record, a reasonable jury could conclude that this shift change had a "materially adverse" effect on Smith and thus constituted an adverse employment action for purposes of his two retaliation claims against Hudson.
Id. at 981-82 (citations and footnote omitted).
The Circuit nevertheless affirmed the entry of summary judgment because there was no evidence that Chief Hudson knew that plaintiff had ever engaged in protected activity. Smith, 647 F. App'x at 982-84.
Just as the change proposed in Smith impacted the plaintiff's ability to support his family, here the change to Franks's work schedule impacted her ability to provide after-school childcare for her step-daughter while her husband was deployed. Although the Smith case involves a financial loss, there is no perceptible difference between the two losses given that one plaintiff would lose income and the other would have to spend additional money to secure evening childcare—if it was even available. As the Supreme Court has noted, "[a] schedule change in an employee's work schedule may make little difference to many workers, but may matter enormously to a young mother with school-age children." Burlington N. & Santa Fe Ry. Co., 548 U.S. at 69, 126 S.Ct. 2405 ; see also Tatroe v. Cobb Cnty., Ga., No. 1:04-CV-1074-WSD, 2008 WL 361010, at *12 (N.D. Ga. Feb. 8, 2008) (concluding that a shift change from day shift to night shift could support a prima facie retaliation claim following Burlington ).
As discussed above, in the retaliation context, the issue is whether the action is "harmful to the point that [it] could well dissuade a reasonable worker from making or supporting a charge of discrimination.’ " Clark, 601 F. App'x at 891-92 (quoting Burlington, 548 U.S. at 57, 126 S.Ct. 2405 ). Here, the four-hour shift change proposed by Woods constitutes as an adverse employment action for plaintiff's Title VII retaliation claim. Notably, when Woods proposed adjusting the CID schedules by four hours every other week in June 2017, both plaintiff and Cooley told him that the 12:00 p.m. to 8:00 p.m. late shift would not work for the identical reasons—they each had children who required after-school childcare. (PSAMF ¶ 9; see also DSMF ¶¶ 55-56, modified per record cited.) Likewise, in her resignation letter, plaintiff stated that she did not want to resign and had hoped to continue working for WCSO until retirement, but was forced to leave because of the hardship to her family created by the shift change in combination with her husband's deployment. (Franks Dep. Ex. 5 [109-5], at 488.) Indeed, plaintiff delayed submitting her resignation letter while Sgt. Rivera proposed to Woods alternative positions which plaintiff could perform in lieu of resigning. Thus, a jury could find that a reasonable employee in the particular circumstances here (functioning as a single parent) would find such a shift change materially adverse, i.e., it would dissuade the employee from making or supporting a charge of discrimination.
Because plaintiff can establish that she suffered an adverse employment action when the facts are viewed in a light most favorable to her, the Court must consider whether she can also establish a causal connection between her protected activity and that adverse employment action. Here, Woods knew that plaintiff's husband was deployed until September 2018 and that she would have to resign if she could not remain on the early shift. (PSUMF ¶¶ 7-8; PSAMF ¶¶ 16, 44, all modified per record cited.) Plaintiff objected directly to Woods about his September 2017 gender-specific vulgar statement. Less than six months later, on February 17, 2018, Woods became captain over the CID with control over the duties, assignment, and schedule of the evidence office employees, and less than a week later, on February 22, he changed only plaintiff's shift, leaving the other two CID employees to work the 8:00 a.m. to 4:00 p.m. shift. Because of the significant time gap between plaintiff's protected activity and the adverse event, she cannot establish causation by mere temporal proximity. See Johnson v. Miami-Dade Cnty., 948 F.3d 1318, 1327-28 (11th Cir. 2020) (per curiam) (explaining that, without more, mere temporal proximity must be very close to suggest causation and finding a three-to-four month disparity insufficient). However, plaintiff can demonstrate a causal connection with evidence that the adverse action was the "first opportunity" for Woods to retaliate against her. See Jones v. Suburban Propane, Inc., 577 F. App'x 951, 955 (11th Cir. 2014) (per curiam). Viewing the facts in the light most favorable to her as the non-movant regarding defendants’ Motion, a reasonable jury could find that Woods did not have the authority to change plaintiff's shift until his February 17, 2018 promotion and that he took the opportunity to do so within days of gaining that additional authority.
Woods had attempted to change the CID employees’ schedules in June 2017, but that decision was denied by Captain Swiney—who had not yet retired and had authority over Woods at that time. (PSAMF ¶ 8; see also DSMF ¶¶ 54, 57, modified per record cited.)
Because plaintiff can establish a prima facie case of retaliation, defendants bear the "exceedingly light burden" of articulating a legitimate, non-discriminatory reason for changing her shift. See Tolar v. Bradley Arant Boult Commings, LLP, 997 F.3d 1280, 1297 (11th Cir. 2021) (internal quotation marks and citation omitted). Defendants assert two reasons for changing plaintiff's schedule: (1) the need for an on-duty evidence technician to process evidence brought in later by patrol and narcotics units—with plaintiff chosen due to her less senior status, and (2) plaintiff's unproductive performance on patrol. (See Defs.’ Br. [109-2] 46, citing DSMF ¶¶ 82-83.) Thus, defendants have met their burden and the inference of retaliation drops; now plaintiff has the opportunity to raise a triable issue over whether those proffered reasons are pretextual.
To establish pretext, a plaintiff "must demonstrate that the proffered reason was not the true reason for the employment decision." Jackson v. Ala. State Tenure Comm'n, 405 F.3d 1276, 1289 (11th Cir. 2005) (internal quotation marks and citation omitted). "Reasons are pretextual only if (1) the reasons were false and (2) retaliation was the real reason for the employment decision." Mealing v. Ga. Dep't of Juvenile Justice, 564 F. App'x 421, 427 (11th Cir. 2014) (per curiam) (citing St. Mary's Honor Ctr., 509 U.S. at 515, 113 S.Ct. 2742 ). Here, there is probative evidence in the record from which a reasonable jury could conclude that defendants’ proffered reasons are false. When Woods first proposed changing the evidence technicians’ schedules in June 2017, he intended to alternate the day shift and late shift weekly between plaintiff and Cooley—with no consideration of seniority. It is unclear why longevity was factored into his decision-making in February 2018, with a possible intervening event being plaintiff's direct complaint to Woods regarding his September 2017 gender-specific vulgar comment. Likewise, viewed in the light most favorable to plaintiff, the undisputed evidence belies the assertion that she performed poorly on patrol. Defendants can point to only one incident of plaintiff "hiding" while on patrol (in July 2017) and cite no GPS records for any other time period to support Woods's claims that she continued that practice. Similarly, plaintiff did not fail to respond to an officer-in-need call on February 21, 2018, but followed WCSO policy by complying with her supervisor's directive that she remain in place to assist with a problematic warrant. Likewise, Woods admitted that no metrics exist for measuring plaintiff's productivity for traffic stops and arrests and, in any event, she had more arrests between February 12 and 20, 2018 than her CID colleague, Cooley. Therefore, because disputed issues of material fact exist regarding whether Woods changed plaintiff's shift in retaliation for her protected conduct, the undersigned RECOMMENDS that Defendants’ Motion for Summary Judgment be DENIED as to plaintiff's Title VII retaliation claim.
E. The § 1983/Equal Protection Clause Claim Against Woods
Plaintiff sued Woods for violation of the Equal Protection Clause of the Fourteenth Amendment through 42 U.S.C. § 1983. Count 9 of the FAC alleges that Woods violated plaintiff's Equal Protection Clause rights by constructively discharging her, creating a SHWE, and by discriminating against her on the basis of sex.
When, as here, a plaintiff asserts parallel Title VII and § 1983 Equal Protection Clause discrimination claims, both have the same standards of proof and share the same analytical framework. Cross v. State of Ala., State Dep't of Mental Health & Mental Retardation, 49 F.3d 1490, 1504 (11th Cir. 1995). The undersigned has recommended entry of summary judgment against plaintiff's Title VII constructive discharge and disparate treatment sex discrimination claims, but denial of summary judgment on the Title VII SHWE claim. Those recommendations apply here as well.
Woods argues that he is entitled to assert qualified immunity to plaintiff's Equal Protection Clause claims and argues that point in the brief supporting Defendants’ Motion for Summary Judgment. (See Defs.’ Br. [109-2] 46-50.) To complicate things further, plaintiff filed her own Motion for Partial Summary Judgment [110], seeking an order from the Court that Woods is not entitled to assert qualified immunity to her SHWE claim. Given the undersigned's recommendations, see supra note 63, the following discussion focuses upon the SHWE claim only.
"The defense of qualified immunity completely protects government officials performing discretionary functions from suit [for damages] in their individual capacities unless their conduct violates ‘clearly established statutory or constitutional rights of which a reasonable person would have known.’ " Gonzalez v. Reno, 325 F.3d 1228, 1233 (11th Cir. 2003) (quoting Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) ). "The purpose of the qualified immunity defense is to protect[ ] government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Youmans v. Gagnon, 626 F.3d 557, 562 (11th Cir. 2010) (per curiam) (internal quotation marks and citations omitted). Law is "clearly established" for purposes of qualified immunity "only by decisions of the U.S. Supreme Court, Eleventh Circuit Court of Appeals, or the highest court of the state where the case arose." Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 826-27 n.4 (11th Cir. 1997).
"To be entitled to qualified immunity, an official must first prove that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred." Mikko v. City of Atlanta, Ga., 857 F.3d 1136, 1143-44 (11th Cir. 2017) (internal quotation marks and citation omitted). Discretionary authority includes all actions of a governmental official that "(1) were undertaken ‘pursuant to the performance of his duties,’ and (2) were ‘within the scope of his authority.’ " Dang ex rel. Dang v. Sheriff, Seminole Cnty., 871 F.3d 1272, 1279 (11th Cir. 2017) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988) ). "If the official can make that showing, the burden then shifts to the plaintiff to show that the grant of qualified immunity is inappropriate." Knight ex rel. Kerr v. Miami-Dade Cnty., 856 F.3d 795, 821 (11th Cir. 2017) (internal quotation marks and citation omitted). To defeat qualified immunity, the plaintiff must establish "(1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct." Mikko, 857 F.3d at 1144 (internal quotation marks and citation omitted). "Clearly established means that, at the time of the officer's conduct, the law was sufficiently clear that every reasonable official would understand that what he is doing is unlawful." Dist. of Columbia v. Wesby, 583 U.S. ––––, 138 S. Ct. 577, 589, 199 L.Ed.2d 453 (2018) (internal quotation marks and citations omitted). Determining whether the right was clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition." Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002) (internal quotation marks and citation omitted).
Woods contends that it is undisputed that he was acting within the scope of his discretionary authority at all times material to this case; therefore, plaintiff must show that his conduct violated her clearly established Constitutional rights. He asserts that he did not create a SHWE for plaintiff and thereby did not violate her Equal Protection Clause rights. (Defs.’ Br. [109-2] 47-49.) In contrast, plaintiff argues that Woods's actions did not fall within his discretionary authority, but even if they did, he violated her clearly established Equal Protection Clause rights. (Pl.’s Br. [110-1] 1.)
As noted above, the Court is faced here with cross motions for summary judgment on the issue of qualified immunity regarding the SHWE claim. The Court is mindful that while Woods has the burden to establish that he was acting within the scope of his discretionary authority when the allegedly wrongful acts occurred, Rule 56 requires the Court to accept the facts in the light most favorable to the non-moving party—Franks. See Hardigree v. Lofton, 992 F.3d 1216, 1225 (11th Cir. 2021). Similarly, when making a recommendation on plaintiff's Motion for Partial Summary Judgment, Rule 56 requires that the Court to accept the facts in the light most favorable to the non-moving party there—Woods. Id.
As discussed supra,
the burden is first on the defendant to establish that the allegedly unconstitutional conduct occurred while he was acting within the scope of his discretionary authority. ... If, and only if, the defendant does that will the burden shift to the plaintiff to establish that the defendant violated clearly established law.
Harbert Int'l, Inc. v. James, 157 F.3d 1271, 1281 (11th Cir. 1998). The reason for the rule is that an official acting outside the scope of his discretionary authority "ceases to act as a government official and instead acts on his own behalf," so that "the policies underlying the doctrine of qualified immunity no longer support its application." Id.
For purposes of qualified immunity analysis, a defendant acts within his discretionary authority when "his actions were undertaken pursuant to the performance of his duties and within the scope of his authority." Rich, 841 F.2d at 1564 (internal quotation marks and citation omitted). For this inquiry, "[w]e ask whether the government employee was (a) performing a legitimate job-related function (that is, pursuing a job-related goal), (b) through means that were within his power to utilize." Holloman ex rel. Holloman v. Harland, 370 F.3d 1252, 1265 (11th Cir. 2004). The first prong of this test requires that the defendant "have been performing a function that, but for the alleged unconstitutional infirmity, would have fallen within his legitimate job description." Holloman, 370 F.3d at 1266 (emphasis omitted). "The inquiry is not whether it was within the defendant's authority to commit the allegedly illegal act," but "whether the act complained of, if done for a proper purpose, would be within, or reasonably related to, the outer perimeter of an official's discretionary duties." Harbert Int'l, 157 F.3d at 1282 (internal quotation marks and citation omitted). As for the second prong, "[e]ach government employee is given only a certain ‘arsenal’ of powers with which to accomplish her goals." Holloman, 370 F.3d at 1267. "Pursuing a job-related goal through means that fall outside the range of discretion that comes with an employee's job is not protected by qualified immunity." Id.
Construing the facts in a light most favorable to plaintiff, the Court cannot conceive of any connection between Woods's alleged sexually harassing behavior and his pursuit of a job-related goal. Plaintiff alleges that Woods regularly made sexually inappropriate comments over a thirteen-month period and engaged in inappropriate conduct. This type of comments or conduct cannot be considered as functions within Woods's job as a sworn peace officer. See O.C.G.A. § 35-8-2 (defining "peace officer"). Indeed, given that the anti-harassment policies issued by the Sheriff and the County make clear that such comments or conduct are not authorized, there can be no connection between performing one's job duties in an authorized manner and sexual harassment. Because Woods's alleged actions were not in an effort to accomplish a work-related goal, but entirely on his own behalf, and accomplished through a means unauthorized by the Sheriff, the policies underlying the doctrine of qualified immunity no longer support its application in this case. See Knight v. Henry Cnty., Ga., No. 1:08-CV-1632-WSD-LTW, 2009 WL 10699030, at *19 (N.D. Ga. July 8, 2009), R. & R. adopted, 2009 WL 10699029 (N.D. Ga. Sept. 2, 2009) (finding no connection between the defendant's alleged sexually harassing behavior and her pursuit of a job-related goal when the defendant propositioned plaintiff on multiple occasions, made sexual comments, groped her in the restroom, and again in her office, slapped plaintiff's behind, and grabbed plaintiff's chest and crotch, especially when such conduct was not within defendant's job description and expressly against the County's anti-harassment policy); Hermann v. Town of Sewalls Point, No. 05-14197-CIV-MOORE, 2005 WL 8156092, at *3 (S.D. Fla. Nov. 28, 2005) ("Court fails to see how the display of pornographic material to subordinates in the workplace could in any way be considered within the scope of McCarty's discretionary authority.")
The Court agrees with plaintiff that whether Woods acted under "color of law" is admitted and not at issue here. (Pl.’s Reply Br. [123] 4-5.)
Therefore, Defendants’ Motion for Summary Judgment seeking qualified immunity for Woods should be DENIED , because there is a jury issue on whether he acted outside his discretionary authority in allegedly creating a SHWE for plaintiff. See Walker v. Heard, No. 7:15-CV-00924-RDP, 2016 WL 6699417, at *8 (N.D. Ala. Nov. 15, 2016) (finding that "because Defendant has failed to show that the alleged sexual harassment and sexual assault fell within his discretionary authority, he is not entitled to qualified immunity for Plaintiff's Section 1983 claims based on the alleged sexual harassment and sexual assault").
Although the analysis could end here, the undesigned continues to provide the presiding District Judge with a full report. Assuming that Woods could show that he was acting within his discretionary authority here, the burden shifts to the plaintiff to show that the grant of qualified immunity is inappropriate. Knight ex rel. Kerr, 856 F.3d at 821. To defeat qualified immunity, the plaintiff must establish that Woods violated a statutory or constitutional right, and that the right was clearly established at the time of the challenged conduct. Mikko, 857 F.3d at 1144.
Addressing the second element first, it has been clearly established since 1995 that the Equal Protection Clause protects against intentional sex discrimination in public employment. See Cross, 49 F.3d at 1507 (stating equal protection prohibits sex discrimination and sexual harassment in public employment); see also Schlumper v. Higgins, No. 3:08-CV-021-JTC, 2009 WL 10699544, at *3 (N.D. Ga. Mar. 13, 2009) ("The Equal Protection Clause of the Fourteenth Amendment protects one from intentional discrimination based on one's gender, including employment discrimination."). As for the first element, construing the facts in a light most favorable to plaintiff, Woods violated plaintiff's Equal Protection Clause rights by creating the SHWE. Therefore, Defendants’ Motion for Summary Judgment seeking qualified immunity for Woods should be DENIED , because there is a jury issue on whether Woods violated plaintiff's Equal Protection Clause rights by allegedly creating a SHWE for her. See Braddy v. Fla. Dep't of Lab. & Emp. Sec., 133 F.3d 797, 803 (11th Cir. 1998) (affirming district court order denying defendant's motion for summary judgment based on qualified immunity because, if a jury believed plaintiff's allegations that defendant followed her down an office hall, bull whip in hand, and said, "[T]his is my sexual fantasy for you," then a jury could very reasonably find that his behavior was clearly and obviously in violation of existing federal law).
The above recommendation does not, however, require the undersigned to recommend that plaintiff's Motion for Partial Summary be granted. As noted above, the Court must view each Motion separately, construing the facts in a light most favorable to the non-moving party on each Motion. With regard to plaintiff's Motion, when construing the facts in a light most favorable to Woods, he denies that he created a SHWE for plaintiff. Therefore, a jury must determine whose facts to believe. Thus, it would be error for this Court to deny at this early stage Woods's ability to assert qualified immunity. This is because the Circuit has made it clear that qualified immunity remains a potential defense through trial:
Where it is not evident from the allegations of the complaint alone that the defendants are entitled to qualified immunity, the case will proceed to the summary judgment stage, the most typical juncture at which defendants entitled to qualified immunity are released from the threat of liability and the burden of further litigation. Even at the summary judgment stage, not all defendants entitled to the protection of the qualified immunity defense will get it. The ones who should be given that protection at the summary judgment stage are those who establish that there is no genuine issue of material fact preventing them from being entitled to qualified immunity. And that will include defendants in a case where there is some dispute about the facts, but even viewing the evidence most favorably to the plaintiff the law applicable to that set of facts was not already clearly enough settled to make the defendants’ conduct clearly unlawful. But if the evidence at the summary judgment stage, viewed in the light most favorable to the plaintiff, shows there are facts that are inconsistent with qualified immunity being granted, the case
and the qualified immunity issue along with it will proceed to trial.
Defendants who are not successful with their qualified immunity defense before trial can re-assert it at the end of the plaintiff's case in a Rule 50(a) motion. That type of motion will sometimes be denied because the same evidence that led to the denial of the summary judgment motion usually will be included in the evidence presented during the plaintiff's case, although sometimes evidence that is considered at the summary judgment stage may turn out not to be admissible at trial. Where there is no change in the evidence, the same evidentiary dispute that got the plaintiff past a summary judgment motion asserting the qualified immunity defense will usually get that plaintiff past a Rule 50(a) motion asserting the defense, although the district court is free to change its mind.
It is important to recognize, however, that a defendant is entitled to have any evidentiary disputes upon which the qualified immunity defense turns decided by the jury so that the court can apply the jury's factual determinations to the law and enter a post-trial decision on the defense. When the case goes to trial, the jury itself decides the issues of historical fact that are determinative of the qualified immunity defense, but the jury does not apply the law relating to qualified immunity to those historical facts it finds; that is the court's duty.
Johnson v. Breeden, 280 F.3d 1308, 1317-18 (11th Cir. 2002) (citations omitted) (noting that a tool used to apportion the jury and court functions relating to qualified immunity issues in cases that go to trial is special interrogatories to the jury). Because there are disputed issues of material fact over whether Woods created a SHWE for plaintiff, plaintiff's Motion for Partial Summary Judgment [110] seeking to deprive Woods of the qualified immunity defense should be DENIED .
IV. CONCLUSION
For the reasons explained above, the undersigned
STRIKES Plaintiff's Statement of Additional Material Facts that Present a Genuine Issue for Trial [110-3] because she was not the respondent with regard to that Motion;
RECOMMENDS that Plaintiff's Motion for Partial Summary Judgment [110] be DENIED ; and
FURTHER RECOMMENDS that Defendants’ Motion for Summary Judgment [109] be GRANTED IN PART and DENIED IN PART . Specifically, summary judgment should be entered against plaintiff and for Sheriff Scott Chitwood on Counts 2 (constructive discharge) and 6 (disparate treatment) of the FAC, but summary judgment should be denied to him on Counts 4 (SHWE) and 8 (retaliation). Additionally, summary judgment on grounds of qualified immunity should be denied to defendant Paul Woods on Count 9 of the FAC (deprivation of Fourteenth Amendment Equal Protection Clause rights).
Should this recommendation be adopted by the presiding District Judge, then the only claims for trial are whether defendants created a SHWE for plaintiff and retaliated against her in violation of Title VII. (See FAC, Counts 4, 8-9).
SO ORDERED AND RECOMMENDED , this 30th day of September, 2021.