Petition for Writ of Certiorari — Rachel Mosby, Petitioner v. City of Byron, Georgia
Supreme Court briefSep 22, 2022
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Text
No.
In the
Supreme Court of the United States
RACHEL MOSBY,
Petitioner,
v.
CITY OF BYRON, GEORGIA,
Respondent.
-----------------------------------------ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
-----------------------------------------APPENDIX TO
PETITION FOR WRIT OF CERTIORARI
------------------------------------------
M. Delvin Cooper
Counsel of Record
COOPER BARTON & COOPER, LLP
170 College Street
Macon, GA 31201
(478) 841-9007
mdc@cooperbarton.com
Counsel for Petitioner
GibsonMoore Appellate Services, LLC
206 East Cary Street ♦ Richmond, VA 23219
804-249-7770 ♦ www.gibsonmoore.net
ia
TABLE OF CONTENTS
Appendix
Page:
Opinion
U.S. Court of Appeals
For the Eleventh Circuit
filed April 18, 2022.............................................. 1a
Order of Dismissal
U.S. District Court for the
Middle District of Georgia Macon Division
filed January 28, 2021 ...................................... 12a
Order Converting Defendant’s Motion To
Dismiss Into A Motion For Summary Judgment
U.S. District Court for the Middle District of
Georgia Macon Division
filed August 27, 2020 ........................................ 33a
Opinion
U.S. Court of Appeals
For the Eleventh Circuit
filed June 24, 2022 ............................................ 35a
OTHER MATERIALS:
Duplicate Opinion
U.S. Court of Appeals
For the Eleventh Circuit
filed April 18, 2022............................................ 36a
Notice of Designation of Attorney
dated June 6, 2019 ............................................ 57a
iia
13WMAZ Article ..................................................... 58a
City of Byron – Personnel Policies
effective April 29, 2005 ..................................... 62a
City of Byon – Employment Terminated Letter
dated June 4, 2019 ............................................ 73a
1a
[FILED APRIL 18, 2022]
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10377
Non-Argument Calendar
____________________
RACHEL MOSBY,
Plaintiff-Appellant,
versus
CITY OF BYRON, GEORGIA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:20-cv-00163-TES
____________________
Before WILSON, LAGOA, and BRASHER, Circuit
Judges.
PER CURIAM:
Rachel Mosby, a former fire chief for the City of
Byron, Georgia, appeals the district court’s grant of
summary judgment to the City on several Title VII
and ADA claims. Mosby also challenges the district
court’s dismissal of her procedural due process claims
under the United States and Georgia Constitutions
2a
and her state law defamation claim. Upon careful
consideration, we affirm.
I. BACKGROUND
Mosby was the City of Byron’s fire chief for eleven
years before being terminated in 2019. Afterwards,
she retained counsel and filed a charge of
discrimination with the Equal Employment
Opportunity Commission alleging that the City had
violated Title VII and the ADA. The City filed a
position statement with the Commission that
responded to the merits of Mosby’s charge. Neither
party disputes that the charge was never properly
verified, or that there was any attempt to cure
verification until after Mosby had already requested
and the Department of Justice had already issued a
right to sue letter.
Upon being authorized to do so, Mosby brought a
lawsuit against the City in the Middle District of
Georgia. In addition to her Title VII and ADA claims
(Counts I–IV), Mosby alleged procedural due process
violations under the United States and Georgia
Constitutions and defamation under Georgia state
law. Counts V and VI of the complaint alleged that
Mosby had a property interest in continued
employment as the City’s fire chief based on a “longstanding personnel policy” allowing department
heads to appeal adverse employment actions. The
City notified her on November 13, 2018, that it would
be changing this policy to disallow appeals by
department heads effective January 14, 2019. Mosby
was terminated more than four months after the
change went into effect. Count VII further alleged
that the City “made and published false [verbal and
written] statements to the media and other third
3a
parties” regarding Mosby that “were calculated to
injure [Mosby’s] reputation,” “imputed . . . a want of
integrity and misfeasance in her office,” and caused
damages “including but not limited to a complete
inability to secure similar employment in her field.”
The City moved to dismiss Mosby’s Title VII and
ADA claims on the grounds that failure to verify a
charge of discrimination required dismissal as a
matter of law. It also argued that Counts V–VII failed
to state valid claims for relief. To consider matters
outside the pleadings, the district court converted the
City’s motion to dismiss to one for summary
judgment. The court then granted summary
judgment to the City on Mosby’s Title VII and ADA
claims and dismissed her due process and defamation
claims. Mosby timely appealed.
II. STANDARDS OF REVIEW
We review a district court’s dismissal for failure to
state a claim under Federal Rule of Civil Procedure
12(b)(6) de novo, “accepting the allegations in the
complaint as true and construing them in the light
most favorable to the plaintiff.” Mills v. Foremost Ins.
Co., 511 F.3d 1300, 1303 (11th Cir. 2008) (internal
quotation marks omitted). We also review grants of
summary judgment de novo, “apply[ing] the same
legal standards as the district court.” Custom Mfg.
and Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641,
646 (11th Cir. 2007). Finally, “[w]e may affirm the
district court’s judgment on any ground that appears
in the record, whether or not that ground was relied
upon or even considered by the court be- low.” Thomas
v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th
Cir. 2007).
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III. DISCUSSION
a. Mosby’s Title VII and ADA Claims
Mosby first argues that the district court erred by
granting summary judgment to the City on her
various Title VII and ADA claims based on the failure
to submit a verified charge of discrimination. Because
the City raised the issue of verification in a preanswer motion to dismiss and the parties agree that
Mosby’s charge was never verified or properly
amended, we disagree.
Employees alleging violations of Title VII or the
ADA must, before bringing suit in federal court,
submit a charge of discrimination to the Commission.
42 U.S.C. § 2000e-5(f). Such charges “shall be in
writing under oath or affirmation and shall contain
such information and be in such form as the
Commission requires.” Id. § 2000e-5(b). The
Commission’s regulations mandate that a charge
“shall be verified,” meaning that it must be “sworn to
or affirmed before a notary public, designated
representative of the Commission, or other person
duly authorized by law to administer oaths and take
acknowledgements, or supported by an unsworn
declaration in writing under penalty of perjury.” 29
C.F.R. §§ 1601.3(a), 1601.9.
An employee who files an unverified charge may
cure the lack of verification through an amendment,
which will then “relate back” to the initial filing of the
charge. 29 C.F.R. § 1601.12(b); see Edelman v.
Lynchburg College, 535 U.S. 106 (2002). The
employee’s window to amend ceases when the time for
the employer to respond to the charge elapses.
Edelman, 535 U.S. at 113. Thus, a charge neither filed
under oath or affirmation nor subsequently cured by
5a
amendment fails to satisfy the statutory requirement
that an employee submit his or her charge to the
Commission. Vason v. City of Montgomery, 240 F.3d
905, 907 (11th Cir. 2001). Accordingly, we have
affirmed summary judgment in favor of Title VII
defendants when an employee files a lawsuit based on
an unverified charge. Id.
The Supreme Court has held that an employer
may forfeit the issue of an employee’s failure to
properly submit his or her charge to the Commission
by failing to timely raise the issue in follow-on
litigation. In Fort Bend County v. Davis, the Court
held that a plaintiff’s failure to comply with Title
VII’s charge-filing requirement does not strip the
federal courts of jurisdiction to con- sider a follow-on
federal lawsuit. Fort Bend Cnty. v. Davis, 587 U.S.___,
139 S. Ct. 1843, 1852 (2019). Unlike a jurisdictional
issue, the Court reasoned that the failure to comply
could be forfeited by the parties. Accordingly, the
Court affirmed the Fifth Circuit’s decision, which held
that an employer forfeited the issue by failing to raise
it until approximately four years into the litigation
after “an entire round of appeals all the way to the
Supreme Court.” See id. at 1847–48, 1852.
Mosby argues that her failure to file a verified
charge should be excused under Fort Bend County,
but we disagree. In Fort Bend County, the Supreme
Court affirmed a decision holding that the chargefiling requirement was forfeited when the employee
at- tempted to supplement the allegations in her
charge by handwrit- ing additional information on a
state agency’s intake questionnaire and the employer
waited four years and “an entire round of appeals all
the way to the Supreme Court” to first raise the issue
in the liti- gation. Davis v. Fort Bend Cnty., 893 F.3d
6a
300, 208 (5th Cir. 2018), aff’d, 139 S. Ct. at 1847–48,
1852. Mosby, by contrast made no such attempts to
make handwritten supplements to her charge, which
she filed through counsel. And the City raised the
verification issue in a pre-answer motion to dismiss
rather than after an exhaustive series of appeals.
None of our precedents nor the Supreme Court’s
holding in Fort Bend County suggest that the City
forfeited Mosby’s failure to verify her charge or
properly comply with Title VII’s administrative
exhaustion requirement. Because Mosby did not
properly submit her charge of discrimination to the
Commission, the district court correctly granted
summary judgment on her Title VII and ADA claims.
b. Mosby’s Due Process Claim
Mosby’s next argument—that the district court
erred by dis- missing her procedural due process
claims under the United States and Georgia
constitutions—fares no better.
The district court dismissed Mosby’s complaint
because she failed to allege that she had a protected
property interest in her employment. A complaint
fails to state a claim when it does not include “enough
factual matter” to “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–
56 (2007). Although a com- plaint need not contain
detailed factual allegations, “a plaintiff’s obligation to
provide the grounds of his entitlement to relief
requires more than labels and conclusions.” Id. at 555
(cleaned up). “Naked assertions devoid of further
factual enhancement” will not suffice. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). The complaint must contain enough facts to make a claim for
7a
relief plausible on its face, that is, it must “allow the
court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id.
(cleaned up). Notably, when a more carefully drafted
complaint might have resolved a pleading deficiency,
“[a] district court is not required to grant a plaintiff
leave to amend [her] complaint sua sponte when the
plaintiff, who is represented by counsel, never filed a
motion to amend nor requested leave to amend before
the district court.” Wagner v. Daewoo Heavy Indus.
Am. Corp., 314 F.3d 541, 542 (11th Cir. 2002).
To sufficiently allege a procedural due process
claim, Mosby must allege that she had a property
interest and that the City de- prived her of that
interest. See Ross v. Clayton Cnty., 173 F.3d 1305,
1307 (11th Cir. 1999). Whether an employee has a
property interest in continued employment is a
question of substantive state law. Adams v.
Bainbridge-Decatur Cnty. Hosp. Auth., 888 F.2d 1356,
1363 (11th Cir. 1989) (quoting Nicholson v. Gant, 816
F.2d 591, 597 (11th Cir. 1987). We have held that “in
Georgia, an at-will employee typically does not have a
reasonable expectation of continued employment
sufficient to form a protectable property inter- est.”
Wofford v. Glynn Brunswick Mem’l Hosp., 864 F.2d
117, 119 (11th Cir. 1989); O.C.G.A. § 34-7-1 (“An
indefinite hiring may be terminated at will by either
party.”); see also Wilson v. City of Sar- dis, 590 S.E.2d
383, 385 (Ga. Ct. App. 2003) (holding that “‘at will’
employees have no legitimate claim of entitlement to
continued employment and, thus, no property interest
protected by the due process clause”). Public
employees, however, have a property interest in
continued employment under a civil service system if
they are terminable only for cause based on “[a]n
8a
explicit contractual provision, rules, or common
understandings.” DeClue v. City of Clayton, 540
S.E.2d 675, 677 (Ga. Ct. App. 2000); see also Brett v.
Jefferson Cnty., 123 F.3d 1429, 1433–34 (11th Cir.
1997).
As an initial matter, Mosby has abandoned any
challenge to the district court’s dismissal based on one
issue. Mosby’s reply brief raises, for the first time in
this appeal, an argument that the district court
improperly considered matters outside the pleadings
in de- ciding the City’s motion to dismiss. In reviewing
a district court’s dismissal under Rule 12(b)(6), issues
not raised in a party’s initial brief are considered
abandoned. Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008); Sapuppo v. Allstate Floridian Ins.
Co., 739 F.3d 678, 681–83 (11th Cir. 2014). Thus, by
not raising the issue in her initial briefing, Mosby has
abandoned it.
As to the merits of the district court’s decision, we
conclude that it properly held that Mosby had not
pleaded sufficient facts to establish a property
interest in her continued employment with the City
as fire chief. Mosby cites the City’s “long-standing
personnel policy” as the root of her property interest
in continued employment. But the personnel policies
cited in Mosby’s pleadings placed her under the
authority of the City Administrator and made her
position terminable at will. Specifically, Section
8.1(K) of the City’s personnel policy, as effective on
the date of Mosby’s firing and pursuant to the City’s
2018 amended Charter, expressly provided that “all
appointive officers and director shall be employees atwill and subject to removal or suspension at any time
by the appointing authority unless otherwise
provided by law or ordinance.” Similarly, other
9a
sections of the Charter, as amended in 2018, provided
that “[a]ll appointive officers and directors shall be
employees at-will and subject to removal or
suspension at any time by the city administrator
unless otherwise provided by law or ordinance.” Because she was an at-will employee, Mosby had no
property interest in continued employment under
Georgia law. DeClue, 540 S.E.2d at 677.
Mosby argues that, despite the express language
of the personnel policies, other allegations support
her position that she had a property interest in
continued employment. We disagree. Although Mosby
was designated as a non-probationary employee, the
rules specifically provided that her position was atwill. No more successful is Mosby’s reliance on the
City’s disciplinary policy, which expressly declined to
deprive a supervisor of the ability to “immediately
terminate an employee for any one of the reasons
listed in this policy.” Mosby’s reliance on outdated
policies and regulations that she admits were
changed months before she was fired is also
unavailing. Because Mosby did not adequately plead
a property interest in her continued employment with
the City and failed to seek leave to amend her
deficient pleadings, the district court did not err by
dismissing her due process claims. Wagner, 314 F.3d
at 542.
c. Mosby’s Defamation Claim
Mosby’s final argument—that the district court
improperly dismissed her defamation claim under
Georgia law—also fails. In Georgia, a defamation
plaintiff must allege facts showing: “(1) a false and
defamatory statement about [oneself]; (2) an
unprivileged communication to a third party; (3) fault
10a
by the defendant amounting to at least negligence;
and (4) special damages or defamatory words that are
injurious on their face.” Lewis v. Meredith Corp., 667
S.E.2d 716, 718 (Ga. Ct. App. 2008) (internal
quotation marks omitted). When the plaintiff in a
defamation action is a pub- lic figure, he or she must
also prove actual malice. New York Times Co. v.
Sullivan, 376 U.S. 254, 279–80 (1964); Williams v. Tr.
Co., 230 S.E.2d 45, 52 (Ga. Ct. App. 1976).
Mosby argues that she adequately pleaded actual
malice, a required element of her claim. We conclude
that she did not. Count VII of Mosby’s complaint
merely recited the bare elements of libel and slander
under Georgia law, mimicking the statutory language
in exactly the type of “the-defendant-unlawfullyharmed- me accusation” that the Supreme Court
disapproved of in Iqbal. 556 U.S. at 678. Nothing on
the face of Count VII plausibly alleged that the City
made any false statements with actual malice. And
although Count VII incorporates the complaint’s
factual allegations, those allegations mention
statements only in the context of the City’s
nondiscriminatory explanations for terminating
Mosby and, likewise, do not allege actual malice. The
complaint even ad- mitted that one alleged false
statement might have been “based on inaccurate
information,” instead of knowingly false. Mosby has
not alleged sufficient facts to allow a reasonable
inference that the City is liable for defamation. Id. at
678.
Finally, Mosby never filed a motion or requested
leave to amend after being alerted to her pleading
deficiencies by the City’s motion to dismiss. The
district court was not required to cure Mosby’s
deficient pleadings where Mosby herself chose not to.
11a
See Wagner, 314 F.3d at 542. Thus, the district court
did not err by dis- missing Mosby’s state law
defamation claim.
IV.
Conclusion
For the foregoing reasons, the district court’s
summary judgment on Mosby’s Title VII and ADA
claims and its dismissal of her due process and
defamation claims are AFFIRMED.
12a
[FILED JANUARY 28, 2021]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RACHEL MOSBY,
Plaintiff,
v.
CITY OF BYRON, GEORGIA,
Defendant.
CIVIL ACTION NO.
5:20-cv-00163-TES
ORDER OF DISMISSAL
This case asserts, among others, claims under
Title VII of the Civil Rights Act of 1964 (“Title VII”),
42 U.S.C. §§ 2000e, 2000e-1, 2000e-2(a), and the
Americans with Disabilities Act (“ADA”), 42 U.S.C. §§
12111, 12112(a), 12112(b)(5)(A).
Because many of the substantive facts aren’t
important to the particular issues before the Court, a
lengthy factual narrative is unnecessary. However,
what is important, is that Plaintiff Rachel Mosby
served as the City of Byron’s Fire Chief for 11 years
until she was terminated. Now, she makes the
following claims against the City: Counts I and II
include her sex-based discrimination claims for
harassment, hostile work environment, and wrongful
termination under Title VII; Counts III and IV are
claims for wrongful termination and failure to provide
a reasonable accommodation under the ADA; Counts
V and VI each contain a deprivation of due process
claim—one alleging a violation of the Fifth and
13a
Fourteenth Amendments to the United States
Constitution and the other alleging a violation of the
Georgia Constitution; and Count VII is a defamation
claim under Georgia law pursuant to O.C.G.A. §§ 515-1 and 51-5-4.
In response to Mosby’s Complaint, the City filed a
motion to dismiss asserting, inter alia, that her Title
VII and ADA claims are time-barred because “neither
[she] nor her [attorney] filed a verified charge with the
[Commission].” [Doc. 5-1, p. 5]. After an initial review
of the parties’ briefs, it became clear to the Court that
resolution of the verification issue would likely
“require the Court to consider matters outside”
Mosby’s pleading. See generally [Doc. 12]. So, with
respect to the verification requirement, the Court
converted the City’s motion to dismiss into one for
summary judgment and permitted a short period
within which the parties could procure supporting
evidence and file supplemental briefs. With both
parties having filed one additional brief in support of
their positions, the City’s motion is now ripe for
consideration.
A. The City of Byron’s Motion for Summary
Judgment
1. Legal Standard
A court must 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.” Fed. R. Civ. P. 56(a). A
factual dispute is not genuine unless, based on the
evidence presented, “‘a reasonable jury could return a
verdict for the nonmoving party.’” Info. Sys. &
Networks Corp. v. City of Atlanta, 281 F.3d 1220, 1224
(11th Cir. 2002) (quoting United States v. Four
14a
Parcels of Real Prop., 941 F.2d 1428, 1437 (11th Cir.
1991)); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). Importantly, the movant “has
the burden of demonstrating that there are no
genuine issues of material fact, [and] once that
burden is met[,] the burden shifts to the nonmoving
party to bring the court’s attention to evidence
demonstrating a genuine issue for trial.” Perry v.
Pediatrix Med. Grp. of Ga., 2021 WL 194145, --- F.
App’x ----, at *3 (11th Cir. 2021) (quoting Alvarez v.
Royal Alt. Dev., Inc., 610 F.3d 1253, 1263 (11th Cir.
2010)).
In executing its burden, the movant may cite to
particular parts of materials in the record,
including, “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes
demonstrate the absence of a genuine issue of
material fact.” Four Parcels, 941 F.2d at 1437
(quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986)); Fed. R. Civ. P. 56(c)(1)(A). “When the
nonmoving party has the burden of proof at trial,
the moving party is not required to ‘support its
motion with affidavits or other similar material
negating the opponent’s claim[]’ in order to
discharge this ‘initial [burden].’” Four Parcels, 941
F.2d at 1437–38 (quoting Celotex, 477 U.S. at 323).
Rather, “the moving party simply may show—that
is, point out to the district court—that there is an
absence of evidence to support the nonmoving
party’s case.” Id. (quoting Celotex, 477 U.S. at 324)
(cleaned up). Alternatively, the movant may
provide “affirmative evidence demonstrating that
the nonmoving party will be unable to prove its
case at trial.” Id.
15a
If this initial burden is satisfied, the burden
then shifts to the nonmoving party, who must rebut
the movant’s showing “by producing . . . relevant
and admissible evidence beyond the pleadings.”
Josendis v. Wall to Wall Residence Repairs, Inc., 662
F.3d 1292, 1315 (11th Cir. 2011) (citing Celotex
Corp., 477 U.S. at 324) (emphasis added). The
nonmoving party does not satisfy her burden “if the
rebuttal evidence ‘is merely colorable or[] is not
significantly probative’ of a disputed fact.” Josendis,
662 F.3d at 1315 (quoting Anderson, 477 U.S. at
249–50). “A mere scintilla of evidence supporting
the [nonmoving] party’s position will not suffice.”
Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th
Cir. 1997).
2. Mosby’s Charge of Discrimination
Before filing a lawsuit that concerns violations of
Title VII or the ADA, Congress explicitly and
unmistakably mandated that a plaintiff submit a
Charge of Discrimination to the Equal Employment
Opportunity Commission which “shall be in writing
under oath or affirmation and shall contain such
information and be in such form as the Commission
requires.” 42 U.S.C. § 2000e-5(b). In addition to
Congress’
charge-filing
requirement,
the
Commission’s regulations mandate that “[a] charge .
. . shall be verified.” 29 C.F.R. § 1601.9 (emphasis
added). That is, a charge must be “sworn to or
affirmed before a notary public, designated
representative of the Commission, or other person
duly authorized by law to administer oaths and take
acknowledgements, or supported by an unsworn
declaration in writing under penalty of perjury.” Id.
at § 1601.3(a). Defendant’s summary judgment
motion case calls upon the Court to answer one main
16a
question: just how mandatory is the Commission’s
verification requirement?
On June 28, 2019, Mosby submitted her charge
which consisted of a detailed, five-page letter
drafted and signed by her attorney laying out her
grievances, a notice signed by Mosby identifying
that an attorney was submitting the charge on her
behalf, and 11 pages of exhibits.1 See generally
[Doc. 1-4]. What she didn’t file was any sort of
verification to her charge. Thus, despite submission
of her charge, the City argues that Mosby’s (and/or
her attorney’s) failure to verify it bars her Title VII
and ADA claims as a matter of law. [Doc. 5-1, pp.
3, 5]; 42 U.S.C. § 2000e-5(e)(1).
The City makes a simple argument: “[T]here is no
evidence that . . . Mosby or her [attorney] ever
submitted a verified charge to the [Commission] and
[without a verified charge], [Mosby’s] Title VII and
ADA claims must be dismissed.” [Doc. 5-1, p. 6]. While
the United States Supreme Court allows a laterverified charge to “relate back” to an original charge,
the window of opportunity to do so shuts when the
Commission closes its file. See generally Edelman v.
Lynchburg Coll., 535 U.S. 106 (2002); see also Butler
v. Grief, Inc., 325 F. App’x 748 (11th Cir. 2008).
“Where a right to sue letter has issued, the plaintiff
has brought suit, and the [Commission] has closed its
file, there is no longer a charge pending before the
[Commission] that is capable of being verified.”
1 “While an attorney may file a[] . . . charge on behalf of a client,
the attorney’s signature alone will not constitute verification if
the attorney does not personally swear to the truth of the facts
stated in the charge and does not have personal knowledge of
those facts.” Butler v. Grief, 325 F. App’x 748, 749 (11th Cir.
2009).
17a
Butler, 325 F. App’x at 749. In other words, a charging
party can amend her charge and—in that
amendment—include a verification “only so long as
the [original] charge is a viable one in the
[Commission’s] files[.]” Id. (citing Balazs v.
Liebenthal, 32 F.3d 151, 156–58 (4th Cir. 1994)).
After realizing that neither he nor his client ever
verified the charge, Mosby’s attorney tried to amend
the charge to add the requisite verification. In a letter
to the Commission dated July 17, 2020 (well after she
filed suit on April 28, 2020), Mosby’s attorney wrote:
“Based upon our review of the [Commission’s]
investigative file that we received on May 11, 2020,
the [Commission] has not issued a Dismissal and
Notice of Rights or taken any other action to close this
matter.” [Doc. 10-9, p. 1]; see also [Doc. 1, p. 31]. To
that letter, Mosby attached an amendment to her
original charge to include a verification. [Doc. 10-9, p.
2]. Thus, the Court must first decide whether Mosby
could have amended her original charge in the first
place. The short answer is that she could not.
On December 19, 2019, following an exchange of
several emails between Mosby’s attorney and various
representatives from the Atlanta District Office of the
Commission regarding the status of Mosby’s charge,
Mosby’s attorney requested the Commission “to issue
a Notice of Right to Sue and close this file.” See
generally [Doc. 10-6]; see also [Doc. 10-2]; [Doc. 10-3];
[Doc. 10-4]; [Doc. 10-5]. That same day, the
Commission informed Mosby, that her request for a
Notice of Right to Sue had “been forwarded to the U.S.
Department of Justice (DOJ) for action[]” and that the
Department of Justice (“DOJ”) would “act on [her]
request and issue the Notice directly to [her.]” [Doc.
10-7, p. 2].
18a
On January 3, 2020, even though Mosby’s attorney
“underst[ood] that the request” for a Notice of Right
to Sue “had to be forwarded to the DOJ[,]” he still
(ostensibly because of the time that had passed since
Mosby filed her original charge) asked whether the
Commission was “able to issue a Right to Sue
Letter[.]” [Doc. 10-8, p. 1]; see also Fort Bend Cnty. v.
Davis, 139 S.Ct. 1843, 1847 (2019) (“Whether . . . the
[Commission] acts on the charge, a complainant is
entitled to a ‘right-to-sue’ notice 180 days after the
charge is filed.”). In response, the Commission stated
that it was not and that “[t]he DOJ is solely
responsible for issuing Notices upon request by the
parties against state and local government entities.”
[Doc. 10-8, p. 1].
Then, on February 12, 2020, the DOJ “notified”
Mosby that she had “the right to institute a civil
action . . . against [the City].” [Doc. 1-5, p. 1]. Mosby
filed her lawsuit on April 28, 2020, and 18 days after
the City (in its original dismissal motion) pointed out
that she failed to file a verified charge, she attached
(to her attorney’s July 17, 2020 letter to the
Commission) the amendment to her charge that
included a verification. See [Doc. 5, p. 1] in connection
with [Doc. 10-9, p. 2]; see also [Doc. 1, p. 31].
Mosby’s attempt, however, to amend her original
charge on July 17, 2020, fails because the DOJ issued
its “right-to-sue” letter on February 12, 2020, nearly
six months earlier. Candidly, the City is correct;
Mosby’s “charge was inexplicably not verified,” and
following the precedent set by the Eleventh Circuit, it
is clear that there wasn’t an active charge within the
DOJ that could be amended. Butler, 325 F. App’x at
749; [Doc. 11, p. 2].
19a
In briefing, Mosby even admits that “[o]n July 24,
2020, a[] [Commission] Enforcement Supervisor
contacted [her attorney] to say that the [amendment
to her charge] could not be accepted because the [file]
was closed.” [Doc. 10, p. 12]; see also [Doc. 14, p. 9].
Through a summary-judgment lens, the evidence
shows that Mosby failed to verify her charge. And,
based on Mosby’s waiver-related arguments that
attempt to save her Title VII and ADA claims, she
effectively admits she didn’t file a verified charge.
Thus, based on the fact that “[t]he verification
requirement is mandatory[,]” and Mosby failed to
adhere to it, her Title VII and ADA claims must be
dismissed. Butler, 325 F. App’x at 749; see also Vason
v. City of Montgomery, 240 F.3d 905, 907 (11th Cir.
2001); Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256,
261 (3d Cir. 2006) (noting that “courts have reasoned
that amendment serves no purpose once the right to
sue letter has issued[]”).
However, in an attempt to keep her Title VII
and ADA claims alive, Mosby contends that the
City waived her failure to verify when it submitted
a Position Statement to the Commission and failed
to mention the verification requirement. [Doc. 10,
pp. 3–13]. In short, Mosby argues that everyone
involved—herself, the City, and the Commission—
all treated the charge as valid. [Doc. 10, p. 3].
While the Eleventh Circuit has acknowledged
waiver-related arguments, it has yet to definitively
hold that equitable waiver applies to missing
verifications, much less issue any opinion that
stakes out the scope or contours of such a waiver
20a
rule or the circumstances2 when it might apply.3
Vason, 240 F.3d at 907.
Nevertheless, the only binding precedent
available to the Court at the time of this decision
clearly and distinctly holds that “the verification
requirement for . . . charges is mandatory.” Id.;
accord Balazs, 32 F.3d at 156 (holding that failure
to comply with the verification requirement “is fatal
to an action seeking relief under Title VII”). In
Vason, a three-judge panel on the Eleventh Circuit
explicitly held that “the statute mandates that
charges be made under oath or affirmation” and
affirmed a district court’s grant of summary
judgment to an employer because the employee’s
“charge was not under oath or affirmation.” 240
F.3d at 907.
Mosby implores the Court to recognize Buck v.
Hampton Township School District and Gad v.
Kansas State University4 where the Third and
Even if the Eleventh Circuit ultimately decides that the
verification requirement may be waived, it could decide that
waiver does not apply in cases, like this one, where (1) both the
plaintiff and her experienced attorney simply forgot to include
the requisite verification and (2) the defendant responded to the
charge of discrimination but could not have definitively known
of the lack of verification because it only had the charge itself as
opposed to the entire file from the Commission that could have
included a separate verification. See [Doc. 11, p. 3].
3 Another district court has also recognized that the Eleventh
Circuit has yet to decide when a finding of equitable modification
or
waiver
is
appropriate.
Dees
v.
Florida,
No.
4:10cv305/MCR/WCS, 2012 WL 662295, at *4 (N.D. Fla. Feb. 28,
2012).
4 Gad specifically discusses Vason’s ruling that affirmed
“verification is
summary judgment on the grounds that
mandatory.” Gad, 787 F.3d 1032, 1041 (10th Cir. 2015) (citing
Vason, 240 F.3d at 907). In Gad, the Tenth Circuit noted that
2
21a
Tenth circuits, respectively, crafted an opposite
waiver rule. Buck, 452 F.3d 256; Gad, 787 F.3d
1032 (10th Cir. 2015). However, it must be
remembered that this Court is bound by this
circuit’s current precedent—the precedent set by
the Eleventh Circuit. In other words, Vason
controls until the en banc Eleventh Circuit or the
United States Supreme Court directly overrules it.
See Bostock v. Clayton Cnty. Bd. of Comm’rs, 723 F.
App’x 964, 965 (11th Cir. 2018) (mem.) (citing
United States v. Kaley, 579 F.3d 1246, 1255–56
(11th Cir. 2009)). It simply is not the place of a
district court to decide when a circuit precedent is
overruled or abrogated to the point that it is no
longer binding on lower courts; that remains the
exclusive domain for the circuit court.
Additionally, Mosby also urges the Court to
consider a 2019 case from the United States
Supreme Court, Fort Bend County, Texas v. Davis,
139 S.Ct. 1843 (2019). However, Fort Bend’s
procedural history is drastically different than the
procedural posture presented in this case and,
upon careful inspection, its holding may not directly
the Eleventh Circuit, in Vason, “never explicitly dubbed the
[verification] requirement jurisdictional.” Gad, 787 F.3d at 1041.
However, the Tenth Circuit clearly stated that the holding from
Vason “strongly suggests an implicit conclusion that the
requirement was jurisdictional.” Id. Just to clarify, the Court
does not find that Mosby’s failure to verify robs the Court of
jurisdiction to hear her case. Quite the opposite. As explained in
the latter portion of this section, the Court finds that it
absolutely has jurisdiction to decide these motions and only
follows Eleventh Circuit precedent holding that a lack of a
verification is mandatory so that a failure to comply means that
a plaintiff failed to satisfy a condition precedent to filing suit for
Title VII and ADA claims.
22a
overrule the precedent set by the Eleventh Circuit
in Vason concerning the mandatory requirement
that a charge be verified. “For the Supreme Court
to overrule a case, its decision must have ‘actually
overruled or conflicted with [the Eleventh Circuit’s]
prior precedent.’” United States v. Vega-Castillo,
540 F.3d 1235, 1237 (11th Cir. 2008) (citation
omitted). Importantly, the Eleventh Circuit has
emphasized that
[t]here is a difference between the
holding in a case and the reasoning
that supports that holding. Even if the
reasoning of an intervening high court
decision is at odds with a prior
appellate court decision, that does not
provide the appellate court with a basis
for departing from its prior decision.
Id. (citing Atl. Sounding Co. v. Townsend, 496 F.3d
1282, 1284 (11th Cir. 2007)).
Because the Supreme Court’s holding in Fort Bend
is not “clearly on point,” it may not have overruled the
Eleventh Circuit’s prior precedent in Vason. Cole v.
United States, --- F. App’x ----, 2021 WL 118849, at *2
(11th Cir. Jan. 13, 2021). Whether Fort Bend
overrules or abrogates Vason can only be decided by
the Eleventh Circuit, not this Court. Thus, there is
only one ruling the Court can properly make in this
case.
This record, as it stands today, does not contain a
verified charge, and “the statute mandates that
charges be made under oath or affirmation.” Vason,
240 F.3d at 907. Since “verification is an absolute
condition precedent to suit” under Title VII (and the
ADA) in this circuit, Mosby’s lack of verification
23a
demands one simple ruling—she did not satisfy an
absolute condition precedent before filing her lawsuit.
See Vason v. City of Montgomery, 86 F. Supp. 2d 1130,
1133 (M.D. Ala. 2000), aff’d, 240 F.3d 905 (alteration
adopted). Consequently, Mosby’s Title VII and ADA
claims are barred as a matter of law. Notwithstanding
Mosby’s reasonable arguments as to why there should
possibly be an exception to the Vason rule (such as
equitable waiver), until the Eleventh
Circuit
overrules Vason, the Court must apply it. And, while
the Court certainly empathizes with both Mosby and
her attorney regarding the results of their omission, it
nonetheless GRANTS summary judgment to the City
on Counts I–IV of her Complaint.
B.
The City of Byron’s Motion to Dismiss
1. Legal Standard
When ruling on a motion under Federal Rule of
Civil Procedure 12(b)(6), it is a cardinal rule that
district courts must accept the factual allegations set
forth in a complaint as true. Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 572 (2007). Under this Rule,
a defendant may test the legal sufficiency of a
complaint by way of a motion to dismiss. Barreth v.
Reyes 1, Inc., No. 5:19-cv-00320-TES, 2020 WL
4370137, at *2 (M.D. Ga. July 29, 2020) (citation
omitted). Such motion is an “assertion by a defendant
that, even if the facts alleged by a plaintiff are true,
the complaint still fails as a matter of law to state a
claim upon which relief may be granted.” Id.
Whether a complaint states a claim for relief is
measured by reference to the pleading standard of
Rule 8—a “short and plain statement of the claim
showing that the pleader is entitled to relief.” Id.; Fed.
R. Civ. P. 8(a)(2). Although Rule 8 does not require
24a
detailed factual allegations, it does require “more than
unadorned, the-defendant- unlawfully-harmed-me
accusations.” McCullough v. Finley, 907 F.3d 1324,
1333 (11th Cir. 2018) (citation omitted) (alterations
adopted). The purpose of Rule 8 is to provide a
defendant “with ‘fair notice’ of the claims and the
‘grounds’ for entitlement to relief.”5 Barreth, 2020 WL
4370137, at *2 (citation omitted); see also Twombly,
550 U.S. 555–56.
When drafting her complaint, “[a] plaintiff must
plead more than labels and conclusions or a formulaic
recitation of the elements of a cause of action.”
McCullough, 907 F.3d at 1333 (quoting Twombly, 550
U.S. at 555). “To be sure, a plaintiff may use legal
conclusions to structure [her] complaint, but legal
conclusions ‘must be supported
by factual
allegations.’” McCullough, 907 F.3d at 1333 (quoting
Iqbal, 556 U.S. at 679).
While courts, in ruling on a motion to dismiss,
must take all of the factual allegations in a complaint
5 To decide whether a complaint survives a motion to dismiss,
district courts use a two-step framework. McCullough v. Finley,
907 F.3d 1324, 1333 (11th Cir. 2018) (citation omitted). The first
step is to identify the allegations that are “no more than
conclusions.” Id. (quoting Iqbal, 556 U.S. at 679). “Conclusory
allegations are not entitled to the assumption of truth.” Id. After
disregarding the conclusory allegations, the second step is to
“assume any remaining factual allegations are true and
determine whether those factual allegations ‘plausibly give rise
to an entitlement to relief.’’’ Id. “A court decides whether [Rule 8’s
pleading standard] is met by separating the legal conclusions
from the factual allegations, assuming the truth of only the
factual allegations, and then determining whether those
allegations allow the court to reasonably infer that the plaintiff
is entitled to the legal remedy sought.” Barreth, 2020 WL
4370137, at *2 (citation omitted).
25a
as true; they are not bound to accept a legal conclusion
couched as a factual allegation. Iqbal, 556 U.S. at 678.
Courts must “identify conclusory allegations and then
discard them—not ‘on the ground that they are
unrealistic or nonsensical’ but because
their
conclusory nature ‘disentitles them to the
presumption of truth.’” McCullough, 907 F.3d at 1333
(quoting Iqbal, 556 U.S. at 681).
The factual allegations in a complaint “must be
enough to raise a right to relief above the speculative
level” and cannot “merely create[] a suspicion of a
legally cognizable right of action.” Twombly, 550 U.S.
at 555. Finally, and in this case, critically, a complaint
that tenders “‘naked assertions’ devoid of ‘further
factual enhancement’” will not survive against a
motion to dismiss. Iqbal, 556 U.S. at 678 (quoting
Twombly, 550 U.S. at 557) (cleaned up). To survive, a
complaint must allege enough facts “to raise a
reasonable expectation that discovery will reveal
evidence” supporting a claim. Twombly, 550 U.S. at
556.
2.
Mosby’s Due Process Claims
In Counts V and VI of her Complaint, Mosby
alleges that the City violated her due process rights
afforded to her under the United States and Georgia
constitutions, respectively. [Doc. 1, ¶¶ 153–72]. Public
employees, like Mosby, “may have a protectable
interest in their jobs such that they may not be
terminated from those jobs without the protections of
procedural and substantive due process.” Peterson v.
Atlanta Housing Auth., 998 F.2d 904, 913–14 (11th
Cir. 1993) (citing Perry v. Sindermann, 408 U.S. 593,
601 (1972)); see also Bd. of Regents of State Colls. v.
Roth, 408 U.S. 564, 577 (1972). Mosby describes this
26a
protected interest as “a property interest in continued
employment.” [Doc. 1, ¶ 157].
To establish a procedural due process claim,
Mosby must first show that she had a property
interest of which she was deprived. Womack v.
Carroll Cnty., --- F. App’x ----, 2020 WL 7365795, at
*2 (11th Cir. Dec. 15, 2020) (citation omitted).
“State law determines whether a public employee
has a property interest in his or her job. Under
Georgia law, a public employee generally has no
protected property interest unless he or she is
employed under a civil service system, which allows
termination only for cause.”6 Id. (quoting Brett v.
Jefferson Cnty., 123 F.3d 1429, 1433–34 (11th Cir.
1997)). “Generally speaking,” however, “‘a public
employee has a property interest in continued
employment if state law or local ordinance in any
way limits the power of the appointing body to
dismiss an employee.’” Gonzalez v. City of Hialeah,
744 F. App’x 611, 614 (11th Cir. 2018) (quoting
Ross v. Clayton Cnty., 173 F.3d 1305, 1307 (11th
Cir. 1999)). Still though, without an agreement
between the employee and the employer, “Georgia
follows an ‘at-will’ employment doctrine, which
permits the employer to discharge the employee for
any reason whatsoever . . . .” H&R Block E. Enters.,
Inc. v. Morris, 606 F.3d 1285, 1284 (11th Cir. 2010).
Previously, the Court noted that the specific facts
underlying Mosby’s Title VII and ADA claims were
not important in order to analyze the procedural
aspects concerning verification. However, in light of
Mosby neither alleged nor argued that she is subject to the
protections afforded by a civil service system. See generally [Doc.
1]; [Doc. 10]; [Doc. 14].
6
27a
the City’s arguments regarding Mosby’s due process
claims, some factual detail is necessary, and the
Court—as it must—pulls these factual allegations
from Mosby’s Complaint and assumes them to be
true when considering the City’s arguments. The
City summarizes Mosby’s due process claims as this:
Mosby “asserts that she had a property interest in
continued employment based on the [C]ity’s former
personnel policy which provided an appeal process
for department heads to appeal adverse employment
actions.”7 [Doc. 5-1, p. 2].
In the summer of 2018, Mosby alleges that one of
subjected her to
her reserve firefighters
discriminatory harassment on the basis of her sex.
[Doc. 1, ¶ 63]. After receiving prior approval from the
City’s attorney, Mosby terminated that reserve
firefighter, and her decision was initially upheld by
Derick Hayes, the City Administrator. [Id. at ¶¶ 47,
65–66]. However, on November 13, 2018, Hayes
emailed Mosby and informed her of an appeal sought
by the reserve firefighter. [Id. at ¶ 69]. In that email,
Hayes told Mosby that the City “would follow the
appeal procedures in” a “personnel policy that had
been proposed, but not yet approved, by City Council.”
[Id.]. Hayes heard the appeal, reversed Mosby’s
decision to terminate and reinstated the reserve
firefighter. [Id. at ¶ 68]. This email was the first time
Mosby “had ever seen the proposed revisions that
removed only a department head’s right to appeal any
disciplinary actions taken against them or any
employees under their supervision.” [Id. at ¶¶ 69–70].
The proposed revisions discussed in Hayes’ email to
7 In other words, the City, through a revised personnel policy,
removed Mosby’s right to appeal an adverse employment action
taken against her as a department head—the Fire Chief.
28a
Mosby were “enacted through an ordinance passed
and made effective on January 14, 2019.” [Id. at ¶ 73].
The City casts Mosby’s due process claims as an issue
related to a lack of notice of the proposed changes.
[Doc. 5-1, pp. 14–15]. Relying on Mosby’s allegations
in her Complaint, the City argues that “Mosby had
been notified of the proposed policy change” and that
she “was clearly in communication with . . . Hayes
regarding [the proposed changes] and had numerous
opportunities to voice her displeasure prior to the new
policy being enacted.” [Id. at p. 14]. On this, the City
is correct. Mosby had two months to review the
proposed changes before they became effective. See
[Doc. 1, ¶ 69] in connection with [Doc. 1, ¶ 73]. Thus,
to the extent Mosby argues that the City didn’t give
her an opportunity to dispute the proposed changes,
her argument fails. See DeClue v. City of Clayton, 540
S.E.2d 675, 677–80 (Ga. Ct. App. 2000).
However, an issue relating to a lack of notice of the
proposed changes isn’t, according to Mosby’s
arguments, the crux of her due process claims.
Instead, Mosby alleges that the City “arbitrar[ily]”
terminated her “without any prior notice” and as such
“failed to follow its own procedures.” [Doc. 1, ¶¶ 159–
60]; [Doc. 10, p. 13]. Although Mosby argues that the
City deprived her of her due process rights when it
immediately terminated her instead of adhering to the
“increasingly progressive property interest.8 [Doc. 1-2,
p. 2].
8 As to the “progressive nature” of the City’s disciplinary scheme,
the Personnel Policies state that “an employee” can be
“immediately terminate[d] . . . for any one of the reasons listed in
this policy.” [Doc. 1- 2, p. 2]. Because “[d]iscipline should
correspond to the offense,” the policy clearly allows the City to
29a
“To obtain a protected property interest in
employment, a person must have more than a mere
unilateral expectation of continued employment; one
must have a legitimate claim of entitlement to
continued employment.” Warren v. Crawford, 927
F.2d 559, 562 (11th Cir. 1991). And importantly,
“[u]nder Georgia law, in the absence of a controlling
contract between the parties, employment for an
indefinite period is terminable at will by either party.”
Id. (citing Land v. Delta Airlines, 203 S.E.2d 316, 317
(Ga. Ct. App. 1973)); see also Stidwell v. City of
Atlanta, No. 1:16-CV-3375-MHC, 2018 WL 4999971,
at *3 (N.D. Ga. Feb. 8, 2018) (citing DeClue, 540
S.E.2d at 677).
Since the City’s Personnel Polices clearly say that
Mosby is an at-will employee and they are silent as to
any for-cause requirement, the City is correct that
Mosby did not have a property interest in her
employment when the City terminated her, and the
Court GRANTS the City’s dismissal motion as to
Mosby’s due process claims.9 DeClue, 540 S.E.2d at
678 (when an employee no longer has any property
interest in her employment after new policies become
effective, the employer does not violate due process
terminate an employee without the use of progressive discipline.
[Id.].
9 Even if Mosby could show a deprivation of some right protected
by the due process clause, there is nothing in her Complaint
alleging that she took advantage of available state procedures,
like mandamus, to correct any potential due process deficiency.
“If adequate state remedies were available but the plaintiff failed
to take advantage of them, the plaintiff cannot rely on that failure
to claim that the state deprived [her] of procedural due process.”
Nurse v. City of Alpharetta, 775 F. App’x 603, 607 (11th Cir. 2019)
(quoting Cotton v. Jackson, 216 F.3d 1328, 1331 (11th Cir. 2000)
(per curiam)).
30a
rights by terminating employment without notice and
a hearing); see, e.g., [Doc. 1-2, p. 6].
3. Mosby’s Defamation Claim
Finally, the City contends that Mosby has failed to
state a defamation claim under Georgia law because
she has not alleged actual malice in light of her public
figure status as the Fire Chief. [Doc. 5-1, p. 16].
When the plaintiff is a public figure, like Mosby,
she must ultimately prove “actual malice” in order to
prevail on a claim for defamation. New York Times Co.
v. Sullivan, 376 U.S. 254, 279–80 (1964). Under
malicious
Georgia law, “libel” is “a false and
defamation of another, expressed in print, writing,
pictures, or signs, tending to injure the reputation of
the person and exposing him to public hatred,
contempt, or ridicule.” O.C.G.A. § 51-5-1(a). Essential
to recovery on any libel claim is publication. Id. at §
51-5-1(b). Slander, on the other hand, is oral
defamation and consists of “[m]aking charges against
another in reference to [her] trade, office, or
profession, calculated to injure.” Id. at § 51-5-4(a)(3).
In her Complaint, Mosby alleges that the City
made and published false written and verbal
“statements to the media and other third parties that
consisted of false charges against [Mosby] in reference
to her trade, office, and profession.” [Doc. 1, ¶¶ 174–
75]. To further lay out her claim, Mosby merely recites
the elements of a cause of her. [Id. at ¶ 176]; see also
McCullough, 907 F.3d at 1333, supra.
Pleading issues aside, a public official, like Mosby,
cannot recover for defamation unless she can prove
that “the statement was made with ‘actual malice’—
that is with knowledge that it was false or with
31a
reckless disregard of whether it was false or not.”
[Doc. 10, p. 19 (quoting Sullivan, 376 U.S. at 279–80)].
Importantly, she never points out which statements
were false. See, e.g., [Doc. 1, ¶¶ 173–79]. Instead,
Mosby points to microaggressions and intentional
harassment from subordinates, fellow department
heads, and members of the City Council—the same
things she uses to support her sex- based
discrimination claims. [Doc. 10, p. 20 n.10 (citing [Doc.
1, ¶¶ 37–38, 44–46, 63)].
At this juncture, the Court will not comb through
Mosby’s 179-paragraph Complaint and cherry-pick
which statements or “microaggressions” she intends to
use to support some notion of harassment or her
defamation claim. Detailing the grounds for her
entitlement to relief is her responsibility. Barreth,
2020 WL 4370137, at *2. Although Mosby is correct
that “the person’s intent in making the statement” is
“central to the consideration of . . . defamatory
comments,” so is falsity. [Doc. 10, p. 19]; see also
Sullivan, 376 U.S. at 279–80. Although Mosby does
not have to prove her case via her Complaint,
Eleventh Circuit pleading standards require that she
allege more than she did. Recitation pleading of the
kind Mosby has used to structure her defamation
claim is not permitted. Accordingly, the Court
GRANTS the City’s dismissal motion as to Mosby’s
defamation claim.10
10 The City (and thus, Mosby) never argued whether sovereign
immunity protects the City from liability with respect to Mosby’s
defamation claim. See Doss v. City of Savannah, 660 S.E.2d 457,
426 (Ga. Ct. App. 2008) (citing City of Atlanta v. Heard, 555
S.E.2d 849, 852 (Ga Ct. App. 2001)) (“The City [of Savannah] is
entitled to the protections of sovereign immunity on the claim of
defamation, as [the plaintiff] has failed to establish any waiver
32a
C. Conclusion
In summation, the Court GRANTS the City’s
Motion for Summary Judgment [Doc. 5] as it
relates to the verification requirement for filing a
charge of discrimination and GRANTS the City’s
Motion to Dismiss [Doc. 5] with respect to Mosby’s
due process and defamation claims. The Clerk is
DIRECTED to ENTER Judgment in favor of the
City of Byron on all counts.
SO ORDERED, this 28th day of January,
2021.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
of this immunity.”). The Georgia Constitution permits the
Georgia General Assembly to waive the sovereign immunity of
municipalities. Heard, 555 S.E.2d at 852 (citing GA. CONST. of
1983, art. IX, § II, para. IX). However, “it is clear that such waiver
must be by express legislative act.” Heard, 555 S.E.2d at 852. “In
speaking to this authority, the legislature has declared, with
limited exception, that ‘it is the public policy of the State of
Georgia that there is no waiver of the sovereign immunity of
municipal corporations of the state and such municipal
corporations shall be immune from liability for damages.’” Id.;
see also O.C.G.A. § 50-21-24(7) (“The state shall have no liability
for losses resulting from . . . libel [or] slander[.]”).
33a
[FILED AUGUST 27, 2020]
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RACHEL MOSBY,
Plaintiff,
v.
CITY OF BYRON, GEORGIA,
Defendant.
CIVIL ACTION NO.
5:20-cv-00163-TES
ORDER CONVERTING DEFENDANT’S
MOTION TO DISMISS INTO A MOTION FOR
SUMMARY JUDGMENT
In order for the Court to rule on the issues
presented in Defendant City of Bryon’s Motion to
Dismiss [Doc. 5], it will be necessary to determine
whether Defendant raised the verification defense at
the earliest time possible. This determination will
likely require the Court to consider matters outside
the pleadings. Therefore, Defendant’s Motion to
Dismiss will be treated as one for summary judgment
under Federal Rule of Civil Procedure 56. Fed. R. Civ.
P. 12(d).
“When a district court converts a motion to dismiss
into a motion for summary judgment, it must comply
with the requirements of Rule 56 by notifying the
parties of the conversion and provid[e] at least 10 days
for the parties to supplement the record accordingly.”
German v. Nationstar Mortg., LLC, No. CV 2:20-033,
2020 WL 4905066, at *1 (S.D. Ga. Aug. 20, 2020)
34a
(citing Trustmark Ins. v. ESLU, Inc., 299 F.3d 1265,
1267 (11th Cir. 2002)). Accordingly, Defendant shall
have 14 days from the date of this Order to file any
supplemental evidence as listed in Rule 56(c) along
with a short brief in support of its positions on the
issues raised in its dismissal motion. Plaintiff Rachel
Mosby shall have 14 days from the supplemental
filings to respond. Mosby’s failure to respond could
result in the dismissal of her claims against
Defendant.
The Court notes that both parties have already
provided the Court with materials outside the
pleadings, many of which are documents Mosby filed
with
the
Equal
Employment
Opportunity
Commission (“EEOC”) or are central to her claim
under 42 U.S.C. § 2000e et seq., and would not be
categorized as materials requiring conversion. See
Day v. Taylor, 400 F.3d 1272, 1276 (11th Cir. 2005);
Scott v. Ride Aid of Ga., Inc., No. 7:11–CV–180 (HL),
2012 WL 1409326, at *1 (M.D. Ga. Apr. 23, 2012).
However, some materials provided arguably do not
fall within this category, and the Court, in its
discretion, CONVERTS Defendant’s Motion to
Dismiss [Doc. 5] into one for summary judgment.
German, 2020 WL 4905066, at *1. The parties need
not submit any information already provided to the
Court, nor are the parties required to submit any
information in response to this Order.
SO ORDERED, this 27th day of August, 2020.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT
35a
[FILED JUNE 24, 2022]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 21-10377-DD
________________________
RACHEL MOSBY,
Plaintiff - Appellant,
versus
CITY OF BYRON, GEORGIA,
Defendant - Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Georgia
________________________
ON PETITION(S) FOR REHEARING AND
PETITION(S) FOR REHEARING EN BANC
BEFORE: WILSON, LAGOA, and BRASHER,
Circuit Judges.
PER CURIAM:
The Petition for Rehearing En Banc is DENIED, no
judge in regular active service on the Court having
requested that the Court be polled on rehearing en
banc. (FRAP 35) The Petition for Panel Rehearing is
also denied. (FRAP 40)
36a
[FILED APRIL 18, 2022]
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 21-10377
Non-Argument Calendar
____________________
RACHEL MOSBY,
Plaintiff-Appellant,
versus
CITY OF BYRON, GEORGIA,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Middle District of Georgia
D.C. Docket No. 5:20-cv-00163-TES
____________________
Before WILSON, LAGOA, and BRASHER, Circuit
Judges. PER CURIAM:
Rachel Mosby, a former fire chief for the City of
Byron, Georgia, appeals the district court’s grant of
summary judgment to the City on several Title VII and
ADA claims. Mosby also challenges the district court’s
dismissal of her procedural due process claims under
the United States and Georgia Constitutions and her
37a
state law defamation
consideration, we affirm.
claim.
Upon
careful
I. BACKGROUND
Mosby was the City of Byron’s fire chief for eleven
years before being terminated in 2019. Afterwards, she
retained counsel and filed a charge of discrimination
with the Equal Employment Opportunity Commission
alleging that the City had violated Title VII and the
ADA. The City filed a position statement with the
Commission that responded to the merits of Mosby’s
charge. Neither party disputes that the charge was
never properly verified, or that there was any attempt
to cure verification until after Mosby had already
requested and the Department of Justice had already
issued a right to sue letter.
Upon being authorized to do so, Mosby brought a
lawsuit against the City in the Middle District of
Georgia. In addition to her Title VII and ADA claims
(Counts I–IV), Mosby alleged procedural due process
violations under the United States and Georgia
Constitutions and defamation under Georgia state
law. Counts V and VI of the complaint alleged that
Mosby had a property interest in continued
employment as the City’s fire chief based on a “longstanding personnel policy” allowing department heads
to appeal adverse employment actions. The City
notified her on November 13, 2018, that it would be
changing this policy to disallow appeals by
department heads effective January 14, 2019. Mosby
was terminated more than four months after the
change went into effect. Count VII further alleged that
the City “made and published false [verbal and
written] statements to the media and other third
parties” regarding Mosby that “were calculated to
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injure [Mosby’s] reputation,” “imputed . . . a want of
integrity and misfeasance in her office,” and caused
damages “including but not limited to a complete
inability to secure similar employment in her field.”
The City moved to dismiss Mosby’s Title VII and
ADA claims on the grounds that failure to verify a
charge of discrimination required dismissal as a
matter of law. It also argued that Counts V–VII
failed to state valid claims for relief. To consider
matters outside the pleadings, the district court
converted the City’s motion to dismiss to one for
summary judgment. The court then granted
summary judgment to the City on Mosby’s Title VII
and ADA claims and dismissed her due process and
defamation claims. Mosby timely appealed.
II. STANDARDS OF REVIEW
We review a district court’s dismissal for failure to
state a claim under Federal Rule of Civil Procedure
12(b)(6) de novo, “accepting the allegations in the
complaint as true and construing them in the light
most favorable to the plaintiff.” Mills v. Fore- most
Ins. Co., 511 F.3d 1300, 1303 (11th Cir. 2008) (internal
quotation marks omitted). We also review grants of
summary judgment de novo, “apply[ing] the same legal
standards as the district court.” Custom Mfg. and
Eng’g, Inc. v. Midway Servs., Inc., 508 F.3d 641, 646
(11th Cir. 2007). Finally, “[w]e may affirm the district
court’s judgment on any ground that appears in the
record, whether or not that ground was relied upon or
even considered by the court below.” Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007).
39a
III.
DISCUSSION
A. Mosby’s Title VII and ADA Claims
Mosby first argues that the district court erred by
granting summary judgment to the City on her various
Title VII and ADA claims based on the failure to
submit a verified charge of discrimination. Because the
City raised the issue of verification in a pre- answer
motion to dismiss and the parties agree that Mosby’s
charge was never verified or properly amended, we
disagree.
Employees alleging violations of Title VII or the
ADA must, before bringing suit in federal court, submit
a charge of dis crimination to the Commission. 42
U.S.C. § 2000e-5(f). Such charges “shall be in writing
under oath or affirmation and shall contain such
information and be in such form as the Commission
requires.” Id. § 2000e-5(b). The Commission’s
regulations man- date that a charge “shall be
verified,” meaning that it must be “sworn to or
affirmed before a notary public, designated
representative of the Commission, or other person duly
authorized by law to administer oaths and take
acknowledgements, or support- ed by an unsworn
declaration in writing under penalty of per- jury.” 29
C.F.R. §§ 1601.3(a), 1601.9.
An employee who files an unverified charge may
cure the lack of verification through an amendment,
which will then “re- late back” to the initial filing of the
charge. 29 C.F.R. § 1601.12(b); see Edelman v.
Lynchburg College, 535 U.S. 106 (2002). The employee’s
window to amend ceases when the time for the employer to respond to the charge elapses. Edelman, 535 U.S.
at 113. Thus, a charge neither filed under oath or
affirmation nor subsequently cured by amendment
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fails to satisfy the statutory requirement that an
employee submit his or her charge to the
Commission. Vason v. City of Montgomery, 240 F.3d
905, 907 (11th Cir. 2001). Accordingly, we have
affirmed summary judgment in favor of Title VII
defendants when an employee files a lawsuit based on
an unverified charge. Id.
The Supreme Court has held that an employer
may forfeit the issue of an employee’s failure to
properly submit his or her charge to the Commission
by failing to timely raise the issue in follow-on
litigation. In Fort Bend County v. Davis, the Court held
that a charge’s lack of verification does not strip the
federal courts of jurisdiction to consider a follow-on
federal lawsuit. Fort Bend Cnty. v. Davis, 587 U.S. ,
139 S. Ct. 1843, 1852 (2019). Unlike a jurisdictional
issue, the Court reasoned that the lack of verification
can be waived or forfeited by the parties. Accordingly,
the Court held that an employer forfeited the issue
of verification when the employer failed to raise it
until approximately four years into the litigation
after “an entire round of appeals all the way to the
Supreme Court.” See id. at 1847–48, 1852.
Mosby argues that her failure to file a verified
charge should be excused under Fort Bend County, but
we disagree. In Fort Bend County, the Supreme Court
held that the issue was waived when the employee
filed a charge without counsel and the employer
waited four years and “an entire round of appeals all the
way to the Supreme Court” to first raise the issue of
verification in the litigation. Fort Bend Cnty., 139 S. Ct.
at 1847–48, 1852. Mosby, by contrast, was represented
by counsel when she filed her charge. And the City
raised the verification issue in a pre- answer motion
to dismiss rather than after an exhaustive series of
41a
appeals. None of our precedents nor the Supreme Court’s
holding in Fort Bend County suggest that the City
waived Mosby’s failure to verify her charge. Because
Mosby did not properly submit her charge of
discrimination to the Commission, the district court
correctly granted summary judgment on her Title VII
and ADA claims.
B. Mosby’s Due Process Claim
Mosby’s next argument—that the district court
erred by dismissing her procedural due process claims
under the United States and Georgia constitutions—
fares no better.
The district court dismissed Mosby’s complaint
because she failed to allege that she had a protected
property interest in her employment. A complaint
fails to state a claim when it does not include “enough
factual matter” to “give the defendant fair notice of
what the . . . claim is and the grounds upon which it
rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555–
56 (2007). Although a complaint need not contain
detailed factual allegations, “a plaintiff’s obligation to
provide the grounds of his entitlement to relief requires
more than labels and conclusions.” Id. at 555 (cleaned
up). “Naked assertions devoid of further factual
enhancement” will not suffice. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (cleaned up). The complaint must
contain enough facts to make a claim for relief
plausible on its face, that is, it must “allow the court to
draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (cleaned up).
Notably, when a more carefully drafted complaint
might have resolved a pleading deficiency, “[a] district
court is not required to grant a plaintiff leave to
amend [her] complaint sua sponte when the plaintiff,
42a
who is represented by counsel, never filed a motion to
amend nor requested leave to amend before the district
court.” Wagner v. Daewoo Heavy Indus. Am. Corp.,
314 F.3d 541, 542 (11th Cir. 2002).
To sufficiently allege a procedural due process
claim, Mos- by must allege that she had a property
interest and that the City deprived her of that interest.
See Ross v. Clayton Cnty., 173 F.3d 1305, 1307 (11th
Cir. 1999). Whether an employee has a property interest
in continued employment is a question of substantive
state law. Adams v. Bainbridge-Decatur Cnty. Hosp.
Auth., 888 F.2d 1356, 1363 (11th Cir. 1989) (quoting
Nicholson v. Gant, 816 F.2d 591, 597 (11th Cir. 1987).
We have held that “in Georgia, an at-will employee
typically does not have a reasonable expectation of
continued employment sufficient to form a protectable
proper- ty interest.” Wofford v. Glynn Brunswick Mem’l
Hosp., 864 F.2d 117, 119 (11th Cir. 1989); O.C.G.A. § 347-1 (“An indefinite hiring may be terminated at will by
either party.”); see also Wilson v. City of Sardis, 590
S.E.2d 383, 385 (Ga. Ct. App. 2003) (holding that “‘at
will’ employees have no legitimate claim of
entitlement to continued employment and, thus, no
property interest protect- ed by the due process
clause”). Public employees, however, have a property
interest in continued employment under a civil service
system if they are terminable only for cause based on
“[a]n explic- it contractual provision, rules, or common
understandings.” De- Clue v. City of Clayton, 540
S.E.2d 675, 677 (Ga. Ct. App. 2000); see also Brett v.
Jefferson Cnty., 123 F.3d 1429, 1433–34 (11th Cir. 1997).
As an initial matter, Mosby has abandoned any
challenge to the district court’s dismissal based on one
issue. Mosby’s reply brief raises, for the first time in
this appeal, an argument that the district court
43a
improperly considered matters outside the pleadings in
deciding the City’s motion to dismiss. In reviewing a
district court’s dismissal under Rule 12(b)(6), issues not
raised in a party’s initial brief are considered
abandoned. Timson v. Sampson, 518 F.3d 870, 874
(11th Cir. 2008); Sapuppo v. Allstate Floridian Ins. Co.,
739 F.3d 678, 681–83 (11th Cir. 2014). Thus, by not
raising the issue in her initial briefing, Mosby has
abandoned it.
As to the merits of the district court’s decision, we
conclude that it properly held that Mosby had not
pleaded sufficient facts to establish a property interest
in her continued employment with the City as fire
chief. Mosby cites the City’s “long-standing personnel
policy” as the root of her property interest in continued
employment. But the personnel policies cited in
Mosby’s pleadings placed her under the authority of the
City Administrator and made her position terminable
at will. Specifically, Section 8.1(K) of the City’s
personnel policy, as effective on the date of Mosby’s
firing and pursuant to the City’s 2018 amended Charter,
expressly provided that “all appointive officers and
director shall be employees at-will and subject to
removal or suspension at any time by the appointing
authority unless otherwise provided by law or
ordinance.” Similarly, other sections of the Charter, as
amended in 2018, provided that “[a]ll appointive
officers and directors shall be employees at-will and
subject to removal or suspension at any time by the city
administrator unless otherwise provided by law or
ordinance.” Because she was an at-will employee,
Mosby had no property interest in continued
employment under Georgia law. DeClue, 540 S.E.2d at
677.
44a
Mosby argues that, despite the express language of
the personnel policies, other allegations support her
position that she had a property interest in continued
employment. We disagree. Although Mosby was
designated as a non-probationary employee, the rules
specifically provided that her position was at-will. No
more successful is Mosby’s reliance on the City’s
disciplinary poli- cy, which expressly declined to
deprive a supervisor of the ability to “immediately
terminate an employee for any one of the rea- sons
listed in this policy.” Mosby’s reliance on outdated
policies and regulations that she admits were changed
months before she was fired is also unavailing.
Because Mosby did not adequately plead a property
interest in her continued employment with the City
and failed to seek leave to amend her deficient
pleadings, the district court did not err by dismissing
her due process claims. Wagner, 314 F.3d at 542.
C. Mosby’s Defamation Claim
Mosby’s final argument—that the district court
improperly dismissed her defamation claim under
Georgia law—also fails. In Georgia, a defamation
plaintiff must allege facts showing: “(1) a false and
defamatory statement about [oneself]; (2) an
unprivileged communication to a third party; (3) fault
by the defendant amounting to at least negligence;
and (4) special damages or defamatory words that are
injurious on their face.” Lewis v. Mere- dith Corp., 667
S.E.2d 716, 718 (Ga. Ct. App. 2008) (internal quotation
marks omitted). When the plaintiff in a defamation
action is a public figure, he or she must also prove
actual malice. New York Times Co. v. Sullivan, 376
U.S. 254, 279–80 (1964); Williams v. Tr. Co., 230 S.E.2d
45, 52 (Ga. Ct. App. 1976).
45a
Mosby argues that she adequately pleaded actual
malice, a required element of her claim. We conclude
that she did not. Count VII of Mosby’s complaint
merely recited the bare elements of libel and slander
under Georgia law, mimicking the statutory language
in exactly the type of “the-defendant-unlawfullyharmed-me accusation” that the Supreme Court
disapproved of in Iqbal. 556 U.S. at 678. Nothing on the
face of Count VII plausibly alleged that the City made
any false statements with actual mal- ice. And
although Count VII incorporates the complaint’s
allegations, those allegations mention
factual
statements only in the con- text of the City’s
nondiscriminatory explanations for terminating
Mosby and, likewise, do not allege actual malice. The
complaint even admitted that one alleged false
statement might have been “based on inaccurate
information,” instead of knowingly false. Mosby has
not alleged sufficient facts to allow a reasonable
inference that the City is liable for defamation. Id. at
678.
Finally, Mosby never filed a motion or requested
leave to amend after being alerted to her pleading
deficiencies by the City’s motion to dismiss. The
district court was not required to cure Mosby’s
deficient pleadings where Mosby herself chose not to.
See Wagner, 314 F.3d at 542. Thus, the district court
did not err by dismissing Mosby’s state law defamation
claim.
IV.Conclusion
For the foregoing reasons, the district court’s
summary judgment on Mosby’s Title VII and ADA
claims and its dismissal of her due process and
defamation claims are AFFIRMED.
46a
[DATED JUNE 28, 2019]
KENNETH E. BARTON
KEB@COOPERBARTON.COM
VIA CERTIFIED MAIL &
VIA FACSIMILE: (404) 562-6909
Equal Employment Opportunity Commission
Atlanta District Office
100 Alabama Street, S.W., Suite 4R30
Atlanta, Georgia 30303
Re: Charge of Discrimination
Rachel J. Mosby v. City of Byron, Georgia
Equal Employment Opportunity Commission
(Charge No. TBD)
Cooper, Barton & Cooper File No.: 15918.0001
To Whom It May Concern:
Our law firm has been retained to represent Ms.
Rachel J. Mosby, and we wish to file a Charge of
Discrimination on her behalf. Enclosed, please find a
true and correct copy of a Notice in which Chief Mosby
has designated me and our law firm as her legal
representative. The Equal Employment Opportunity
Commission will find that, while Chief Mosby was
employed with the City of Byron, Georgia, she was
subjected to harassment and hostile work
environment, disparate treatment, and termination
due to her sex and disabilities, in violation of Title VII
of the Civil Rights Act and the Americans with
Disabilities Act.
47a
Ms. Mosby (hereinafter, “Chief Mosby”) was
employed as the Chief of the Fire Department, located
at 103 GA Highway 49 South, Byron, Peach County,
Georgia 31008. The City of Byron was Chief Mosby’s
employer, which is located at 401 Main Street, Byron,
Peach County, Georgia 31008. The City of Byron has
employed in excess of fifteen (15) employees for each
working day in 2019 and in previous years.
Chief Mosby identifies as a transgender female,
and she was one of the first openly-transgender fire
chiefs in the world, if not the very first. As described
herein, Chief Mosby also suffers from several
conditions, especially in her right ankle and lower
back-lumbar, that substantially limit her major life
activities and are considered disabilities under the
Americans with Disabilities Act. Moreover, Chief
Mosby became further disabled in Spring 2019, when
she sustained additional injuries to her left hip, left
wrist, and mid-back thoracic in an on-the-job motor
vehicle accident, in which Chief Mosby was not at
fault.
Chief Mosby began her employment with the City
of Byron on September 4, 2007, as the City’s Fire
Marshal. At that time, the City was served by the
Byron Volunteer Fire Department. In January 2008,
the City established its first professional Fire
Department, and, shortly thereafter, Chief Mosby
was appointed as its first Chief. Prior to Chief
Mosby’s tenure, the City had been rated by the
Insurance Service Office (“ISO”) as Class 7. A fire
district receives an ISO rating from 1-10, with Class
10 being the lowest, which indicates that the fire
district failed to meet ISO minimum requirements.
48a
These ratings directly impact property owners’ and
municipalities’ insurance rates and premiums, and
can, thereby impact growth.
During her eleven years as Chief, Chief Mosby’s
performance was exemplary. Chief Mosby oversaw
the growth of the number of professional employees in
the Fire Department, contributed to the drafting of
proposed City Ordinances, developed Strategic Plans,
and improved the quality of the Department’s
equipment,
among
other
accomplishments.
Moreover, Chief Mosby successfully lead the City
through two ISO surveys and lowered the City’s ISO
rating from Class 7 to Class 4 within only four years.
She believes that the City will soon be rated as Class
3 due to her efforts. Prior to the events described
herein, Chief Mosby only recalls receiving one written
reprimand, although she was not otherwise
disciplined, for using a profane word while on the
scene of a fire. In the last performance evaluation
that she received, Chief Mosby’s performance was
described as exemplary, with very few areas, if any,
identified for improvement.
Unbeknownst to her employer, Chief Mosby had
been struggling with gender dysphoria for most of her
life. In or around Fall 2016, she began her medical
transition in order to allow herself to properly present
as female. Initially, Chief Mosby attempted to
transition quietly; however, in Summer 2017, Chief
Mosby realized that other City employees were
circulating rumors about Chief Mosby and her
appearance. In September 2017, Chief Mosby felt
that it was necessary to “come out” (or, “go public,” in
her words) to her employees. Soon thereafter, Chief
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Mosby also came out to the City Administrator, the
Mayor, and her fellow department heads, and Chief
Mosby would describe herself as presenting entirely
as female in or around January 2018.
While she initially thought that this news had
been well-received, Chief Mosby often experienced
microaggressions and other intentional harassment
from her employees, fellow department heads, and
even members of the City Council. Shortly after she
came out, one Councilmember told Chief Mosby that
he did not have a problem with her transition but that
he would if she showed up to work in a dress. Another
Councilman told Chief Mosby that the City could still
use a performance review to get rid of her.
Subsequently, when Chief Mosby was conducting
interviews for an open position, the City enacted a
hiring freeze the day after Chief Mosby had
interviewed a qualified candidate who also happened
to be transgender, although the City allowed the
Public Works and Police Departments to continue
hiring. On a number of instances, the Chief of Police
and members of City Council intentionally referred to
Chief Mosby with male pronouns in their
communications with her and statements to the
media. In an October 2018 meeting of department
heads, the Police Captain intentionally referred to
Chief Mosby as male a number of times, and when
Chief Mosby corrected the Captain, he responded
“whatever dude.” Although the City Administrator
(and the City’s designated equal employment officer)
heard the Captain’s remarks, he refused to take any
corrective or disciplinary action or accept Chief
Mosby’s complaint. There were other instances when
50a
Councilmembers either blatantly refused to speak to
Chief Mosby, and even one Councilman who left the
City’s designated table as soon as she sat down at a
local Chamber of Commerce dinner.
The EEOC will note that the treatment of Chief
Mosby began to change drastically and dramatically
around the time she was featured in a story by the
local press. On April 29, 2019, local outlet 13WMAZ
ran a story, on both its evening news broadcast and
online, specifically about Chief Mosby coming out as
transgender. A true and correct copy of the story is
attached hereto and marked as “Exhibit A.”
Critically, the news outlet approached Chief Mosby
about participating in the interview, and there was
nothing in City policy or practice that prevented Chief
Mosby from making public statements about this, or
other topics on prior occasions.
For almost all of Chief Mosby’s tenure, she was not
required to wear a uniform. Instead, Chief Mosby was
permitted to wear professional attire such as khaki
pants, button-up shirts, and suits and ties, and the
City Budget generally included a line item for a
clothing allowance. In 2018, the City budgeted $1,200
for Chief Mosby to use to purchase said professional
attire. In Spring 2018, Chief Mosby sought to
purchase professional attire that is considered moretraditionally female. She spent approximately $600
on clothing, which had been approved by the
appropriate person. However, shortly after Chief
Mosby was seen wearing a skirt to work for the first
time, the City issued her a written reprimand for
allegedly making an unauthorized purchase. The
City also required that Chief Mosby pay back the
51a
money. Unfortunately, a City employee decided to
leak this information to the press. Critically, Chief
Mosby only started wearing a uniform before she
came out because this unisex option helped her
manage her dysphoria. Around the same time that
Chief Mosby used her clothing allowance, another
female employee of the City was also permitted to
make similar purchases, but she was not disciplined
or otherwise required to pay anything back.
Moreover, after Chief Mosby wore the skirt to work,
the City changed its policy, making it mandatory that
firefighters wear uniforms.
The policy change
appeared to target Chief Mosby, as the Police Chief
and detectives remained exempted from this policy
and allowed to wear non-uniform, professional attire.
In Summer 2018, one of Chief Mosby’s reserve
firefighters called Chief Mosby a “he-she” to her face.
Because of this incident, as well as a prior complaint
of sexual harassment made by another employee
against the same individual, Chief Mosby decided to
terminate the reserve firefighter.
Chief Mosby
received approval from the City Attorney to terminate
the employee, and her decision was upheld by the City
Administrator.
However, the City granted the
reserve firefighter’s request to appeal in November.
Despite initially upholding the termination, the City
Administrator, now as the officer hearing the appeal,
reversed the termination and reinstated the reserve
firefighter.
The City Administrator notified Chief Mosby of
the appeal via a November 13, 2018 email, and he
initially stated that the City would follow the appeal
procedures in an unapproved personnel policy that
had been proposed but in no way approved. This was
52a
the first time that Chief Mosby had seen the proposed
revisions – revisions that took away only department
heads’ right to appeal any disciplinary actions taken
against them or other employees. Not only did the old
policy not actually allow for reserve firefighters (i.e.,
volunteers) to appeal a termination, the City
Administrator told Chief Mosby that she could not
appeal the reinstatement because of the new policy
not yet in effect. The new policy was enacted through
an ordinance passed and made effective on January
14, 2019. A true and correct copy of the newly-enacted
personnel policy is attached hereto and marked as
“Exhibit B.”
On June 4, 2019, the City Administrator sent
Chief Mosby an email asking to meet with her that
afternoon. When Chief Mosby arrived, the City
Administrator provided her with notice of her
termination, effective immediately. This was the first
indication that the City ever gave her that she was
going to be terminated, or that her job was in jeopardy
in any way. A true and correct copy of the termination
letter is attached hereto and marked as “Exhibit C.”
Chief Mosby was immediately escorted to her office by
the Chief of Police, where she found that the locks had
already been changed, and she was forced to pack all
of her belongings and leave the premises that
afternoon.
While the City stated that the termination was for
lack of performance, the examples that it cites are
inaccurate and/or not indicators of her lack or
performance, or much less, valid reasons for
termination. The reasons provided are as follows:
53a
First, the City states that Chief Mosby failed to
“release new/renewal business licenses for approval
in a timely manner.”
In late 2018, the City
incorporated new software for the Fire Department to
use for its part of the business licenses approval
process. Because of the new system, the Fire
Department was required to enter all information
about existing business licenses into the system by
hand. Chief Mosby has long been expressing her
concerns about the delays this was causing and made
suggestions on how the process could be improved, as
the City Administrator had instituted a new workflow
process without consulting the department heads and
was specifically cumbersome on the Fire Chief. The
City failed to take her suggestions, and Chief Mosby
and one other employee were forced to enter this
information into the system manually when they
were not performing their regular duties. Critically,
the City was aware that Chief Mosby’s Department
was understaffed due to a hiring freeze and that her
personal schedule was limited due to frequent
physical therapy sessions that she was receiving for a
work-related accident. This is one example of how the
City took efforts to make Chief Mosby's duties
difficult or impossible, especially in light of Chief
Mosby’s disabilities and work-related injuries.
Moreover, Chief Mosby was never counseled, coached,
warned, nor given a negative evaluation on this issue.
Second, the City alleges that Chief Mosby only
attended five of the classes offered during a Georgia
Association of Fire Chiefs conference from March 30
through April 3, 2019. The City alleged that this was
a waste of its resources. However, the EEOC will find
that Chief Mosby took full-advantage of training
54a
opportunities and conferences that she attended,
including at this conference. The evidence will show
that this allegation is not true, and the City never
even asked Chief Mosby about the accuracy of this
information. Moreover, the evidence will reflect that
this inaccurate information about her conference
attendance was reported by at least two individuals
with discriminatory animus against Chief Mosby.
Third, the City states that Chief Mosby failed to
maintain the Arson Investigator certification, as
required by her job description. However, Chief
Mosby maintained all necessary training and
certifications, and in evidence will show that the City
never actually required this certification for the
position.
In fact, the inclusion of the requirement for a fire
investigator certification in the fire chief job
description was a mistake made by Chief Mosby,
herself, when she wrote the original fire chief job
description adopted by the city. It was an error that
she attempted to correct over the years; this was
recognized by her superiors, as evidenced by her
never having been notified that this was an issue
during her nearly twelve-year tenure, until her
termination. Moreover, the evidence will show that
the City officially removed fire investigations from
being one of the Fire Chief’s duties in 2009 and 2010.
Due to the January 2019 change in the personnel
policy, Chief Mosby does not have the right to request
any reconsideration, appeal, or review of her
termination. She is the first department head who
has been discharged by the City over the last several
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years, and she is the first and only City employee who
has been terminated without the right to request an
appeal. In hindsight, the City had taken countless
actions in late 2018 through 2019 that made it
apparent that the City planned to remove Chief
Mosby. Since her termination, the City has taken
additional steps to humiliate Chief Mosby and further
damage her career. One Councilman has given
interviews to the local media in which he has
intentionally referred to Chief Mosby using both
female and male pronouns.
Accordingly, for the above and foregoing reasons,
Chief Rachel J. Mosby seeks to file a Charge of
Discrimination against the City of Byron, Georgia, as
follows:
(1) Beginning in January 2018 and continuing
through June 4, 2019, Chief Mosby was subjected to
harassment, hostile work environment, and disparate
treatment due to her sex and gender identity, in
violation of Title VII of the Civil Rights Act;
(2) On June 4, 2019, Chief Mosby was terminated
due to her sex and gender identity in violation of Title
VII of the Civil Rights Act;
(3) On June 4, 2019, Chief Mosby was terminated
due to her disabilities, as described herein, in
violation of the Americans with Disabilities Act; and,
(4) As described herein, Chief Mosby was
terminated for reasons connected to her disabilities
known to her employer, without first being provided
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with a reasonable accommodation, in violation of the
Americans with Disabilities Act.
Please do not hesitate to reach out to us if you have
any questions, or need additional information,
documentation, or the names of witnesses. We
appreciate the EEOC’s time and attention to this
matter.
Sincerely yours,
KENNETH E. BARTON
KEB/nagm
Enclosures
cc:
Ms. Rachel J. Mosby (via email)
Joshua A. Carroll, Esq. (via email)
159180001.L03.EEOC Charge
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[DATED JUNE 6, 2019]
Notice of Designation of Attorney
Effective Date: June 6, 2019
I, RACHEL MOSBY, do hereby designate the
individual(s) and law firrn(s) named below to act as
my attorney/representative in all matters pertaining
to my formal Charge of Discrimination to be filed with
the Equal Employment Opportunity Commission.
Attorney/Representative:
Kenneth E. Barton, Esq.
COOPER, BARTON & COOPER, LLP
170 College Street
Macon, Georgia 31201
(478) 841-9007- telephone
(478) 841-9002- facsimile
keb@cooperbarton.com
I understand that I, or any other individual that I so
delegate, may cancel this notice, and that I am
responsible for notifying the Office of Equal
Employment Opportunity in writing in the event of a
cancellation.
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[DATED JUNE 18, 2019]
59a
60a
61a
62a
[DATED APRIL 29, 2005]
City of Byron
Personnel Policies
Policy Number: 8. 1
Effective Date: April 29,2005
Revised Dates: March 15, 2012
December 11, 2012
August 8, 2016
January 14, 2019
Special Instructions: None
Subject: Disciplinary Actions
Number of Pages: 6
Distribution: All Employees of the City of Byron
AN ORDINANCE OF THE MAYOR AND
COUNCIL OF THE CITY OF BYRON, GEORGIA
TO REPEAL POLICY NO. 8.1 OF THE CITY OF
BYRON PERSONNEL POLICIES (SUBJECT:
DISCIPLINARY ACTIONS) AND SUBSTITUTE
IN ITS PLACE A NEW PERSONNEL POLICY
NO. 8.1 TO PROVIDE FOR DISCIPLINARY
ACTIONS
AGAINST
AND
APPEAL
PROCEDURES
FOR
EMPLOYEES,
TO
DISTINGUISH THE STATUS OF APPOINTIVE
OFFICERS, DEPARTMENT HEADS AND
DIRECTORS, AND TO PROVIDE FOR NAME
CLEARING HEARINGS, AND FOR OTHER
PURPOSES.
BE IT ORDAINED BY THE MAYOR AND
COUNCIL of the City of Byron, Georgia, and it is
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hereby so ordained that Policy No. 8.1 of the City of
Byron Personnel Policies is hereby repealed in its
entirety and a new Policy No. 8.1 (Subject:
Disciplinary Actions) substituted in its place as
follows:
A. GENERAL
It shall be the duty of all City employees to comply
with and assist in carrying out the provisions of the
City's personnel rules and regulations. No employee
shall be disciplined except for violation of established
rules and regulations, and such discipline shall be in
accordance with procedures established by the
personnel rules and regulations.
It shall be the duty of each employee to maintain high
standards of conduct, cooperation, efficiency, and
economy in his/her work with the City. Whenever
work habits, attitude, production, or personal conduct
of any employee falls below the accepted norm for all
employees, supervisors should point out those
behavioral deficiencies to the employee at the time
they are observed or a reasonable time thereafter.
Corrections and suggestions should be presented in a
constructive and helpful manner in an effort to elicit
cooperation and goodwill from all employees.
Supervisors shall assist employees in attaining
competence through on-the-job training and
additional training as required. Whenever possible,
oral and/or written warnings shall precede formal
discipline.
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B. EMPLOYEE
AND
RESPONSIBILITIES
SUPERVISOR
(1) It Is the duty of every employee to correct any
faults In performance when called to his/her attention
and to make every effort to avoid conflict with the
City's rules and regulations.
(2) It is the duty of every supervisor to discuss
improper or inadequate performance with the
employee in order to correct deficiencies and to avoid
the need to exercise disciplinary action. Discipline
shall be in the hands of the Department Head and
should be of an increasingly progressive nature. The
steps of progression shall generally be oral
reprimand, written reprimand, suspension, demotion
and finally dismissal. However, this is not to say that
the Department Head should not immediately
terminate an employee for any one of the reasons
listed in this policy. Discipline should correspond to
the offense.
C. DISCIPLINARY ACTION
Disciplinary action shall be taken as expeditiously as
possible and as soon as a final determination is made
that a violation has occurred. This normally should
not require more than five days after the occurrence
is established or after a determination is made that
discipline is to be based on multiple violations which
have occurred over a period of time. If disciplinary
action is delayed for administrative review or
investigation purposes, the employee should normally
be notified and advised that the Imposition of
disciplinary action is being considered.
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D. GROUNDS FOR DISCIPLINARY ACTION
The following are declared to be grounds for oral
reprimand, written reprimand, demotion, suspension,
or removal of an employee. (However, this is not
intended to be an exhaustive listing of all grounds for
disciplinary action):
(1) conviction of a felony or other crime involving
moral turpitude or involving alcoholic beverages
or drugs.
(2) Incompetent, negligent or inefficient
performance of the duties of the position held.
(3) Absence without leave.
(4) Insubordination which creates a serious breach
of discipline.
(5) Intentional failure or refusal to carry out
instructions.
(6)
Misappropriation,
destruction,
conversion, or misuse of City property.
theft,
(7) Employee subsequently becomes physically or
mentally unfit for the performance of
his/her essential functions.
(8) Acts of misconduct while on duty.
(9) Willful disregard of orders.
(10) Habitual tardiness and/or absenteeism.
(11) Falsification of any information required by
the City for employment purposes.
(12) Failure to properly report on-the-job accidents
or personal injuries.
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(13) Neglect or carelessness resulting in damage to
City property or equipment.
(14) Repeated convictions during employment of
misdemeanor and/or traffic charges.
(15) Introduction, possession, or use on City
property or in City equipment, or working under
the influence of intoxicating liquor, wine, malt
beverages, or any schedule drugs without
prescription.
(16} Wantonly offensive conduct or language
toward the public or city officials or employees.
(17) Violations of the City Charter, City
Ordinances, personnel rules and regulations or
department rules; and
(18) An accumulation of violations or infractions
which indicate an employee's inability or
unwillingness to conform to appropriate standards
of performance or conduct.
(19) Failure to become or remain approved as an
acceptable driver by the city's insurer whenever
driving a city owned vehicle is required for the
position.
Employees shall be subject to the following
alternatives for disciplinary action as determined by
their department head; or, in the case of department
heads, as determined by the City Administrator:
(1) Written reprimand;
(2) Reduction in pay to the extent permitted by
law;
(3) Suspension without pay for up to 90 days or
shift equivalent to the extent permitted by law;
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(4) Demotion;
(5) Discharge.
E. WRITTEN REPRIMANDS
(1) Notice: The employee to be reprimanded shall
be provided with a written notice of reprimand
stating any and all reasons for the reprimand. A
reprimand need not include statements of
witnesses or other supporting documents, but
shall set forth the circumstances in sufficient
detail to permit the employee to understand the
nature and basis of the action. Written responses
shall be placed in the employee's personnel file.
(2) Response: The employee shall have the right to
submit a written response to the reprimand within
fifteen (15) days of receipt of notice of written
reprimand. The employee's response will be placed
in the employee's personnel file.
F. NOTIFICATION
OF
SUSPENSION,
REDUCTION IN PAY, DEMOTION, AND
TERMINATION
The employee against whom disciplinary action is
taken shall be provided with a written notice stating
the reasons for the disciplinary action. The written
notification should contain the effective date of the
action, the specific charges or reasons for the action,
the specific action, and a statement informing the
employee of his or her right to appeal the action as
well as the procedure for doing so. The employee shall
also receive notification that failure to submit an
appeal will result In the loss of the opportunity to
appeal the adverse action.
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G. COMPUTATION OF TIME
When a period of time measured in days, weeks,
months, years, or other measure of time except hours
is prescribed for the exercise of any privilege or the
discharge of any duty, the first day shall not be
counted, but the last day shall be counted; and, if the
last day falls on a Saturday, Sunday, or legal holiday,
the party having such privilege or duty shall have
through the next day which is not a Saturday, Sunday
or legal holiday to exercise the privilege or discharge
the duty. When a period of time is less than seven (7)
days, intermediate Saturdays, Sundays and legal
holidays shall be excluded in the computation.
H. APPEALS
(1) Filing an Appeal
a. Except as otherwise provided in this policy,
any employee, other than a department head
that reports directly to the City Administrator,
who is disciplined shall have the right to appeal
such disciplinary action to the City Clerk who
will schedule a hearing with the City
Administrator. The appeal shall be in writing
and must be received in the Office of the City
Clerk within five (5) days following the notice
confirming
imposition
of
discipline.
Department heads that report directly to the
City Administrator are not entitled to an
appeal.
b. There shall be no right for any employee to
appeal a written reprimand or for a
probationary employee to appeal any
disciplinary action.
69a
(2) Hearing
a. The City Administrator shall conduct an
informal fact-finding hearing. Extensions of
time until the hearing or continuances of
hearings may be approved by the City
Administrator.
b. The employee who has requested review
shall proceed first. The employee shall offer
testimony and documentary evidence which
rebuts the reason given for the proposed
adverse action and/or which challenges the
severity of the proposed adverse action. The
employee bears the burden of establishing that
the reason or the adverse action is untrue
and/or that the severity of the adverse action is
inappropriate
given
the
facts
and
circumstances.
c. The employee's supervisor or Department
Head shall next be permitted to offer evidence
in support of the proposed action and/or in
response to evidence offered by the employee.
d. A hearing may be continued by the
appointing authority pending the need to
gather additional information.
e. A designee may be appointed to hear the
appeal at the discretion of the appointing
authority.
f. In arriving at a decision, the City
Administrator shall consider the testimony and
documents presented in the hearing as well as
any other relevant information. The City
Administrator may approve, reject, or modify
the proposed adverse action and make a
70a
written decision within five (5) business days of
the hearing. This decision shall be final.
(3) Any employee, including department heads
and appointive officers, who alleges hey have been
subject to an action that damages their name,
reputation, or integrity, may request a public
name-clearing hearing before the Mayor and
Council. Such hearing may be requested by filing
notice with the City Clerk who will schedule a
hearing to include the affected employee. In the
event the City Clerk shall desire such a hearing,
he or she shall submit the notice directly to the
mayor. For good cause, the Mayor and City
Council can continue a hearing for up to 20 days
past its originally scheduled date. Such hearings
shall not serve as appeals of the appointing
authority's
decision
regarding
continued
employment or discipline.
I. EMPLOYEE INDICTED,
BOUND OVER
CHARGED
OR
(1) If an employee is arrested and bound over to a
grand jury or indicted for a felony or serious
misdemeanor, the department head shall consult
with the City Attorney to determine the
appropriate status of the employee during the
pendency of the criminal charges.
(2) Normally, if the conduct resulting in the criminal
charges is also an offense against the employment
relationship with the city, the appropriate
disciplinary action shall be instituted and the
employee discharged if appropriate.
(3) If the conduct resulting in the criminal charges
does not relate directly to the duties of the position
71a
held, but is of a serious and aggravated nature so
as to interfere with the employer-employee
relationship or embarrass the city, the employee
may be suspended pending disposition of charges.
(4) If the conduct resulting in the criminal charges is
completely unrelated to city employment and will
not be likely to damage the employment
relationship, the employee should usually be
allowed to continue working.
(5) An employee suspended pending the disposition of
criminal charges shall not report to work or be
present in his/her normal work site during the
period of suspension.
(6) If the criminal charges are disposed of in favor of
the employee, he/she shall be reinstated with back
pay from the date of suspension less any
compensation received from any other source
during the period of suspension.
(7) If a suspended employee is not available for work
within 30 days of the institution of criminal
charges, the position may be declared vacant and
filled in the normal course of filing vacancies. Any
employee who is unable to report to work for
reasons other than suspension is subject to the
requirements specified for absenteeism.
J. PROBATIONARY EMPLOYEES
Employees who have not completed twelve months of
employment are probationary employees and have no
guarantee of continued employment and no protected
property interest or rights requiring procedural
safeguards. Probationary employees may be
terminated for any reason with no right to a due
process hearing . In order to terminate a probationary
72a
employee, the department head must deliver a notice
to the employee that his/her employment is
terminated as an "unsatisfactory probationary
employee" , and send a copy to the City Clerk.
K. APPOINTIVE OFFICERS AND DIRECTORS
Pursuant to Article Ill , Section 3 . 10 (e) of the City
Charter, all appointive officers and director shall be
employees at-w ill and subject to removal or
suspension at any time by the appointing authority
unless otherwise provided by law or ordinance.
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[DATED JUNE 4, 2019]
Chief Mosby
1473 Neweii Road
Byron, GA 31008
Chief Mosby,
I regret to inform you that your employment with the
City of Byron is hereby terminated immediately.
The City no longer has confidence in your ability to
lead our Fire Department.
Some of the most recent indicators of lack of
performance are listed below:
(1) Failure to release new/renewal business
licenses for approval in a timely manner, causing
undue delays in processing customers' requests.
This has been an issue since late in 2018 and you
have been notified several times via email and in
Staff Meetings.
(2) The GAFC Conference was in Savannah
between 03/30/2019 - 04/03/2019. You were in
Savannah during the time of the entire conference,
but only attended five (5) classes out of twenty-one
(21) offered. The first two (2) full days in
attendance, you didn't take any classes, which cost
travel monies that should not have been spent.
(3) Failure to maintain the Fire Investigator
certification required by the Fire Chief job
description. You have attended the Arson
Investigator class no less than two (2) times at the
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expense of the City but have failed to maintain the
certification.
The foregoing constitute the following grounds for
disciplinary action (including discharge) under the
City's personnel policy: 8.1 D (2), (5), and (9).
Pursuant to policy: 8.1 H (1), as a department head,
you are not entitled to an appeal. However, 8.1 H (3)
authorizes a public name clearing at your request
before the mayor and council. The purpose of such a
hearing is not to offer an appeal of this decision but is
to provide you with an opportunity to clear your
name, reputation, and integrity. If you desire such a
hearing, you must file a notice with the City Clerk.
This termination is effective immediately (June 4,
2019).
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.