Opinion
Civil Action No. 1:05-CV-1825-CAP.
July 11, 2006
MAGISTRATE JUDGE'S FINAL REPORT AND RECOMMENDATION
Before the Court is Defendant's Motion for Summary Judgment, filed on February 14, 2006. Docket Entry [28]. Plaintiff filed a Response in Opposition on March 31, 2006. Docket Entry [33]. Thereafter, Defendant submitted a Reply in Support of its Motion for Summary Judgment on April 17, 2006. Docket Entry [34]. For the reasons set forth below, IT IS RECOMMENDED that Defendant's Motion for Summary Judgment be GRANTED. Docket Entry [28].
MOTION FOR SUMMARY JUDGMENT
Plaintiff filed the instant lawsuit on July 11, 2005, alleging that when Defendant terminated her employment, it discriminated against her on the basis of her race, in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq., ("Title VII") and the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("§ 1981"), and her national origin, in violation of Title VII. (See Compl. ¶¶ 1, 2, 24-29, Docket Entry [1]). On February 14, 2006, Defendant filed the instant motion for summary judgment, arguing that Plaintiff's claims fail as a matter of law, because (1) Plaintiff does not present direct evidence of discrimination, because her only allegations of biased remarks are hearsay statements allegedly made by a non-decisionmaker that are not related to Plaintiff's termination; (2) Plaintiff fails to establish a prima facie case of race or national origin discrimination with circumstantial evidence, because she cannot show that Defendant treated a similarly situated employee outside her protected group more favorably; and (3) Plaintiff cannot show that Defendant's legitimate non-discriminatory reason for terminating Plaintiff's employment is pretext for race or national origin discrimination, because Plaintiff admits the events cited by Defendant as triggering her termination occurred and Plaintiff's subjective opinion of her conduct is insufficient to raise a genuine issue of pretext. (Defendant's Motion for Summary Judgment [hereinafter "DMSJ"] at 6, 9, 16, 18; Defendant's Reply in Support of Its Motion for Summary Judgment [hereinafter "Def. Reply"] at 3, 4-5, 6, 8, 11-12). Defendant also argues that, to the extent Plaintiff attempts to assert a claim for a hostile work environment, summary judgment is merited, because (1) Plaintiff presents only a few unsubstantiated allegations of hostility, (2) Plaintiff cannot show that any hostility was based on race or national origin, (3) Plaintiff cannot show that Defendant's actions were so severe or pervasive as to alter the conditions of the workplace and create an objectively abusive and hostile atmosphere, and (4) Plaintiff cannot show that she subjectively believed the atmosphere to be abusive and hostile, because she never complained about the actions of her alleged harassers. (DMSJ at 19-22).
Responding in opposition, Plaintiff contends that (1) she can make out a prima facie case of discrimination, because Elaine Lawler is a similarly situated employee outside her protected class whom Defendant treated more favorably, (2) whether Plaintiff can articulate a prima facie case is irrelevant, because the Court has before it sufficient evidence from which to determine the ultimate question of discrimination, and (3) Plaintiff can show that each of Defendant's proffered reasons for her termination are pretext. (Plaintiff's Response in Opposition to Defendant's Motion for Summary Judgment [hereinafter "Pl. Resp."] at 4, 6, 7-10).
I. STATEMENT OF FACTS
All facts taken directly from Defendants' Statement of Undisputed Facts have either been admitted or remain undisputed by Plaintiff. This Court must accept as admitted those facts in the moving party's statement that have not been "specifically controverted" with citation to the relevant portions of the record by the opposing party. Local Rule 56.1B(2), (3), N.D. Ga. However, the Court will not consider any fact (1) not supported by a citation to evidence (including a page or paragraph number), (2) supported by a citation to a pleading rather than to evidence, (3) stated as an issue or legal conclusion, or (4) set out only in the brief and not in the movant's statement of undisputed fact. Local Rule 56.1B(1), 56.1B(2)(b), N.D. Ga. Consequently, subjective perceptions, conclusory allegations, or allegations that are otherwise unsupported by record evidence do not create genuine issues of material fact in order to withstand summary judgment. See Chapman v. AI Transp., 229 F.3d 1012, 1051 n. 34 (11th Cir. 2000) (en banc); Wood v. City of Lakeland, 203 F.3d 1288, 1292 (11th Cir. 2000); Holifield v. Reno, 115 F.3d 1555, 1564 n. 6 (11th Cir. 1997); Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989).
When Defendant hired Plaintiff, Plaintiff signed an Employee Acknowledgment Form, indicating that she had received the Employee Handbook and was responsible for reading and complying with its guidelines. (DSMF ¶ 62; Pl. Dep. at 48-54; Appendix Exh. 27, Employee Acknowledgment Form). Numerous sections of these guidelines proscribed "rude, argumentative, hostile, or otherwise unprofessional behavior towards clients, patients or customers" and acts or threats of acts of violence in the workplace, and they required employees maintain "a courteous, professional demeanor in the presence of clients, the general public, and other employees. (Pl. Dep. at 49-53). These guidelines also provided that "[o]ff-duty conduct becomes a legitimate concern, however, when it affects departmental operations or reflects discredit on the Department. Such off duty conduct may result in appropriate disciplinary action up to and including separation from employment." (DSMF ¶ 63; Pl. Dep. at 49-50; Appendix Exh. 28, DHR Personnel Policy 1201). Approximately once a year, Plaintiff also received a performance management form ("PMF") from her direct supervisor. (See Appendix Exh. 3, Appendix Exh. 3, Performance Management Form for performance period Aug. 1, 2001-June 20, 2002; Appendix Exh. 4, Performance Management Form for performance period July 1, 2002-June 30, 2003; Appendix Exh. 5, Performance Management Form (PMF) for performance period August 1, 2003 to June 30, 2004 [hereinafter "PMF Aug. 1, 2003-June 30, 2004"]; Appendix Exh. 6, Performance Management Form (PMF) for performance period July 1, 2004 to June 30, 2005 [hereinafter "PMF July 1, 2004-June 30, 2005"]). The PMF outlined the duties and responsibilities of Plaintiff's position. (DSMF ¶ 10; Pl. Dep. at 43). Each year of Plaintiff's employment, she received and signed copies of her PMF indicating that she understood her duties and responsibilities. (DSMF ¶ 10; Pl. Dep. at 43).
As a Public Health Program Consultant I, Plaintiff's duties included serving as the HIV section liaison to one or more health districts; being responsible for technical assistance and training to health district personnel; developing, maintaining, and improving HIV systems of prevention, counseling, testing, and care throughout the state; evaluating district programs for compliance with state and/or federal guidelines; and managing the Ryan White Program for several districts. (DSMF ¶ 2; Pl. Dep. at 31-32; Appendix Exh. 2, DHR Job Description for District Liaison/PHSO Program Consultant I [hereinafter "Job Description"]).
On or about August 1, 2003, Plaintiff's official job title changed to HIV District Liaison. (DSMF ¶ 7; Pl. Dep. at 37; Appendix Exh. 5, PMF Aug. 1, 2003-June 30, 2004; Appendix Exh. 6, PMF July 1, 2004-June 30, 2005). Plaintiff's position as HIV District Liaison required her to (1) function as the primary liaison to the State Public Health/HIV Section assigned to Georgia public health districts and other HIV service providers; (2) provide information to the immigrant communities in Georgia on HIV prevention and care initiatives, collaborate with different organizations within the immigrant communities to provide education and outreach, work to identify international community resources, and provide logistical and technical assistance to Immigrant organizations; (3) maintain regular contact with public health providers as well as other providers of HIV/AIDS and related services and programs in her assigned health districts; and (4) prepare grant proposals, monitor grants and contracts for services, and notify district HIV system providers of funding opportunities. (DSMF ¶ 8; Pl. Dep. at 38-41; Appendix Exh. 5, PMF Aug. 1, 2003-June 30, 2004; Appendix Exh. 6, PMF July 1, 2004-June 30, 2005). Plaintiff's position also required her to (1) demonstrate teamwork by encouraging and facilitating cooperation, pride, trust, and group identity; fostering commitment and team spirit; and working cooperatively with others to achieve goals; (2) provide customer service by communicating with the general public, as well as internal and external customers; and (3) demonstrate trustworthiness and responsible behavior as part of her organizational commitment. (DSMF ¶ 9; Pl. Dep. at 40-43; Appendix Exh. 5, PMF Aug. 1, 2003-June 30, 2004; Appendix Exh. 6, PMF July 1, 2004-June 30, 2005).
In 2003, Plaintiff helped create an HIV/AIDS Immigrant Advisory Board ("the Advisory Board"). (Pl. Dep. at 54-56, 73). Initially, the Advisory Board was affiliated with the Department of Human Resources and was composed of leaders from various medical, religious, and community-based organizations, such as an African HIV organization, an African women's organization, the DeKalb Board of Health, and Emory Medical School, as well as some representatives from foreign embassies and consul generals. (DSMF ¶ 13; Pl. Dep. at 56-61; Appendix Exh. 9, January 14, 2004 Minutes). After February 2004, individuals from the Augusta County and Fulton County health districts also participated in the Advisory Board. (Pl. Dep. at 76-77). Several members of the Advisory Board were Nigerian in national origin, including Dr. Oladele Alawode, the Medical Director of the DeKalb County Board of Health who also ran a refugee clinic in DeKalb County, Dr. Ajayi, the Advisory Board's Chairman, and Dr. Hassan Danesi, the Advisory Board Secretary. (DSMF ¶ 31; Pl. Dep. at 60-61). Plaintiff considered both Dr. Ajayi and Dr. Danesi, among others, to be elders of the African community in Georgia. (Pl. Dep. at 61-63).
From the Advisory Board's inception, it received public recognition from the Atlanta Journal-Constitution, various medical journals and newsletters, and the Georgia State Governor's office. (DSMF ¶ 14; Pl. Dep. at 73-77; Appendix Exh. 10, E-mail, February 10, 2004). The Advisory Board held its first meeting on January 14, 2004; often the meetings occurred at the DeKalb County Board of Health. (DSMF ¶¶ 12, 13; Pl. Dep. at 56-61, 130; Appendix Exh. 9, January 14, 2004 Minutes). Dr. Danesi, as the Advisory Board Secretary, kept the minutes of the meeting and reviewed them later with Dr. Ajayi, the Advisory Board Chairman. (Pl. Dep. at 55-56, 63-72). Plaintiff then submitted the meeting minutes and related correspondence to her direct supervisor for revisions and approval. (DSMF ¶ 15; Pl. Dep. at 55-56, 63-72; Appendix Exh. 11, Correspondence Approval Requests). Often the documents Plaintiff submitted would be routed up the chain of command for further edits and final approval before being returned to Plaintiff. (DSMF ¶ 15; Pl. Dep. at 55-56, 63-72; Appendix Exh. 11, Correspondence Approval Requests). Plaintiff's direct supervisor, the Acting Director of the Prevention Services Branch, and the Director of DPH, Dr. Kathleen Toomey, all reviewed the minutes of the first Advisory Board meeting. (DSMF ¶ 16; Pl. Dep. at 68-72; Appendix Exh. 11, Correspondence Approval Requests; Appendix Exh. 10, E-mail, February 10, 2004). After Dr. Toomey's review, she would return the revised version of the minutes to Plaintiff. (DSMF ¶ 16; Pl. Dep. at 68-72; Appendix Exh. 11, Correspondence Approval Requests; Appendix Exh. 10, E-mail, February 10, 2004). Beginning in March of 2004, Ms. Nancy Pisor reviewed the Advisory Board meeting minutes and related correspondence and returned them to Plaintiff with revisions. (DSMF ¶ 18; Pl. Dep. at 79, 82, 90-92; Pisor Dep. at 15-16). Ms. Pisor, a Caucasian woman, was the Director of Operations for the Prevention Services Branch and was responsible for the financial management of the budgets, for personnel matters, and for maintaining the facilities and inventories of the five sections of the branch. (DSMF ¶ 5; Pisor Dep. at 7-12; Pl. Dep. at 226). Never Plaintiff's direct supervisor, Ms. Pisor had limited day-to-day contact with Plaintiff, did not participate in Plaintiff's performance evaluations or appraisals, and lacked authority to hire or fire Plaintiff. (DSMF ¶ 6; Pisor Dep. at 11, 16-19, 38).
In April 2004, Plaintiff met with Ms. Pisor to discuss the Advisory Board minutes and to indicate her discomfort with the suggested revisions. (DSMF ¶ 19; Pl. Dep. at 82-90, 91; Pisor Dep. at 15-16). Plaintiff told Ms. Pisor the changes were not necessary, because the changes merely reflected different writing styles. (Pl. Dep. at 84). Plaintiff informed Ms. Pisor that both the Secretary who wrote the minutes and the Chairman who reviewed them were doctors. (Pl. Dep. at 84). According to Plaintiff, Ms. Pisor then stated that "the English was bad" and "they don't know how to write English." (Pl. Dep. at 84, 86-87). Plaintiff states that after Ms. Pisor made this comment, Plaintiff informed her that both the Chairman and the Secretary of the Advisory Board were from Nigeria, as was Plaintiff. (Pl. Dep. at 87-88). Ultimately, Plaintiff made the requested changes. (Pl. Dep. at 90).
In June 2004, Plaintiff again spoke with Ms. Pisor about the revisions to the June Advisory Board minutes. (DSMF ¶ 20; Pl. Dep. at 99-100; Pisor Dep. at 15-16; DSMF, Appendix Exh. 12, June 9, 2004 Minutes with revisions). Plaintiff felt that the edits were not typographical, but stylistic and structural in nature, and therefore, changed the meaning of the original document. (DSMF ¶ 20; Pl. Dep. at 90-101; Pisor Dep. at 15-16; DSMF, Appendix Exh. 12, June 9, 2004 Minutes with revisions). During the meeting, Plaintiff testifies that Ms. Pisor stated that Nigerians are "challenged" and that English is their second language. (Pl. Dep. at 100). Ultimately, Plaintiff made the changes. (Pl. Dep. at 101-102).
In July 2004, Plaintiff told Ms. Bacon that she had a problem with Ms. Pisor reviewing the Advisory Board minutes. (DSMF ¶ 21; Pl. Dep. at 110-12). Ms. Bacon relieved Ms. Pisor of the responsibility of reviewing and revising the Advisory Board meeting minutes. (DSMF ¶ 22; Pl. Dep. at 110-12). Plaintiff never discussed with Ms. Bacon the details of her two meetings with Ms. Pisor, and Plaintiff never told Ms. Bacon that she believed Ms. Pisor had made discriminatory statements about Nigerians. (DSMF ¶ 23; Pl. Dep. at 110-12).
DHR Personnel Policy 1503, entitled Unlawful Discrimination Complaint Procedure, sets out the process by which employees can notify the agency of any act of discrimination or harassment against them by DHR or its employees; however, Plaintiff never utilized this personnel policy. (DSMF ¶ 68; Pl. Dep. at 111-14; Appendix Exh. 30, DHR Personnel Policy 1503).
In October 2004, Plaintiff and Ms. Pisor attended an HIV/AIDS conference in Macon, Georgia. (DSMF ¶ 24; Pl. Dep. at 105-09). Plaintiff testifies that, while Ms. Pisor was speaking to a tall Nigerian woman about height in Plaintiff's presence, Ms. Pisor told the Nigerian woman that "height associated with Caucasians, associated with authority," or that "Caucasians that are tall are more influential." (Pl. Dep. at 106-08). Plaintiff states that she informed Ms. Bastien at this time that she believed Ms. Pisor was biased against Nigerians and that Ms. Bastien told her not to worry about it. (Pl. Dep. at 109). Plaintiff never told Ms. Bacon or anyone in the Human Resources department that Ms. Pisor had made what Plaintiff believed to be racially disparaging comments at the conference. (DSMF ¶ 25; Pl. Dep. at 109-13).
Plaintiff states that at some point in time, Ms. Bastien made what Plaintiff believed to be a racially disparaging remark. (Pl. Dep. at 117-18). However, Plaintiff did not inform Ms. Bacon or anyone in DHR that she believed Ms. Bastien to have made a racially disparaging remark to her. (DSMF ¶ 26; Pl. Dep. at 120-21).
On December 28, 2004, DHR sent the Advisory Board a letter stating that the Advisory Board would no longer be permitted to attach itself to DHR or to continue sending its correspondence on DHR letterhead. (DSMF ¶ 27; Pl. Dep. at 162-64; DSMF, Appendix, Exh. 8, Letter, December 28, 2004). The letter stated, however, that the Advisory Board could continue working with two other DHR-affiliated advisory boards. (DSMF ¶ 27; Pl. Dep. at 162-64; Appendix, Exh. 8, Letter, December 28, 2004). Shortly thereafter, Ms. Bastien notified Plaintiff that DHR had ended its official relationship with the Advisory Board. (DSMF ¶ 28; Pl. Dep. at 121-22). Ms. Bastien further explained that as a result Plaintiff would not be required to facilitate the Advisory Board's meetings anymore. (DSMF ¶ 28; Pl. Dep. at 121-22). Plaintiff was relieved at the dissolution of her involvement with the Advisory Board and did not consider it to be evidence of racial discrimination. (DSMF ¶ 29; Pl. Dep. at 122-23). Nevertheless, Plaintiff's position still required her to work with community-based organizations, health districts, and county health departments. (DSMF ¶ 30; Pl. Dep. at 124-26; Appendix, Exh. 6, PMF July 1, 2004-June 30, 2005).
On January 10, 2005, one member of the Advisory Board posted an e-mail to the Advisory Board list serve, asking for the date, time, and location of the board's next meeting. (DSMF ¶ 34; Pl. Dep. at 127-28; DSMF, Appendix Exh. 13, E-mail, January 10, 2005). The Advisory Board had created the list serve in March 2004 so that its members could communicate by e-mail. (DSMF ¶ 33; Pl. Dep. at 127-28, 153-55). All members of the Advisory Board who subscribed to the list serve had access to posted messages. (Pl. Dep. at 127). The next day, Dr. Oladele's assistant, Ms. Latina Johnson, forwarded the e-mail to Plaintiff's work e-mail address and notified Plaintiff that the meeting was scheduled for January 12, 2005 at the DeKalb County Board of Health. (DSMF ¶ 35; Pl. Dep. at 129-33; Appendix Exh. 14, E-mail string, January 12, 2005). Responding through her work e-mail account, Plaintiff informed Ms. Johnson that Plaintiff was no longer responsible for the Advisory Board meetings and had canceled her room reservations. (DSMF ¶ 36; Pl. Dep. at 129-33; Appendix Exh. 14; E-mail string, January 12, 2005). Dr. Oladele published this e-mail string on January 12, 2005 to the Advisory Board list serve. (DSMF ¶ 37; Pl. Dep. at 135; Appendix Exh. 14, E-mail string, January 12, 2005). Plaintiff states that she felt that Dr. Oladele had misrepresented her official e-mail and compromised her privacy when he published it on the Advisory Board list serve. (DSMF ¶ 38; Pl. Dep. at 133-37; Appendix Exh. 14, E-mail string, January 12, 2005).
Intending to discuss the matter with the elders of the African community, who included other members of the Advisory Board, Plaintiff immediately forwarded the e-mail string to her personal e-mail account. (DSMF ¶ 38; Pl. Dep. at 133-37; Appendix Exh. 14, E-mail string, January 12, 2005). Plaintiff telephoned Dr. Oladele to discuss the matter; however, when Dr. Oladele failed to answer, Plaintiff did not leave a voice message. (DSMF ¶ 39; Pl. Dep. at 138-39). Thereafter, Plaintiff posted two e-mail messages, addressed to Dr. Oladele on the list serve, in which Plaintiff claimed that Dr. Oladele had violated her privacy and misrepresented her earlier e-mail, she questioned Dr. Oladele's motives and professionalism, and she instructed him to cease any further action. (DSMF ¶ 40; Pl. Dep. at 136, 141-45; Appendix Exh. 15, E-mails to List Serve, January 12, 2005). Plaintiff published these two e-mails on the Advisory Board list serve, because she wanted to highlight Dr. Oladele's alleged impropriety. (DSMF ¶ 41; Pl. Dep. at 147-51). Plaintiff further hoped that Dr. Oladele would explain his motivations for allegedly misrepresenting information about her to the Advisory Board and other list serve subscribers. (DSMF ¶ 41; Pl. Dep. at 147-51). Plaintiff did not discuss the matter with anyone at DHR. (DSMF ¶ 42; Pl. Dep. at 139-40, 148, 151-55, 159; Appendix Exh. 6, PMF July 1, 2004-June 30, 2005).
Dr. Oladele posted a response to Plaintiff's two e-mails on the Advisory Board list serve later in the day on January 12, 2005. (DSMF ¶ 43; Pl. Dep. at 157-59; Appendix Exh. 16, E-mail from Dr. Oladele, January 12, 2005). In Dr. Oladele's response, he denied that he had engaged in fraud, and he stated that any miscommunication that might have occurred did not excuse Plaintiff's unprofessional conduct. (DSMF ¶ 43; Pl. Dep. at 157-59; Appendix Exh. 16, E-mail from Dr. Oladele, January 12, 2005).
Plaintiff next sent an e-mail to Dr. Oladele and another member of the Advisory Board, which Plaintiff copied to several elders of the African community and other Advisory Board members. (DSMF ¶ 44; Pl. Dep. at 160-75; Appendix Exh. 17, E-mail to Elders). In this e-mail, Plaintiff questioned Dr. Oladele's "Yoruba conniving actions," called the Advisory Board Chairman, Dr. Ajayi, "his evil twin of deception," described Dr. Oladele's actions as those of "an illegitimate cursed child that eyes the properties of his father including his mother and after he killed his father all he could do is sleep with his mother and lost all the properties," accused Dr. Oladele of being a liar, "untrustworthy, unaccountable, inefficient, and selfish," and threatened Dr. Oladele. (DSMF ¶ 45; Pl. Dep. at 160-75, Appendix Exh. 17, E-mail to Elders). Plaintiff sent a follow-up e-mail on January 12, 2005 to Dr. Oladele, Dr. Danesi, and the elders of the African community, in which she accused Dr. Oladele of fraud and described him as a crook that had been busted. (DSMF ¶ 46; Pl. Dep. at 177-84; Appendix Exh. 18, Second E-mail to Elders).
On January 13, 2005, after Dr. Oladele responded to Plaintiff's e-mail, Plaintiff sent another e-mail to Dr. Oladele, stating "I would have let DeVito creamed (sic) you when he had the opportunity," "you are a back stabbing bastard and you are already receiving your pay from God," "your migraine headaches are just the appetizer to your punishment," "I can only say please to you one more time, next time I will not be so cordial," "I am the first daughter of my father and my father is the custodian of the clan's `ofo' meaning the days of your evil have hit will hit back (sic) at you with full force." (DSMF ¶ 47; Pl. Dep. at 177-84; Appendix Exh. 19, Third E-mail to Elders).
On January 13, 2005, Dr. Oladele showed these three e-mails to Ms. Pisor and then forwarded them to her work e-mail address. (DSMF ¶ 48; Pisor Dep. at 31-34). Ms. Pisor felt that the e-mails jeopardized DHR's relationship with Dr. Oladele and that they were not professional; therefore, Ms. Pisor communicated the situation to Plaintiff's direct supervisor, Ms. Bastien, and to Ms. Rebecca Burton, a personnel employee of the Human Resources department. (DSMF ¶ 49; Pisor Dep. at 31-34, 36; Pl. Dep. at 184-86). Ms. Burton told Ms. Pisor to contact Plaintiff and ask Plaintiff to stop e-mailing Dr. Oladele. (DSMF ¶ 49; Pisor Dep. at 31-34, 36; Pl. Dep. at 184-86). Ms. Pisor sent Plaintiff an e-mail on January 13, 2005, instructing Plaintiff to immediately cease and desist e-mailing Dr. Oladele, Advisory Board members, or DeKalb County Board of Health employees. (DSMF ¶ 50; Pisor Dep. at 40-41). After Plaintiff received Ms. Pisor's e-mail, Plaintiff telephoned a DHR compliance officer to complain. (DSMF ¶ 51; Pl. Dep. at 196-97). Although the compliance officer told Plaintiff to fax a downloaded form to him immediately, Plaintiff neither followed-up with the compliance officer nor her supervisor. (DSMF ¶ 51; Pl. Dep. at 196-97). Plaintiff took sick leave for the rest of the day on January 13, 2005. (DSMF ¶ 51; Pl. Dep. at 196-97).
That afternoon, Ms. Pisor, Ms. Bastien, and Ms. Burton met to discuss the matter along with pervious incidents of inappropriate behavior at work by Plaintiff. (DSMF ¶ 52; Pisor Dep. at 34-40). Ms. Pisor, Ms. Bastien, and Ms. Burton discussed a Letter of Concern and Expectation Plaintiff had received from Ms. Dockery on September 12, 2003, which counseled her about "reports of inappropriate and unacceptable behaviors including loud, agitated, rude, overbearing, condescending, threatening language being used with district management and programming staff during" a site visit around September 2003, "which resulted in a request from district management that another district Liaison be reassigned to [that] district." (DSMF ¶ 53; Appendix Exh. 20, Letter of Concern and Expectation; Appendix Exh. 21, Dockery e-mail string). The September 12, 2003 letter of concern and expectation reminded Plaintiff of her job responsibilities, and it instructed Plaintiff to comply with DHR rules and regulations, to think critically and use better judgment when interacting with staff, and to register and attend a training session entitled Verbal Communication: The Power of Words, which was offered on October 7 and 24, 2003. (DSMF ¶ 54; Appendix Exh. 20, Letter of Concern and Expectation). The letter further advised Plaintiff that she would be reevaluated in thirty days and that disciplinary action would occur if she did not demonstrate improvement. (DSMF ¶ 55; Appendix Exh. 20, Letter of Concern and Expectation). Plaintiff, however, did not attend the Verbal Communication training. (DSMF ¶ 56; Appendix Exh. 22, Training Sign-in Rosters).
Although Plaintiff attempts to deny, in part, this paragraph of Defendant's Statement of Undisputed Material Facts, the paragraph is deemed admitted. In support of her denial, Plaintiff cites to Defendant's Exhibit 23, the January 7, 2004 E-mail string, in which Ms. Wallace instructed Plaintiff to communicate concerns about the manner in which her supervisor interacted with her verbally instead of by e-mail. (See DSMF, Appendix, Exh. 23, Jan. 7, 2004 E-mail string). Exhibit 23 does not address the September 12, 2003 Letter of Concern and Expectation Plaintiff received from Ms. Dockery. (See DSMF, Appendix Exh. 23, Jan. 7, 2004 E-mail String). Moreover, the January 7, 2004 instruction that Plaintiff report concerns to her supervisors verbally occurred after the September 12, 2003 Letter at issue in paragraph 53. (See DSMF, Appendix Exh. 20, Letter of Concern and Expectation; Appendix Exh. 21; Dockery E-mail string; Appendix Exh. 23, Jan. 7, 2004 E-mail string). Because Plaintiff fails to directly refute paragraph 53 with a specific citation to evidence that supported her denial, paragraph 53 is deemed admitted. See Local Rule 56.1B(2)(a), N.D.Ga.
Additionally, Ms. Pisor, Ms. Bastien, and Ms. Burton discussed an incident in January 2004 when Ms. Wallace, who was then the Acting Director of DPH's HIV, counseled Plaintiff on an e-mail Plaintiff sent on January 7, 2004 to her direct supervisor, Mr. Anthony Hall. (DSMF ¶ 57; Appendix Exh. 23, E-mail string dated Jan. 7, 2004). In Plaintiff's e-mail to Mr. Hall, she told him that she did "not appreciate" his militant dictatorial manner that morning and that he had created a hostile environment. (Appendix Exh. 23, E-mail string dated Jan. 7, 2004). Ms. Wallace's e-mail to Plaintiff stated that Plaintiff's concerns to Mr. Hall about his interaction with her were not an appropriate subject for an e-mail, Ms. Wallace had told the team that concerns should be communicated verbally, and Plaintiff's e-mail was "not the way to start on a new relationship with your supervisor, or to foster harmony within the team." (Appendix Exh. 23, E-mail string dated Jan. 7, 2004).
On January 14, 2005, the decision was made to terminate Plaintiff's employment. Although Ms. Pisor participated in the discussions with Ms. Bastien and Ms. Burton, Ms. Pisor did not make the recommendation to terminate Plaintiff. (DSMF ¶ 59; Pisor Dep. at 34-40). On January 14, 2005, Ms. Bastien mailed Plaintiff a letter at Plaintiff's home informing her of her termination from DHR. (DSMF ¶ 60; Appendix Exh. 25, Termination Letter). A separation notice was attached to the letter. (Pl. Dep. at 197). Both the separation letter and the separation notice were signed by Ms. Bastien. (Pl. Dep. at 197-98; see also Appendix Exhibit 25, Termination Letter). Ms. Toomey also signed the separation form as the approving authority. (Pisor Dep. at 42-43). Plaintiff was aware that as an unclassified employee, she could be terminated without notice or a stated reason. (DSMF ¶ 61; Pl. Dep. at 48; Appendix Exh. 26; Acknowledgment of Unclassified Service).
Plaintiff attempts to deny paragraph 59 of Defendant's Statement of Material Facts; however, because Plaintiff only cites to her Response in Opposition to Summary Judgment Brief to support her denial, paragraph 59 is deemed admitted. See Local Rule 56.1B(2) and (3), N.D.Ga.
Plaintiff received a Notice of Right to Sue letter from the EEOC on May 6, 2005, in which the EEOC stated that it was unable to conclude that the information obtained during its investigation established a violation of Title VII. (Pl. Dep. at 220; Def. Exh. 35, EEOC Notice of Right to Sue letter, May 6, 2005). This lawsuit followed.
II. CONCLUSIONS OF LAW
A. Summary Judgment Standard
Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FED. R. CIV. P. 56(c). The court must examine all evidence and reasonable inferences therefrom in the light most favorable to the nonmoving party, and it must resolve all reasonable doubts in the nonmoving party's favor.Pipkins v. City of Temple Terrace, 267 F.3d 1197, 1199 (11th Cir. 2001); Earley v. Champion Int'l Corp., 907 F.2d 1077 (11th Cir. 1990).
On a motion for summary judgment, "[t]he moving party bears the initial burden to show the district court, by reference to materials on file, that there are no genuine issues of material fact that should be decided at trial." Clark v. Coats Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). An issue is not genuine if evidence does not support it or if "merely colorable" or "not significantly probative" evidence creates it. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). Likewise, a fact is only material if it is an essential element of the plaintiff's case under controlling substantive law. Id. at 248. Once the movant has demonstrated the absence of any genuine issues of material fact, the plaintiff must produce some evidence in support of his claim. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986); Clark, 929 F.2d at 608. However, mere conclusory allegations of harassment are insufficient to withstand a motion for summary judgment. Carter v. City of Miami, 870 F.2d 578, 585 (11th Cir. 1989).
If neither party can prove the existence or nonexistence of an essential element of a claim, summary judgment will be granted if the movant shows that the plaintiff will not meet her burden of proof at trial.Celotex, 477 U.S. at 322. The movant's burden therefore requires a "`showing' — that is, pointing out to the district court that there is an absence of evidence to support the nonmoving party's case." Id. The nonmoving party's failure to offer proof of an essential element of her case renders all facts immaterial, thereby entitling the movant to judgment as a matter of law. Id. at 323.
B. Plaintiff's § 1981 Race Discrimination Claim
Plaintiff asserts in her complaint that Defendant terminated her employment on the basis of her race, in violation of § 1981. (Compl. ¶¶ 1, 2, 28-29). In Plaintiff's Response in Opposition, Plaintiff states that she "is not pursuing her claim under 42 U.S.C. § 1981." (Pl. Resp. at 4 n. 3). Accordingly, the Court RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED as to Plaintiff's claim for race discrimination in violation of § 1981. Docket Entry [28].
C. Plaintiff's Title VII Race and National Origin Discrimination Claims
Plaintiff also asserts that Defendant violated Title VII by terminating her employment on the basis of her race and national origin. (Compl. ¶¶ 1, 2, 24-27).
Title VII makes it "an unlawful employment practice . . . to discharge any individual, or otherwise discriminate against any individual with respect to his 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. To state a claim of race or national origin discrimination under Title VII, a plaintiff has the burden of persuading the finder of fact that the defendant intentionally discriminated against her. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981). Absent direct evidence of discriminatory intent, a plaintiff may establish a prima facie case of discrimination through circumstantial evidence under the McDonnell Douglas burden-shifting analysis. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-804 (1973); accord Carter v. City of Miami, 870 F.2d 578, 581 (11th Cir. 1989). See Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1310 (11th Cir. 1998), opinion modified by 151 F.3d 1321 (11th Cir. 1998);see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973); Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997). Under this framework, the plaintiff first has the burden of establishing a prima facie case of racial discrimination by a preponderance of the evidence. See McDonnell Douglas, 411 U.S. at 802; Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). If the plaintiff meets this burden, the burden then shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Burdine, 450 U.S. at 254; Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir. 2000) (en banc). This burden is one of production, not persuasion, and is "exceedingly light." Turnes v. AmSouth Bank, N.A., 36 F.3d 1057, 1061 (11th Cir. 1994);Perryman v. Johnson Prod. Co., 698 F.2d 1138, 1141 (11th Cir. 1983). Thus, "it is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 248; Jones v. Gerwens, 874 F.2d 1534, 1538 (11th Cir. 1989).
Plaintiff states in her Response in Opposition to Summary Judgment that she does not allege direct evidence. (Pl. Resp. at 2 n. 2). Accordingly, the Court will not consider Defendant's arguments in its Motion for Summary Judgment that direct evidence does not exist.
The plaintiff will then be given an opportunity to show that the defendant's proffered nondiscriminatory reason was merely a pretext for discriminatory intent. Burdine, 450 U.S. at 253;Chapman, 229 F.3d at 1024. In order to survive summary judgment, the plaintiff must show that the defendant lacks credence or that the defendant was more likely motivated by a discriminatory reason than its proffered reason. See Combs v. Plantation Patterns, 106 F.3d 1519, 1528-30 (11th Cir. 1997);Evans v. McClaine of GA, Inc., 131 F.3d 957, 965 (11th Cir. 1997); Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). See also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). i. Plaintiff's Prima Facie Case of Race and National Origin Discrimination
For purposes of this summary judgment motion, the parties do not contest whether Plaintiff is a member of a protected class, suffered an adverse employment action, or was qualified for her position. (DMSJ at 9). Defendant argues, however, that Plaintiff cannot establish that Defendant treated anyone outside her protected class more favorably or that Defendant replaced Plaintiff with someone outside her protected class. (DMSJ at 9). In Plaintiff's response, she identifies Ms. Elaine Lawler as a comparator employee. (Pl. Resp. at 5. n. 5).
To articulate a prima facie case of disparate treatment on the basis of race or national origin, Plaintiff must show that (1) she is a member of a protected class, (2) a similarly situated person, outside her protected class, received more favorable treatment, (3) she suffered an adverse employment action, and (4) she was qualified for the position. Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003); Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir. 1997) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)). In order to satisfy the third prong of this formulation of the prima facie case, a plaintiff must present evidence that she was similarly-situated to comparator employees in all relevant aspects. Holifield, 115 F.3d at 1562. This involves showing that although "the quantity and quality of the comparator's misconduct [was] nearly identical" to the plaintiff'sown misconduct, the comparator received less discipline or was not disciplined at all. Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999); see also Holifield, 115 F.3d at 1562; Nix v. WLCY Radio/Rahall Comm'n, 738 F.2d 1181, 1185 (11th Cir. 1984). Summary judgment is appropriate when a plaintiff fails to show the existence of a similarly-situated employee and there is no other evidence of discrimination.Holifield, 115 F.3d at 1562.
Applying the law to the facts of this case, the Court finds that Plaintiff fails to demonstrate that Defendant treated a similarly situated individual outside her protected class more favorably. Plaintiff names Ms. Lawler, a Caucasian woman employed by Defendant as an operation team leader, as a comparator employee. (Pl. Resp. at 5 n. 5; Pl. Dep. at 24-217). However, Plaintiff admits that Ms. Lawler was not similarly situated in all relevant respects. (Pl. Resp. at 5 n. 5). As an operation team leader, Ms. Lawler "was more like a fiscal officer," who dealt internally with matters relating to the HIV section. (Pl. Dep. at 217). Accordingly, Ms. Lawler had significantly different duties from Plaintiff. More importantly, Plaintiff admits that Ms. Lawler did not engage in behavior nearly identical to that of Plaintiff. (Pl. Resp. at 5 n. 5). Indeed, Plaintiff does not identify any misconduct by Ms. Lawler. (See Pl. Resp. at 5-6; Pl. Dep. at 213-219). Thus, Plaintiff does not show that Ms. Lawler was a similarly situated employee outside her protected class whom Defendant treated more favorably. Therefore, the Court finds that Plaintiff fails to articulate a prima facie case of race or national origin discrimination.
Nonetheless, Plaintiff argues that whether she has articulated a prima facie case is not relevant, because other evidence of discrimination exists, as proven by her pretext analysis. (Pl. Resp. at 6). Defendant contends in reply that Plaintiff cannot show that its proffered legitimate, non-discriminatory reasons for its decision to terminate Plaintiff were pretext for discrimination. (Def. Reply at 3-4). The Court, therefore, turns to the pretext analysis of the McDonnell Douglas burden-shifting analysis.
ii. Defendant's Proffered Legitimate Non-Discriminatory Reason and Plaintiff's Showing of Pretext
Defendant asserts that it decided to terminate Plaintiff's employment because she failed to perform her job duties in a satisfactory manner by engaging in unprofessional, antagonistic communication with and about a work-related colleague of DHR. (DMSJ at 11-15; Def. Reply at 4). In making the termination decision, Defendant states that it considered Plaintiff's e-mail communications on January 12, 2005, and previous written counselings to Plaintiff on her inappropriate and argumentative communications with co-workers and health district personnel. (DMSJ at 11-15; Def. Reply at 4). Because Defendant has produced a legitimate, non-discriminatory reason for its termination decision, the burden returns to Plaintiff, who must now show by a preponderance of the evidence that the defendant's proffered reason was merely a pretext for discriminatory intent. Burdine, 450 U.S. at 253, 255-56;Chapman, 229 F.3d at 1024; Schoenfeld, 168 F.3d at 1268 (11th Cir. 1999).
Plaintiff advances four lines of argument to show that Defendant's proffered reason is pretextual. Plaintiff argues that (1) prior to the instant lawsuit, Defendant had not alleged that Plaintiff had violated a particular DHS policy, Defendant still does not specifically identify the violated policy, and Plaintiff's performance evaluations show that she met or exceeded expectations (Pl. Resp. at 7); (2) a reasonable fact-finder could infer discriminatory animus from Ms. Pisor's statements, which reflect a bias against Nigerians and African-Americans (Pl. Resp. at 8-9); (3) a genuine issue of material fact exists as to whether Ms. Bastien made the decision to terminate Plaintiff's employment, because Ms. Bastien told Plaintiff that she did not make the termination decision (Pl. Resp. at 9); and (4) a genuine issue of material fact exists as to whether Plaintiff violated a work rule, because Plaintiff posted the e-mails on January 13, 2004, to the Advisory Board list serve after DHR had terminated their formal association, to resolve a personal conflict with another member of the Nigerian community, after business hours, and using her personal e-mail account. (Pl. Resp. at 10-12). In Reply, Defendant contends that Plaintiff fails to rebut its proffered reason for her termination, because the evidence on record contradicts each of Plaintiff's assertions. (Def. Reply at 4-12).
In Plaintiff's deposition, which was taken on December 16, 2005, Plaintiff said that she would not consider Dr. Oladele to be an elder. (Pl. Dep. at 62-63). Plaintiff made this statement in her deposition after being asked "[w]ho would you consider to be elders, your elders?" (Pl. Dep. at 62). Plaintiff sought clarification, asking "are you asking in the Nigerian Africa context?", and she was told "[j]ust generally when you use the term elders, as you have done in some of the documents that were produced —." (Pl. Dep. at 62). Plaintiff explained that she does not consider Dr. Oladele to be an elder, but does consider Dr. Ajayi to be one, because of "the age difference." (Pl. Dep. at 63). Plaintiff explained that Dr. Oladele is in his forties and is closer in age to Plaintiff than to Dr. Ajayi, Mr. Mohammed, and Dr. Danesi. (Pl. Dep. at 63). Although the Court finds that whether Plaintiff considers Dr. Oladele to be an elder is not a material issue in the instant case, the Court notes that after giving this deposition testimony, Plaintiff submitted an affidavit with her Response in Opposition to Defendant's Motion for Summary Judgment that directly contradicts Plaintiff's deposition testimony as to Dr. Oladele. Plaintiff argues in her Response in Opposition brief and states in her affidavit that "Plaintiff is an Elder in the local Nigerian community, as is Dr. Oladele." (See Pl. Resp. at 11; Pl. Aff. ¶¶ 10-11; Plaintiff's Statement of Facts to Which a Genuine Issue of Material Fact Exists to be Tried [hereinafter "PSMF"] ¶ 2). Plaintiff swore out her affidavit on March 30, 2006 and filed her Response in Opposition Brief on March 31, 2006. (See generally Pl. Resp.; Pl. Aff.). Plaintiff does not explain or acknowledge the contradiction, nor does Plaintiff argue that the she did not understand the deposition testimony. Additionally, the testimony relates to Plaintiff's personal opinion and did not depend on facts that Plaintiff only discovered after her deposition. Under Eleventh Circuit law, a court may disregard an affidavit submitted solely for the purpose of opposing a motion for summary judgment when deposition testimony directly contradicts that affidavit. McCormack v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n. 7 (11th Cir. 2003). "`When a party has given clear answers to unambiguous questions which negate the existence of any genuine issue of material fact [for summary judgment], that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony.'" Id. (citingVan T. Junkins and Assoc., Inc. v. U.S. Industries, Inc., 736 F.2d 656, 657 (11th Cir. 1984)) (emphasis added); Solomon v. Waffle House, Inc., 365 F. Supp.2d 1312, 1320 (N.D. Ga. 2004) (declining to exclude affidavit, because the affidavit statement did not actually contradict earlier deposition testimony). Such an affidavit would be a sham. Id.
To show pretext and survive summary judgment, the plaintiff must show that the defendant lacks credence or that the defendant was more likely motivated by a discriminatory reason than its proffered reason. See Combs v. Plantation Patterns, 106 F.3d 1519, 1528-30 (11th Cir. 1997); Evans v. McClaine of GA, Inc., 131 F.3d 957, 965 (11th Cir. 1997); Mayfield v. Patterson Pump Co., 101 F.3d 1371, 1376 (11th Cir. 1996). See also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 148 (2000). When the plaintiff tries to indirectly prove pretext, the court must evaluate whether the Plaintiff has demonstrated such weaknesses, implausibilities, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.Combs, 106 F.3d at 1538. If the employer offers more than one legitimate non-discriminatory reason for its action, the plaintiff must demonstrate that each reason is pretextual. See Johnson v. Booker T. Washington Broadcasting Services, No. 99-6078, 2000 WL 1752177, at 6 n. 9 (11th Cir. 2000); Chapman v. A.I. Transport, 229 F.3d 1012, 1024-25 (11th Cir. 2000) (explaining that if the Plaintiff does not proffer sufficient evidence to create a genuine issue of material fact regarding whether each of the defendant employer's articulated reasons is pretextual, the employer is entitled to summary judgment). Mere conclusory allegations of discrimination without more, are insufficient to raise an inference of pretext or intentional discrimination where an employer has offered extensive evidence of legitimate, non-discriminatory reasons for its actions. Mayfield, 101 F.3d at 1376.
The McDonnell Douglas analysis restricts the inquiry into Defendant's proffered nondiscriminatory reason as to whether the decisionmaker believed in its reason, and if so, whether this belief was the reason behind Defendant's decision. See Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991);Hawkins v. Ceco Corp., 883 F.2d 977, 980 n. 2 (11th Cir. 1989) (the fact that the employee did not actually engage in the misconduct reported to the employer is not relevant to whether the employer believed the employee had done wrong). Federal courts "do not sit as a super-personnel department that reexamines an entity's business decisions." Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir. 1999). "No matter how medieval a firm's practices, no matter how high-handed its decisional process, no matter how mistaken the firm's managers, [Title VII] does not interfere. Rather, our inquiry is limited to whether the employer gave an honest explanation of its behavior." Chapman v. AI Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc) (quoting Elrod v. Sears, Roebuck Co., 939 F.2d 1466, 1470 (11th Cir. 1991)) (other citations omitted). See also Alexander v. Fulton County, 207 F.3d 1303, 1341 (11th Cir. 2000) ("[I]t is not the court's role to second-guess the wisdom of an employer's decisions as long as the decisions are not racially motivated."). As long as the reason is not discriminatory, the "employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all. . . ." Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984); accord Schoenfeld v. Babbitt, 168 F.3d 1257, 1269 (11th Cir. 1999) ("The reason offered by an employer for an action does not have to be a reason that the judge or jurors would act on or approve.") (citation and internal quotation marks omitted); see also Jones, 874 F.2d at 1540; Smith v. Papp Clinic, P.A., 808 F.2d 1449, 1452-53 (11th Cir. 1987) ("[I]f the employer fired an employee because it honestly believed that the employee had violated a company policy, even if it was mistaken in such belief, the discharge is not `because of race' and the employer has not violated § 1981.").
Applying the law to the facts of this case, the Court finds that Plaintiff has failed to show that Defendant's proffered reasons are pretext for discrimination. Contrary to Plaintiff's arguments, Defendant has specifically identified during this litigation several sections of DHR Personnel Policies 1201 and 110, which DHR contends Plaintiff's conduct violated. (See DMSJ at 14; DSMF ¶¶ 63-68; Pl. Dep. at 49-53). Sections E-8.7, F-2, G-1.1, G-1.2, and G-1.4 of DHR Personnel Policy 1201 require employees to conduct themselves in a positive and courteous manner at all times with clients, patients, customers, the general public, and other employees and to maintain a professional and businesslike relationship with fellow employees, clients, customers, vendors and all other work-related contacts. (DSMF ¶¶ 64, 65, 67; Pl. Dep. at 50-53; Appendix Exh. 28, DHR Personnel Policy 1201). Sections G-1.1, G-1.2, and G-1.4 of DHR Personnel Policy 1201 and Section A of DHR Personnel Policy 110 further list as prohibited conduct threatening, abusive, or profane language, behavior or written material; argumentative behavior, whether directed toward a supervisor, client, patient, customer, co-worker or any other party while on duty or while acting under color of officer; racial or ethnic jokes and slurs, and other verbal or physical conduct of an offensive nature. (DSMF ¶¶ 65, 67; Pl. Dep. at 52, 53; Appendix Exh. 28, DHR Personnel Policy 1201; Appendix Exh. 29, DHR Personnel Policy 110). Furthermore, Section A-3 of DHR Personnel Policy 1201 clearly explains that employees can be held accountable for conduct outside of work. Section A-3 of DHR Personnel Policy 1201 provides that "[o]ff-duty conduct becomes a legitimate concern . . . when it affects departmental operations or reflects discredit on the Department. Such off duty conduct may result in appropriate disciplinary action up to and including separation from employment." (DSMF ¶ 63; Pl. Dep. at 49-50; Appendix Exh. 28, DHR Personnel Policy 1201; see also DSMF ¶ 64; Pl. Dep. at 50-51; Appendix Exh. 28, DHR Personnel Policy 1201, Section E-8.7).
Defendants identify Section A-3, E-8.7, F-2, G-1.1, G-1.2, and G-1.4 of DHR Personnel Policy 1201 and Section A of DHR Personnel Policy 110. (See DMSJ at 14; DSMF ¶¶ 63-68; Pl. Dep. at 49-53). DHR Personnel Policy 1201, Section A-3 provides that "[i]n general, the Department is not concerned as an employer with non-work time of employees. Off-duty conduct becomes a legitimate concern, however, when it affects departmental operations or reflects discredit on the Department. Such off duty conduct may result in appropriate disciplinary action up to and including separation from employment." (DSMF ¶ 63; Pl. Dep. at 49-50; Appendix Exh. 28, DHR Personnel Policy 1201).
DHR Personnel Policy 1201, Section E-8.7 provides that "[e]mployees must conduct themselves in a positive and courteous manner at all times towards clients, patients, and customers. Mistreatment of clients, patients or customers in any form is a matter of concern to all supervisory levels and will not be tolerated. Prohibited activities include but are not limited to engaging in rude, argumentative, hostile or otherwise unprofessional behavior towards clients, patients, or customers. (DSMF ¶ 64; Pl. Dep. at 50-51; Appendix Exh. 28, DHR Personnel Policy 1201).
DHR Personnel Policy 1201, Section F-2 provides in pertinent part that employees must maintain, "professional relationships with coworkers and supervisors," and "a courteous, professional demeanor in the presence of clients, the general public, and other employees." (DSMF ¶ 65; Pl. Dep. at 51; Appendix Exh. 28, DHR Personnel Policy 1201).
DHR Personnel Policy 1201, Sections G-1.1, G-1.2, and G-1.4 provide in pertinent part, "DHR will not tolerate acts or threatened acts of violence in the workplace. Reports of threats or acts of violence will be thoroughly reviewed and appropriate action will be taken. Examples of prohibited conduct are: threatening, abusive, or profane language, behavior or written material; argumentative behavior, whether directed toward a supervisor, client, patient, customer, co-worker or any other party while on duty or while acting under color of officer; racial or ethnic jokes and slurs, and other verbal or physical conduct of an offensive nature." (DSMF ¶ 65; Pl. Dep. at 52; Appendix Exh. 28, DHR Personnel Policy 1201).
DHR Personnel Policy 110, Section A provides in pertinent part, (1) "Employees, supervisors and managers are expected to maintain a professional and businesslike relationship with fellow employees, clients, patients, customers, vendors, and all other work-related contacts; (2) DHR will not tolerate acts or threatened acts of violence in the workplace, while on duty, or while off duty when the act is directed toward a work-related contact, or otherwise bears a relationship to work; (3) Examples of prohibited behavior include but are not limited to: threatening, abusive, or intimidating language or written material. (DSMF ¶ 67; Pl. Dep. at 53; Appendix Exh. 29, DHR Personnel Policy 110).
While Defendant does not expressly identify the reason for Plaintiff's termination in either the Separation of Notice Form or the letter notifying Plaintiff of her termination, this fact alone fails to cast doubt on Defendant's proffered reason, because Plaintiff was an unclassified employee and could be terminated without a stated reason. (DSMF ¶ 61; Pl. Dep. at 48; Appendix Exh. 26, Acknowledgment of Unclassified Service; see also DSMF, Appendix Exh. 24, Separation Form; Appendix Exh. 25, Jan. 14, 2005 separation letter). Absent other evidence casting doubt on Defendant's proffered reason, the mere fact that Defendant did not explain the reason for its decision to terminate Plaintiff before it was required to do so by the law does not create an inference that discriminatory animus more likely motivated it or show by a preponderance of the evidence that Defendant's proffered reason is unworthy of credence.
The facts surrounding Plaintiff's e-mails on January 13, 2005 also do not show pretext. Plaintiff does not dispute having written the e-mails. Plaintiff's argument focuses, instead, on the application of the DHR rules to her conduct, because the majority of the conduct resulting in Plaintiff's termination occurred outside of work and after DHR had terminated its formal association with the Advisory Board. Plaintiff has not shown that any genuine issue of material fact exists as to whether Defendant believed her conduct affected departmental operations or reflected discredit on the Department. See Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991); Hawkins v. Ceco Corp., 883 F.2d 977, 980 n. 2 (11th Cir. 1989) (the fact that the employee did not actually engage in the misconduct reported to the employer is not relevant to whether the employer believed the employee had done wrong). Plaintiff does not dispute that when Dr. Oladele showed Ms. Pisor the posted e-mails on January 13, 2005, Ms. Pisor felt that the e-mails jeopardized DHR's relationship with Dr. Oladele and that they were not professional. (DSMF ¶ 49; Pisor Dep. at 31-34, 36; Pl. Dep. at 184-86). Similarly, Plaintiff offers no evidence specifically rebutting Ms. Pisor's testimony that both Ms. Bastien and Ms. Burton believed these e-mails to be unprofessional and to jeopardize DHR's relationship with Dr. Oladele, and that they worried about future misconduct by Plaintiff. (Pisor Dep. at 37-38).
Moreover, the circumstances of Plaintiff's facts do not show that Defendant is being dishonest in stating that it believed Plaintiff violated DHR policy. Section A-3 of DHR Personnel Policy 1201 clearly advises that DHR can discipline employees for off-duty conduct when it affects departmental operations or reflects discredit on the Department. (DSMF ¶ 63; Pl. Dep. at 49-50; Appendix Exh. 28, DHR Personnel Policy 1201). Second, DHR's Personnel Policy provisions clearly apply to Dr. Oladele and other members of the Advisory Board. Section A-3 of DHR Personnel Policy 1201 does not contain any language limiting the scope of its application based on the identity of individuals exposed to the employee's misconduct. (See DSMF ¶ 63; Pl. Dep. at 49-50; Appendix Exh. 28, DHR Personnel Policy 1201). Similarly, the requirement that employees "maintain a professional and businesslike relationship" in Section A of DHR Personnel Policy 110 extends to "all other work-related contacts." (DSMF ¶ 67; Pl. Dep. at 53; Appendix Exh. 29, DHR Personnel Policy 110). Plaintiff admitted that she was "still professionally expected to interact with" Dr. Oladele after DHR terminated its official relationship with the Advisory Board. (Pl. Dep. at 126). Similarly, other Board members had professional relationships with DHR and Plaintiff independent of the Advisory Board through their association with other organizations, such as Emory University School of Medicine, Refugee Health, and the Grady Infectious Disease Program. (DSMF ¶ 8; Pl. Dep. at 38-41; Appendix Exh. 5, PMF Aug. 1, 2003-June 30, 2004; Appendix Exh. 6, PMF July 1, 2004-June 30, 2005). Plaintiff offers no evidence disputing the fact that her duties required her to continue to have a professional relationship with many of the people who had access to her January 13, 2005 e-mails.
Moreover, Plaintiff's prior favorable performance evaluations do not negate Defendant's belief in or reliance upon other performance issues. (Def. Reply at 5-6). None of the prior favorable performance evaluations reflect the period of time when Plaintiff sent the January 13, 2005 e-mails. (See Appendix Exh. 3, Appendix Exh. 3, Performance Management Form for performance period Aug. 1, 2001-June 20, 2002; Appendix Exh. 4, Performance Management Form for performance period July 1, 2002-June 30, 2003; Appendix Exh. 5, PMF Aug. 1, 2003-June 30, 2004; Appendix Exh. 6, PMF July 1, 2004-June 30, 2005). These prior favorable performance evaluations do not create an issue of fact as to whether the past incidents of misconduct discussed by Ms. Bastien, Ms. Burton, and Ms. Pisor occurred when undisputed evidence establishes their existence. Similarly, these prior favorable performance evaluations do not create an issue of fact as to whether Defendant believed these past incidents in combination with Plaintiff's January 13, 2005 e-mails merited termination. (DSMF ¶ 52; Pisor Dep. 34-40).
Furthermore, Plaintiff's arguments that Ms. Pisor had a bias against Nigerians and African Americans does not show pretext. Plaintiff cites to several statements she alleges Ms. Pisor made as evidence of Ms. Pisor's bias; however, it is undisputed that Ms. Pisor was not a decisionmaker with respect to Plaintiff's termination. Plaintiff admits that Ms. Pisor did not recommend Plaintiff's termination, and Plaintiff does not dispute that Ms. Pisor lacked the authority to terminate Plaintiff. (DSMF ¶¶ 6, 59; Pisor Dep. at 11, 16-19, 34-40). "[S]tatements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process" at issue will not satisfy the employee's burden at the pretext stage. Steger v. General Elec. Co., 318 F.3d 1066, 1079 (11th Cir. 2003) (citing Price Waterhouse, 490 U.S. at 277, 109 S.Ct. at 1805 (O'Connor, J., concurring)). Additionally, Plaintiff's speculation about the suspect nature of Ms. Pisor's participation in the meeting on January 14, 2005, does not show pretext. First, Plaintiff's admission that Ms. Pisor was not a decisionmaker undercuts her speculation about Ms. Pisor's participation. Second, Plaintiff offers no evidence showing that Ms. Pisor's participation was irregular. (Pl. Resp. at 9-10). To the contrary, Ms. Pisor explains that Ms. Bastien and Ms. Burton involved Ms. Pisor because Ms. Pisor's responsibilities as Director of Operations for Prevention Services include personnel matters within the branch. (Pisor Dep. at 8-9, 34). Accordingly, Plaintiff's arguments that Ms. Pisor had a discriminatory bias and that her involvement in the meeting was suspect do not show pretext.
Plaintiff argues that Ms. Pisor's statements in April 2004 that "they don't know how to write English" in reference to the Advisory Committee minutes, in May 2004 that "they" were "challenged" because English is their second language, and in October 2004 that "height associated with Caucasians, associated with authority" or that "Caucasians that are tall are more influential" demonstrate her bias against Nigerians. (Pl. Dep. at 83-86, 91, 100, 105-08). It bears noting that Plaintiff's assertion that the first statement evinces racial bias is purely speculative. Ms. Pisor states in her deposition that she did not know that two men of Nigerian origin wrote the Advisory Board minutes, and Plaintiff testified that Ms. Pisor stated that "they don't know how to write English" before Plaintiff told her that "they" were two men of Nigerian origin. (Pisor Dep. at 45-47; Pl. Dep. at 88).
Finally, Plaintiff fails to demonstrate pretext through a showing that an issue of fact exists as to whether Ms. Bastien made the termination decision. Plaintiff states that Ms. "Bastien told [Plaintiff] that she did not make the recommendation to terminate [Plaintiff]." (Pl. Aff. ¶ 8). While the trier of fact can infer the ultimate fact of discrimination from the falsity of the employer's explanation, (Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 147 (2000)), here, the falsity Plaintiff highlights is only a mere scintilla of evidence, because Defendant has offered substantial, undisputed evidence in support of its legitimate non-discriminatory reason.See Anderson, 477 U.S. at 252. Accordingly, the Court finds that Plaintiff has failed to show that Defendant's proffered reason for its termination decision is pretext for discrimination. The Court, therefore, RECOMMENDS that Defendant's Motion for Summary Judgment be GRANTED as to Plaintiff's Title VII race and national origin discrimination claims. Docket Entry [28].
RECOMMENDATION
For the foregoing reasons, IT IS RECOMMENDED that Defendant's Motion for Summary Judgment be GRANTED. Docket Entry [28]. As this is a Final Report and Recommendation, there is nothing further in this action pending before the undersigned. Accordingly, the Clerk is DIRECTED to terminate the reference of this matter to the undersigned.
SO REPORTED AND RECOMMENDED.