Fields v. Atlanta Indep. Sch. Sys.

• Decision Date: 04 January 2013
• Docket Number: Civil Action File No. 1:11–CV–2775–TWT.
• Citation: 916 F.Supp.2d 1348
• Parties: Alice FIELDS, Plaintiff, v. ATLANTA INDEPENDENT SCHOOL SYSTEM, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

916 F.Supp.2d 1348

Alice FIELDS, Plaintiff,

v.ATLANTA INDEPENDENT SCHOOL SYSTEM, et al., Defendants.

Civil Action File No. 1:11–CV–2775–TWT.

United States District Court,

N.D. Georgia,

Atlanta Division.

Jan. 4, 2013.

Gary Everett Thomas, Attorney at Law, Duluth, GA, for Plaintiff.

Erick Christopher Burroughs, Michael James Walker, Sharron Marie Pitts, Atlanta Public Schools, Law Department, Atlanta, GA, for Defendants.

ORDER

THOMAS W. THRASH, JR., District Judge.

This is an employment discrimination action.It is before the Court on the Report and Recommendation[Doc. 71] of the Magistrate Judge recommending that the Defendants' Motion for Summary Judgment[Doc. 53] be GRANTED in part and DENIED in part.For the reasons set forth in the thorough and well-reasoned Report and Recommendation, there is a genuine issue of fact as to whether the Plaintiff was aware of the School System's procedure for reporting sexual harassment.The Court approves and adopts the Report and Recommendation as the judgment of the Court.The Defendants' Motion for Summary Judgment[Doc. 53] is GRANTED in part and DENIED in part.

ORDER FOR SERVICE OF NON–FINAL REPORT AND RECOMMENDATION

RUSSELL G. VINEYARD, United States Magistrate Judge.

Attached is the Non-final Report and Recommendation of the United States Magistrate Judge made in this action in accordance with 28 U.S.C. § 636(b)(1),Fed.R.Civ.P. 72(b), and this Court's Local Rule 72.1.Let the same be filed and a copy, together with a copy of this Order, be served upon counsel for the parties.

Pursuant to 28 U.S.C. § 636(b)(1), each party may file written objections, if any, to the Report and Recommendation within fourteen (14) days of the receipt of this Order.Should objections be filed, they shall specify with particularity the alleged error or errors made (including reference by page number to the transcript if applicable) and shall be served upon the opposing party.The party filing objections will be responsible for obtaining and filing the transcript of any evidentiary hearing for review by the district court.If no objections are filed, the Report and Recommendation may be adopted as the opinion and order of the district court and any appellate review of factual findings will be limited to a plain error review.United States v. Slay,714 F.2d 1093(11th Cir.1983)(per curiam).

The Clerk is directed to submit the Report and Recommendation with objections, if any, to the district court after expiration of the above time period.

MAGISTRATE JUDGE'S NON–FINAL REPORT AND RECOMMENDATION

Defendants Atlanta Independent School System (“AISS”) and Jesse Lovelace(“Lovelace”), collectively referred to herein as “defendants,” move for summary judgment in this action filed by plaintiffAlice Fields(“Fields”), a former AISS bus driver, alleging gender discrimination and sexual harassment in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.(“Title VII”), and 42 U.S.C. § 1983(“§ 1983”), and state law claims of negligent supervision, hiring, training and/ or retention; assault and battery; invasion of privacy; and intentional infliction of emotional distress (“IIED”).[Doc. 53]¹ Fields has filed a response in opposition to defendants' motion for summary judgment, [Doc. 60], to which defendants have replied, [Doc. 69].For the reasons stated herein, it is RECOMMENDED that defendants' motion for summary judgment, [Doc. 53], be GRANTED in part and DENIED in part.

I.FACTUAL AND PROCEDURAL BACKGROUND

A.Preliminary Matters

As required by Local Rule 56.1B(1), defendants have included with their motion a statement of material facts to which they contend there is no genuine issue to be tried.LR56.1B(1), NDGa.;see also[Doc. 53–2(defendants' statement of facts) ].Fields has responded to defendants' statement of facts, admitting certain facts,² but asserting that some of the evidence relied upon by defendants is inadmissible.See[Doc. 60–2 ¶¶ 1–3].³Fields has also submitted her own statement of material facts which she contends present genuine issues for trial, [Doc. 60–1], to which defendants have responded, [Doc. 70].⁴In their reply to Fields' response opposing summary judgment, defendants contend that Fields impermissibly relies on inadmissable hearsay and assert that her statement of facts does not comply with Local Rule 56.1.⁵See[Doc. ¶ ¶ 33, 47–48, 52–53].Under Local Rule 56.1B(2), the Court accepts as true those facts which are admitted or which are improperly denied, LR 56.1B(2)a(2), NDGa., and will now turn to the objections raised by the parties.

1.Defendants' Failure to Initially Disclose

Fields objects to several statements of fact submitted by defendants on the grounds that the facts are supported by the affidavit of Howard W. Grant(“Grant”), whom defendants failed to disclose as a witness in their initial disclosures, in supplemental disclosures, or at any point during discovery in contravention of Federal Rule of Civil Procedure 26(a) and (e).See[Doc. 60–2 ¶ ¶ 1–3].Fields asked in an interrogatory that defendants identify each person likely to have discoverable information they may use in support of their defenses.See[Docs. 9at 6];seealsoFed.R.Civ.P.26(a)(1)(A)-(B)(requiring the parties to disclose the names of all people likely to have discoverable information and a copy of all documents the party may use to support its claim);Fed.R.Civ.P. 26(e)(1)(a)(requiring parties to supplement disclosures in the event information is discovered that renders an earlier response incomplete or incorrect).However, defendants did not disclose Grant as an individual with information about the case.See[Doc. 9at 10–13].

“If a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.”Fed.R.Civ.P. 37(c);see alsoUnited States v. Batchelor–Robjohns, No. 03–20164–CIV, 2005 WL 1761429, at *2(S.D.Fla.June 3, 2005)(citations omitted)(noting that the “burden rests upon the non-producing party to demonstrate that its actions were substantially justified or harmless”).Defendants have offered no explanation for their failure to disclose Grant during discovery or to supplement their discovery responses in accordance with the Federal Rules of Civil Procedure.Moreover, because discovery is closed, defendants' failure to provide this evidence cannot be cured.Accordingly, the Court sustains Fields' objections with respect to Grant's affidavit, [Doc. 53–4], and this evidence will not be considered when evaluating defendants' summary judgment motion, seeCooley v. Great S. Wood Preserving,138 Fed.Appx. 149, 161(11th Cir.2005)(per curiam)(unpublished);Roberts v. Scott Fetzer Co.,No. 4:07–CV–80 (CDL), 2010 WL 3546499, at *6–9(M.D.Ga.Sept. 7, 2010).

2.Hearsay Objections to Fields' Evidence

Defendants raise hearsay objections to some of Fields' evidence, see[Doc. 70 ¶ ¶ 33,52], asserting that Fields offers “written or oral assertions of a person made in a non-testimonial environment ... to prove the truth of the information contained.”seeFed.R.Evid. 801.Specifically, defendants object to Fields' reliance on her deposition testimony regarding what Olga Martin(“Martin”), another AISS bus driver, told her about a meeting held after Fields had been discharged in which AISS told employees where to go on the website to find the sexual harassment policy and procedures.See[Doc. 58–2(Fields Dep. Pt. 2) at 116, 132].Defendants also object to consideration of allegations that Lovelace was rumored to have been involved in romantic and/or sexual relationships with several subordinate female bus driver employees as hearsay.See[Doc. 58–1(Fields Dep. Pt. 1) at 68;Doc. 58–2at 133, 138, 145, 172;Doc. 65 (Lovelace Dep.)at 21].The Court agrees that this evidence, consisting of Fields' testimony relaying out-of-court statements previously made by other individuals, constitutes inadmissible hearsay to the extent it is offered to prove the truth of those individuals' statements, and accordingly will not consider this evidence when ruling on defendants' summary judgment motion.

3.Sufficiency Objections to Fields' Evidence

Defendants also object to many of Fields' statements of fact on the basis that they are supported only by citations to Fields' deposition or declaration, asserting that her self-serving statements are insufficient to raise a genuine issue of material fact.See[Doc. 70 ¶ ¶ 2, 4–5, 7–8, 11, 15–20, 22–26, 32, 36, 44, 46].However, these objections do not comply with the Local Rules since defendants are not objecting on the basis that Fields' evidence is inadmissible, does not support the asserted fact, or is immaterial.See LR 56.1B(3).Accordingly, relevant facts supported by Fields' deposition testimony and declaration will be considered for purposes of the summary judgment motion.⁶

B.Relevant Facts1.Background Information

Fields was hired by AISS in or about August of 2008 as an hourly wage school bus driver in the Transportation Department.⁷[Doc. 60–5(Fields Decl.)¶ 2;Doc. 58–1at 43–48;Doc. 65at 12].At all times relevant to this matter, Lovelace was a Transportation Supervisor for AISS, meaning that he was responsible for the supervision of approximately 100 bus drivers, including Fields.[Doc. 65at 11–12]; see also[Doc. 58–1at 76;Doc. 60–5 ¶ 4(establishing that Fields reported to and worked under the direct supervision of Lovelace) ].Lovelace's first-line supervisor was Assistant Transportation Director Karen Williams(“Williams”).[Doc 65at 14]; see also[Doc. 58–1at 81;Doc. 58–2at 159–60, 174].Lovelace also reported to his second-line supervisor, Transportation Director Harold Walker(“Walker”).[Doc. 58–1at 81;Doc. 58–2at 160;Doc. 63 (Walker Dep.)at 7].

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