WILLIAM S. DUFFEY, Jr., District Judge.
This matter is before the Court on Magistrate Judge John K. Larkins III's Final Report and Recommendation [83] ("R&R"). The R&R recommends the Court grant in part and deny in part Defendant Elaine Chao's ("Defendant") Motion for Summary Judgment [55]. Also before the Court are Defendant's Motion for Leave to File Excess Pages [88], Partial Objections to the R&R [89] ("Objections"), and Notice of Filing of Corrected Partial Objections to the R&R [92] ("Corrected Objections").
Plaintiff Paula Smith-Jackson ("Smith-Jackson") began her employment with Defendant in 1982 in Peoria, Illinois. ([58] ¶ 2). In January 2005, Smith-Jackson moved to Atlanta and began training at the air traffic control tower in Atlanta ("Atlanta Tower"). (
Smith-Jackson alleges that, on November 8, 2005, she was present when a white male coworker made a racially insensitive comment to a group of visitors. ([58] ¶ 28). That incident caused Smith-Jackson's psychological injury, and she suffered from anxiety, depression, and post-traumatic stress disorder. ([57.1] ¶ 4). Following that incident, Smith-Jackson began receiving a monthly payment from the Office of Workers' Compensation. ([58] ¶ 31).
In June 2006, Smith-Jackson was declared medically disqualified from working as an air traffic controller. ([57.1] ¶ 6). In September 2006, Defendant proposed to remove Smith-Jackson due to her failure to maintain her medical certification. ([58] ¶ 36). In October 2006, Smith-Jackson requested a permanent reassignment within the Atlanta "commuting area." (
In November 2006, Defendant convened a "Reasonable Accommodation Team" meeting to discuss Smith-Jackson. ([58] ¶ 42). The parties dispute the actions of Defendant in attempting to accommodate Smith-Jackson, discussed in more detail below. The parties agree that, from December 2006 through June 2008, Smith-Jackson applied for numerous vacant positions throughout the agency. ([57.1] ¶ 10). In July 2007, Defendant notified Smith-Jackson that it was removing her from service effective August 18, 2007, for failing to maintain medical certification. ([58] ¶ 52). On August 18, Smith-Jackson was terminated, but retained her workers' compensation payments. (
In July 2008, following some amount of internal administrative proceedings, Defendant offered Smith-Jackson a clerical position, but then withdrew the offer. ([57.1] ¶ 20). In August 2008, Smith-Jackson was placed in a permanent position as a secretary. ([58] ¶ 63). In July 2011, an administrative judge issued a bench decision on an Equal Employment Opportunity Commission ("EEOC") complaint that Smith-Jackson had filed, in which the administrative judge awarded her some damages but in which he did not find race, age, gender, or intentional disability discrimination. (
The procedural history of this case is long and involves many layers of administrative review. Where relevant, that history is discussed above and in the analysis. In this Court, Smith-Jackson filed a complaint and an amended complaint in May 2015. ([1], [2]). The complaint alleges that, in May 1997, Smith-Jackson overheard racially derogatory comments in the workplace, which was later determined to have caused a compensable workplace injury.
Smith-Jackson alleges that, beginning in October 2006, she sought a reasonable accommodation in the form of a transfer to allow her to continue working after she was found medically disqualified to work as an air traffic controller. ([2] ¶¶ 12-14). She further alleges that Defendant ignored her requests while they transferred younger, white males when they became medically disqualified. (
Smith-Jackson raised claims under Title VII, for race and gender discrimination ("Count I"); the ADEA, for age discrimination ("Count II"); Title VII, for retaliation ("Count III"); and the Rehabilitation Act, for disability discrimination ("Count IV"). ([2] ¶¶ 44-51).
On October 12, 2016, Defendant filed her Motion for Summary Judgment, seeking to dismiss all of Smith-Jackson's claims. In her response brief [57], Smith-Jackson abandoned her ADEA claim. ([57] at 9 n.1).
On July 5, 2017, the Magistrate Judge issued his R&R. Because Smith-Jackson abandoned her ADEA claim, the Magistrate Judge recommends the Court grant summary judgment on this claim. The Magistrate Judge next determined that Smith-Jackson is not barred from bringing suit under the acceptance-of-benefits doctrine, but that money she received from the administrative proceedings below likely must be deducted from any award she receives in this litigation. The Magistrate Judge found that Smith-Jackson presented sufficient evidence to make out a prima facie case of retaliation. With respect to Smith-Jackson's Rehabilitation Act claim, the Magistrate Judge found an issue of fact exists as to whether she was qualified for the positions to which she sought reassignment. The Magistrate Judge determined Defendant is not entitled to summary judgment on Smith-Jackson's Title VII claim, because Smith-Jackson pointed to a comparator who was working in a similar role to her, became medically unable to perform his job, and who was reassigned to a different position until he was medically able to work again as an air traffic controller. Accordingly, the Magistrate Judge recommends the Court deny summary judgment on all of Smith-Jackson's claims other than her ADEA claim.
On July 17, 2017, Defendant filed her Unopposed Motion for Extension to File Partial Objections to the Magistrate Judge's Final Report and Recommendation [85]. Defendant requested an extension up to and including August 21, 2017, in which to file objections to the R&R, stating that she required the transcript of the June 14, 2017, oral argument ("June 14th Hearing") held before the Magistrate Judge, which she claimed could take up to two weeks to receive.
On July 21, 2017, the Court issued its Order [86] granting Defendant's motion in part, and ordering her to file, on or before August 4, 2017, her objections to the R&R. The Court noted that Defendant, without explanation, filed her motion and requested the transcript of the June 14th Hearing three (3) days before the expiration of the fourteen (14) day objections deadline. The Court noted that the transcript would be completed on July 26, 2017, and that an extension of over a month was excessive. The Court also stated that no further extensions would be granted.
At midnight on August 5, 2017, Defendant filed her Objections. The docket indicates that Defendant's Objections were filed on August 4, 2017, but were entered on the docket on August 5, 2017. (
In her Objections Defendant argues the Magistrate Judge erred in finding that Plaintiff made out a prima facie case of gender, age, and disability discrimination. Defendant next contends that the Magistrate Judge erred in finding that Plaintiff proved direct evidence of retaliation. Finally, Defendant argues the Magistrate Judge erred in finding that the acceptance of benefits rule does not preclude Plaintiff from filing an appeal of the administrative judgment with this Court. The Objections contain several new arguments not raised before the Magistrate Judge.
The same day she filed her Objections, Defendant filed her Motion for Leave to file Excess Pages, seeking to file Objections in excess of the twenty-five page limitation set forth in Local Rule 7.1(D), NDGa.
On August 16, 2017, Defendant, without seeking leave of the Court, filed her Corrected Objections. Defendant states that her Corrected Objections (a) correct typos, numbers, and minor edits with word additions in italics; (b) add citations to the record; (c) update a chart to fill in missing dates; (e) add two exhibits that were cited but not attached to the original filing; and (f) reduces the memorandum to conform with the page limitations in Local Rule 7.1(D) without making substantive changes. ([92] at 1). Defendant's Corrected Objections, like her original Objections, are not double-spaced, and the left margin is less than one inch.
The Court strikes Defendant's Objections and Corrected Objections for several reasons. First, Defendant filed her Motion for Leave to file Excess Pages on the same day she filed her Objections. Defendant's Objections are thirty-eight (38) pages long. The Court's Standing Order Regarding Civil Litigation provides that the Court "generally does not approve extensions of page limitations[,]" and requires that parties "seeking an extension of the page limit must do so at least ten (10) days in advance of their filing deadline." Standing Order Regarding Civil Litigation at 3. Further, "[i]f a party files a motion to extend the page limit at the same time their brief is due, the extension request will be denied absent a compelling and unanticipated reason to exceed the page limit."
Second, Defendant's Objections and Corrected Objections were filed late, and Defendant did not provide any explanation for her late filing of either. Rule 72(b)(2) of the Federal Rules of Civil procedure required Defendant to file and serve her written objections to the R&R no later than fourteen (14) days after the R&R was served on her. Rule 6(b)(1)(B) authorized the Court, on Defendant's motion, to extend the time for filing objections for good cause if Defendant had "failed to act because of excusable neglect." The Court extended the time period in which Defendant could file her Objections through and including August 4, 2017. Defendant did not file and serve her objections until August 5, 2017. Defendant did not provide any justification for her late filing either in her Objections or in her Corrected Objections, even after the Court noted in its August 15, 2017, Order, that the Objections were late. Defendant's late filing of her Objections caused the deadline for Plaintiff's response to the Objections to be extended.
Third, Defendant's Objections and Corrected Objections fail to meet multiple requirements of the Court's Local Rules. The Objections are not double-spaced, as required by Local Rule 5.1(C). Further, the font size and type is inconsistent throughout the Objections, in violation of Local Rule 5.1(C), which requires computer documents "must be prepared in one of the following fonts. . . ." LR 5.1B, NDGa (emphasis added). Counsel's certificate of compliance with the font requirements of the Local Rules is thus false. Defendant's Corrected Objections likewise are not double-spaced, as required in Rule 5.1(C). Further, the Corrected Objections fail to comply with the margin requirements of Rule 5.1(D), which requires all pleadings and other documents to have a top margin of "not less than one and one-half [] inches and a left margin of not less than one (1) inch." The Corrected Objections have a left margin of less than one inch. Counsel's flouting of these rules in the Corrected Objections is a blatant attempt to belatedly meet the 25-page limitation counsel failed to meet in the original Objections.
Finally, Defendant included in her Objections and Corrected Objections new evidence and argument not previously raised before the Magistrate Judge. This is improper, and the Court declines to consider the new evidence and arguments.
The Court admonishes Defendant's counsel that strict compliance with the Federal Rules of Civil Procedure, the local rules, and the standing orders of this Court is required. To not enforce them creates an unlevel playing field for litigants. To do so in this case would create a playing field that is substantially tiled to Smith-Jackson's disadvantage.
Defendant's counsel has now had two opportunities in which counsel has failed, egregiously, to comply with multiple rules. The Court declines to allow Defendant's counsel a third bite at the apple (another game of whack-a-mole), even if counsel were to seek it. Defendant's Objections and Corrected Objections are stricken.
After conducting a careful and complete review of the findings and recommendations, a district judge may accept, reject, or modify a magistrate judge's report and recommendation. 28 U.S.C. § 636(b)(1);
Because the Court has stricken Defendant's Objections and Corrected Objections, the Court conducts its plain error review of the Magistrate Judge's R&R.
Summary judgment is appropriate where the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.
"At the summary judgment stage, facts must be viewed in the light most favorable to the nonmoving party only if there is a `genuine' dispute as to those facts."
Plaintiffs in an employment discrimination action may prove their case either through direct or circumstantial evidence.
The basic
As an initial matter, the Magistrate Judge noted that Smith-Jackson abandoned her ADEA claim. Accordingly, the Magistrate Judge recommends the Court grant summary judgment on this claim. The Court finds no plain error in this finding and recommendation, and Defendant's Motion for Summary Judgment is granted with respect to Smith-Jackson's ADEA claim.
The Magistrate Judge next determined that Smith-Jackson is not barred from bringing suit under the so-called "acceptance-of-benefits doctrine," but that money she received from the administrative proceedings below likely must be deducted from any award she receives in this litigation.
The Eleventh Circuit has explained that it is "well settled that when a litigant accepts the substantial benefits of a judgment, voluntarily and intentionally, and with knowledge of the facts, he waives the right to appeal from an otherwise adverse judgment."
The Eleventh Circuit has not opined on whether a plaintiff's acceptance of payment in an administrative proceeding acts, under the acceptance-of-benefits doctrine, as a jurisdictional bar to de novo review in a district court. The Fifth Circuit, however, has rejected this argument. In
The Magistrate Judge found, given the facts of this case, that the Fifth Circuit's approach in
Looking to the objective manifestations of the parties,
The Magistrate Judge concluded that, under the circumstances of this case, the Court should follow the reasoning in
Defendant moves for summary judgment on Smith-Jackson's retaliation claim. Direct evidence of discrimination is any evidence that reflects "a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee."
Smith-Jackson proffered the following testimony of Kelvin Baker, a supervisor at the Atlanta tower:
([55.5] at 65-68). Baker then testified that he, more or less, told Smith-Jackson that there "was potentially a position available, but because of your EEO complaint pending, it's probably being withheld until that is resolved." (
The Magistrate Judge found that Smith-Jackson presented sufficient evidence to make out a prima facie case of retaliation. He found that, reading every reasonable inference in Smith-Jackson's favor, Baker's testimony constitutes direct evidence of retaliation connected to an adverse employment action. He also found that Baker's testimony was admissible non-hearsay under Rule 801(d)(2)(D) of the Federal Rules of Evidence, because it is "offered against an opposing party" and "was made by the party's agent or employee on a matter within the scope of that relationship and while it existed." Fed. R. Evid. 801(d)(2)(D). Accordingly, the Magistrate Judge found there is a triable issue as to whether there is direct proof of retaliation, and he recommends the Court deny Defendant's Motion for Summary Judgment as to Smith-Jackson's retaliation claim. The Court finds no plain error in these findings and recommendation, and Defendant's Motion for Summary Judgment is denied as to Smith-Jackson's retaliation claim.
Defendant moves for summary judgment on Smith-Jackson's Rehabilitation Act claim, arguing Smith-Jackson cannot make out a prima facie case of discrimination. Specifically, Defendant argues Smith-Jackson is not a "qualified individual" under the act, because she was unable to perform the essential functions of her job with or without a reasonable accommodation. The Magistrate Judge found that Defendant's argument misunderstands the law as it relates to reasonable accommodation. The Court agrees.
To establish a prima facie case of discrimination under the Rehabilitation Act, a plaintiff must show that (1) she is disabled, (2) she is otherwise qualified for the position with or without accommodation, and (3) she was subject to unlawful discrimination as the result of her disability.
The Magistrate Judge found that there is a triable issue as to whether Smith-Jackson was qualified for the positions to which she sought reassignment. The Rehabilitation Act defines a qualified individual as one who "with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). The only possible accommodation identified by Smith-Jackson in this case is that she should have been reassigned to a vacant position. The ADAAA makes clear that transfer to another position can constitute a "reasonable accommodation." 42 U.S.C. § 12111(9). Whether a proposed reassignment would be reasonable depends on the circumstances of each case.
The Magistrate Judge noted the following: (1) Smith-Jackson points to evidence that she specifically requested reassignment to several vacant positions with Defendant following her medical disqualification from her air traffic controller position; (2) Smith-Jackson identified the other positions by vacancy number, suggesting that the positions were, in fact, vacant; (3) Defendant does not challenge several of the vacant positions Smith-Jackson identified; (4) several of the identified positions were for a secretary, where Smith-Jackson was eventually placed, suggesting that she was able to perform at least those jobs. (R&R at 44-45). The Magistrate Judge concluded that, based on this evidence, there is triable issue as to whether Smith-Jackson identified an accommodation that seems reasonable on its face in the form of a reassignment to a vacant position that would have allowed he to continue working for Defendant. Accordingly, the Magistrate Judge recommends the Court deny summary judgment on Smith-Jackson's Rehabilitation Act claim. The Court finds no plain error in these findings and recommendation, and Defendant's Motion for Summary Judgment is denied as to Smith-Jackson's Rehabilitation Act claim.
Defendant next moves for summary judgment on Smith-Jackson's Title VII claims, arguing she failed to make out a prima facie claim of disparate treatment. A plaintiff can establish a prima facie case of disparate treatment by showing that she was a qualified member of a protected class who was subjected to an adverse employment action in contrast with similarly situated employees outside of the protected class.
Starting with the second step of the burden-shifting framework, the Magistrate Judge noted that Defendant's only statement regarding her burden to identify a legitimate, non-discriminatory reason for her employment actions is that Defendant fired Smith-Jackson for failing to maintain her medical certification. (R&R at 49 (citing [56.1] at 17)). The Magistrate Judge found that, even considering Defendant's exceedingly light burden at this stage, Defendant fails to meet the burden. The Court agrees. Smith-Jackson's claim of discrimination is that others who were medically decertified from the Air Traffic Controller position were treated differently. Defendant's argument that it based its employment decision solely on Smith-Jackson's medical decertification "is non-responsive to [Smith-Jackson's] claim." (R&R at 50).
The Magistrate Judge next found that Smith-Jackson presented a suitable comparator to establish her prima facie case. A plaintiff and a comparator must be similarly situated in "all relevant respects."
Defendant appears to make four arguments as to why Clausen is not a valid comparator: (1) Clausen worked at TRACON, not the Atlanta tower, when he was injured; (2) Clausen was eventually medically able to be reassigned to his position as an Air Traffic Controller Specialist; (3) Clausen was not treated more favorably than Smith-Jackson, because Defendant actually offered Smith-Jackson a better job than the one they offered Clausen during his period of medical disqualification; and (4) Vincent did not treat Smith-Jackson negatively.
The Magistrate Judge rejected the first two arguments, finding that Defendant failed to articulate why these distinctions are relevant to Defendant's decision-making in this case: "Defendant does not argue nor is there any apparent evidence that would suggest that working in the TRACON would make someone more eligible for the clerical positions at issue. The same is true of the fact that Clausen was eventually able to return to his air traffic controller position." (R&R at 83). As to the third argument, the Magistrate Judge noted that there is evidence to support that Defendant only offered Smith-Jackson a position that she was medically unable to perform based on the required amount of travel to the job. The Magistrate Judge reasoned that, regardless of the jobs offered to Smith-Jackson and Clausen, "if one employee was physically capable of accepting the job offer, and another was not, the one who could accept was treated more favorably." (R&R at 83). Finally, the Magistrate Judge noted that "Defendant . . . does not make clear why, even if accepted as true, Vincent's forwarding of Smith-Jackson's job requests would defeat her discrimination claim." (R&R at 53).
The Magistrate Judge found that Smith-Jackson pointed to a comparator, Clausen, who was working in a similar role, became medically unable to perform that job, and who was reassigned to a different position until he was medically able to work again as an air traffic controller. Defendant did not point to any material difference between the two, nor did Defendant point to any evidence that would defeat an argument that Clausen was treated more favorably than Smith-Jackson. Accordingly, the Magistrate Judge concluded that Smith-Jackson made out a prima facie case of Title VII discrimination, and, because Defendant failed to articulate a legitimate, non-discriminatory reason, the Magistrate Judge recommends the Court deny summary judgment on Smith-Jackson's Title VII claim. The Court finds no plain error in these findings and recommendation, and Defendant's Motion for Summary Judgment is denied on Smith-Jackson's Title VII claim.
For the foregoing reasons,
