Appendix — Holliman v. Clark Atlanta University University University, Inc. (No. 05-1326)

Suprame Court, U.S.

FILE

9 051326APR 14 2006

OFFICE OF THE CLERK

0.

In the

SUPREME COURT OF THE UNITED STATES

EULICE M. HOLLIMAN,

Petitioner

Vv.

CLARK ATLANTA UNIVERSITY, INC.

NATHANIEL ROBERTS, JR.,

Respondents.

On Writ of Certiorari to the

United States Court of Appeals for the Eleventh

Circuit "

APPENDIX

Sandra Jackson Sheppard

Counsel Of Record

Sheppard & Associates

455 Park Avenue, S.E.

Atlanta, Georgia 30312

404-622-5777

APPENDIX

I. OPINIONS OR ORDERS

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

D. C, Docket No. 03-00132 CV-JEC-1

EULICE M. HOLLIMAN, and others similarly situated,

Plaintiff-Appellant, versus

CLARK ATLANTA UNIVERSITY, INC.,

Defendant-Appellee.

Appeal from the United States District Court

for the Northern District of Georgia

(January 17, 2006)

- Before DUBINA and MARCUS, Circuit Judges, and

GOLDBERG*, Judge. PER CURIAM:

*Honorable Richard W. Goldberg, Judge, United States

Court of International Trade, sitting by designation.

_ FOR THE ELEVENTH CIRCUIT:

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT .

January 17, 2006

THOMAS K. KAHN

CLERK

No. 05-11887

Appellant Eulice M. Holliman ("Holliman") appeals the

district court's grant of summary judgment against her in her

gender discrimination action against her employer,

defendant/appellee Clark Atlanta University ("Clark"), and

former supervisor, defendant/appellee Nathaniel Roberts,

Jr. ("Roberts").

The issues presented on appeal are (1) whether the

district court properly granted the defendants’ motion to

strike the declaration of Richard McLemore; and (2)

whether the district court properly granted summary

judgment to the defendants because Holliman could not

establish a prima facie case of gender-based hostile work

environment discrimination.

We review evidentiary rulings for dane of discretion

and will reverse the district court's decision only in cases

where substantial prejudice exists. See Hall v. United Ins.

Co. of Am., 367 F.3d 1255, 1259 (11th Cir. 2004). Indeed,

"{t]he district court has a range of options; and so long as the

_ district court does not commit a clear error in judgment, we

will affirm the district court's decision." Young v. City of |

Palm Bay, Fla., 358 F.3d 859, 863 (11th Cir. 2004).

We review de novo a district court's order granting

summary judgment, viewing the evidence in the light most

favorable to the party opposing the motion. Green v. Union

Foundry Co., 281 F.3d 1229, 1233 (11th Cir. 2002).

After reviewing the record, reading the parties’ briefs

and having the benefit of oral argument, we affirm the

district court's order striking McLemore's declaration and

its grant of summary judgment.

AFFIRMED.

3

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EULICE M. HOLLIMAN ~ CIVIL ACTION

Plaintiff, NO. 1:03-CV-132-JEC

v. MAGISTRATE JUDGE

CLARK ATLANTA WALKER

UNIVERSITY, INC., ET AL,

Defendant(s).

ORDER

The. above entitled action is presently before the

Court on the Magistrate Judge’s Report and

Recommendations [97] granting defendants’ Motions

for Summary Judgment [44,45]. Plaintiff filed Objections

to the Report and Recommendation on February 22,

2005 [98,99]. The Court has reviewed the record and

concludes that the Magistrate Judge's Report and

Recommendation [97] is received with approval and

adopted as the opinion and order of the Court.

IT IS HEREBY ORDERED that the Court

ADOPTS the Magistrate Judge's Report and

Recommendation [97] GRANTING defendants’ Motions

for Summary Judgment [44,45] and OVERRULING

plaintiffs Objections [98,99].

SO ORDERED, this 2nd day of MARCH, 2005.

s/Julie E. Carnes, Judge

United States District Court

Northern District of Georgia

4

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EULICE M. HOLLIMAN,

Plaintiff,

Vv CIVIL ACTION NO.

CLARK ATLANTA UNIVERSITY, 1:03-CV-0132-JEC

INC., and NATHANIEL ROBERTS,

JR.,

Defendants.

MAGISTRATE JUDGE'S FINAL REPORT AND

RECOMMENDATION

This case is presently before the Court on

Defendant Nathaniel Roberts, Jr.'s Motion for Summary

Judgment. Docket Entry [44]. Also before the Court is

Defendant Clark Atlanta University Inc.'s Motion for

Summary Judgment. Docket Entry [45]. Plaintiff has filed

a consolidated response in opposition to both motions.

Docket Entry [46]. For the reasons set forth more fully

below, the undersigned RECOMMENDS that —

Defendants’ Motions for Summary Judgment be

GRANTED.

DEFENDANTS' MOTIONS FOR SUMMARY

JUDGMENT ;

Plaintiff filed the instant lawsuit on January 16, 2003.

(See Compl, Docket Entry [1]). In Plaintiff's Second

Amended Complaint, Plaintiff alleges that Defendant Clark

Atlanta University, Inc. ("CAU") subjected her to a hostile

work environment based on her gender, in violation of

Title VII of the Civil Rights Act of 1964, 42 U.S.C. §

2000e et seg. ("Title VII") because Defendant Roberts,

her supervisor, would verbally harass her and shout at her

5

in a harsh, militaristic, and demeaning tone, gesture at her

in a demeaning way and stare at her with disdain.

(Second Amended Compl. 81, Docket Entry [12]).

Plaintiff further alleges that Defendant CAU retaliated

against her in violation of Title VII after she complained

about Defendant Roberts’ harassment by removing some

of her job duties, not properly training her on new

software, and not giving her a pay increase for her position

as Accounts Payable Supervisor. (See id.). In addition,

Plaintiff asserts a state law claim for intentional infliction of

emotional distress against Defendant Roberts based on his

harassment of Plaintiff. (Second Amended Compl.

92-95). Finally, Plaintiff asserts a state law claim against

Defendant CAU for negligent hiring, retention and

supervision of Defendant Roberts. (See id. at Tift 96-

103). In support, Plaintiff contends that, in the exercise

of reasonable care, Defendant CAU should have known

of Defendant Roberts’ reputation for gender harassment.

Plaintiff also alleges that it was foreseeable that Defendant

Roberts would engage in gender harassment of subordinate

female employees, yet, Defendant Roberts was hired,

retained after numerous complaints, and unsupervised in his

employment. (Id.). In addition, Plaintiff contends that

Defendant CAU failed to do anything about Defendant

Roberts even after Plaintiff complained of the harassment.

(Id.).

Defendants filed the instant Motions for Summary

Judgment’ contending that Plaintiffs Titie VII gender

harassment claim fails as a matter of law because (1)

the alleged harassment was not gender-related and thus

Plaintiff cannot show that she was harassed because of her

sex; (2) Plaintiff cannot show that the alleged harassment

was sufficiently severe or pervasive to create an objectively

hostile work environment because the harassment merely

consisted of a few isolated incidents over a six-month

=

rm ~

6

period; (3) Plaintiff failed to exhaust her administrative

remedies with respect to her retaliation claim because she

never filed an EEOC Charge on this claim or amended her

original charge to include such a claim; (4) Plaintiff cannot

establish a prima facie case of retaliation _

FN 1 Defendant Roberts separately moved for

summary judgment on Plaintiffs intentional

infliction of emotional distress claim, which was

brought against. him in his official capacity as

Assistant Vice President and Comptroller for

Finance and Administration for CAU. (See

Docket Entries [12 and 13]}). The Court will

address both Defendants’ motions for summary

judgment together.

because she cannot show that she engaged in protected

activity or that she suffered an adverse employment action;

(5) Plaintiff cannot state a claim for intentional infliction of

emotional distress because the alleged conduct was not

extreme or outrageous as a matter of law, and there is no

evidence that Plaintiffs alleged distress was severe; and (6)

Plaintiff s negligent retention claim fails because Plaintiff —

cannot make out a claim for intentional infliction of

emotional distress, and even if she could, Plaintiff's

negligent hiring and retention claim fails because she

cannot show that Defendant CAU knew or should have

known of Defendant Roberts' propensity for gender

harassment because any complaints about Defendant

Roberts, formal or informal, referenced his tough

management style and were not gender-based.

I. STATEMENT OF FACTS

Plaintiff began working for Defendant CAU on July

19, 1991, as a temporary employee in the Accounts Payable .

Department, and became a full-time employee one month

later. (Defendants' Statement of Material Facts as to Which

there is no Genuine Issue to Be Tried (hereinafter "DSMF")

7

41).? Richard McLemore became the Accounts

FN 2 Defendant CAU and Defendant Roberts

filed separate statements of facts, which are the

same, except that Defendant Roberts’ statement

has one additional fact (number 109). The Court

will therefore treat Defendants’ statement of facts

as one consolidated statement. All facts taken from

the Defendants' Statement of Material Facts

remain undisputed. This Court must accept as

admitted those facts in Defendants’ Statement

of Material Facts that have not been

"specifically controverted" with citation to the

relevant portions of the record by the opposing

party. Local Rule 56.1B(2), (3), N.D., Ga.

‘Payable Manager and Plaintiff's immediate supervisor in

February 1998. (DSMF § 2). At that time, Plaintiff was an

Accounts Payable Technician, primarily responsible for

inputting the information and filing. Mr. McLemore also

gave Plaintiff the responsibility of overseeing the

department while he was investigating fraud in the

department, because Plaintiff had the experience and the

knowledge of the department and the operation of the

university. (McLemore Dep. pp. 18-20). In this role,

Plaintiff was responsible for directing all of the work

that came through the department. (DSMF ] 4).

Plaintiff eventually assumed the title of Accounts

Payable Supervisor, though Mr. McLemore could not

recall when that became official. (DSMF 4 5; McLemore

Dep. pp. 32-37).

In January: 1998, Defendant Nathaniel Roberts was

hired by Defendant CAU to assist the University in

resolving some issues relating to the administration of its

student financial aid programs. (DSMF ] 6). Defendant

Roberts previously had performed auditing services for

the university for several years as an external auditor with

8

Clausell & Associates. (DSMF { 7). In July 1998,

Defendant Roberts became Defendant CAU's Assistant

Vice President of Finance and Administration and

Comptroller. (DSMF { 8). In that position, Defendant

Roberts had managerial responsibility over several

accounting departments, including Accounts Payable,

General Accounting, Payroll, and Cash Management and

Investment. (DSMF TT 9, 11). Mr. McLemore, Plaintiff's

supervisor, reported to Defendant Roberts. (DSMF § 10).

Bobby Young became the University's Vice President for

Finance in 2000, and Defendant Roberts reported to Mr.

Young. (DSMF TT 12-13). According to Plaintiff, in

December 2000, Defendant Roberts began a pattern of

abuse toward her. (DSMF 14; Pl. Dep. pp. 141-42)

Plaintiff contends that Defendant Roberts-routinely spoke to

~ FN 3 Defendants mislabeled this fact number as

a second 13. Plaintiff attempts to dispute this fact

with her affidavit, in which she relays an incident

in approximately August 1998 wherein Defendant

Roberts spoke to her in a harsh and demeaning

‘tone, thrusting his head from side to side with a

look of disgust upon his face, and spoke to her

slowly as though he was crazy. (See Pl. Aff. | 15,

Docket Entry [50]). Plaintiff previously testified in

her deposition, however, that she kept a diary to

document the abuse contemporaneously, and that

the first incident of alleged harassment occurred on

December 13, 2000. (See Pl. Dep. pp. 141-42, Ex.

8). In addition, Plaintiff related to the EEOC,

through her charge of discrimination, that the

earliest discrimination took place on December 22,

2000. (See Second Amended Compl., Ex. A).

Plaintiff cannot now contradict her prior

deposition testimony and sworn EEOC Charge

without explanation in order to create a genuine

9

issue of material fact through her affidavit

submitted in response to Defendants' motions for

summary judgment. See Van T. Junkins and

Assocs.. Inc.v. U.S. Indus.. Inc., 736 F.2d 656, 657

(11th Cir. 1984) ("When a party has given clear

answers to unambiguous questions which negate

the existence of any genuine issue of material fact,

that party cannot thereafter create such an issue

with an affidavit that merely contradicts, without

explanation, previously given clear testimony.").

The Court also notes that much of Plaintiff's 39

page, 92-paragraph affidavit is problematic in that

it contains hearsay and thus is not based on

Plaintiff's personal knowledge. See FED. R. Civ.

P. 56(f).

her in a “harsh, militaristic and demeaning tone," and

interacted with her in a "“disdainful and disparaging

manner.” (DSMF § 15). Specifically, during a staff

meeting on December 13, 2000, Plaintiff expressed her

concern to Defendant Roberts that she and her co-worker,

Annette (Sullen) Ogletree, were performing the workload of

four people. Plaintiff contends that Roberts responded in

a harsh tone, stating that he did not care about the

workload or how many people it takes because he expected

them to complete the work on the 1099 forms by the

January 31, 2001 deadline. (DSMF 63-64; see Pl. Dep.,

Ex. 8). On December 20, 2000, Defendant Roberts inquired

of Plaintiff about the status of the 1099s, and Plaintiff

responded that she and Ms. Ogletree had not had time to

work on the project because there were only two of them

and there were other various day-to-day duties, like

processing checks to vendors, which had to be completed

prior to the department breaking for the holidays.” (DSMF 4

65). According to Plaintiff,

FN 4 Plaintiff attempts to dispute this fact by

10

changing her prior deposition testimony through

her subsequent affidavit, stating that on December

21, 2000, Defendant Roberts. "came to me with a

crazy look on his face and he was frowning and

asked me to come in his office. The look he had

scared me, like he was going to attack me. Mr.

Roberts inquired about the 1099's....Mr. Roberts

expressed no concern about our overworked

situation and spoke to me with a gloss in his eye,

like a wild animal giaring at me, and in a very

harsh and abrasive tone he said, ‘I expect you to

adhere to my deadline.’ When I left his office I was

so puzzled because I had never seen that look on

his face before and I was scared and felt very

stress [sic] by his look and attitude toward me."

(Pl. Aff. § 50). See supra note 3.

Defendant Roberts then stated something to the effect of,

if she could not do her job, then maybe someone else

needed to do it. (DSMF 66; see PI. Dep., Ex. 8). In

addition, Defendant Roberts would "nitpick” at Plaintiff by

coming by her desk, picking up items in her work tray and

putting them back, which intimidated Plaintiff because she

did not know what Defendant Roberts was looking for and

it seemed like it was a show of his authority. (DSMF ff 67-

68).

On January 11, 2001, Plaintiff met with Defendant

Roberts about the 1099s and assured him that she and Ms.

Ogletree were working diligently to meet the January 31,

2001 deadline by working through their lunch hour and

staying late, but Defendant Roberts was still rude and

intimidating. (DSMF | 69; see Pl. Dep., Ex. 8).

Plaintiff testified that Defendant Roberts was rude

because he was still raising his voice and that he was

intimidating because "it didn't matter that we were working

to 6:00 or 7:00. We were not doing enough. It was not

1]

enough for him. And he wanted to see more—

basically, he was almost at the point to like quit your

everyday work and do this, because this is what I want

done." (DSMF 70).

FN 5 In response to this fact, Plaintiff states

that because of Defendant Roberts’ rude,

aggressive and intimidating attitude and demeanor,

she left his office feeling like "he really wanted to

physically hurt me.” (Pl. Aff. 52). This additional

statement, however, does not contradict Plaintiffs

deposition testimony.

On January 23, 2001, as Plaintiff was leaving the

office for the day, Plaintiff observed that Saba

Tesfamariam, a General Accounting employee, was trying

to explain something to Defendant Roberts and he

was not understanding. (DSMF 72). According to

Plaintiff, Defendant Roberts intimidated Ms. Tesfamariam

in front of other people because he was pacing with his

finger to his head and stated to Ms. Tesfamariam, "Let me

see how to. make you understand water and steam make

electricity."° (DSMF { 73; see Pl. Dep., Ex. 8).

FN 6 Plaintiff adds to this account that Defendant

Roberts had " a frown on his face and a crazy glare

look in his eyes,” but this does not contradict this

fact, taken directly from Plaintiffs deposition

testimony.

On February 14, 2001, Defendant Roberts called

Plaintiff into his office after overhearing her speaking

with a co-worker about going to see Mr. Young about

an outside vendor who had complained that Plaintiff

never returned a telephone call. (DSMF § 75). Defendant

Roberts then shouted at Plaintiff, "You don’t go to Mr.

Bobby Young and talk about anything. You do not talk to

Mr. Young at all about anything. Do I make myself clear?

You are not supposed to ever go to Mr. Young's office.”

12

(DSMF 475; see P1. Dep., Ex. 8).

On February 20, 2001, Defendant Roberts asked

Plaintiff a question about a vendor and when she did not

know the answer, he suggested, in a harsh tone, that she

find the answer. (DSMF § 76; see Pl. Dep., Ex. 8). When

Plaintiff returned to Defendant Roberts' office with the

answer, he was not there, so she decided to be proactive

by calling the department herself, and when

Defendant Roberts learned of this, he reprimanded

her by stating, "Do only what I ask you to do. Take

nothing upon yourself." (DSMF ¥ 77; see Pl. Dep., Ex. 8).

On March 1, 2001, Defendant Roberts approached

Plaintiff at her desk to inquire about misfiled payment

invoices and the following exchange occurred:

A... . [Defendant Roberts} asked me is AT&T—

well, he said out loud like he was talking to the

whole office, 'Is AT&T and AT&T Broadband,

are they the same company?" I said, ‘No, they're not.’

He said, 'Well, they're filed together.’ And I

was trying to explain to him that { was not aware

that they were in the same folder, that they were

applied by mistake from a previous employer. I said,

‘Ms. Davis she probably didn't realize she just

lumped al] AT&T together.’

He wouldn't let me finish explaining, and

he start [sic] shouting, ‘Just get this matter correct.

Take care of it now.’

Q. Okay. Now you say he started shouting?

A. Yes.

Q. How loud was he talking?

A. Loud.

Q. How loud?

A. Loud so that the whole entire staff could hear,

like I'm raising my voice to you.

A. Then I tried to go on to tell him, and he would

13

cut me off. He didn't want to hear anything I

said...

A. ... He asked me had I seen the cable

bill, { think it was for the library. I told—I

replied to him that Phyllis McCrary gets the

bills, and from Phyllis McCrary then it comes

to our office.

He said, 'You need to be talking

about the AT&T Broadband..' I said, ‘I'm

talking about the same thing. .. .I'm trying to

explain to you—"Have you saw [sic] it or not?

It's a yes or no answer.’ I said, 'No.'

Q. ... So you're saying that was embarrassing for

you in front of your coworkers?

A. Yes. He was belittling me. He was intimidating

me.

Q. And then you state that this is the way Mr.

Roberts talks to all the staff, and he does not

care whom he attacks you in front of?

A. Yes.

(Pl. Dep. pp. 117-20, Ex. 6).

On March 14, 2001, Plaintiff met with Mr. Young to

complain about Defendant Roberts’ conduct, and Mr.

Young told Plaintiff that if she felt that strongly about the

situation, she should make a complaint to HR. (Pl. Dep. pp.

111-13, 122). Plaintiff thereafter spoke with Tonya

Shockley in Human Resources ("HR") for about ten

minutes, and Ms. Shockley told her that she needed to put

her complaint in writing. (PI. Dep. pp. 111-13, 115, 122-

24). By typewritten letter dated March 15, 2001, Plaintiff

formally complained to Defendant CAU's Human

Resources department about "the manner [in which] Mr.

Roberts chooses to speak to the staff." (DSMF 4 16).

Although the letter is stamped received by HR on March

21, 2001, Plaintiff contends that she personally hand-

14

delivered a copy of the letter on March 15, 2001, to Ms.

Shockley in HR and Linda Jennings, Mr. Young's

p———Secretary. (Pl. Dep. pp. 110-11, 114), Plaintiff's

complaint letter to HR described Defendant Roberts as

"very condescending" and explained that "[h]e never

allows you to finish a sentence before cutting in and

attempting

FN 7 -Plaintiff attempts to dispute this fact by

taking issue with its possible "implication," and

makes similar contentions in response to many

other facts. Plaintiff's refutation of the implication

of a fact, however, is argument, which is improper

in responding to the moving party's statement of

facts, and does not controvert the objective fact

supported by the record that Plaintiff wrote a

complaint letter to HR or the objective contents of

- Such letter.

to make you feel inferior and stupid. Mr. Roberts seems to

enjoy his military tactics." (DSMF IN 17-18; see Pl. Dep.,

Ex. 6). Plaintiff further described in the letter the March 1,

2001 incident over the misfiled AT&T payments. (See PI.

Dep., Ex. 6). Additionally, Plaintiff stated her concerns that

she

and other staff members find ourselves walking on

eggshells all the time. This has created an

unbearable work environment for others and

myself. | know that there are a lot of things that

need to change in the Accounts Payables

Department, and I feel as a whole, we are

progressing in the right direction. However, it 1s

very difficult to do a good job when a superior is

intimidating you. There have also been several

occasions when talking to Mr. Roberts, I have

observed the smell of alcohol on his breath and I

don't know if this is also a contributing factor to

1S

his behavior.

I have spoken to my immediate supervisor, Mr.

Richard McLemore and Mr. Roberts’ supervisor,

Mr. Bobby Young on March 14, 2001 about the

way he talks to his staff. I am now expressing this

same concern to Human Resources. I hope that

this matter will be resolved and myself and the

rest of the staff can get back to the business of the

University.

(DSMF ™ 21-24; Pl. Dep., Ex. 6). Ms. Shockley read

Plaintiffs letter and the two discussed Plaintiffs

complaint about Defendant Roberts for about a half hour

to forty-five minutes. (DSMF { 25; Pl. Dep. pp. 114-15,

124),

Defendant CAU has a sexual harassment policy,

which is part of the Staff Handbook and provides, in

pertinent part:

It is the policy of Clark Atlanta University that

sexual harassment and discrimination on the basis

of gender will not be condoned. .. .

It is the policy of Clark Atlanta University to

provide each student, faculty member and staff

member with an environment free from

harassment.

Sexual H arassment is any unwelcomed sexual

advances, requests for sexual favors, or verbal or

physical contact of a sexual nature that interferes

with performance by creating a hostile,

offensive, or intimidating work environment.

(Young Dep. pp. 116-17, 122, Ex. 1, bates

000443). Defendant CAU's sexual harassment policy

further provides that an employee who feels that he or she

has been the victim of sexual harassment should report

_ the harassment to the Director of HR, either orally or in

writing, within fifteen days of the alleged incident, and the

16

complaint will be treated confidentially and carefully

investigated. (See id.). In addition, Defendant CAU has a

policy on workplace harassment generally, which is distinct

from the sexual harassment policy. (Young Dep. pp. 117-

21, Ex. 1, bates 000498). That policy is found in the

Employee Conduct Violations section of the Staff

Handbook, which provides that:

In carrying out their duties and responsibilities, all

staff represent the University and as such should

conduct themselves accordingly. Appropriate

behavior is important at all times. The University

expects staff to conduct themselves in a courteous

and professional manner when interacting with

students, visitors, or fellow staff and faculty

members.. ..

(See Young Dep., Ex. 1 bates 0004998).

The policy further provides a non-exhaustive list of

conduct violations, including "[{d]iscourteous treatment of

the University's —_constituencies—students, _ faculty,

administrators, fellow staff members, and visitors,” as

well as "[t]hreatening, intimidating, coercing, or interfering

with fellow employees, students, University officials, or

others on University property." (Young Dep. pp. 12021, Ex.

1, bates 000498-000500). Such conduct issues are dealt

with under the Complaint Resolution Procedure, which

follows a different procedure than the procedure for

complaining, investigating and resolving allegations of

sexual harassment. (Young Dep. pp, 124-28, Ex. 1,

bates 000502). Pursuant to the Complaint

Resolution Procedure, the matter was forwarded to Mr.

Young for resolution, as he was Defendant Roberts'

supervisor and also Vice President for Finance and

Administration. (DSMF § 27; see Young Dep., Ex. 1,

bates 000502). Mr. Young believed that Plaintiffs internal

complaint triggered the Complaint Resolution Procedure,

17

and not an investigation under the sexual harassment

policy, because Plaintiffs letter spoke of Defendant

Roberts’ abusive and "militaristic" management style, and

did not mention disparate treatment or harassment based

on sex or gender. (DSMF § 26). Mr. Young met with

Defendant Roberts to show him Plaintiff's internal

complaint letter and to request that Defendant Roberts

formally respond in writing. (DSMF § 28). Defendant

Roberts responded by letter dated March 27, 2001.

(DSMF 4 29). Defendant Roberts disputed Plaintiff's

characterization of the March 1, 2001 incident regarding the

misfiled AT&T accounts, stating that Plaintiffs language

was “inflammatory,” and stating that the matter itself was

"routine" and "an integral part of her duties."® (DSMF 30;

see Young Dep., Ex. 3). Defendant Roberts further stated

that he took Plaintiffs allegations "very seriously,”

especially considering that she apparently was voicing

concerns for the entire staff,

FN 8 Plaintiff s attempts to dispute this fact, which

merely details the contents of Defendant Roberts’

response letter, with an unresponsive, 38-page

argument. Notably, Plaintiffs brief in support of

her opposition to Defendants’ motions for

summary judgment is only 22 pages. Plaintiff's

response does not dispute this fact, see supra

notes 3 and 7, and appears to be an attempt to

circumvent the 25-page limitation of summary

judgment briefs. See Local Rule 7.1D, N.D. Ga.

Additionally, in response to this fact, Plaintiff

introduces a declaration of Mr. McLemore. The

Court has previously ruled that this declaration

be stricken pursuant to Rules 26 and 37(c) of the

Federal Rules of Civil Procedure as well as Van T.

Junkins and Assoc., Inc. v. U.S. Indus., Inc., 736

18

F.2d 656, 657 (11th Cir. 1984) and the line of

cases concerning subsequeit testimony which

directly contradicts earlier testimony. (See Docket

Entry [96}). Defendants had called into question

the ethical propriety surrounding Plaintiff

obtaining Mr. McLemore’s declaration, originally

dated at a time when he was still employed by

Defendant CAU, but subsequently amended to

reflect a later date. Notably, however, it was

Plaintiff who filed a Motion for Rule 11

Sanctions. The Court ordered stricken the

declaration mainly because Plaintiff never

supplemented discovery in accordance with the

federal rules by notifying Defendants that she had

such a declaration in her possession, originally

dated June 3, 2004, and then an amended date of

July 3, 2004, that would have been responsive to

several of Defendants' discovery requests.

See Br. in Support of Motion to Strike p. 7,

Docket Entries [82 and 83]). Plaintiff's counsel

represented that she learned of Mr. McLemore’s

Declaration on July 21, 2004, and received it in the

mail two days later. (See PI. Resp. to Def. Motion

to Strike, Docket Entry [84]). Plaintiff, however,

did not notify Defendants of this declaration until

Plaintiff served them with a copy in response to

Defendants’ Motions for Summary Judgment, on

August 2, 2004. (See Certificate of Service,

Docket Entries [46] - [50}). |

Though she did not identify any other employees. (DSMF

4§ 31-32; see Young Dep., Ex. 3). Defendant Roberts also

denied the allegation of having alcohol on his breath as a

"blatant untruth," which, in his opinion, was "consistent

with the other exaggeration of events presented in

[Plaintiffs] letter, and stated that he thought it was

19

“extremely important that we address this matter

immediately.” (DSMF 4] 33-34; see Young Dep., Ex. 3).

Some time after Mach 15, 2001, Plaintiff was looking

for a particular purchase order and asked Defendant

Roberts’ assistant, Melba Carmichael, if she had seen it.

(DSMF 4 81). Plaintiff testified that Defendant

Roberts overheard her, and came storming out of his

office screaming at her, "Do you know what it takes to get a

. purchase order paid?" (DSMF J 82). Defendant Roberts

then began explaining to Plaintiff how to pay a purchase

order, got a. purchase order and started "beating it,"

stating, "These are the steps to getting a purchase order

paid." (DSMF 4 83). Plaintiff felt humiliated in front of

Ms. Carmichael and ran off to go cry somewhere where

~ Defendant Roberts would not see her. (DSMF § 84).

On May 29, 2001, Plaintiff went to Defendant

Roberts' office and attempted to write some information

on the back of a check and Defendant Roberts took out a

piece of paper and wrote FOAPAL,” and stated, "This is

how you write it," in an "abrasive tone." (DSMF 4 85; see

Pl. Dep., Ex. 8).

FN 9 FOAPAL is an acronym that stands for

Fund, Origin, Account, Program, and Activity. >

(DSMF 86).

On June 19, 2001, Defendant Roberts chastised

Plaintiff upon learning that in May 2000, she had

gone over his and her manager's heads to HR to

discuss her leave of absence request. (DSMF 4 87).

_ Defendant Roberts told Plaintiff; "You are not to

go to HR. You are to address your manager and

me." (DSMF 4 88). Plaintiff then informed

Defendant Roberts that she had the right to talk to HR

about her leave and that her manager, Mr.

McLemore, was aware that she was going to HR.

(DSMF 4 89). Defendant Roberts replied, "I might be

20

wrong, but then I'll just be wrong.” (DSMF 4

90).

Plaintiff did not bring any further complaints about

Defendant Roberts to Mr. Young or HR. (DSMF 4 37). On

June 22, 2001, Plaintiff filed an EEOC Charge of

discrimination. (DSMF 38; see Second Amended Compl.,

Ex. A). |

Other employees of Defendant CAU have

described Defendant Roberts’ as abrasive and

unprofessional. Specifically, Teja Singh, the former

Director of Grants and Contracts for Defendant CAU and

then later Director of Accounting, testified that Defendant

Roberts would shout at him, and that Defendant Roberts

had communication problems, an aggressive management

style, and overall poor people skills. (DSMF 4 42; Singh

Dep. pp. 23, 41-42). Mr. Singh also testified that there were

times when he felt that Defendant Roberts demeaned

_him. (DSMF 41). Pam Pressley described Defendant

Roberts as "charming, nice guy" some times, and twenty

minutes later, "he'd be like Hitler foaming at the mouth

and. . .barking orders and expecting people to jump.”

(Pressley Dep. p. 34). Ms. Pressley further states that if

Defendant Roberts could not find an invoice because it

was misfiled, "he was just brutal. Small mistakes were not

tolerated." (Pressley Dep. p. 35). Ms. Pressley also testified

that Defendant Roberts did not treat the men with the

same "brutal attitude" as he did with the women, but

acknowledged that the office was predominantly women.

(Pressley Dep. pp. 34-38). However, Ms. Pressley did

testify that "if there were [sic] a guy who suffered treatment

similar to what the women suffered, I would say Teja

[Singh] had probably something that was closer to being

treated that way than anybody else. Nate [Roberts]

could be very disrespectful to Teja." (DSMF $46).

Marinetta Blalock also noted that Defendant Roberts was

21

"belligerent," he would "talk down" to Mr. Singh, and Mr.

Singh would not fight back and would simply try to do

what was asked of him and move on. (DSMF 4

49; Blalock Dep. p. 23). David Alexander, Director of

Facilities, complained about the way that Defendant Roberts

communicated with him, stating that Defendant Roberts was

harsh and sarcastic in his tone and demeanor. (DSMF 4

43). Toyah Ellis testified that she observed that

Defendant Roberts was "abrasive" with the male

employees in the Grants and Contracts department and that

Defendant Roberts is "an abrupt and abrasive person;

that's who he is." (DSMF 4§ 47-48). Darayl Givens,

who handled all the administrative processes for the

grants in the Grants and Contracts department under Mr.

Singh, testified that Defendant Roberts had an

"authoritative type of personality, heavy-handed type...."

(Givens Dep. pp. 7, 10, 18). Mr. Givens observed

Defendant Roberts speak to Mr. Singh in a harsh manner,

raising his voice. (DSMF § 51; Givens Dep. p. 22). Mr.

Givens also testified that Defendant Roberts could be very

short and impatient with people and could be abrasive.

(DSMF 4 52; Givens Dep. pp. 24-25). Additionally, Mr.

Givens observed that a male employee in the Grants and

Contracts department, Kif Gebreab, was, on a few

occasions, visibly "heated" after meeting with

Defendant Roberts. (DSMF 4 53; Givens Dep. pp. 36-

37). Defendant Roberts has also "got loud . . . for some

reason or another" with Mr. Givens, and has repeated

questions, because Defendant Roberts "does that a lot."

(DSMF f¥ 55-56). Overall, Mr. Givens testified that in

his opinion, Defendant Roberts was "not well liked"

because of his personality and management style, in that

he was “overbearing” with both male and female

employees. (Givens Dep. pp. 37-38). Ms. Ellis likewise

testified that Defendant Roberts was not liked by anyone at

22

the university, men or women. (DSMF 4 59). Paula Barnes

was an accountant in the General Accounting department,

and Defendant Roberts was her direct supervisor. (Barnes

Dep. pp. 6-7). Ms. Barnes described Defendant Roberts as

"just a really nasty, negative person. . . His personality

was just terrible." (Barnes Dep. p. 15). Ms. Barnes

further testified that Defendant Roberts "was

disrespectful in the way that he spoke to me," based on

his "tone of voice and the words, talking to me as if I'ma

delinquent child or something instead of a coworker."

(Barnes Dep. p. 20). Ms. Barnes thought that Defendant

Roberts might have been nasty to her "because he didn't

have a role in hiring me. ..and maybe he just didn't want me

in the office," but she "never thought about it as a

male/female thing." (Barnes Dep. p. 17). Patrick Thomas,

an employee in the Grants and Contracts department, had

"personality conflicts with [Defendant Roberts]." (DSMF

4 54). Annette Ogletree testified that Defendant Roberts

was impossible to please, because "he was always finding

something wrong with what we were doing, and no matter

how hard we worked or how late we stayed, he was always

finding something wrong with the performance of what was

going on in the accounts payable as a whole.” (Ogletree

Dep. p. 25). Ms. Ogletree also testified that Defendant

Roberts spoke to people as if they were in "fifth grade,” and

repeat questions "two or three times until maybe he got

the answer he felt he was looking for or maybe it was

answered in the way that he was looking for it to be

answered," which he did to both male and female

employees. (Ogletree Dep. pp. 15, 44-45). Ms.

Ogletree further testified that in her observation, not

many employees, men and women, who worked for

Defendant Roberts "cared for him." (Ogletree Dep. pp.

104-05). Thomas Poitier, the Controller from 1997-

23

1998 and then Associate Vice President for Banner

Implementation (software), testified that he did not

allow Defendant Roberts to verbally abuse him, but

that Defendant Roberts had been "verbally

confrontational” with him and that Defendant Roberts

had "attitude problems." (Poitier Dep. pp. 7, 19-

20). Mr. Young himself observed Defendant Roberts

on one occasion get "loud and short and flipp[ant],

totally unprofessional” in a meeting wherein there was

a discussion about whether or not the president should

have been in attendance. (DSMEF 45). In addition,

Mr. Young noted that Defendant Roberts "exhibited a

hard militaristic [leadership] style," and "he didn't give

the mutual respect required." (DSMF 4 57).

Plaintiff testified that there came a time when

Defendant Roberts stopped interacting with her, stopped

speaking to her, and would stare at her as he walked past

her desk on his way to his office. (DSMF {¥ 98-99;

Pl. Dep. pp. 199-206). Plaintiff testified that she felt

uncomfortable because Defendant Roberts would direct

questions about work to other members of the staff, and

Plaintiff was concerned that it would seem that she was not

fulfilling her job as the supervisor. (Pl. Dep. pp. 206-07).

Some time around August or September 2001, Mr.

McLemore reassigned some of Plaintiffs duties to another

employee, and explained to Plaintiff that because "Mr.

Roberts was having a problem with everything [she]

did....{this] would keep Mr. Roberts off of [her] back."

(DSMF ff 95-96). Specifically, Plaintiff had very little data

entry to enter, and she no longer directed the work flow

anymore or ran the monthly reports to make sure that

everything was balanced. (DSMF 4§ 100-01; Pl.

Dep. pp. 208-11). Additionally, Plaintiff was no longer

permitted to work extra hours during a busy time of the

24

year, and was required to fill out leave slip forms when

reporting back to work from a doctor's appointment.

(DSMF {§ 102-03). Plaintiff also testified that she

received basic training on new software but did not

receive additional training recommended in a meeting,

though she acknowledged that there were not enough funds

to get the additional training. (DSMF § 97; Pl. Dep. pp.

233-34). Ms. Ogletree testified that after Plaintiff filed

her EEOC charge, there was no change in the way that

Defendant Roberts interacted with Plaintiff, but that he had

less contact with her. (Ogletree Dep. pp. 89-90). Ms.

Ogletree further testified that she became the contact

person for Defendant Roberts in Mr. McLemore's

absence, "report[ing] to [Defendant Roberts].in reference to

maybe the cash that we needed for that week to run checks

or anything that was going on within the day-to-day

operations within accounts payable,” because Defendant

. Roberts and Plaintiff were having “conflict problems.”

(Ogletree Dep. p. 90; see also id. at 146-47, 149-51, 165-66,

176-77). Ms. Ogletree also testified that she observed that

Plaintiff was not upset and actually appeared relieved

that she did not have to have as much contact with

Defendant Roberts. (Ogletree Dep. pp. 91-92, 160-61).

On August 28, 2001, Plaintiff received F-° annual

performance evaluation from her supervisor, Mr.

McLemore, for the period of July 1, 2000 through June

30, 2001. (Pl. Dep. pp. 215-21, Ex. 12). Mr. McLemore

gave Plaintiff a rating of "meets expectations” in almost

every category: job knowledge, teamwork, problem

solving, accountability, human relations, work

quality, communications, adaptability/

flexibility, attitude/motivation, and attendance. (See PI.

Dep., Ex. 12). Plaintiff testified that she initially was rated

"partially meets expectations" in some of these categories

but after a discussion with Mr. McLemore, he raised those

25

categories to "meets expectations." (Fl. Dep. pp. 216-20).

Plaintiff was rated “partially meets expectations" in

planning and organizing, receiving the comment that

"It]his area requires additional work with emphasis on

the daily scanning of documents and file ‘storage.

Additionally, more focus should be addressed to monitoring

vendors calls and payment recommendations." (See P1.

Dep., Ex. 12). Plaintiff also received a rating of "partially

meets expectations” for punctuality, receiving the comment

she "had a great deal of excused tardiness during the fiscal

year. More effort should be made to insure that punctuality

‘is not a topic for discussion. An action plan to showing

how this deficiency will be addressed is needed for this

area. Please note that all warnings in the future for

tardiness will be written." (See Pl. Dep., Ex. 12). Plaintiff

wrote a letter to Mr. McLemore, dated August 31, 2001,

expressing her disappointment with her final evaluation

because she thought that she deserved "exceeds

expectations" in some categories and that the ratings of -

"partially meets expectations" were undeserved. (PI. Dep.

pp. 223-32, Ex. 13).

On September 27, 2001, Defendant Roberts received

his annual performance evaluation from Mr. Young,

and in the area of "Leadership Effectiveness” and

“Leadership Efficiency," under the section, “People

Management Assessment," Defendant Roberts was

rated "partially meets expectations." (DSMF 4 35; see

Young Dep., Ex. 4, bates 000289-000290). Mr. Young,

after concluding his investigation into Plaintiff's HR

complaint about Defendant Roberts, decided to

adopt HR's recommendation that Defendant Roberts

be directed to attend specific Employee Assistance

Program ("EAP") training courses to address his

conduct and how he interacted with others. (DSMF 935-

36; Young Dep. pp. 176-77, Ex. 4). Specifically, Mr.

26

Young recommended that Defendant Roberts attend EAP

training in the areas of Employee performance issues,

performing and preparing work counseling interviews, and

follow-up procedure, in part because of Plaintiffs

complaint. (Young Dep. pp. 176-77, Ex. 4).

Plaintiff testified that she "may have" told Defendant

Roberts in 2000 that she was diagnosed with Lupus, and

had a brief conversation with him about her health on her

last day before going on leave on April 27, 2001. (PI.

Dep. p. 315). Plaintiff did not, however at any time

between December 2000, and up to the time of her

complaint to HR in March 2001, tell Defendant Roberts to

leave her alone, that he was stressing her out, that his

conduct was adversely affecting her medical condition, or

anything of that nature. (DSMF § 109; Pl. Dep. pp. 315-

16). Additionally, Plaintiff mever discussed with

Defendant Roberts her EEOC charge or the fact that

she filed such a charge, and Defendant Roberts did not

learn about Plaintiffs EEOC charge until the date of his

July 15, 2002 performance evaluation. (DSMI {J 105-07).

With regard to Defendant Roberts' 2002 evaluation, for

the time period of June 2001 through June 30, 2002, Mr.

Young found that Defendant Roberts’ performance had

declined in the areas of adaptability/flexibility,

people management, leadership _ effectiveness,

organizational protocol, and financial reporting, and as a

result, Mr. Young placed Defendant Roberts on a

performance improvement plan. (Young Dep. pp. 180-81,

Ex. 7). In October 2002, Mr. Young followed up with

HR to see if Defendant Roberts had contacted HR to

schedule the EAP training. (Young Dep. p. 187). When

Mr. Young learned that Defendant Roberts had not

called HR to schedule the EAP training, in conformity

with his performance improvement plan, Mr. Young began

to discuss with HR terminating Defendant Roberts.

27

(Young Dep. pp. 187-89). Additionally, Mr. Young

had continued to hear complaints from employees

about Defendant Roberts’ rudeness and sarcasm.

(Young Dep. pp. 189-90). Mr. Young terminated

Defendant Roberts in November 2002 based, in part, on

Defendant Roberts' failure to participate in the required EAP

training to correct his management style and the way that he

talked to people. (DSMF 458; Young Dep. pp. 91-103, 178-

180, Ex. 5S).

Il. CONCLUSIONS OF LAW

A. Summary Judgment Standard

A motion for summary judgment shail be granted "if

the pleadings, depositions, answers to interrogatories and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law."

FED. R. CIV. P. 56(c). At the summary judgment stage,

the court must examine all evidence in the light most

favorable to the non-moving party and resolve all

reasonable doubts in his favor. Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 255 (1986); Pipkins v. City of

Temple Terrace, 267 F.3d 1197, 1199 (11th Cir. 2001).

On a motion for summary judgment, "the moving party

bears the initial burden to show, by reference to materials

on file, that there are no genuine issues of material fact to

be determined at trial." Mullins v. Crowell, 228 F.3d

1305, 1313 (11th Cir. 2000) (citing Clark v. Coats &

Clark. Inc., 929 F.2d 604, 608 (11th Cir. 1991)). Once

the movant has shown the non-existence of any genuine

issue of material fact, it is up to the Plaintiff to produce

some evidence in support of his claim. Anderson, 477 U.S.

at 252. Mere conclusory allegations of discrimination or

harassment are not enough to withstand a motion for

summary judgment. Carter v. City of Miami, 870 F.2d 578,

585 (11th Cir. 1989). In other words, "the mere existence of

28

some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary

judgment; the requirement is that there be no genuine

issue of material fact." Anderson, 477 U.S. at 247-48. An

issue is not genuine if it is unsupported by evidence or if it

is created by evidence that is "merely colorable" or "not

significantly probative." Id. at 250. Likewise, a fact is only

material if it is so designated by controlling substantive law

as an essential element of Plaintiffs case. Id. at 248.

If neither party can prove the existence or

nonexistence of an essential element of a claim, summary

judgment will be granted if the movant shows that the

Plaintiff will be unable to meet her burden of proof at trial.

Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The

movant's burden therefore requires a "'showing'-- that is,

pointing out to the district court that there is an absence of

evidence to support the nonmoving party's case." Id. The

nonmovant's failure to offer proof of an essential

element to her case renders all facts immaterial, thus

entitling the movant to judgment as a matter of law. Id. at

323.

B. Plaintiff's Title VII Sexual Harassment Claims

Plaintiff contends that she was subjected to a hostile

work environment based on her gender because Defendant

Roberts’ conduct toward her was "abrasive, harsh,

disrespectful, condescending, intimidating, demeaning,

sarcastic, unprofessional" and he exhibited a "rude

personality and mannerisms.” The Court concludes, as more

fully discussed below, that Plaintiff cannot establish a

prima facie case of sexual harassment.

Title VII of the Civil Rights Act of 1964 prohibits an

employer from "discriminat[ing] against any individual

with respect to his compensation, terms, conditions, or

privileges of employment, because of such individual's

race, color, religion, sex, or national origin." 42 U.S.C. §

_ 29

2000e-2(a)(1). Title VII claims require proof of intentional

discrimination. See Standard v. A.B.E.L. Servs., Inc..,

161 F.3d 1318, 1330 (11th Cir. 1998). Sexual harassment is

a type of sex discrimination prohibited by Title VII, and

may be in the form of guid pro quo harassment, which is

‘based on threats which are carried out' or fulfilled,”

or hostile work environment sexual harassment,

"which [is] based on ‘bothersome attentions or sexual

remarks that are sufficiently severe or pervasive to create a

hostile work environment.' Gupta v. Fla. Bd. of Regents,

212 F.3d 571, 582 (11th Ch, 2000) (quoting Burlington

Indus., Inc. v. Ellerth, 524 U.S. 742, 751 (1998)); see

also Mentor Svgs. Bank FSB v. Vinson, 477 U.S. 57, 64

(1986). However, courts should not be constricted by these

terms when analyzing an employer's liability on an

employee's Title VII claim concerning a supervisor's

sex-based harassment. Frederick v. Sprint/United

Mgmt. Co., 246 F.3d 1305, 1311 (11th Cir. 2001) (citing

Ellerth, 524 U.S. at 753, 765; Faragher v. City of Boca

Raton, 524 U.S. 775, 807 (1998). Instead, "courts

should separate these cases into two groups: (1)

harassment which culminates in a ‘tangible employment

action,’ such as discharge, demotion or undesirable

reassignment, and (2) harassment in which no adverse

‘tangible employment action’ is taken but which is sufficient

to constructively alter an employee's working conditions."

Id. (quoting Ellerth, 524 U.S. at 761-63, 765; see also

Faragher, 524 U.S. at 790, 807; Johnson v. Booker T.

Washington Broadcasting Serv. Inc., 234 F.3d 501, 508

(11th Cir. 2000) (recognizing shift in terminology));

Accord Mangrum v. Republic Indus. Inc., 260 F. Supp. 2d

1229, 1248 (N.D. Ga. 2003). Plaintiff is asserting the

second type, that Defendants created a hostile work

environment based on her gender which was severe and

pervasive such that it constructively altered the terms and

30

conditions of her employment. Ellerth, 524 U.S. at 754

(citing Oncale v. Sundowner Offshore Servs.. Inc., 523

U.S. 75, 81 (1998) (allegations of sexual harassment

should be treated as hostile work environment and not

quid pro quo where there was no tangible adverse

employment action because threats were unfulfilled));

Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). .

In order to make out a prima facie case of a hostile

work environment based on gender harassment, a plaintiff

must show that (1) she belongs to a protected group; (2)

she was subjected to unwanted gender harassment; (3)

the harassment complained of was based upon her sex;

(4) the harassment complained of affected a term,

condition, or privilege of her employment; and (5) a basis

for holding the employer liable. Watson v. Blue Circle.

Inc., 324 F.3d 1252, 1257 (11th Cir. 2003) (citing

Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.

1999) (en banc)); Henson v. City of Dundee, 682 F.2d

897, 903-05 (ith Cir. 1982).

Usually, actionable sexual harassment "involves

patterns or allegations of extensive, long-lasting,

unaddressed, and uninhibited sexual threats or conduct that

permeated the . . . work environment." Gupta v. Fla. Bd. of

Regents, 212 F.3d 571, 586 (11th Cir. 2000), cert.

denied, 531 U.S. 1076 (2001) (quoting Indest v.

Freeman Decorating, Inc., 164 F.3d 258, 264 (Sth Cir.

1999) (citations omitted)). Consequently, "simple teasing,

offhand comments, and isolated incidents unless extremely

serious will not amount to discriminatory changes in the

terms and conditions of employment." See Faragher, 524

U.S. at 788 (explaining that complaints objecting to

the ordinary tribulations of the workplace including

the sporadic use of abusive language, gender-related

jokes, and occasional teasing are not actionable); Harris,

510 U.S. at 21. Further, statements and conduct in support

31

of gender-based hostile work environment claim

must be of a sexual or gender-related nature -

‘sexual advances, requests for sexual favors [or]

conduct of a sexual nature’... before they

are considered in determining whether the

severe or pervasive requirement is met.

Innocuous statements or conduct, or boorish

ones that do not-relate to the sex of the actor or

of the offended party are not counted.

Gupta, 212 F.3d at 583 (quoting Mendoza, 195 F.3d at

1245); Hudson v. Norfolk S. KR. Co., 209 F. Supp. 2d

1301, 1316 n.19 (N.D. Ga. 2001) ("Title VII does not

prohibit 'harassment' in and of itself [and] certainly does not

prohibit all behavior an employee may find to be unpleasant

or annoying."). By way of example, conduct which

"ridicules women or treats them as inferior" can constitute

gender harassment. Sims v. Montgomery County 766

F. Supp. 1052, 1073 (M.D. Ala. 1991). However,

the plaintiff must prove that her sex or gender was the

underlying reason for the alleged harassment she suffered.

Succar v. Dade County Sch. Bd., 229 F.3d 1343, 1345

(11th Cir. 2000) (holding that the "harassment of [plaintiff]

was motivated not by his male gender, but rather by [the

harasser's] contempt for [plaintiff] following their failed

relationship; [Plaintiff's] gender was merely coincidental").

Defendant CAU argues that Plaintiff cannot make

out the second prong of her prima facie case because

her allegations of harassment are not gender

related. Specifically, Defendant CAU argues that the

record evidence demonstrates that Defendant Roberts

had an abrasive and militaristic personality and management

style with all employees, male and female, and therefore

Plaintiff was not specifically targeted because of her

gender.

Applying the law to the facts of this case, the Court

32

agrees with Defendant CAU in that Plaintiff cannot make

out the second prong of her prima facie case because none

of Defendant Roberts’ comments or conduct was gender-

specific or beared any relation to Plaintiffs protected

status as a woman. Defendant Roberts’ comments and

conduct toward Plaintiff, when taken as a whole, would

not, according to a reasonable person, rise to the level of a

hostile work environment for gender harassment. Indeed,

several employees testified that Defendant Roberts was

simply a nasty individual, who talked down to people and

was not well-liked by men or women. (See DSMF {¥ 45, 47-

48, 52, 57, 59; Givens Dep. pp. 7, 10, 18, 24-25, 37-38;

Barnes Dep. pp. 15, 17, 20). Plaintiff's subjective

interpretation that Defendant Roberts' criticism or hostility

toward her was based on her gender is unsupported by the

record. Plaintiff impliedly suggests that Defendant Roberts’

conduct may have differently affected female employees,

and that such evidence supports her argument that

Defendant Roberts harassed her because she is female.

Although it is proper to elicit evidence of whether the

alleged harasser's management style was more offensive to

female employees than male employees, this inquiry

necessarily addresses the second prong of a plaintiffs prima

facie case, that is, whether the harassment was based on

gender. See Cross v. State of Ala.. State Dep't of Mental

Health & Mental Retardation, 49 F.3d 1490, 1505 (11th

Cir. 1995). However, "where the conduct complained of is

equally offensive to male and female workers.... [t]he

sexual harassment would not be based upon sex

because men and women are accorded like treatment."

Henson, 682 F.2d at 904. The record in this case shows that

Defendant Roberts was harsh and disrespectful toward

male employees, such as Mr. Singh, Mr. Alexander, and

Mr. Givens, and that Defendant Roberts’ abrasive and

authoritative management style was exemplified by

33

Defendant Roberts raising his voice and repeating his

questions. (DSMF J 41-43, 49, 51-56; Givens Dep. pp. 7,

10 18, 22, 37-38; Ogletree Dep. pp. 15, 44-45). Thus,

Plaintiffs asserted harassment was not based on her

gender because men and women were accorded like

treatment, and the evidence shows that Defendant

Roberts was not well-liked by men or women. (See

DSMF ¥ 59; Givens Dep. pp. 37-38; Ogletree Dep. pp. 104- _

05; Poitier Dep. pp. 7, 19-20). Moreover, the record more

readily supports an inference that Defendant Roberts

directed criticism and hostility at Plaintiff, not because of

her gender, but because he did not believe that she was

doing her job effectively, or at least to his satisfaction,

because he was the type of person that liked things done a

particular way—-his way. (DSMF {J 16-18, 30, 63-66, 69-

70, 75-77; Pressley Dep. pp. 34-35; see Pl. Dep. pp. 117-

20, Exs. 6, 8; Young Dep., Ex. 3). Although the record

supports tension between Plaintiff and Defendant Roberts,

"[plersonal animosity is not the equivalent of sex

discrimination and is not proscribed by Title VII. The

plaintiff cannot tum a personal feud into a sex

discrimination case by accusation." McCollum v. Bolger,

794 F.2d 602, 610 (11th Cir. 1986) (footnote citations

omitted).

Notably, Plaintiff never mentioned in her complaint

letter to HR that she believed that Defendant Roberts

treated her differently or harassed her because she is

female. Rather, Plaintiff's letter mentions only that

Defendant Roberts was militaristic and "very

condescending,” never allows someone to finish their

sentences, making reople feel inferior and stupid, and that

she and "other staff members” "walk[] on eggshells all the

time." (DSMF 9917-18, 21-24; see Pl. Dep., Ex. 6).

The gender-neutral nature of Plaintiffs complaints

further indicate that Plaintiff's allegations that she was

34

harassed becauses she is female is merely an

unsubstantiated suspicion that Defendant Roberts' allegedly

abusive treatment was based on sex, as opposed to her

job performance or because of his autocratic management

style. See Joens v. John Morrell & Co., 354 F.3d 938, 941-

42 (8th Cir. 2004) (holding that there was no evidence that

harasser yelled and swore at plaintiff because of her sex,

as opposed to her work performance, or that he treated

her less favorably than he treated male employees,

especially in hght of plaintiff's gender-neutral complaints

to her employer). Moreover, Plaintiff also suggests that

a possible reason for Defendant Roberts’ behavior may

be due to an alcohol problem. (See Pl. Dep., Ex. 6).

Thus, even when viewing the material facts in the light

most favorable to Plaintiff, Defendant Roberts' alleged

harassment of the Plaintiff is not shown to be the result of

the Plaintiff's gender and Plaintiff has provided no evidence

to suggest otherwise. See Henderson v. Leroy Hill Coffee

Co.. Inc., 2001 WL 103147, at *7 (S.D. Ala. Jan. 30, 2001)

(citing Henson, 682 F.2d at 904).

Defendant also argues that even if all of the alleged

conduct can be considered gender harassment as a matter of

law, Plaintiff cannot meet the fourth prong of her prima

facie case. Specifically Defendant argues that the nine

allegedly harassing incidents over a six -month period

from December 13, 2000, through June 19, 2001, are too

isolated over a relatively short period of time to rise to the

level of severe and pervasive.

In order to meet the fourth prong of the prima facie

case, a plaintiff must demonstrate that the defendant's

actions were so severe and pervasive that they altered the

terms and conditions of his employment and created

an objectively abusive atmosphere. Edwards v. Wallace

Cmty. Coll. 49 F.3d 1517, 1521 (11th Cir. 1995). A

plaintiff must establish a subjective and an objective

35

component: that she perceived the environment as hostile

and abusive and that a reasonable person would perceive

the environment to be hostile and abusive. Faragher v.

City of Boca Raton, 524 U.S. 775, 788 (1998); Mendoza,

195 F.3d at 1246. Because the plaintiff obviously perceives

the environment as hostile and abusive, the relevant

inquiry focuses on whether the actions of the defendant

altered the working condition to such an extent that a

reasonable person would find the atmosphere hostile and

abusive. Harris, 510 U.S. at 22-23. In making this

determination, the courts look at "the frequency of the

discriminatory conduct; its severity; whether it is

physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an

employee's work performance." Id. at 23; see also

Mendoza, 195 F.3d at 1245; Edwards, 49 F.3d at 1521-22.

However, the courts must also evaluate the severity and

pervasiveness of the harassment in the totality of the

circumstances; no one factor alone is determinative. Harris,

510 U.S. at 23.

Applying the law to the facts of this case, Plaintiff

cannot establish the fourth prong of her prima-facie case,

because Defendant Roberts’ alleged conduct was not

sufficiently severe or pervasive to establish the existence of

an actionable hostile work environment. The alleged

conduct in this case was isolated and not extremely serious.

First, as discussed above, Plaintiffs allegations are not

gender-related and therefore cannot be considered in

support of a gender harassment claim. See Gupta, 212

F.3d at 583; Mendoza, 195 F.3d at 1245; Hudson, 209 F.

Supp. 2d at 1316 n.19. Further, even if the alleged

harassment was gender-based, such conduct was not

sufficiently severe, threatening or humiliating and was too

sporadic to create an objectively hostile work environment.

Compare Cross, 49 F.3d at 1495, 1497, 1501 (finding that

36

conduct was severe where a supervisor was very angry

and hostile, glared at female employees, pounded on the

desk, pointed his finger, threw objects at female

employees including a lit cigarette, verbally abused female

employees making them cry, and made disparaging

comments to females, labeling them as "rather dumb,"

“stupid,” or "just a woman."), and Watson v. Blue Circle

Inc., 324 F.3d 1252, 1262 (11th Cir. 2003) (finding

that defendant's conduct was severe where he brushed

his hand across the plaintiff s buttocks, offered her

money to have sex with him, grabbed plaintiffs hand and

told her that he wanted to ‘eat her', grabbed her by the wrists

and shoved her, patted plaintiff s breast, tailgated her, and

attempted to throw her in concrete); Dees _v. Johnson

Controls World Servs., Inc., 168 F.3d 417, 418-19 (11th

Cir. 1999) (finding that co-workers’ conduct was severe

when they subjected plaintiff to abuse almost daily for

three years and told sexually explicit stories and jokes,

commented about plaintiffs body or those of male

firefighters, grabbed or slapped plaintiff's buttocks, groped

her leg, or otherwise touched her in a_ sexually

suggestive manner), with Gupta, 212 F.3d at 585

(even assuming supervisor stared at plaintiff twice, touched

her ring and bracelet once, placed his hand on her knee

once, touched the hem of her dress once, and kept asking

her to lunch was sexual in nature, conduct was not severe,

threatening, or humiliating).

In this case, Plaintiff alleged that Defendant

Roberts began his pattern of harassment against her in

December 2000, and that such harassment continued

through June 2001, articulating about nine incidents of

harassment. As compared with the cases cited above, the

conduct alleged here only involved isolated incidents that

were not physically threatening, humiliating or severe

enough to create an objectively hostile work environment.

37

Although Plaintiff states in her affidavit that she feared for

her physical safety, (see Pl. Aff. § 52), such fear was not

objectively reasonable based on the facts of this case. The

bare bones of Plaintiff's allegations are simply that

Defendant Roberts criticized Plaintiffs work performance,

arguably in a non-constructive way, and perhaps a bit

belittling. However, the fact that Defendant Roberts raised

his voice and exhibited a militaristic, mgid, management _

style does not indicate that he was physically threatening.

Further, job performance criticism from a supervisor or

manager is a common vicissitude of life in the working

world, even if harsh or unjustified. Specifically,

Employer criticism, like employer praise, is an

ordinary and appropriate feature of the workplace.

Expanding the scope of Title VII to permit

discrimination lawsuits predicated only on

unwelcome day-to-day critiques and assertedly

unjustified negative evaluations would threaten the

flow of communication between employees and

supervisors and limit an employer's ability to

maintain and improve job performance. Federal

courts ought not be put in the position of

monitoring and second-guessing the feedback that

an employer gives, and should be encouraged to

give, an employee. Simply put, the loss of

prestige or self-esteem felt by an employee who

receives what he believes to be unwarranted job

criticism or performance review will rarely--

without more--establish the adverse action

necessary to pursue a claim under Title V1I's

anti-discrimination clause.

Davis v. Town of Lake Park, 245 F.3d 1232, 1242 (11th

Cir. 2001) (footnote omitted).

Additionally, Plaintiffs nine incidents of

harassment over six months from December 2000

38

through June 2001—speaking in a harsh tone, nitpicking,

saying if she could not do her job then maybe someone else

should, yelling at her for going over his head to Mr. Young,

reprimanding her for doing more than he asked on a task,

cutting her. off and shouting at her for misfiled invoices,

abrasively and demeaningly describing how to do tasks, and

yelling at her for going over his head to HR to discuss her

leave—are not sufficiently severe. Furthermore, these

incidents are too sporadic to be pervasive, as matter of

law, to alter the conditions of Plaintiff's employment and

create an actionable hostile work environment. Although

Plaintiff now attempts to argue that the harassment began as

early as 1998, when Defendant Roberts was hired by

Defendant CAU, such argument is not supported by the

record. (See DSMF 414; Pl. Dep. pp. 141-42; Second

Amended Compl. § 10, Ex. A)). Even if some

harassment occurred in 1998, the incidents of

harassment which Plaintiff contemporaneously recorded in

her journal and to which she testified would be spread out

over an even longer period of time, making the

harassment seem even more isolated and negating an

inference that the harassment was pervasive. Moreover, if

the alleged harassment began in early 1998, Plaintiff would -

have endured the alleged harassment for approximately a

year and a half before reporting Defendant Roberts’

conduct, calling into question Plaintiff's subjective belief

that she was being harassed because of her gender as well

as the objective severity of the alleged harassment.

Accordingly, based on the foregoing, Defendants' Motions

for Summary Judgment as to Plaintiffs Title VII gender

harassment claims should be GRANTED.

C. Plaintiffs Title VII Retaliation Claim

Plaintiff argues that Defendant CAU retaliated against

her for complaining about Defendant Roberts' harassment

to HR by treating her more negatively, no longer talking to

39

her, staring at her, and removing her supervisory duties.

Defendant CAU contends that Plaintiff failed to exhaust

her administrative remedies on her retaliation claim because

she never amended her EEOC charge to include such a

claim, and in any event, Plaintiff's complaint to HR did not

constitute protected activity within the meaning of Title

VIL. In addition, Defendant argues that Plaintiff cannot

show that she suffered an adverse employment action.

1. Exhaustion of Administrative Remedies and Scope

of Plaintiffs EEOC Charge

Before filing a private civil action under Title VII, a

plaintiff must satisfy certain statutory prerequisites such as

timely filing a charge of discrimination with the EEOC

"within one hundred and eighty days after the alleged

unlawful employment practice occurred[.]" 42 U.S.C.

§ 2000e-5(e)(1); National RR. Passengfl, 536

U.S. 101, 109 (2002); Pijnenburg v. West Ga, Health Sys.,

Inc.. 255 F.3d 1304, 1305 (1 Ith Cir.), reh’g denied, 273 F.3d

1117 (11th Cir. 2001). "{I]f a plaintiff fails to file an

EEOC charge before the 180-day limitations period, the

plaintiffs subsequent lawsuit is barred and must be

dismissed for failure to exhaust administrative remedies.

Thomas v. Alabama Council on Human Relations. Inc.,

248: F. Supp. 2d 1105, 1114-16 (M.D. Ala. 2003) (citing

Brewer v. Alabama, 111 F. Supp. 2d 1197, 1204 (M.D. Ala.

200)). The timely filing of an EEOC charge, however,

"like a statute of limitations, is subject to waiver,

estoppel and equitable tolling.” Forehand v.

Florida State Hosp. at Chattahoochee, 89 F.3d 1562,

1570 n.17 (11th Cir. 1996) (quoting Zipes v. Trans World

Airlines, Inc., 455 U.S. 385, 392 (1982)); see also

Fouche v.Jekyll Island State Park Auth.. 713 F.2d 1518,

1525 (11th Cir. 1983) ("{A]ll Title VI¥ procedural

requirements to suit are henceforth to be viewed as

conditions precedent to suit rather than as

40

jurisdictional requirements."); Pinkard v.Pullman-

Standard, 678 F.2d 1211, 1216 (Sth Cir. Unit B 1982)

("[T]he receipt of a right-to-sue letter is not a jurisdictional

prerequisite, but rather is a condition precedent subject to

equitable modification."), cert. denied, 459 U.S. 1105

(1983).

Additionally, procedural technicalities should not stand

in the way of Title VII complainants. Although a plaintiffs

failure to include allegations of a particular type of

discrimination or discriminatory act in her EEOC charge

should not necessarily preclude a judicial complaint based

on such allegations, "the 'scope' of the judicial complaint is

limited to the ‘scope’ of the EEOC investigation which

can reasonably be expected to grow out of the charge of

discrimination.” Sanchez v. Standard Brands. Inc., 431

F.2d 455, 466 (Sth Cir. 1970) (quoting King v. Georgia

Power Co., 295 F. Supp. 943, 947 (N.D. Ga. 1968)); see

also _Chandha v. Engelhardt/ICC, 234 F.3d 1219, 1225

(11th Cir. 2000) (footnote omitted); Watson v. Bally Mfg.

Corp., 844 F. Supp. 1533, 1534 (S.D. Fla. 1993), aff'd,

84 F.3d 438 (11th Cir. 1996) (citations omitted). The

EEOC's investigatory function lies at the heart of the

statutory scheme ffor remedying § employment

discrimination. Smith v. Sentry Ins.. 674 F. Supp.

1459, 1467 (N.D. Ga. 1987). Consequently, "the actual

investigation triggered by the EEOC charge [is] the primary

factor determining the permissible scope of a judicial

complaint of employment discrimination." Id. A

judicial complaint may therefore include any

allegations investigated by the EEOC, even if the

investigation was broader than the EEOC charge triggering

the investigation because the EFOC has had the opportunity

to effect voluntary compliance with the law prior to the

filing of a civil action. Id. See also Montgomery v. Atlanta

Family Rest.. Inc., 752 F. Supp. 1575 (N.D. Ga. 1990)

_ after she filed her original EEOC charge, based on

41

(holding that claims in the plaintiff's complaint which were

not specifically alleged in her EEOC charge but which were

part of the EEOC's investigation reasonably related to the

conduct alleged in the formal EEOC charge).

Applying the law to the facts of this case, Plaintiff has

failed to exhaust her administrative remedies under Title

VII with respect to her retaliation claim. Although Plaintiff

represented in her Second Amended Complaint that she filed

an amended charge of discrimination with the EEOC,

{Second Amended Compl. {6), the record does not support

Plaintiff's representation. What Plaintiff has characterized

as an amended EEOC charge is a letter, dated May 2,

2002, that she prepared during the conciliation stage of

the EEOC process, nearly two months after the EEOC

issued a cause determination with respect to her original

EEOC charge filed on June 22, 2001, and in response to the

EEOC investigator's request to put together what Plaintiff

felt would be a fair settlement. (See Second Amended

Compl., Ex. B; Pl. Dep. pp. 205, 269-70, Ex. 18). In

this letter, Plaintiff refers to her work situation worsening

Defendant Roberts refusing to speak to her and

addressing work-related questions to her colleagues,

Defendant Roberts staring at her, Mr. McLemore

reassigning some of her duties to a co-worker to alleviate

some of the verbal abuse from Defendant Roberts, a poor

performance evaluation, not being compensated for

acting as the Accounts Payable Supervisor, not receiving

new software training, not being permitted to receive comp

time, and overall being set up to fail. (See id.). The Court

notes that Plaintiff has failed to respond to Defendant

CAU's argument that she failed to exhaust her

administrative remedies with respect to her retaliation claim, |

and thus cites no support for why her letter, written during

and for the purpose of conciliation, constitutes an

~~ oo Oe nn a a ee a ee

42

amendment to her original charge of discrimination. There is

no evidence that the EEOC investigated these new

allegations of retaliation, and the EEOC ' s right to sue letter

only references Plaintiffs original EEOC charge. (See

Second Amended Compl., Ex. D). Further, Plaintiffs

retaliation claim could not be reasonably expected to grow

out of a general allegation of gender harassment in

her EEOC Charge. See Fitzgerald v. Henderson, 36

F. Supp. 2d 490, 500 (N.D.N.Y. 1998) (claim of ©

retaliation did not reasonably grow out of claims of

sexual discrimination and harassment) (citing Szarka v.

Reynolds Metals Co., 17 F. Supp. 2d 115, 124

(N.D.N.Y. 1998); Carrasco v. New York Cit” Off-Track

Betting Corp., 858 F. Supp. 28, 33 (S.D.N.Y. 1994)

(retaliation claim not reasonably related to charge of sexual

discrimination), aff d, 50 F.3d 3 (2d Cir. 1995)).

Accordingly, Plaintiffs retaliation claim is barred for failure

to exhaust her administrative remedies.

2. Prima Fade Case

Defendant CAU argues that even if Plaintiffs retaliation —

is not barred by her failure to exhaust administrative

remedies on that claim, she cannot make out a prima facie

case of retaliation because she cannot show that she

engaged in statutorily protected activity or that she suffered

an adverse employment action.

Title VII provides that it is "an unlawful employment

practice for an employer to discriminate against any of his

employees or applicants for employment" because the

employee has opposed unlawful discrimination by their

employer or "has made a charge, testified, assisted, or

participated in any’ manner in an_ investigation,

proceeding, or hearing" concerning unlawful

discrimination by his employer. 42 U.S.C. § 2000e-3(a). In

order to establish a prima facie case of retaliation, Plaintiff

must show that (1) she engaged in protected activity; (2)

43

. she suffered from an adverse employment action; and (3)

the adverse employment action was caused by her engaging

in protected activity. See 42 U.S.C. § 2000e-3(a); Brochu v.

City of Riviera Beach, 304 F.3 d 1144, 1155 (11th Cir.

2002); Sullivan v. Nat'l R.R. Passenger Corp., 170 F.3d

1056, 1059 (11th Cir. 1999).

The opposition clause protects employees who

have. opposed an employment practice that has been made

unlawful by Title VII. See EEOC v. Total Sys. Sews., Inc..,

221 F.3d 1171, 1175 (11th Cir. 2000). Although the

Plaintiff need not prove the underlying charge of

discrimination or show that the conduct opposed was

unlawful to show that she engaged in protected opposition

to discrimination, she must show that she had a reasonable,

good faith belief that the discrimination existed. See

Clover _v. Total Sys. Servs., Inc., 176 F.3d 1346, 1351

(11th Cir. 1999); Harper v. Blockbuster Entm't Corp.. 139

F.3d 1385, 1388 (11th Cir. 1998) (citingLittle v. United

Tech., 103 F. 3d 956, 960 (11th Cir. 1997)). The objective

reasonableness of an employee's belief that her employer

has engaged in an unlawful employment practice must be

measured against substantive law. See id. at 1351; Little

v. United Tech., 103 F.3d 956, 960 (11th Cir. 1997)

(explaining that failure to charge an employee who

opposes an employment practice with substantive

knowledge of the law would eviscerate the objective

component of the reasonableness inquiry). The EEOC

Compliance Manual defines protected activity as that

which "oppose[s] any practice made unlawful

under the employment discrimination statutes.’ See

U.S. EEOC Compliance Manual, 591 PLI/LiT 729, 738

(1998). These may include filing an EEOC charge,

threatening to file an EEOC charge, complaining to anyone

about alleged discrimination, refusing to obey an order

because of a reasonable belief that it is discriminatory, and

44

requesting reasonable accommodation or religious

accommodation. See id. at 738-39.

Applying the law to the facts of this case, the Court

finds that Plaintiff has not made out a prima facie case for

retaliation because she cannot show that she engaged in

protected activity. Plaintiffs complaint letter to HR

does not constitute protected activity because she did

not specifically complain of gender discrimination. - (See

DSMF fj 16-18, 21-25; Pl. Dep. pp. 111-15, 122-24, Ex.

6). See Sajadian v. American Red Cross, 202 F.3d 260,

1999 WL 1111455, at *1 (4th Cir. 1999) (holding that

plaintiff did not engage in protected activity because her

complaint to the director of human resources only raised

general concerns about her workload, hours, and denial of

leave, and did not mention national origin discrimination);

Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp.. 136 F.3d

276, 291-92 (7th Cir. 1998) (holding that plaintiff did not

state in her complaints that the alleged discriminator’s

actions were based on her gender, and there was nothing

that could have led the defendant to conclude that her

complaints were based on gender discrimination);

Gautney_v. Amerigas Inc . 107 F. Supp. 2d 634, 646

(E.D. Pa. 2000) (holding that plaintiffs general complaints .

that she was treated differently did not support "inference

that her supervisors knew she was complaining of gender or

sex discrimination or that her vague complaints could

reasonably lead to retaliatory animus."). Nor could

Plaintiff's letter on its face be construed as a complaint of

harassment based on or because of her gender. Indeed, Mr.

Young dealt with Plaintiffs complaint through the employee

Complaint Resolution Procedure rather than the channels

for investigating claims of sexual] harassment. (DSMI

26-27, Young Dep., Ex. 1, bates 090498-000502).

Plaintiff merely asserts that her complaint to HR

constituted her protected activity, and did not

45

respond to Defendant CAU's argument to the

contrary. Accordingly, Plaintiffs HR complaint in March

2001 does not constitute protected activity. However,

Plaintiffs EEOC charge filed on June 22, 2001,

undisputably constitutes protected activity.

Although Plaintiff engaged in protected activity by

filing her EEOC charge of discrimination on June 22,

2001, she cannot show that she suffered any adverse

employment action. An adverse employment action is an

ultimate employment decision, such as discharge or

failure to hire, or other conduct that “alters the

employee's compensation, terms, conditions, or privileges

of employment, deprives him or her of employment

opportunities, or adversely affects his or her status as an

employee.” Gupta v. Fla. Bd. of Regents, 212 F.3d 571,

587 (11th Cir. 2000). An employee does not have to be

‘the victim of an ultimate employment decision such as a

wrongful termination or a discriminatory promotion to be

the victim of an adverse employment action. Wideman _v.

Wal-Mart Stores, Inc., 141 F.3d 1453, 1456 (11th Cir.

1998). The employment action, however must rise to a

level of substantiality. Stavropoulos v. Firestone, 361 F.3d

610, 617 (lith Cir. 2004). Plaintiff must therefore show

that a reasonable person would find that the action seriously

and materially adversely changed the terms, conditions, and

privileges of employment. Davis v. Town of Lake Park, 245

F.3d 1232, 1239 (1ith Cir. 2001); Doe v. DeKalb County

Sch. Dist.. 145 F.3d 1441, 1453 (11th Cir. 1998). Not

"every unkind act" amounts to an adverse employment

action; an empioyment action that imposes some de minim

is inconvenience or alteration of responsibilities does not

rise to the level of substantiality necessary to constitute an

adverse employment action. See Wu v. Thomas, 996 F.2d

271, 274 n.3 (11th Cir. 1993); Doe, 145 F.3d at 1453.

Applying the law to the facts of this case, Plaintiff

46

cannot show that she suffered an adverse employment

action. First, staring at and/or not speaking to an employee

are not adverse actions. See Raymond v. U.S. Capitol

Police Bd., 157 F. Supp. 2d 50, 59 (D.D.C. 2001) ("co-

worker ostracism does not constitute an adverse

employment action"); see also Roberts v. Segal Co., 125 F.

Supp. 2d 545, 549 (D.D.C. 2000) ("The fact that plaintiff

believes she was getting the cold shoulder from her co-

workers does not constitute a materially adverse

consequence or disadvantage in the terms. and

conditions of her employment so as to establish an adverse

personnel action."); Munday _v. Waste Mgmt. of N.Am..,

Inc., 126 F.3d 239, 243 (4th Cir. 1997) (holding that

harasser's conduct of yelling at the plaintiff during a

meeting, directing other employees to ignore her and to

spy on her, and generally refusing to communicate

with her concerning her employment-related complaints,

could not, as a matter of law, establish an adverse

employment action for the purposes of stating a retaliation

claim).

Second, with respect to Plaintiff's allegation that some

of her supervisory duties were taken away from her, the

record evidence shows that Plaintiff's role as liaison.

between the office operations (generating monthly reports)

and Defendant Roberts, when Mr. McLemore was out of the

office was de minimis, especially in light of the fact that

Plaintiff was havinz conflicts with Defendant Roberts and

complained about how he treated her. (See DSMF { 95-

96; Ogletree Dep. pp. 90, 146-47, 149-51, 165-66, 176-

77). Ms. Ogletree testified that Plaintiff was relieved that

she did not have to have as much contact with

Defendant Roberts. (Ogletree Dep. pp. 91-92, 160-61).

Further, there is no evidence that the removal of any

duties that required Plaintiff to have additional contact

with Defendant Roberts resulted in a loss of pay, change in

47

title, or a change in her shift, such that a reasonable fact-

finder could conclude that there was a material change in

. her employment. See Burlington Indus.. Inc. v. Ellerth, 524

U.S. 742, 761 (1998) ("A materially adverse change might

be indicated by a termination of employment, a demotion

evidenced by a decrease in wage or salary, a less

distinguished title, a material loss of benefits,

significantly diminished material responsibilities, or

other indices that might be unique to a particular

situation.”) (quoting Crady v. Liberty Nat'l Bank & Trust

Co. of Ind., 993 F.2d 132, 136 (7th Cir. 1993)) (emphasis

_ added); Snoddy vy. City of Nacogdoches, No. 03-41238, 98

Fed. App. 338, 342-43, 2004 WL 1161817, at *3 (Sth Cir.

May 25, 2004) (affirming district court's ruling that .

plaintiff could not show that his removal from a program

was an adverse action because although he "was no longer

required to perform additional training duties as a result of

‘the department's decision, his primary job title, pay,

hours, and benefits remained the same.").

Third, Plaintiff's allegations of not being permitted to

work extra hours during a busy time of the year, and being

required to fill out leave slip forms when reporting back to

work from a doctor's appointment simply do not amount to

a material change in her working conditions. Finally, with

respect to Plaintiffs allegation that she was given a negative

performance evaluation, the record does not objectively

support Plaintiffs contention that her 2001 evaluation was

"negative" simply because she was rated as meeting

expectations in all but two categories. Even if this rating

arguably was negative, it did not result in any economic

injury to Plaintiff and, therefore, is not adverse. See_Davis,

245 F.3d at 1240.

In sum, none of Plaintiffs allegations of retaliatory

conduct, individually, or collectively, establish an adverse

employment action. See Cantrell v. Jay R. Smith Mfg,

48

Co., 248 F. Supp. 2d 1126, 1137-39 (M.D. Ala. 2003)

(holding that plaintiff could not establish an adverse action

based on the following actions, individually or

collectively: a change in her duties to include clerical work;

plaintiff was assigned to report to a new supervisor;

plaintiff was not adequately trained or provided with the

tools for her Corel presentations; plaintiff did not receive

certain software; she was treated adversely in matters

relating to sick leave and she received a. negative job

performance evaluatior). Accordingly, Defendant CAU's

Motion fo Summary Judgment on Plaintiff's retaliation

claim should be GRANTED.

D. Plaintiff's State Law Claims

1. Intentional Infliction of Emotional Distress

Plaintiff alleges that she suffered emotional

distress as a result of Defendant Roberts’ gender

harassment. Defendant Roberts argues, however, that

Plaintiff cannot make out-a prima facie case of intentional

infliction of emotional distress because she cannot show

that his alleged conduct was intentional or reckless, that his

alleged conduct was extreme and outrageous, that there

is a causal connection between any stress suffered by

Plaintiff and Defendant Roberts' alleged conduct, and

Plaintiffs emotional distress was not sufficiently severe to

be actionable under Georgia law.

In order to state a claim for intentional infliction of

emotional distress under Georgia law, the plaintiff must

show that (1) the conduct was intentional or reckless; (2)

the conduct was extreme and outrageous; (3) there is a

causal connection between the conduct and the emotional

distress; and (4) that the emotional distress is severe.

Gaston v. S. Bell Tel. & Tel. Co.. 674 F. Supp. 347, 352

(N.D. Ga. 1987). Whether a claim rises to the requisite

level of extremeness and outrageousness is a question

of law. Yarbray v. S. Bell Tel. & Tel. Co., 409 S.E.2d

49

835, 838 (Ga. Ct. App. 1991) (citing Gordon v. Frost,

388 S.E.2d 362 (1989)). A claim for intentional infliction of

emotional distress requires more than an allegation that

plaintiff was offended or insulted. Kornegay v. Mundy, 379 |

S.E.2d 14, 16 (Ga. Ct. App. 1989). In fact, the burden on

plaintiff is "a stringent one." Ingram v. JIK Realty Co.,

404 S.E.2d 802 (Ga. Ct. App. 1991), cert: denicd, 199

Ga. App. 906. The conduct must "go beyond ‘all

possible bounds of decency, [so as to be] regarded as

atrocious, and utterly intolerable in a _ civilized

community." Norfolk S$. Ry. Co. v. Spence, 435 S.E.2d 680,

681 (Ga. Ct. App. 1993).

Factors to consider include the existence of a

relationship in which one person has control over another;

the actor's awareness of the victim's particular

susceptibility; and the severity of the resultant harm.

Trimble v. Circuit City Stores. Inc., 469 S.E.2d 776, 778

(Ga. Ct. App. 1996). The existence of a special relationship

between the actor and victim, such as that of employer to

employee, may, under certain circumstances, make

otherwise non-egregious conduct outrageous

because the very nature of the employee-employer

. relationship provides a captive victim who may fear reprisal

for complaining, so that the injury is exacerbated by

repetition, and it presents a hierarchy of structured

relationships that cannot easily be avoided. Id.; Bridges v.

Winn-Dixie Atlanta. Inc., 335 S.E.2d 445, 499 (Ga. Ct.

App. 1985). Nonetheless, while the existence of a

relationship in which one person has contro] over

another, such as the employer-employee relationship,

may contribute to the outrageousness of the situation, it is

not dispositive. Miraliakbari v. Pennicooke. 56) S.E.2d

483, 487 (Ga. Ct. App. 2002) (citing Troncalli v. Jones,

514 S.E.2d 478 (Ga. Ct. App. 1999)). Indeed, the

standard for intentional infliction of emotional distress

50

claim remains very high, and though "comments made

within the context of one’s employment may be horrifying

or traumatizing, [they] are generally considered a common

vicissitude of ordinary life." Hodor v. GTE Mobilnet

Inc., 535 S.E.2d 300, 302 (Ga. Ct. App. 2000)

(citations omitted). See, Somers v. Delta Air Lines,

No. 1:95-CV-652-ODE, 1996 WL 741379, *4 (N.D.

Ga. Sept. 4, 1996) (granting defendant's motion for

summary judgment on plaintiffs intentional infliction of

emotional distress claim based on ADA claim where

supervisor allegedly teased plaintiff about his illness and

told plaintiffs co-workers that plaintiff was trying to con

defendant); Fox v. Ravinia Club. 414 S.E.2d 243 (Ga.

Ct. App. 1991) (defendant's conduct in speaking to the

plaintiff in a hostile, intimidating, and abusive manner;

giving false reasons for »laintiffs termination, and

laughing at and taunting the plaintiff was insufficient to

state a claim for intentional infliction of emotional distress).

In order for a plaintiff to meet the requisite

level of outrageousness and egregiousness, “the

conduct must be of such serious import as to naturally

give rise to such intense feelings of humiliation,

embarrassment, fright or extreme outrage as to cause severe

emotional distress." Moses v. Prudential Ins. Co. of Am.

369 S.E.2d 541, 543 (Ga. Ct. App. 1988) (emphasis added)

(citing Bridges, 335 S.E.2d 445); Thomas v. Ronald A.

Edwards Constr. Co., 293 $.E.2d 383 (Ga. Ct. App. 1982)).

In addition, the severity of the mental distress is a factor

that the court must consider in determining a defendant's

liability because "liability clearly does not extend to mere

insults, indignities, threats, annoyances, petty oppressions,

or other trivialities." RESTATEMENT (SECOND) OF

TORTS §46 cmt. d (1965); see also Bridges, 335 S.E.2d

445.

Applying the law to the facts of this case and

51

construing the evidence in the light most favorable to

Plaintiff, the evidence is insufficient to meet the requisite

level of egregiousness or outrageousness in order to support

a claim for the intentional infliction of emotional

distress. Plaintiffs allegations that Defendant Roberts

spoke to her harshly, in a loud voice, nitpicked, told

her that if she could not do something then maybe

someone else needed to do her job, yelling at her about

going over his head with regard to a client complaint and

the issue of her sick leave, among other things, are not so

outrageous as to naturally give rise to such intense feelings

of humiliation, embarrassment, fright or extreme outrage

and be considered "atrocious, and utterly intolerable in a

civilized community.” Turnbull v. Northside Hosp.., Inc.,

470 S.E. 2d 464, 466 (Ga. Ct. App.) (quoting Yarbrough v.

SAS Sys.. 419 $.E.2d 507, cert. denied, (Ga. 1992), cert.

denied, (Ga. 1996); Moses, 369 S.E.2d at 543 (citing

Bridges, 335 S.E.2d 445). "[W]hile [Defendant

Roberts’] conduct may be viewed as harsh and

insensitive, the supervisor's responsibilities to oversee the

workplace and the employee's obligations to perform her

duties do not make such conduct.so extreme as to go

beyond all reasonable bounds of decency, and to be

regarded as atrocious, and utterly intolerable in a civilized

community.” Miraliakbari. 561 S.E. 2d at 486-88

(holding that plaintiff could not.a state claim for intentional

infliction of emotional distress where her supervisor told her

that she would be fired if she left work to go care for her

injured six-year-old child because this conduct, "while

certainly rude. . dof[es] not rise to the level of

outrageousness necessary to support a claim of

intentional infliction of emotional distress"); See also

Ms. v. Republic Indus. Inc., 260 F. Supp. 2d 1229,

1256 (N.D. Ga. 2003) (granting defendant's motion for

summary judgment on plaintiff's intentional infliction of

52

emotional distress claim where alleged harasser exposed his

sexual organs to plaintiff, in light of the fact that Plaintiff

herself engaged in sexual jokes and banter in the

workplace), aff d, 88 Fed. App. 390, 2003 WL 22994226

(11th Cir. Dec. 12, 2003). In contrast, cases in which

plaintiffs have alleged much more serious conduct,

such as sexual harassment coupled with sexual assault, have

stated a claim for intentional infliction of emotional

distress sufficient to withstand summary judgment. See,

e.g., Morgan v. Fellini's Pizza Inc., 64 F. Supp 2d.

1304 (ND. Ga. 1999) (denying defendant's motion for

summary judgment on plaintiffs intentional infliction of

emotional distress claim based on sexual harassment and

sexual assault); Coleman v. Hous: Auth. of Americus, 381

S.E.2d 303 (Ga. Ct. App. 1989) (holding that plaintiff's

allegations of harassment were sufficient to withstand

summary judgment where she alleged, inter alia,

that her supervisor .would call her into his office on

business and then turn the conversation to personal

matters involving sex, try to talk about masturbation and the

sexual practices of black women, showed her sexual

cartoons and asked her if she and her husband have tried

the act depicted in the cartoon, offered her a pornographic

video and offered to exchange such videos, told her sexual

and racist jokes, told her things like the way she wore a

dress "made him craw] all over," and inquired "if she knew

what her walk did to him.”). In the case presently before the

‘Court, the alleged harassing conduct simply does not rise to

the level of outrageousness as described in the above-cited

cases. Plaintiff likewise has not presented evidence that she

suffered severe emotional uistress. Although Plaintiff

contends that Defendant Roberts’ alleged conduct caused

her stress and thereby exacerbated her pre-existing medical

condition of Lupus, Plaintiff did not provide expert medical

testimony to that effect. Further, Plaintiff never indicated to /

eee

53

Defendant Roberts that his alleged verbal harassment was

causing her any medical complications. (DSMF § 109; PI.

Dep. pp. 315-16). See Gaston, 674 F. Supp. at 353

(finding that plaintiffs evidence of severity of emotional

distress was, at best, "merely colorable" because

although she argued that she had seen doctor for

headaches, exhaustion and high blood pressure, her

doctors suggested that her conditions were typical of

either menopause or hereditary tendencies.): Bridges_v.

Winn-Dixie Atlanta, Inc., 335 S.E.2d 445, 448 (Ga. Ct.

App. 1985) (holding that plaintiff could not state a claim

for intentional infliction of emotional distress because "the

symptoms of which she complains are those commonly

associated with multiple sclerosis; she acknowledges that

she did not consult her physician immediately after the

incidents complained of and therefore did not establish

the requisite causal connection; and the duration of the ©

allegedly distressful incidents was relatively brief”).

Accordingly, Defendants' Motion for Summary Judgment

should be GRANTED as to Plaintiffs claim for intentional

infliction of emotional distress.

2: Negligent Retention and Hiring

Plaintiff contends that Defendants are liable for

negligently hiring and retaining Defendant Roberts

because Defendant CAU knew or should have known

about Defendant Roberts’ propensity to harass female

employees because some employees complained about

Defendant Roberts’ when he was an independent

contractor working as an auditor for Defendant CAU prior

to his hire in 1998.

In order to sustain a claim for negligent retention, a

plaintiff must show that the employer knew or should have

known of the employee's propensity to engage in the

conduct which caused his injury, by proffering evidence

that is substantially related to the injury-causing conduct.

54

Herrin Bus. Prod.. Inc. v. Ergk, 563 S.E.2d 442, 446 (Ga.

Ct. App. 2002) (citing Tecumseh Prod. Co. v. Rigdon,

$52 S.E.2d 910, 912 (Ga. Ct. App. 2001)). Therefore, in a

workplace harassment case, a plaintiff must show that the

employer knew or should have known, in the

exercise of reasonable care, of an employee's

reputation for harassment, that it was foreseeable that the

employee would harass other employees, and nevertheless

hired or retained the harassing employee. Coleman, 381

S.E.2d at 307; Cox v. Brazo, 303 S.E.2d 71, 73 (Ga. Ct.

App.), aff d, 307 S.E.2d 474 (1983). The Court should

consider "whether the employer promulgated an express

policy discouraging unlawful discrimination, provided a

mechanism by which employees could complain, and

promptly responded to the complaints." Coleman, 381

S.E.2d at 307. Further, "if an ordinarily carefu' employer

acting upon the information furnished could have

reasonably discovered that its supervisor was inflicting

emotional distress upon its employee, the employer could be

found to have negligently retained the supervisor." Id. Thus,

a negligent retention claim is essentially a derivative claim

of an intentional infliction of emotional distress claim. See

Phinazee v. Interstate Nationalease. Inc., 514 S.E.2d 843,

846 (Ga. Ct. App. 1999) (citing Coleman, 381 S.E.2d at

307).

Applying the law to the facts of this case, Plaintiff

cannot sustain a claim for the negligent retention of

Defendant Roberts. Having already determined that Plaintiff

cannot state a claim for the intentional infliction of

emotional distress because Plaintiff failed to show an

injury—severe emotional distress— Plaintiff's derivative

negligent retention claim must also fail. See Phinazee, 514

S.E.2d at 846. That notwithstanding, Plaintiff has not

presented sufficient evidence that Defendant CAU had

previously been put on notice of Defendant Roberts’

55

tendency to harass female employees on the basis of their

gender. Although Plaintiff argues that Defendant CAU was

aware of some complaints about Defendant Roberts when

he was an external auditor for the university and prior to

being hired by the university, Plaintiff has not proffered

evidence that Defendant CAU was aware that Defendant

Roberts had a propensity to specifically harass female

employees because of their gender. Rather, Plaintiff's

evidence shows that prior to and after Defendant

Roberts’ hire, Defendant CAU received complaints or was

aware of Defendant Roberts' abrasive personality and

management toward male and female employees.

Specifically, Mr. Poitier testified that prior to Defendant

Roberts’ hire, he told his boss, Dr. Charles Teamer, that his

experience in working with Defendant Roberts has "always

been somewhat negative in the sense that where [sic] we

go, he creates this kind of rift. . . .You don't need that

divisiveness in this office. It's going to be too divisive.

It's going to create problems." (Poitier Dep. pp. 22-23).

Mr. Poitier testified that he was against Defendant

Roberts being hired, and his opinion was based, in part,

on comments from his employees, such as Patrick

Thomas, who expressed to Mr. Poitier that he could

not work with Defendant Roberts, and that he would

quit if Defendant Roberts was hired. (Poitier Dep. pp. 23-

24). Mr. Poitier also testified that his secretary at the time,

Latonya Franklin, had complained to him that Defendant

Roberts had spoken to her in a disrespectful way, and when

he brought the issue to Defendant Roberts’ attention,

Defendant Roberts’ stated, "That damn gir] doesn't

know what she['s] talking about.” (Poitier Dep. pp. 14-17).

Similarly, James Clausell, an owner of a business

that contracted independent federal auditors and had

worked with Defendant Roberts for several years, informed

Dr. Teamer that he did not believe that Defendant Roberts

56

was a good match for Defendant CAU. (Clausell Dep. pp.

6-7, 23-25). Mr. Clausell based his opinion on the fact that

while Defendant Roberts was an external auditor for the

university, Mr. Clausell received complaints from two

CAU employees, Ms. Pressley and Mr. Singh, that

Defendant Roberts was very abrasive, disagreeable,

aggressive and impatient, and that Defendant Roberts

would have to supervise these individuals if hired by

Defendant CAU. (See Clausell Dep. pp. 10-25). In addition,

Mr. Clausell testified that he was aware that Defendant

Roberts had a "reputation. . .not only with females but males

as well about the way he's very abrasive, very aggressive

kind of person, manager." (Clausell Dep. p. 12). Mr.

Clausel] also remarked that Defendant Roberts "had very

little patience with people he thought in his mind were

incompetent," that "[i]f he thought you couldn't do the

job, he didn't have much use for you," and, in that regard,

"it didn't matter if you were a man or a woman ." (Clausell

Dep. pp. 26-27). Mr. Clausell expressly stated that his

Opinion on why he did not believe Defendant Roberts would

be “a good match for the university" was not based on any

belief that Defendant Roberts would discriminate against

women. (Clausell Dep. pp. 27-28).

Neither Mr. Poitier's nor Mr. Clausell's testimony

indicates that Defendant CAU was aware that prior to

hiring Defendant Roberts, he verbally harassed women

because of their gender. Rather, their testimony shows that

Defendant Roberts was abrasive with both male and female

employees, and thus it was not foreseeable that Defendant

Roberts would discriminate or harass female employees

because of their gender after being hired by Defendant

CAU. Likewise, Plaintiff has not proffered evidence that

after Defendant Roberts was hired, Defendant CAU knew

of but ignored Defendant Roberts’ propensity to verbally

harass female employees on the basis of their gender.

57

As previously discussed, Plaintiff's own complaint to HR

related to Defendant Roberts’ abrasive personality and

management style, and did not expressly state that she felt

she was being treated differently or harassed because she

was female. Consequently, Plaintiff has not shown that

Defendant CAU knew or should have known of

Defendant Roberts' propensity for verbally harassing

female employees, or specifically Plaintiff, on the basis

of her gender, and negligently hired and retained him.

Accordingly, CAU's Motion for Summary Judgment should

be GRANTED as to Plaintiff's claim for negligent retention.

CONCLUSION

For the foregoing reasons, IT IS RECOMMENDED

that Defendants’ Motions for Summary Judgment be

GRANTED. Docket Entries [44 and 45]. As this a is a final

Report and Recommendation, the clerk is DIRECTED to

terminate the reference to the undersigned.

SO REPORTED AND RECOMMENDED,

this 3rd day of FEBRUARY, 2005.

s/Linda T. Walker

LINDA T. WALKER

UNITED STATES MAGISTRATE JUDGE

IN THE UNITED STATES DISTRICT COURT

58

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EULICE M. HOLLIMAN, CIVIL ACTION NO.

Plaintiff, 1:03-CV-0132-JEC

v.

CLARK ATLANTA UNIVERSITY,

INC., et al.,

Defendants.

ORDER

This Title VI] case has been assigned to this Court.

Plaintiff alleges sexual harassment, contending that her

supervisor allegedly interacted with her in a

"demeaning" and "belittling" manner and “talked to

Plaintiff in a harsh, militaristic, and demeaning

tone....". (First Amended Complaint [4j11 15-17).

Presently there are several motions pending before the

Court, including motions by the defendants for summary

judgment.

Title VII cases are routinely referred to a magistrate

judge, pursuant to Internal Operating Procedure No.

920-2(a), NDGa. This case was not so referred by the

Clerk, however, presumably because, in her original

complaint [1], the plaintiff indicated that she was filing

the action as a class action. /d. at 1 9-10.

Internal Operating Procedure Rule 920-2(a) provides that

class actions shall not be referred to the magistrate judge

pursuant to that rule.

In her Amended Complaint, however, paragraphs

9-10 no longer seek class action treatment. Moreover,

even if paragraphs seeking class status are located

anywhere else in the Amended Complaint---and the Court

has not discovered any such paragraphs in its quick scan of

the. Amended Complaint--plaintiff has not properly

59

asserted a class action as she has failed to file a motion

to certify class within ninety days after filing the

complaint. See LR 23.1B, NDGa. Hence, this case is not

a class action.’

Therefore, the Court directs the Clerk to refer this case

to a magistrate judge to resolve the pending motions.

SO ORDERED, this 18th day of October, 2004.

s/Julie E. Carnes

UNITED STATES DISTRICT JUDGE

' Even had plaintiff sought class treatment, such

would have been denied in this case. This case appears

to involve nothing more than a hostile environment claim

by plaintiff based on her negative interactions with her

supervisor. Such fact-specific claims are not typically

amenable to class treatment.

60

IT. OTHER ESSENTIAL MATERIAL

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF GEORGIA

ATLANTA DIVISION

EULICE M. HOLLIMAN, :

Plaintiff : CIVIL ACTION

VS. : NO. 1:03-CV- 0132-JEC

CLARK ATLANTA

UNIVERSITY, INC., et al.

Defendants

PLAINTIFF’S RESPONSE TO DEFENDANT CLARK

ATLANTA UNIVERSITY, INC.’S S' rATEMENT OF

MATERIAL FACTS AS TO WHICH THERE IS NO

GENUINE ISSUE TO BE TRIED

Plaintiff Eulice M. Holliman (‘“Holliman” or

“Plaintiff”) by counsel, and pursuant to Fed.R.Civ.P. 56 and

L. R. 56.1(B){2), submits this Response to Defendant’s

Statement of Material Facts as to Which There is no

Genuine Issue to be Tried. Because these facts, under the

applicable law discussed in Plaintiffs supporting

memorandum, demonstrate that there are genuine issues of

material facts for a fact finder to decide, Defendant Clark

Atlanta University, Inc. is not entitled to a summary

judgment as a matter of law.

Defendant’s Material Fact 1: Plaintiff began working

for CAU on July 19, 1991, as a temporary employee in the

Accounts Payable department, and she became a full-time

employee (i.e., an Accounts Payable Clerk) on or about

August 19, 1991.(Holliman Dep. p. 32).

Plaintiff admits 1

Defendant’s Material Fact 2: Richard McLemore

("McLemore") became the Accounts Payable Manager, and

61

Plaintiff's immediate supervisor, in February 1998.

(McLemore Dep. pp. 13-14; Holliman Dep. p. 75).

Plaintiff admits 2

Defendant’s Material Fact 3: Plaintiff began serving

as McLemore's lead person when he became the Accounts

Payable Manager in February 1998, because she had been

there the longest and had the most knowledge of how the

Accounts Payable department operated within the overall

organization (i.e., CAU). (McLemore Dep., pp. 19-20).

Plaintiff disputes 3: Plaintiff disputes the implication

that Plaintiff began serving as a “lead person,” when, to the

contrary, she was serving in a supervisory capacity.

McLemore testified that while he was working the

fraudulent activities investigation, he basically put the

accounts payable department in Holliman’s hands “to run

the operation of the accounts payable department.”

(McLemore’s Dep. 19, L16). McLemore testified Holliman

was managing things after he came to the Accounts Payable

department. (McLemore’s Dep. 32, L14-p33, L15).

Defendant’s Material Fact 4: Basically, Plaintiff was

responsible for directing all of the work that came through

the department. (McLemore Dep., p. 23).

Plaintiff admits 4: except that Plaintiff also performed

supervisory task over other employees. (McLemore’s Dep.

19, L16; p. 32, L14-p33, L15).

Defendant’s Material Fact 5: Plaintiff eventually

assumed the title Accounts Payable Supervisor. (Holliman

Dep., p. 234).

Plaintiff disputes 5: The evidence shows Plaintiff was

performing the Accounts Payable supervisor’s position for

about a school year before McLemore voiced his

recommendation that she be promoted to the position.

(McLemore’s Dep. 32, L25-p33, L15). McLemore gave

Holliman that responsibility when he first arrived to the

62

Accounts Payable department, (McLemore’s Dep. P. 10,

L24-p. 11, L1; p. 19, L16).

Defendant;s Material Fact 6: Roberts was initially

hired by CAU in January 1998, to assist the University in

resolving some issues relating to the administration of its

student financial aid programs. (Roberts Dep., pp. 34-36).

Plaintiff admits 6.

Defendant’s Material Fact 7: Prior to his hiring by

CAU in January 1998, Roberts had performed auditing

services for the University for several years as external

auditor with Clausell & Associates. (Roberts Dep., p. 34)

Plaintiff admits 7.

Defendant’s Material Fact 8: In or about July 1998, |

Roberts became the Assistant Vice President of Finance and

Administration and Comptroller for CAU

("AVP/Comptroller").(Roberts Depo., pp. 60, 74).

Plaintiff admits 8.

Defendant’s Material Fact 9: In that position, Roberts

had managerial responsibility over several accounting

departments, including Accounts Payable, the department in

which Plaintiff. worked. (Roberts Dep., p. 74).

Plaintiff admits 9.

Defendant’s Material Fact 10: McLemore reported

to Roberts. (McLemore Dep., p. 27;. Young Dep., p. 12).

Plaintiff admits 10. ;

Defendant’s Material Fact 11: Roberts also had

managerial responsibility for General Accounting, Payroll,

and Cash Management and Investment. (Id.)

Plaintiff admits 11.

Defendant’s Material Fact 12: Bobby Young became

the University's Vice President. for Finance in October

2000.(Young Dep., p. 8)

Plaintiff admits 12.

Defendant’s Material Fact 13: Roberts then reported

to Young. (Young Dep., p. 11).

63

Plaintiff admits 13.

Defendant’s Material Fact 13 (sic): According to

Plaintiff, beginning in or about December 2000, Roberts

began to demonstrate a pattern of abuse towards her.

(Holliman Dep., pp. 37-38). |

Plaintiff disputes 13: Plaintiff recalls a month after

Roberts was in his new position as Assst. V.P. of

Finance/Comptroller, Roberts spoke to her in “a harsh and

demeaning tone, thrusting his head from side to side with a

look of disgust on his face, slowly speaking to me as if he

was acting like a crazy man.” (Plaintiff's Aff., 4 15).

__ Defendant’s Material Fact 15: Plaintiff contends that

Roberts routinely spoke to her in a “harsh, militaristic and

demeaning tone," and interacted with her in a “disdainful

and disparaging manner.” (Complaint 49[ 18-19).

Plaintiff admits 15.

Defendant Material Fact 16: By typewritten

statement dated March 15, 2001, Plaintiff formally

complained CAU 's Human Resources department about

"the manner [in which] Mr. Roberts chooses to speak to the

staff." (Holliman Dep., pp. 110-111; Holliman Dep., Exh.

6). |

Plaintiff disputes 16: Plaintiff disputes the

implication in J 16 that Plaintiff invoked CAU’s formal

Complaint Resolution Procedure by submitting a

typewritten statement to CAU’s Human Resources

department, when, to the contrary, the evidence shows

Plaintiff invoked CAU’s formal Complaint Resolution

Procedure by following Step One of CAU’s Complaint

Resolution Procedure that required her to discuss her

problems with her supervisor, McLemore. See Section 5.7

entitled “Complaint Resolution Procedure” (“CRP”)

Plaintiff's Exhibit 1 to Young’s Dep., Bates Number CAU

000502. Holliman complained repeatedly to McLemore.

(McLemore’s Dep., p. 56, L19-22). Plaintiff invoked Step

64

two of the CRP by complaining to Bobby Young, the

department head. Young admitted that he is the department

head and Young admitted that Step 2 requiring employee to

take unresolved problem to department head in Holliman’s

case meant him and Holliman complied with policy.

(Young’s Dep., P.129, L15-23). The CRP policy does not

require the employee to invoke the CRP policy through the

Human Resources department (“HR”) at all. In the present

case, Young referred Plaintiff to HR. (Holliman’s Dep.,

P.112, L15-p. 113, L3)and (Young’s Dep., P. 23, L19-23; p.

25, L4-8).

Defendant’s Material Fact 17: In her HR complaint,

Plaintiff claimed that Roberts "never allows you to finish a

sentence before cutting in and attempting to make you

[feel] inferior and stupid.” (Holliman Dep., Exh. 6).

Plaintiff admits 17.

Defendant Material Fact 18: She also stated that

“Mr. Roberts seems to enjoy his military tactics.” (Id.)

Plaintiff admits 18.

Defendant”s Material Fact 19: According to Plaintiff,

Roberts spoke to her using "harsh" and "military". tones

which was "very embarrassing in front of [her] co-

workers." (Id.) ;

Plaintiff admits 19.

Defendant’s Material Fact 20: Plaintiff further

contended that "[t]his is the way Mr. Roberts talks to all the

staff and he does not care whom he attacks you in front of.

(Id.)

Plaintiff admits 20.

Defendant’s Material Fact 21: Plaintiff complained

that she "and other staff members” find themselves

"walking on eggshells all the time,” and that "[t)his has

create’! 22 unbearable work environment for others and

myseli.” cid.)

Plaintiff admits 21.

65

Defendant’s Material Fact 22: Plaintiff also stated

that, on several occasions during discussions with Roberts,

she had "observed" the smell of alcohol on his breath. (Id.)

Plaintiff admits 22.

Defendant’s Material Fact 23: Plaintiff questioned

whether "this is also contributing factor to his behavior."

(Id.)

Plaintiff admits 23.

Defendant’s Material Fact 24: Plaintiff concluded her

typewritten statement by stating: "I hope that this matter

will be resolved and myself and the rest of the staff can get

back to the business of the University.” (Id.)

Plaintiff admits 24.

Defendant’s Material Fact 25; Plaintiff met with

CAU HR representative Tanya Shockley on March 15,

2001, discuss her internal HR complaint. (Holliman

Dep., p. 111)

Plaintiff admits 25.

Defendant’s Material Fact 26: Because Plaintiff's

internal complaint did not raise issues of unlawful

discrimination or harassment (i.e., which would have

triggered an investigation under CAU's "Sexual Harassment

Policy"), but instead focused on Roberts’ alleged abusive

"militaristic management style, the matter was designated

for treatment under the University's "Complaint Resolution

Procedure” (i.e., the complaint resolution mechanism used

for addressing grievances other than those based on

unlawful discrimination or harassment). (Young Dep., pp.

127128).

Plaintiff disputes 26:

CAU’s Sexual Harassment Policy provides, “the

University is committed to maintaining an educational and

working environment free of conduct which degrades or

subjugates employees or students. This policy applies

equally to faculty, administrative and support staff and

66

students.” See Plaintiff's Exhibit 1 to Young’s deposition,

Section 1.2 entitled “Sexual Harassment Policy” at Bates

Number CAU 000442. Plaintiff states in her internal

complaint dated March 15, 2001 that she was complaining

about Roberts treating her in a very condescending manner:

“He never allows you to finish a sentence before cutting in

and attempting to make you fell (sic) inferior and stupid.”

When the evidence is viewed in the light most favorable to

Plaintiff, it is revealed that Plaintiff is complaining about

Roberts’ conduct because she feels it is degrading. The term

“degrade” is defined “c: to lower to an inferior or less

effective level.” See Merriam-Webster’s Collegiate

Dictionary, Tenth Edition (1998). Roberts’ conduct was

making Plaintiff feel inferior and stupid, the type of conduct

CAU’s Sexual Harassment Policy expressly prohibits.

Plaintiff complied with Section 1.2.1 entitled “Procedure

for Complaint” of CAU’s Sexual Harassment Policy, that

provides, “Any employee who feels that he or she has been

the victim of sexual harassment should contact the Director

of Human Resources within fifteen (15) working days of

the incident. This report can be oral or written, but a

written and signed statement of the complaint must be

submitted by the complaining employee within three (3)

working days of the initial report before an investigation

can proceed.” See Plaintiffs Exhibit 1 to Young’s

depc sition, Section 1.2.1 entitled “Sexual Harassment

Policy” at Bates Number CAU 000443. The last incident

before Plaintiff filed her internal complaint occurred on

March 1, 2001. See Defendant’s Exhibit 6 to Holliman’s

Dep., Bates Number EEOC FOIA-0044. Computing in

accordance to the policy, Plaintiff had until March 22,

2001, 15 working days later, to file her complaint. (/d.)

Plaintiff made an oral report to HR on March 14, 2001,

after she left meeting with Young, (Holliman’s Dep. P. 112,

L112-p. 113, L3), and subsequently submitted her written

67

and signed statement of the complaint on the next day

March 15, 2001. (Holliman’s Dep. P. 113, L4-11). Young

admitted that when Holliman came to his office about her

interactions with Roberts, she was talking about negative

interactions and he viewed what Holliman said to him as a

“complaint about Mr. Roberts.” (Young’s Dep., p. 22, L3-

7). Young further admitted that the major thrust of

Holliman’s complaint was “That Mr. Roberts’ conduct was

unprofessional and demeaning and militaristic.” (ID. at p.

23, L5-8). Young admitted that Step of the CRP requiring

employee to take unresolved problem to department head in

Holliman’s case meant him and Holliman complied with

policy. (Young’s Dep. P. 129, L15-23). Young further

admitted that he advised Holliman and HR that he had a

discussion with Roberts and for that reason the grievance

process never progressed to Step Three of the CRP

requesting further investigation of the problem, (Young’s

Dep. P. 133, L7-11), and Young admitted Holliman’s

grievance process stopped at Step Two, (JD. at p. 134, L20-

p. 135, L4), and Young admitted he considered the matter

of Holliman’s complaint closed after he counseled Roberts,

(iD. at p. 135, L17-22). Young admitted that he had

received a complaint about Roberts’ conduct from another

female employee about two or three months after he first

became employed at CAU in October 2000, (7D. at p. 235,

L12-p. 26, L6), and that the nature of this complaint was

“About how he talked, how he talked was demeaning and

harsh” from Melba.Carmichael, a direct report to Roberts

(ID. at p. 26, L7-24). Young admitted he received a

complaint from T. J. Singh, a male employee working in

the General Accounting Department and a direct report to

Karen Sutton, wherein Singh complained that “Mr. Roberts

was harsh, talked to him in a very unprofessional,

demeaning manner”. . . “Made him fee] little”. (/D. af p.

30, L3). Marietta Blalock testified that in her location at the

68

front desk she observed interactions between Roberts and

Singh and observed “Mr. Singh wouldn’t fight back. . . . He

[Roberts] was just belligerent as he was, you know... . . but

Mr. Singh was the type of man that wouldn’t fight back,”

and Roberts did not yell at Singh: “It’s no need to yell

when you talk to somebody like that” because Roberts

would just talk over him. (Blalock’s Dep., p. 23, L2-25). T.

J. Singh testified that he didn’t think Roberts’ conduct was

based on Singh being from India, but Singh also said, “That

never — I don’t remember, to be honest with you, . . . As far

I’m concerned, I don’t think, he based that decision on that,

that I’m Indian or whatever.” (Singh’s Dep., p. 48, L3-p.

49,111). Singh was not aware of Roberts said behind his

back: “He used to say that T. J. was dumb and — there was

another person in grants and contracts, and he left. . . .it was

Saba’s husband, and | can’t remember his name. But I

know: the last name was Tesfamariam or something like

that, (Carmichael’s Dep. 91, L19-24), and Roberts said

about Singh: “He would just say certain things, you know,

just in speaking, in conversation, like those people or those

type of people do this or they don’t do that or they don’t

believe in this or they believe in that or they don’t observe

certain things the way we do or they run their houses —

they-re over their women and they tell the women what to

do and the women do it and don’t say anything” and similar

. comments about Saba’s husband. (Carmichael’s Dep. 92,

L23-p.93, L11). Young admitted he investigated Plaintiffs

internal complaint by only talking to and counseling

Roberts. (Young’s Dep., p. 130, L6-22). When the

evidence is viewed in the light most favorable to Plaintiff, it

is revealed Plaintiff properly invoked CAU’s Sexual

Harassment Policy, that HR failed to carry out its duty to

launch an investigation, even if Young mistakenly thought

Plaintiff only invoked Section 5.7 CAU’s Complaint

Resolution Procedure, Young failed to conduct an

69

investigation outside of talking to the alleged harasser

Roberts himself and Young was quick to shut down the

grievance process, Young had prior notice of Roberts’

propensity to degrade and demean female employees from

Carmichael’s earlier in time complaint before Holliman’s,

and Young failed in his responsibility under CAU’s Sexual

Harassment Policy, CAU 000443, to create “an atmosphere

free of discrimination and harassment, sexual or otherwise.”

By .Defendant’s own admission in its § 26, CAU did not

investigate Holliman’s complaint under its Sexual

Harassment Policy.

Defendant’s Material 27: Consequently, the matter

was forwarded to Roberts’ immediate supervisor, Bobby

Young, CAU's Vice President for Finance and

Administration, for resolution. (Young Dep., 130).

Plaintiff disputes 27: Plaintiff incorporates herein her

response to Defendant’s Material Fact 26 above in its

entirety.

Defendant’s Material Fact 28: Young met with

Roberts to show him Plaintiff's typewritten internal

complaint and request that Roberts provide a formal written

response thereto. (Young Dep., p, 130; Roberts Dep., pp.

138-140).

Plaintiff admits § 28.

Defendant” Material Fact 29: Roberts promptly

responded by letter dated March 27, 2001.(Young Dep., p.

164; Young Dep., Exh. 3).

Plaintiff admits 29: only to extent Roberts provided a

response.

Defendant’s Material Fact 30: Roberts referred to the

language used in' Plaintiffs internal complaint as

"inflammatory" and stated that "this was a routine matter

and an integral part of her duties." (Young Dep., Exh. 3).

Plaintiff disputes 30: Roberts viewed Holliman’s

internal complaint narrowly to encompass one single

70

question. (Young Dep., Exh. 3). Holliman states in her

complaint “During these years, I have never been talked to,

in the manner Mr. Roberts chooses to speak to the staff.”

(Holliman Dep., Exh. 6). There is extensive evidence

supporting Holliman’s internal complaint:

(a) Joyce Stafford observed Roberts’ interaction with

the CAU staff during period of time Roberts was an

external auditor:

“_. .oftentimes, I was relaying information to Mr.

Roberts from other staff persons. There were

complaints sometimes that he talked harshly to

females, or he talked down to them like they were

beneath him. So oftentimes, I came in to kind of

relay information to him rather than those persons

having to go to him directly."

(Stafford’s Dep., p. 7,L25-p. 8, L9). Stafford also had

contact with Roberts at her new job at the Morehouse

School of Medicine, working for Eli Phillips, a vice

president. Two female staff members told Stafford why

they wanted to meet with Phillips:

“they said that they refused to work with him

[Roberts] any longer because of his demeaning

attitude, the way that he talked with them. He

treated them like they were brainless. They were

both accountants, and he treated them like they

lacked skills and did-not know their jobs. And at

that point, they went in to meet with Mr. Phillips

to ask that he be removed from the job. ... Mr.

Phillips called Mr. Clausell and made the request,

and he was removed from the job.”

(Stafford’s Dep., p. 10,L24-p. 11,L18). ‘

(b) Terryl Obasanya worked for CAU about six to

seven years prior to working for the Morehouse School of

Medicine. (Obasanya’s Dep., p. 6,L10-24). Obasanya

recalls how Roberts communicated with her: “He just more

7i

or less talked to me like I didn’t know what I was doing. ..

. So after a while, it became such a problem that we had to

let him go early from the project because it was just too

much confusion.” (Obasanya’s Dep., p. 10,L25-p. 11,L11).

Obasanya recalls how she felt: “Just upset because I knew

my job. I just felt like he thought I didn’t know what I

needed to help get the job done.” (Obasanya’s Dep., p.

11,L16-21). Obasanya recalls telling the vice president at

Morehouse

“that we needed to let him go because we couldn’t

get anything done with him arguing so much... .

since he was working for me and he was my

consultant, [ didn’t feel the arguments were

warranted because [ felt if I’m — if I’m supplying

the job, then you should do as I ask you to do.”

(Obasanya’s Dep., p. 12,L6-20).

(c) Toyah Ellis came in contact with Roberts every

year at audit time and recalls her interactions with him were

constant conflicts. (Ellis’s Dep., p. 11,L5-p. 12,L11). Ellis

recalls when Roberts’ attitude towards her became less than

professional:

“Mr. Roberts’ demeanor is aggressive and abrupt

anyway, and he would be very condescending as

if, .. . he would talk to you as if... you guys

really don’t know what you’re doing. You really .

. . aren’t equipped to do the job. He would have

real, real bad confrontations with Pam Pressley,

and I worked for her. So there was always an

occasion where I would be in the room, and they

would . . . go back and forth about the staffs

ability. And, of course, most of the staff were all

women . . . I can recall one that stands out in [my]

mind that he had with me as far as Dorothy

Alexander . . . she was one of the older members

on my staff. And her duty all day was just to sit

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and key journal entries. And he would come and

ask, ... for... samples where he wanted us to pull

certain journal entries so they could perform their

audits. One time we had a conversation. I said,

“Well, Dorothy is going to get the journal entries

you requested.’ And he said, ‘Dorothy Alexander

wouldn’t know a journal entry if it hit her in the

head.””

(Ellis’s Dep., p. 13,L18-p. 15,L1). Ellis always felt from

Roberts that “he doesn’t believe that women are able to do

a job as well as a man, and I always got that from him.”

(Ellis’s Dep., p. 15,L22-p. 16,L4). As an example, Ellis

testified:

“. . . [t]he accounting area was all women except

for one male, and that was Christian. Then we had

another staff of accountants that worked in what

we called Grants and Contracts, they were

accountants also, but they handled all the grant

accounting, and that staff was all men. ...But..

the way he interacted with the male professionals

there (sic) was very obvious to everyone it was

completely different than the way he interacted

with the female staff. . . . Our procedures and the

way we kept records in the Genral Accounting

area was pretty consistent with the way they did in

Grants and Contracts area, but we could have the

identical procedure but for the General Accounting

area, he would . . . make comments about . . . it’s

not right, it’s not enough. And if I pull the exact

same procedure out of Grants and Contracts, he

would not have made any paper comments about .

. . the way that they kept their records or the way

they did things.”

73

(Ellis’s Dep., p. 16,L4-p. 17,L6). Ellis observed that even

her one male subordinate Christian enjoyed a more

favorable relationship with Roberts:

“fh}e interacted with that group, Mr. Roberts and

the male accountants in Grants and Contracts, and

he made the comment with Mr. Roberts standing

there one time to me because I didn’t have any

children and I wasn’t married, and during

accounting, you would have to work long hours on

closing, ‘Why don’t you go home and have some

babies?” And Mr. Roberts chuckled, and they

went on down the hall into Grants and Contracts.

So, . . . it felt like even though it was all black —

it’s a black establishment, it felt like a good-old-

boy system but just female versus male instead of

white people versus black, and that was just is

environment.”

(Ellis’s Dep., p. 17,L7-22). Ellis recalls signing a

document that might have been a petition about Roberts’

conduct:

“Some of us signed witnessing a behavior that he

[Roberts] had toward a female staff member at the

university. ... I believe it was Tom Poitier’s

secretary. He yelled at her and made some

offensive comments. He went in looking for Tom,

and she said, ‘Well, he’s not in right now.” .. . I

can’t remember what the actual comments was.

But she was in tears. And we were just standing

their like, what is he yelling about?”

(Ellis’s Dep., p. 17,L23-p. 18,L11).

(d) Latonia Franklin kept most of the files for the

departments, so if the auditors needed certain files, she

would normally retrieve those files, and for this reason, she

had to communicate with Roberts. (Franklin’s Dep., p.

9,L1-6). Franklin recalls Roberts’ conduct:

74

“It was very unpleasant working with Mr. Roberts.

I really hated working with Mr. Roberts, and I

hated the times that we had t do the audits so that I

wold have to work with him. . . . I cannot recall

word for word, but in our communications with

each other, it was as if I was nothing when he was

talking, as though I was beneath him when he

spoke with me, so anything — it didn’t matter what

the situation was as far as retrieving a file or if he

needed information that I had or anything like that,

it was basically how he talked to me.’

(Franklin’ s Dep., p. 9,L12-p.-10,L17). Franklin describes

Roberts’ conduct as degrading:

“Because he didn’t treat everybody the same way.

I mean, if you were Dr. Teamer or if you were Dr.

Cole, then there was a level of respect. If you

were somebody that worked under him, basically

you were beneath him, and he treated you like that

you were nothing.” |

(Franklin’s Dep., p. 10,L18-p. 11,L2). Franklin describes

her observation of Roberts with male employees:

“It was pretty much as though they were on the

same level, but as far as the rest of us, like Pam

and with myself and with the other women in our

department, it was completely different. Like |

said, it was as though you beneath him.”

(Franklin’s Dep., p. 11,L3-12). When Franklin was

working for Thomas Poitier, the new comptroller after

Pressley, her contacts with Roberts continued as before:

“It was basically the same, whenever he needed

information from Mr. Poitier, but by that time, Mr.

Roberts and myself weren’t on good terms; and

basically whenever he would ask me _ for

something, I would refer him to my boss and let

my boss ask me. ... Mr. Roberts and I had had a

75

couple of run-ins ourselves; and I got to the point

where it was very difficult for me to come to work,

and I filed a formal complaint myself... . With Dr.

Teamer and Mr. Poitier. .. . Basically that he was

beyond rude, and | didn’t like the way he was

treating me, and I just couldn’t take it anymore. . .

. Basically we talked about my run-ins with Mr.

Roberts and the things that occurred. I’d end up in

the bathroom crying, upset, ready to go home... .

Simply that the way he talked to me was very

degrading, it was upsetting to me, and I did not

want to work with him anymore. I[ don’t

remember if I had — I tried to resign at that time or

not, but I was — it was just very unpleasant for me

to come to work.”

(Franklin’s Dep., p. 21-p. 23,L19). Franklin recalls their

last run-in:

“T believe we were in the hallway. I can’t

remember why he had yelled at me or whatever,

but I was just really upset. And we had gotten

really close to being physical, and I walked away.

And | just couldn’t take it anymore, and I went to

Mr. Poitier and told him what happened. And at

that point, | just couldn’t take interacting with him

anymore.”

(Franklin’s Dep., p. 24,L12-23). As far as Franklin

remembers, there were no actions taken against Roberts:

“Basically Mr. Poitier just told me to let it go, just try to let

it go, try to get past it.” (Franklin’s Dep., p. 24,L24-

p.25,L5).

(e)Marinetta Blalock recalls she didn’t like Roberts’

impatience:

“J didn’t understand that. .., You would get

yelled at and you didn’t know why. ...Atme. I

didn’t answer him correctly. . . . It was just I’m

76

trying to answer a question, and he would be

impatient. You can’t give him an answer fast

enough.”

(Blalock’s Dep., p. 8,L22-25; p. 9,L1-p.10,L1). Blalock

recalls Roberts made her feel bad: “I didn’t want to come

to work . . . because J did not know how to conduct myself

so that I wouldn’t get in trouble with him.” (Blalock’s

Dep., p. 10,L17-24). Blalock testifies she worked with

Roberts on a daily basis; she sat at the front desk and often

heard Roberts interacting with other people. (Blalock’s

Dep., p. 20,L23-p. 21,L-6). Blalock testifies about Roberts’

tone of voice:

“It never like raised because the person would just

eventually shut up because they — he wouldn’t give

them a chance to say what they had to say... . I

thought it was just rude, you know, give people a

chance — I know that we all don’t have the same

educational level, but give people a chance to say

what they have to say. No, we may not say it the

way you want it said, but give people a chance to

say what they got to say.”

(Blalock’s De;., p. 21-p. 22,L12). There were two male

employees and Blalock did not ever hear Roberts talk over

either of the two men: “No. He seemed to be more careful

when he talked to men.” (Blalock’s Dep., p. 22,L14-p.

23,L1). Blalock recalls Teja Singh as the only male she

remembers Roberts “was kind of a little hands on. Mr.

Singh wouldn’t fight back.” (Blalock’s Dep., p. 23,L2-6).

Blalock recalls Mike Womble who sat on the other side of

the wall with her; she doesn’t know what tone Roberts used

with Womble because Roberts “took him to his office. He

asked him to come to his office.” (Blalock’s Dep., p.

24,L1-9). Blalock testifies that she didn’t make any formal

complaints about Roberts because “I felt like it wouldn’t do

any good. . . . Because I heard other people making

77

complaints, and it seemed like nothing was done.”

(Blalock’s Dep., p. 25,L12-18. Blalock recalls Plaintiff

complaining about Roberts: “She was just angry because

he had — the way he had talked to her.” (Blalock’s Dep., p.

27,L11-14). Blalock recalls Plaintiff filed a formal

complaint about Roberts’ conduct toward her and went

through procedures and “Jt seemed like nothing was done. .

. . | saw it because the behavior never changed. . . . I don’t

know what was supposed to happen, but I’m basing it on

the fact that his behavior didn’t change.” (Blalock’s Dep.,

p. 28,L11-25). Blalock testifies that Roberts did not

properly guide her: “If I was doing something incorrectly,

tell me. You don’t have to yell at me. . . . [ mean that

belligerent tone of voice. It’s no need to talk to me that

way, just tell me how you want the work done.” (Blalock’s

Dep., p. 31,L11-18).

(f) Paula Barnes, an accountant, testified that about a

month into her employment, Roberts gave her a “clerical-

type assignment. It was go to some files, pull some folders,

make copies of the information in the folders, put it in

alphabetical order, and give it back to him. ... There was

someone else, yes, that could have done that. . . . Marinetta

Blalock.” (Barnes’ Dep., p. 10,L2-25). Barnes recalls she

was disturbed:

“What was disturbing to me was the way he would

give me the assignments. .. . It was the way that

he would talk. ... He was rude, abrasive. He

didn’t treat me as a professional on an equal level,

and which I considered us to be. I had just as

much experience as he did. He just kind of talked

in a condescending way to me.”

(Barnes’ Dep., p. 11,L8-20). Barnes testifies that she

stayed in that office one week after that first assignment

from Roberts:

78

“Because I refused to work for someone who

didn’t have any respect for me, and I just could not

work with him under those conditions. [BJut it

was simple things, like when he would give me the

instructions, he would say, you should be writing

this down, simple instructions like pull a file, copy

the papers in it, put them in chronological and

alphabetical order. There was no need for me to

write that, but he made me write it. You need to

write that, so I did that. And then he made me

read it back to him, those kinds of things. And

then, do you understand, and I would say yes. Are

you sure you understand. I would say yes.

Unnecessary. That was just unnecessary,

unprofessional, uncalled for. ... After I would

complete the assignment following those exact

instructions that I had to write, he would say, this

is not what I asked for. It didn’t make sense. His

behavior did not make sense.”

(Barnes’ Dep., p. 12,L9-p. 13,L20). Barnes testifies

Roberts did not raise his voice, “but just whatever he said,

he said it in such a nasty way... . in a tone that’s not

professional, unnecessary.” (Barnes’ Dep., p. 14,L18-p.

15,11).

(g) Betty White recalls her first and last contact with

Roberts about four years ago concerning petty cash of

$4,000 in her custody after her supervisor Jean Chandler

died: ii

“T went to turn that money in $4,000, so I called

Mr. Roberts. He asked me to come to his office. I

can’t remember the entire circumstance, but we

needed more money. This is petty cash for change

for the football game. It was basketball season. . .

. When I went there, I stayed in his office I know

about 30 or 40 minutes waiting for him; stayed

79

there with his secretary. .. . She was getting ready

to go to lunch, and she told him that I was out

waiting for him. He was in with another young

lady. He said, I know she’s not waiting on me... .

Say come on in. He said, I know you not waiting

on me. I said, yes, Mr. Roberts, you asked me to

come up. He said, I’m with someone now. And

so I said, well, you asked me to come up. We need

somebody to sign for the $2,000 for — I can (sic)

do that since my supervisor has passed. He said,

You leave it with me. I said, no, I can’t leave it

with you. So I walked out.”

(White’s Dep., p. 5,L-21-25). White describes Roberts’

manner of talking to her as very nasty, harsh, and hitting his

desk (White’s Dep., p. 8,L-p. 9,L8).

(h) Jacqueline Jackson recalls meeting Roberts when

he was an external auditor for CAU: “He used to eat in the

dining hall at the university. And I’m just a friendly,

outgoing person so, .. . when I see somebody I just speak.

And I’ve had the occasion to sit and eat with him... . I just

thought he was a nice guy, you know, no problems.”

(Jackson’s Dep., p. 9,L4-21). After Roberts became a full-

time employce, Jackson recalls her interaction with changed

in a negative way when she was trying resolve problems

with students’ scholarships money:

“In my interaction with him, I was trying to

explain that to him, and he just went overbroad

with me... . He talked down to me... it was just

like he didn’t know me, he talked to me like I was

somebody didn’t know what I was doing. He

changed my words around and threw them at me.

It was just almost degrading, the way he was

talking to me. Then | had to back up and say,

“Wait a minute. Who do you think you’re talking

to? You can’t talk to me like that.”

80

(Jackson’s Dep., p. 10,Lil-p. 11,L25). Jackson recalls

going back to her office and telling her boss,

“I will not deal with him. There was other times

I’ve dealt with him, but that particular time was

when it was enough that I wasn’t taking anymore,

because I tried to explain it to him, and he was

going to out talk me every time. J would start

talking, he would talk, or he would change around

what I was trying to say and trying to confuse me.

Now, I’ve been doing this job since °92,. I don’t

remember when he came, but I know my job, and I

know how to handle it. I’m still doing the same

job. I’ve never had the confrontation of having to

deal with anybody like I dealt with him that day.

That day was it. I said I wasn’t dealing with

anymore. I told my boss I would go above or

below. I would not deal with him. I was not used

to being treated that way.”

(Jackson’s Dep., p. 12,L6-25).

(h) Annette Ogletree recalls occasions that she

observed Roberts’ conduct to be inappropriate:

“T feel that when you work in an environment and

you have females that work in an environment and

you have relationships with females outside the

work environment, I really don’t think that’s a .

good idea that you have relationships with females

outside. 1’m not saying relationships. I’m saying

maybe like a girl-boyfriend type relationship

outside of the job.”

(Ogletree’s Dep., p. 16,L15-p.17,L2). Ogletree

recalls a situation with one of her former female

coworker, Laquita Davis, (Ogletree’s Dep., p.

40,L3-8):

“I don’t know if he was dating her at the time that

she was an employee, but I know soon after she

8}

left Clark, he began to date her. . .. I know that she

was having problems with us in the office, and

instead of going through the chain of command

like she should have .. . like seeing Mr.

McLemore, which was our immediate supervisor,

she would go over his head and go back straight to

Mr. Roberts to . . . advise or tell him about the

problems that she was having wihin our office.”

(Ogletree’s Dep., p. 16,L15-p.17,L23). Ogletree recalls

seeing Holliman in the office crying as a result of her

contact with Roberts: “She was very upset and crying

because she felt as if he was, you know, picking on her. So

] mean, she cried on numerous occasions. I’ve seen her cry

after having a conversation with Mr.Roberts.” (Ogletree’s

Dep., p. 35,L24-p.36,L9). Ogletree recalls some of these

conversations between Plaintiff and Roberts occurred in his

office and a couple of them out in the front:

“ he was out front, . . . asking her the same

question over and over and over. And you could

see as if he was maybe harassing her in a way.

And so after she wouldn’t break down and cry in

front of him, but after he would leave, she would

break down and cry or go to the restroom and cry.”

(Ogletree’s Dep., p. 35,L24-p.36,L19). Ogletree testifies

that she wore her headsets as a way of not having to focus

on Roberts because:

“Basically to keep my sanity because that pacing

back and forth used to get on my nerves so bad,

you know, because it’s as if it was like he was

looking for something, looking for something to

complain about. So I felt if I tuned him out, you

know — a lot of times I would listen to gospel

music, you know, something to sooth me or relax

me or some jazz. So if I put my mind somehwere

else and not have to focus on him back and forth,

82

you know, I felt like I could get through the day,

I'd be fine.”

(Ogletree’s Dep., p. 37,L22-p. 38,L13). Ogletree recalls

Roberts blaming her and Plaintiff for something McLemore

did and Roberts had McLemore to write up Ogletree and

Plaintiff: }

“Nitpicking, memos. . . . We even had a time

where he addressed a letter to Mr. McLemore in

reference to writing me and Ms. Holliman up in

reference to a couple checks that had went out, . .

.And so he had Mr. McLemore write me and Rita

up for that occasion for some checks that was

mailed out, and me nor Rita mailed those checks

out. Those checks were mailed out by Mr.

McLemore, but we were the ones that was end up

being written up for it.”

(Ogletree’s Dep., p. 46,L10-22). Ogletree recalls the

occasion she heard her coworker Michael Womble saying

words to the effect that in reference to Plaintiff, “if looks

could kill he would kill you” in speaking of Roberts:

“During working hours; and I guess apprently he must have

observed Mr.Roberts looking at Ms. Holliman at some

period of time, and he made that statement, if looks could

kill.” (Ogletree’s Dep., p. 76,L17-p.77,L4.

(i) Pam Pressley was managing the accounting

function and the general ledger when Roberts was assigned

to audit CAU’s federal programs. Pressley described

Roberts’ demeanor as:

“He could be very charming and friendly in a

group where there were people who he felt

responsible to . . . But one on one, he could be

very abusive in his stance and the way that he

spoke, not that he was a yeller, I can’t remember

him yelling or raising his voice at me, but the just

contempt that could come through in his voice and

83

in his demeanor could be very intimidating.”

(Pressley’s Dep., p. 8,L14-9,L2). Pressley recalls the

occasion, after Roberts became a full-time employee at

CAU, (Pressley’s Dep., p. 11,L1-2), that ended her career at

CAU:

“J went into his [Roberts] office to talk to him

about something that had to do with business. . . I

am pretty forceful . . . I will tell you what I think,

and then you tell me what you think. And that

doesn’t mean that I’m going to back off. And... I

can’t specifically remember what we were talking

about, but he told me to get the fuck out of his

face. And that’s when I decided that I couldn’t

work there anymore, so I immediately looked for a

job. .. . And even after I gave them two weeks’

notice, he and Teamer [vice president for Finance]

wrote me letters teiling me that . . . at my level, I

should . . .feel professionally responsible to give

them more notice and have them prepare better to

replace me. But I — at that point I didn’t care

because there was no consequence to him for

speaking to me in that manner. And J actually went

over to Dr. Teamer’s office, told him what Nate

had said to me and told HR [Human Resources]

what Nate had said to me and filed a complaint

using their rules, and there was no consequence.”

(Pressley’s Dep., p. 9;L3-p. 10, L5). Pressley recalls other

occasions:

“I can tell you that we would be standing — the

accounting area was a room that had probably four

desks lined up with people, employees on either

side. And | would engage in conversation with him

at the front of the room, and there were, . . . eight

witnesses to just whatever he wanted to say to me

in the most disrespectful manner, in the most

84

intimidating manner, . . . slamming doors,

marching back and forth . . . just like a Napoleon

or something, . . . it was bad.”

(Pressley’s Dep., p. 11,L7-20). Pressley acknowledges that

Roberts could be abrasive to male employees

“but he wouldn’t take it to the point of that

intimidating stance . . . he was short tempered, or

he would be edgy, but . . . he wouldn’t be as

openly hostile with the guys. . . . sometimes in my

stress from work, I can be curt, .. . and he can be

curt. . . .that kind of thing you would kind of

expect or look over. But. . .he would be openly

hostile to women. I mean, it would appear to me

‘that he was doing it for the purpose of

intimidating.”

(Pressley’s Dep., p. 12,L10-25). Pressley recalls observing

Roberts’ treatment of other female subordinates:

“. . . there’s a woman, Saba [Tesfamariam,

Pressley’s Dep. 18,L12], who is Ethiopian, her

husband worked in Grants and Contracts, Kif. .. .

he [Roberts] made her tremble; . . . he was just

awful to her. . . . speaking to her as if she were

incompetent, that haughty tone of voice, only more

pronounced than haughty even. It was just

dripping with sarcasm, body presence closer than

you needed to be in order to be respectful, .. .

speaking to them [Saba and Kif] in just

disrespectful tones. And the things he said were

implied that they didn’t know what they were

doing, that they were incompetent, or they didn’t

do it in a timely manner or . . . It wasn’t worth his ~

time, that kind of thing.”

(Pressley’s Dep., p. 13,L8-19). Pressley recalls that the

female employees didn’t always engage Roberts and

confront him “because it was a guarantee that the matter

85

would escalate. . . .” (Pressley’s Dep., p. 15,L11-18).

Roberts “would just be as rude as he needed to be to get

what he wanted when he wanted or, . . . he would intimidate

the women until they were in tears or cowering in a corner

somewhere. It was disgusting.” (Pressley’s Dep., p.

15,L20-24). Pressley took her complaints to CAU Human

Resources department (“HR”) and was told: “we’ll look

into it, placating, I felt... . and never heard anything

again.” (Pressley’s Dep., p. 15,L25-p. 16,L10). Pressley

turned in a written complaint to HR and never received a

response. (Pressley’s Dep., p. 16,L11-15). Pressley

complained to Dr. Teamer, vice president of financial

affairs, and received no response to her written complaints

about Roberts. (Pressley’s Dep.,.p. 16,L16-21). Pressley

recalls on a daily basis, may not be every woman every day,

“but, . . . with very little provocation, he could be nasty. So

he could go maybe two or three days and would be a

pleasant guy, I would think, that’s my personal experience.

However, something would happen to trigger him, and he

could be very nasty.” (Pressley’s Dep., p. 18,L14-24).

Pressley recalls when the announcement was made that

Roberts would become a full-time employee at CAU:

“I made a conscious decision to tone down my

own personality so that I wouldn’t provoke him. I

didn’t want to be in a position where, number one,

I was reporting to him, and, number two, I was

going to have to deal with the things that I'd seen

him do or experience myself when he was auditor.

.. 1 felt, . . . some reservation from the moment

the announcement was made, I couldn’t believe

it.”

(Pressley’s Dep., p. 18,L25-p.19,L13). Roberts’ negative

behavior is well-known on CAU campus. (Pressley’s Dep.,

p. 24,L16-18). Pressley felt that when it got to the point

where Roberts felt comfortable telling her “to get the fuck

86

out of his face at the workplace, J knew then . . . that

nobody had responded to anything, and that he felt perfectly

comfortable doing what he wanted to do, and I got away.”

(Pressley’s Dep., p. 25,L5-11). Pressley further describes

Roberts conduct:

“He was talking to me in a very disrespectful tone

in front of people who worked for me. I felt that

he was undermining my authority. [I just felt

unsafe and uneasy around him. I could tell that he

was so angry sometimes that I didn’t know what

he would — you know what I mean? I just didn’t

feel safe. .. . It was beyond, I don’t like the way

he manages people. I think what he does is sexist.

I think that he’s a chauvinist. It went beyond that.

It got to the point where I really felt unsafe.”

(Pressley’s Dep., p. 25,L16-p. 26,L7 ). Pressley couldn’t

wait on the administration to take appropriate action against

Roberts:

“I couldn’t wait anymore to see .. . if the

executives at Clark Atlanta University were going

to take action against Nate and other men who

were abusing the power that they had in their

positions at the university. I couldn’t wait for

them to say, you know, you guys are really doing a

great job or not doing a great job. Move on.

We’re going to stop harassing you at work and let

you-.do — you know, | couldn’t wait. It wasn’t

going to get fair. ... I was waiting for fair

treatment. I was waiting . . . for an impersonal

objective evaluation of our performance, and we

weren’t getting that.”

(Pressley’s Dep., p. 27,L3-21). Pressley recalls another

CAU comptroller, Reggie Banks, who was similar in

temperament to Roberts:

87

“He was very abusive to women, specifically to

me, and that was the one other instance where I

felt unsafe. Finally this guy . . . he left pretty

quickly after they hired him. But he, too, ... was

very rude, very poisonous, venomous in. . . the

way he spoke to women. It was horrible.”

(Pressley’s Dep., p. 28,L2-12). Pressley

complained about Banks to the then interim vice

president of finance and “he just .. . kind of

laughed it off.”

(Pressley’s Dep., p. 29,L10-22). Pressley observed Roberts’

treatment of Plaintiff:

“Yes, when he . . . asked questions, . . . he would

ask her questions . . . in a way that you would

think he believed she needed to jump up right now

and have the correct answer. So,... he would...

walk up, fire a question . . . at her. And then she

would have to . . . try and figure out what it was he

wanted, . . . Why are those books up there? . . .

That kind of thing. And there was actually an

accounts payable manager, Rita [Plaintiff

nickname at work] was the supervisor, . . . a guy

that he could actually go to and ask these questions

without ever contacting the clerical staff or the

actual working people and not intimidate them.

But he would choose to talk to the line staff people

in, . . just disrespectful. That’s the way he did it. .

. . With Rita, it was the way . . . that’s how he

talked to the women in our area. So if it’s not

Rita, it’s . . . other women in the area, Marinetta,

Saba, me, his assistant, ... Melba . . . some days

he would be a very charming, nice guy, and come

back 20 minutes later, and he’d be just like Hitler

foaming at the mouth and, . . . barking orders and

expecting people to jump. . . . just craziness.”

88

(Pressley’s Dep., p. 32,L23-p. 34,L15). Pressley observed

Roberts treated male employees different than the female:

“Now, there were select people . . . there was one

guy that I recall, Teja Singh, who was an older

man, an Indian man. And... if there were a guy

who suffered treatment similar to what the women

suffered, I would say Teja had probably something

that was closer to being treated that way than

anybody else. Nate could be very disrespectful to

Teja... . 1 know Mr. Singh looked differently. ...

But I know that . . . when I left the university and I

went back to visit, . . . Mr. Singh had been

demoted from the Director of Grants and Contracts

where he was at my level to a guy sitting in the

accounting pool with the eight desks. When I

went back, he was sitting at one of those desks.

And now he’s not at the university anymore.”

(Pressley’s Dep., p. 35,L15-p. 36L18).

{j) James Clausell is the principal owner of Clausell

& Associates; he contracted as independent federal auditors

for CAU for years 1991 through 1998, (Clausell’s Dep., p.

5,L21-p. 6,L8), and he did limited consulting work at the

Morehouse School of Medicine in about early 1997.

(Clausell’s Dep., p. 6,L9-22). Clausell recalls the occasion

when Eli Phillips, the vice president of finance at the

Moreho:se School of Medicine, requested the removal of

Roberts from the engagement: “He said, well, there was

- some conflicts with, I think, a staff person.” (Clausell’s

Dep., p. 7,L25-p. 8,L22). Ciausell recalls receiving

complaints from Pam Pressley asking him to replace

Roberts: “she said she just couldn’t get along with him,

they had problems getting along together. . . . I recall she

was saying he was very abrasive. His personality was very

hard. He wasn’t agreeable,” (Clausell’s Dep., p. 10,L2-16),

89

and Clausell recalls Teja Singh complained once or twice

about how Roberts was abrasive, aggressive in performing

his services. (Clausell’s Dep., p. 11,L12-18). Clausell

recalls being asked by Dr. Teamer and Dr. Cole about a

recommendation on Roberts as a potential employee for

CAU:

“we met to talk about Mr. Roberts taking on a

position at Clark Atlanta University. Dr. Cole —

and I did talk about him making that transition,

asked my opinion can he do the job, is he a good

person for the institution. And I deferred — or I did

not conclude. I did not give him a definite answer.

I said he would have to make that call and as to his

personality. . . . my advice to the school was that I

didn’t think he was a good match. . . . Because of

the complaints of Pam and Mr. Singh, and these

were people I think he was going to be

supervising. And I thought that based on their

complaints, it would create a problem within that

department.”

(Clausell’s Dep., p. 23,L24-p. 24,L24). Clausell didn’t

recall whether he gave this information to Dr. Cole, “but

Charles Teamer, I did give that advice to.” (Clausell’s Dep.,

p. 24,L25-p. 25,L3).

(k) Thomas W. Cole, Jr. retired from his position as

_ president at CAU; he was president from July 1, 1989 until

July 31, 2002; Dr. Teamer was the chief fiscal officer, vice

president for finance, reporting directly to Cole. (Cole’s

Dep., p. 6,L19-p. 7,L16). Dr. Cole recalls a discussion with

Dr. Teamer regarding consideration of hiring Roberts, but

he doesn’t recall whether it was in advance of hiring

Roberts or not. (Cole’s Dep., p. 12,L1-14). Dr. Cole denies

any complaints about Roberts’ conduct with respect to

female employees were brought to him. (Cole’s Dep., p.

90

18,L4-23). Dr. Cole Recalls Dr. Teamer discussing

Roberts’ leadership style: “I don’t remember any specific

conversations other than his observation that Mr. Roberts

was — didn’t have the best people skills. But nothing

beyond that.” (Cole’s Dep., p. 18,L24-p. 19,L7). Dr. Cole

denies being made aware of an EEOC complaint being filed

about Roberts’ conduct. (Cole’s Dep., p. 19,L12-16). Dr.

Ross, who replaced Dr. Teamer as the executive vice

president, did not bring any complaints about Roberts’

conduct to Dr. Cole. (Cole’s Dep., p. 20,L10-20). Dr. Ross

did discuss Roberts’ leadership style with Dr. Cole, calling

Roberts “a typical bean counter, which meant that they

focused mostly on numbers rather than on people.” (Cole’s

Dep., p. 20,L21-p. 21,L4). Dr. Cole denies Bobby Young

ever brought to his attention any complaints about Roberts’

conduct concerning female employees. (Cole’s Dep., p.

21,L8-11).

‘ (1) Thomas R. Poitier recalls LaTanya Franklin

bringing a complaint to him about Roberts and he suggested

she take it to Dr. Teamer. (Poitier’s Dep., p. 15,L9-20).

Poitier recalls the nature of the complaint:

“Mr. Roberts was looking for me, and he asked her

where my whereabouts. And at the time, she

wasn’t sure. She said, ‘Don’t know.’ And he

suggested she find me quickly and do her job, so

she should find me, do her job and Jet him know

where am I. And he said it to her in such a way

that it was offensive to her, as she told me.”

(Poitier’s Dep., p. 15,L21-p. 16,L5). Poitier recalls

Ms.Franklin stating Roberts used profanity: “That’s your

damn job. Why you don’t know where he is.” (Poitier’s

Dep., p. 16,L6-11). Poitier recalls Ms. Franklin was very

emotional: “She was offended by it. And I t

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