Gary v. City of Warner Robins

Decision Date10 August 2018
Docket NumberCIVIL ACTION No. 5:16-CV-151 (TES)
CourtU.S. District Court — Middle District of Georgia


Plaintiff Barbara Gary brings this action against her former employer, the City of Warner Robins, Georgia ("the City"), alleging the City discriminated and retaliated against her based on her gender in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII"); her disability in violation of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12101, et seq. ("ADA"); and her age in violation of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"). Plaintiff also alleges the City failed to accommodate her disability in violation of the ADA, and interfered with her rights and retaliated against her in violation of the Family and Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"). The City moves for summary judgment on all claims. Having carefully considered the parties' arguments, the record, and applicable law, the Court finds no genuine issues of material fact exist as to any claim and hereby GRANTS the City's Motion [Doc. 21].


Summary judgment is proper if the movant "shows that there is no genuine issue as to any material fact and the movant is entitled to a judgment as a matter of law."1 Not all factual disputes render summary judgment inappropriate; only a genuine issue of material fact will defeat a properly supported motion for summary judgment.2 This means that summary judgment may be granted if there is insufficient evidence for a reasonable jury to return a verdict for the nonmoving party or, in other words, if reasonable minds could not differ as to the verdict.3

On summary judgment, the Court must view the evidence and all justifiable inferences in the light most favorable to the nonmoving party; the Court may not make credibility determinations or weigh the evidence.4 The moving party "always bears the initial responsibility of informing the court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact" and that entitle it to a judgment as a matter of law.5 If the moving party discharges this burden, the burden then shifts to the nonmoving party torespond by setting forth specific evidence in the record and articulating the precise manner in which that evidence creates a genuine issue of material fact or that the moving party is not entitled to a judgment as a matter of law.6 This evidence must consist of more than mere conclusory allegations or legal conclusions.7


Plaintiff Barbara Gary worked in the City's Police Department (the "Department") for almost 10 years, from January 2005, until the City terminated her employment on September 23, 2014. The City contends it lawfully terminated her due to multiple violations of City and Departmental policies and rules related to tardiness, unexcused absences, and misuse of leave. Plaintiff, however, contends the City unlawfully terminated her, discriminated against her, failed to accommodate her, failed to inform her of her FMLA rights, and retaliated against her because of her age (53), her gender, her disability (vascular tension headaches), and her use of leave.

For purposes of this Motion, the material facts in the light most favorable to Plaintiff, the non-movant, are as follows:8

Plaintiff held several different positions while employed in the Department. Police Chief Brett Evans originally hired Plaintiff on January 5, 2005, as a Clerk in the RecordsDivision. In April 2006, the City promoted Plaintiff to ID Clerk (a position the City later upgraded to Administrative Secretary) in the Identification Criminalistics Division ("ICD"), where she became certified in fingerprint analysis. Plaintiff held this position in ICD for six and a half years, until January 2013, when Chief Evans initiated the first of three transfers to different positions in the Department during the last year and nine months of her employment. In January 2013, Chief Evans transferred Plaintiff from her position in ICD to work the night shift on the Front Desk; in April 2013, he transferred her to work the day shift in the Records Division; and in August 2014, he transferred her back to the Front Desk, but she remained on the day shift. Plaintiff's claims primarily relate to her employment during this last year and nine months of her employment.

During the first four years of Plaintiff's employment, the Department administered performance reviews of her performance.9 In 2010, performance reviews stopped being associated with pay raises, and thus, the Department stopped administering them for Plaintiff.10 It is undisputed Plaintiff received positive performance reviews during the time the Department administered them, and no evidence indicates she did not perform well in each position she held throughout the remainder of her employment.

Plaintiff suffers from vascular tension headaches and experienced such headachesthroughout her employment. Sometimes her headaches were so severe, they incapacitated her, and she was unable to report for duty. Plaintiff asserts she first informed Chief Evans of her headaches in 2006 when she was promoted to her position in ICD.

The Department utilizes a progressive discipline system.11 Each supervisor has discretion whether to initiate disciplinary action when an employee violates Departmental and/or City rules and policies.12 When an employee is late to work, the supervisor will first speak to the employee, and if problems persist, the supervisor will document the infraction in a performance log.13 Supervisors consider performance logs for up to one year when determining whether future violations will result in disciplinary action, which includes verbal counseling and written counseling. In addition, when an employee violates the rules and policies, a supervisor can initiate an internal affairs ("IA") investigation. If the investigation substantiates the violation, the employee may receive more severe disciplinary action, including suspension and termination. Chief Evans is the final decision maker on all IA investigations.

In the last years of her employment, Plaintiff had multiple attendance-related violations of City and Departmental rules and policies resulting in several disciplinary actions. In April 2009, Captain John Lanneau—Plaintiff's supervisor in ICD—filed an IAcomplaint against Plaintiff for violations of the City's sick leave policy based on Plaintiff's "excessive usage of leave."14 In the first three months of 2009, Plaintiff used 41 hours of sick leave (thereby exhausting it) and 44.5 hours of annual leave. In his complaint, Captain Lanneau wrote:

"In addition to the excessive use of sick leave, certain usage patterns have been observed. Records indicate that [Plaintiff] is most likely to request sick leave on Thursdays, Friday, and Mondays. This pattern concerns me, especially in light of her latest request. [Plaintiff] called in sick on Wednesday, April 1, 2009, and remained out the remainder of the week. During this period, [Plaintiff] interacted with members of the animal shelter while adopting a dog, and with members of veterinary clinic, instead of coming to work. My concerns are related to [Plaintiff's] excessive use of sick leave, and the unique selection of days (Thursday, Friday, & Monday) sick leave is requested. These two concerns also cause me to judge the legitimacy of the requests."15

As a result of the IA Division's investigation into Captain Lanneau's complaints, Plaintiff received a verbal counseling from Chief Evans and a written counseling from Captain Lanneau stating the Department's expectations concerning her use of sick leave. Chief Evans also required Plaintiff to provide doctors' notes for all absences because of personal or family illnesses. Plaintiff states she reiterated to Captain Lanneau and Chief Evans at this time that she suffered from vascular tension headaches sometimes so severe she was unable to work.16 For the next two and a half years, Plaintiff received nodisciplinary actions.

At the end of 2012, Plaintiff exhausted all of her accumulated leave and used more than 85 hours of leave-without-pay, which Chief Evans approved, due to absences related to her headaches, the flu, and taking her children to spend time with their father in Mississippi who suffered from terminal liver cancer.17 On January 10 and 11, 2013, Plaintiff was absent from work due to her headaches. Because she had exhausted her leave, she requested leave-without-pay for those two days, which Chief Evans approved. Three days later, on January 14, 2013, Chief Evans transferred Plaintiff from her day-shift position in ICD, to work the night shift at the Front Desk.18 Plaintiff testifies the Chief transferred her because he was mad about her leave. Chief Evans states he assigned her to the night shift "because she had missed so much work and was not dependable."19

Upon learning of her transfer, Plaintiff contacted the Department's Human Resources Department ("HR") and spoke to Toni Graham. Plaintiff explained to Ms. Graham that her use of leave was because of her headaches, the flu, and her ex-husband's terminal cancer. Plaintiff states Ms. Graham did not provide her with any informationabout the Family Medical Leave Act, and she told Plaintiff the City "may be trying to get rid of [her] before her retirement benefits with Defendant vested because [she] was approaching ten years of employment."20 Plaintiff remained with the Front Desk on the night shift for about three months without incident.

Effective April 22, 2013, Chief Evans re-assigned Plaintiff from working the night shift at...

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