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

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0673%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2006

## Text

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[DO NOT PUBLISH]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 Po

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386008_0673%3A2. Public record. Not legal advice.