Garner v. Ross et al, No. 2:2014cv00166 - Document 42 (S.D. Ga. 2016)
Court Description: ORDER denying as moot 19 Motion to Dismiss; granting 27 Motion for Summary Judgment. The Court directs the Clerk to enter final judgment in favor of Defendants and close this case. Signed by Judge J. Randal Hall on 03/28/2016. (thb)
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Garner v. Ross et al Doc. 42 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF GEORGIA BRUNSWICK DIVISION LAWANDA GARNER, * * Plaintiff, * * v. * TERRY ROSS IN HIS OFFICIAL CAPACITY AS CV 214-166 * CHIEF OF CAMDEN COUNTY BOARD OF ASSESSORS, * and * THE CAMDEN COUNTY BOARD * OF COMMISSIONERS, * * Defendants. * ORDER Plaintiff supervisor Lawanda Terry Commissioners Ross Garner and asserts the claims Camden County for discrimination under Title VII Rights Act of 1964, 42 U.S.C. §2000e et. seq, 1981. motion The judgment Court (doc. 27) GRANTS because Defendants' (1) Plaintiff's Camden County Board of Tax Assessors County less Title Board than VII separate of Commissioners fifteen and and § employees 1981; distinct and and falls County entities for which of the of Civil for summary is the not the Camden the outside the Board employer (2) (3) her and 42 U.S.C. § ("Board"), ("County"); against the and Board scope Board aggregation has of are to Dockets.Justia.com satisfy the numerosity reguirement is improper. The Court DENIES AS MOOT Defendants' motion to dismiss (doc. 19). I. Plaintiff Real Property is an FACTUAL BACKGROUND African-American Appraiser Defendant Terry Ross, under 1, 2010, direct Chief Appraiser for 11, "PL's Am. CompL," ff 3, November the female to work 8.) who works as supervision the Board. a of (Doc. Mr. Ross hired Plaintiff on for the Board as an Administrative Clerk and promoted her to Apprentice Appraiser I in February 2013. (Doc. On 27-1, March discrimination Opportunity employer. H 4-5.) 12, 2014, against Commission (Doc. 27-2, Plaintiff filed A.) On November ("EEOC"), Ex. 3, 2.) 2014, against the County and Mr. Chief Appraiser,1 1The Board is Ross alleging Mr. a charge the Board with the Equal listing the On August 6, issued Plaintiff a Notice of Right to Sue. Ex. a defendant Plaintiff in his Ross Employment Board 2014, as the her EEOC (PL's Am. CompL filed this lawsuit official capacity as treated because of Plaintiff Plaintiff named less Mr. Ross in his official capacity. See Busby v. City of Orlando, 931 F.2d 764, 772 (11th Cir. 1991) (explaining that Title VII plaintiff may name employer or supervising employee as agent of employer) . favorably than colleagues. similarly ff (Id. situated 12-13.) Caucasian and male The Board has less than fifteen employees by itself, but more than fifteen if merged with the County and treated as a single employer. II. Summary genuine judgment dispute entitled to 56(a). SUMMARY JUDGMENT as is to judgment as STANDARD appropriate any material a matter (Doc. 33-1, p. 1.) only fact of if and law." "there the Fed. movant is Civ. P. Facts are "material" if they could affect the outcome Liberty Lobby, Inc., view the facts party, 477 U.S. 242, 574, Prop., 587 in 248 (1986). Anderson v. The Court must in the light most favorable to the non-moving Matsushita Elec. inferences Real no R. of the suit under the governing substantive law. U.S. is (1986), [its] 941 Indus. and favor." F.2d 1428, Co. v. Zenith Radio Corp., must draw "all United States v. 1437 (11th 475 justifiable Four Parcels of Cir. 1991) (en banc) (internal punctuation and citations omitted). The Court, motion. How to moving party by reference to Celotex Corp. carry this proof at trial. has the initial materials v. on Catrett, burden depends burden file, 477 U.S. of the basis 317, on who bears Fitzpatrick v. City of Atlanta, showing 323 for the the (1986). the burden of 2 F.3d 1112, 1115 (11th Cir. 1993). When the non-movant has the burden of proof at trial, the movant may carry the initial burden in one of two ways—by negating an essential element of the non- movant' s case or by showing that there is no evidence to prove a fact necessary to the non-movant's case. See Clark v. Coats & (11th Clark, F.2d 604, (explaining Adickes v. S.H. Kress and Inc., Celotex evaluate first 929 Corp., the 477 U.S. non-movant's consider whether the at 606-08 & Co., 323). response movant 398 has 1991) 144 (1970) U.S. Before in Cir. the Court opposition, met its it initial can must burden of showing that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. v. City of Columbus, curiam). A cannot meet mere conclusory burden at (11th Cir. statement trial is that the insufficient. 1997) (per non-movant Clark, 929 If—and only if—the movant carries its initial burden, the F.2d at the 120 F.3d 248, 254 Jones 608. non-movant may avoid summary judgment only by "demonstrat[ing] that there is indeed a material summary judgment." of proof at trial, Id. issue of fact that precludes When the non-movant bears the burden the non-movant must tailor its response to the method by which the movant carried its initial burden. If the movant presents evidence affirmatively negating a material fact, the non-movant "must respond with evidence sufficient to withstand a directed verdict motion at trial fact sought to be negated." Fitzpatrick, the movant of the shows non-movant evidence that an absence must was either on that "overlooked or the material 2 F.3d at 1116. evidence show on a material the ignored" record by the If fact, contains movant or "come forward with additional evidence sufficient to withstand a directed verdict motion evidentiary deficiency." at trial based Id. at 1117. on the alleged The non-movant cannot carry its burden by relying on the pleadings or by repeating conclusory allegations contained in the complaint. v. Ross, 663 F.2d 1032, 1033-34 III. (11th Cir. See Morris 1981). DISCUSSION In their motion for summary judgment, Defendants argue: (1) Plaintiff's employer is the Board and not the County; the Board falls outside County Georgia (4) does and law the the Board for Plaintiff against not have fifteen purview are which failed of or Title separate, exhaust County because she VII employees and independent aggregation to more of her § 1981; is administrative Board as thus (3) entities employees named the and (2) the under improper; remedies the sole respondent promoted in to her the EEOC Charge; position of and (5) Appraiser Plaintiff II was of because not the legitimate, nondiscriminatory reason that she did not have the requisite two years of field experience as an appraiser. The Court the need not undisputed address facts show arguments Defendants four are and five entitled because to summary judgment with respect to arguments one through three. A. Plaintiff's Employer is the Board, not the County. Title VII makes it unlawful "for an employer ... to discriminate sex, and against any it also individual" on account of race and protects an employee retaliation for claiming discrimination. from employer 42 U.S.C. § 2000e- 3(a). For discrimination claims under both Title VII and 42 U.S.C. § 1981, an "employer" is a person engaging in an industry affecting commerce who has fifteen or more employees for each working day in each of twenty or more calendar weeks. 42 U.S.C. § 2000e(b); Bush v. Houston Cty. Comm'n, 414 F.App'x 264, 266 (11th Cir. 2011) ("In the employment context, § 1981 . . . claims require the same elements of proof and involve the same analytical framework as Title VII claims."). This definition of employer includes local and state governmental entities. 42 U.S.C. § 2000e-2(a). The employee numerosity requirement is an element of a plaintiff's claim for relief rather than a jurisdictional issue. 546 U.S. 500, 515 Arbaugh v. Y & H Corp., (2006). The amended complaint alleges Plaintiff is employed by the Camden County Tax Assessor's Office as a Real Property Appraiser. lists (PL's Am. the Board as ff Compl. her 3, 6-7.) employer. The EEOC charge (Doc. 27-2, p. 1.) Plaintiff now argues at summary judgment that the County is her employer and the Board "is considered to be a department within the County.7' (Doc. 33-1, pp. 1, 4.) This belief is at odds with the statutory framework in Georgia board of tax assessors establishing a within each county that is separate and distinct from the county commission. Georgia law establishes administration provides assist for the O.C.G.A. and the § of has appraisers and enter Fulford, 298(a). tax 48-5-290 (a). assessors v. equalization employment board 495 the a comprehensive sole of property staff within assessors. In each authority into contracts S.E.2d of 6, 7 (Ga. system for each O.C.G.A. county, to the hire with them. 1998); taxes, § and county to 48-5-260; board and the of fire tax tax See Chambers O.C.G.A. § County commissions do not have this authority. 48-5- See Spell v. Blalock, 254 S.E.2d 842, 843 (Ga. 1979) ("The authority to hire and fire appraisers ... is not a power vested dealing in the with commissioners.") . county tax Indeed, appraisers it is "in all matters the board of tax assessors and not the board of commissioners which acts as the 'governmental board [which] has the authority to act for the county.'" Chambers, 495 S.E.2d at 7. Consistent with this framework, the board of tax assessors is considered to be the employer of tax appraisers for purposes of Title VII, not the county commission. Ballard v. Chattooga Cty. Bd. of Tax Assessors, 615 F. App'x 621, 622 (11th Cir. 2015). Plaintiff points out that the County posts job openings at the Board and those postings list the Board as a County department. employment She also references boilerplate language in her forms containing an acknowledgment of "at-will" employment by the County instead of the Board. (Doc. 33-1, pp. 2-3; PL's Decl. f 4.) Because these summary judgment exhibits are not properly authenticated and verified, they are not admissible in opposition to the summary judgment motion. Saunders v. Emory Healthcare, Inc., 360 F.App'x 110, 113 (11th Cir. 2010); Lugue v. Hercules, Inc., 12 F. Supp. 2d 1351, 1356 (S.D. Ga. 1997). That the Board and County share employment website for job postings, forms and a and in so doing reference the Board in a manner that does not reflect its true legal nature, does not as trump separate the and statutory distinct scheme legal establishing entity. the Plaintiff Board contends job postings prove the County itself hired Plaintiff, her job description, policy for leave. established her rate None of these conclusions of pay, a the defined and set follow from the job postings Plaintiff has submitted, and the statutory scheme described above contentions. proves At most, the opposite of Plaintiff's these job postings establish that the County advertises vacancies at the Board. Plaintiff also claims the Board and County have the same human resources department. But this in no way establishes Plaintiff is an employee of the County rather than the Board. Nor does it matter that the County pays Plaintiff's salary. This is consistent with the Georgia statutory scheme directing the use of county funds to pay appraisers. 263(c). The minimum level mandated at the state level. 615 F. App'x at 624. of funding O.C.G.A. § is O.C.G.A. § 48-5- established 48-5-263(c); and Ballard, The undisputed facts and statutory scheme thus direct a summary judgment finding that the Board, and not the County, is Plaintiff's employer. C. The County and the Board Are Separate and Distinct Entities and Cannot Be Aggregated for Title VII Purposes. Plaintiff employer, alternately argues that, if the Board is her the County and Board should be treated as a single employer to satisfy the numerosity requirement of fifteen or more employees because the County and Board are "inextricably interrelated." Beach, Fla., (Doc. 33-1, 166 F.3d p. 3.) 1332 In Lyes v. City of Riviera (11th Cir. 1999), the Eleventh Circuit held that "[w]here a state legislative body creates a public entity and declares it to be separate and distinct, that declaration should be entitled to a significant degree of deference, is 166 indeed amounting to separate F.3d at a presumption that and distinct the public entity for purposes of Title 1344. There are two ways to rebut this presumption. plaintiff maintained VII." may for discrimination prove the governmental the purpose law. Id. of As entity was avoiding federal Defendants aptly First, created a or employment point out, Plaintiff cannot demonstrate such evasion because enactment of 10 the Georgia statutes establishing the board of assessors for each county occurred decades prior to the enactment of Title VII. (Doc. explained 35, in pp. 3-4.) Lyes, "it is And as the unlikely Eleventh that a Circuit state would structure its state and local entities with that purpose in mind . . . ."166 F.3d at 1344. Plaintiff has provided no evidence of such an intent. Second, a plaintiff may present evidence convince a reasonable sufficient to fact finder that the presumption is clearly outweighed by "factors manifestly indicating that the public entities are so closely interrelated with respect to control of the fundamental aspects of the employment relationship that they should be counted together under Title VII." Id. at 1345. interrelationship labor operations; discipline or of (2) Factors operations to and consider centralized authority to hire, discharge; (3) include: authority control transfer, to of promote, establish schedules or direct work assignments; and (4) (1) work the obligation to pay or the duty to train the charging party. Id. These factors are not all inclusive because the analysis considers the totality of the circumstances. Id. The standard is whether a fact finder could reasonably conclude "the plaintiff 11 has clearly overcome original) The the adverb presumption." "clearly" derives concerns and is meant to be limiting. the scale, Id. (emphasis from Id. in federalism "It is a thumb on and sometimes it will be decisive. . . ." Id. In Ballard v. Chattooga Cty. Bd. of Tax Assessors, 615 F. App'x 621, 622 (11th Cir. 2015), the Eleventh Circuit applied the Lyes analysis and held that a Georgia county and board of tax assessors are not so closely interrelated that they should be counted together under Title VII. After describing the Georgia statutory framework discussed infra § I, the Ballard court explained its reasoning in the following passage. From the foregoing recitation of Georgia law, it is clear that Georgia has established the Board as a separate entity, independent of the local county government, thus triggering the Lyes presumption. . . Applying Lyes's four guiding factors to the facts of this case as established by Georgia law, it is clear that the presumption is not rebutted. Rather, application overwhelmingly indicates that the County-which has "control aspects of the employment of the factors it is the Board-not over the fundamental relationships." See id. Chambers makes it clear that it is the Board-not the County-which has control of labor operations [Lyes factor number 1]; the authority to hire, transfer, promote, discipline or discharge [factor number 2]; and the authority to establish work schedules or direct work assignments [factor number 3] . See 495 S.E.2d at 8. With respect to factor number 4—the obligation to pay or the duty to train the charging authority—the rate appraiser, O.C.G.A. of § 12 compensation 48-5-263(a) (1), for and each the training, id. § 48-5-268, are determined at the state level. While county funds comprise the major source of funding, at least funding is established, the O.C.G.A. minimum level of § 48-5-263(a)(1), and mandated, id. § 48-5-263(c), at the state level. Thus, the four factors listed by Lyes overwhelmingly establish that it is the Board-not the County-that controls the fundamental aspects of the employment relationships. Looking at the totality of the circumstances, it is true that the County provides the building in which the tax appraisers work, maintains the building, provides payroll and human resources services, and other administrative services. However, such administrative services are tangential to the "fundamental aspects of the employment relationships" and fall far short of creating a genuine issue of fact with respect to plaintiffs' heavy burden to "clearly overcome the presumption." See Lyes 166 F.3d at 1345. Ballard, 615 F.App'x at 624-25. The Ballard court's analysis applies fully here. the Board and County are aggregated under the separate entities single employer test, Because and cannot be Plaintiff has failed to meet Title VII's employee-numerosity requirement, an element of her claim. See Arbauqh, 546 U.S. at 515. summary judgment for Defendants is appropriate. Thus, See Fender, 295 F. App'x at 959 (affirming grant of summary judgment where plaintiff did not satisfy Title VII's numerosity requirement). 13 IV. CONCLUSION The Court GRANTS Defendants' motion for summary judgment (doc. 27) (doc. 19). and DENIES AS The Court MOOT Defendants' DIRECTS the motion Clerk to to dismiss enter FINAL JUDGMENT in favor of Defendants and CLOSE this case. SO ORDERED this JPfi^day of March, 2016, at Augusta, Georgia. HONORABI^J. RANDAL" HALL UNITED S/TATES DISTRICT JUDGE SOUTHERN DISTRICT OF GEORGIA 14
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