McNorton v. Georgia Dept. of Transp.

Decision Date13 December 2007
Docket NumberCivil Action File No. 1:06-CV-2097-AJB.
Citation619 F.Supp.2d 1360
CourtU.S. District Court — Northern District of Georgia

David Alan Fowler, Office of David A. Fowler, Lagrange, GA, for Plaintiff.

Bryan K. Webb, Law Offices of Bryan K. Webb, P.C., Athens, GA, Dennis Robert Dunn, Kimberly Blue Lewis, Thurbert E. Baker, Office of State Attorney General, Atlanta, GA, for Defendant.


ALAN J. BAVERMAN, United States Magistrate Judge.

Before the Court is Defendant's Motion for Summary Judgment, [Doc. 13]. For the reasons set forth below, the undersigned GRANTS Defendant's Motion for Summary Judgment, [Doc. 13], as to Plaintiff's Title VII claim for retaliation. Plaintiff's state law claim for negligent infliction of emotional distress is DISMISSED WITHOUT PREJUDICE.


On July 26, 2006, Plaintiff Ronnie McNorton filed a complaint in the Superior Court of Fulton County, Georgia, alleging that his October 7, 2005, discharge from employment with Defendant was the result of unlawful retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"). He also sought damages for negligent infliction of emotional distress under Georgia law. [Doc. 1, Exh. A]. Following service of the complaint upon it, on September 1, 2006, Defendant timely removed the action to this Court. [See Doc. 1]. Defendant moved for summary judgment, [Doc. 13], which Plaintiff opposed. [Doc. 17]. Defendant also has filed a reply brief. [Doc. 22]. With briefing completed, the Court turns to Defendant's motion.

A. Plaintiff's Failure to Respond to Defendant's Undisputed Facts

Although Plaintiff contends that genuine issues of material fact exist in this case, [Doc. 17, Att. 1] (Pl. SMF), he has not filed a proper response to Defendant's statement of material facts ("DSMF,"). [Doc. 13, Att. 2]. Defendant argues that because Plaintiff has not rebutted the statements of undisputed fact with citations to evidence in the record, these facts should be considered admitted.

N.D. Ga. R. 56.1B provides, in relevant part:

(1) A movant for summary judgment shall include with the motion and brief a separate, concise, numbered statement of the material facts to which the movant contends there is no genuine issue to be tried. Each material fact must be numbered separately and supported by a citation to evidence proving such fact. The court will not consider any fact: (a) not supported by a citation to evidence (including page or paragraph number); (b) supported by a citation to a pleading rather than to evidence; (c) stated as an issue or legal conclusion; or (d) set out only in the brief and not in the movant's statement of undisputed facts.

(2) A respondent to a summary judgment motion shall include the following documents with the responsive brief:

a. A response to the movant's statement of undisputed facts.

(1) This response shall contain individually numbered, concise, nonargumentative responses corresponding to each of the movant's numbered undisputed material facts.

(2) This Court will deem each of the movant's facts as admitted unless the respondent: (i) directly refutes the movant's fact with concise responses supported by specific citations to evidence (including page or paragraph number); (ii) states a valid objection to the admissibility of the movant's fact; or (iii) points out that the movant's citation does not support the movant's fact or that the movant's fact is not material or otherwise has failed to comply with the provisions set out in LR 56.1 B.(1).

b. A statement of additional facts which the respondent contends are material and present a genuine issue for trial. Such separate statement of material facts must meet the requirements set out in LR 56.1 B.(1).

N.D. Ga. R. 56.1B(1), (2) (2006) (emphasis added). Thus, statements of fact supporting and opposing summary judgment motions must cite to evidence in the record to be considered; naked denials are insufficient. Garland v. Advanced Med. Fund, L.P., II, 86 F.Supp.2d 1195, 1199-1200 & n. 4 (N.D.Ga.2000) (citing N.D. Ga. R. 56.1B(3)).

Plaintiff's "Statement of Material Facts" does not cite to evidence in the record, as required by decisions of this Court and this Court's local rules. In fact, his statement does not even include any allegedly disputed material facts. Plaintiff's facts consist of two paragraphs, as follows:

Plaintiff submits that there is a material issue as to whether the Plaintiff's participation in the Defendant's investigation of the allegations of sexual harassment of Joy Taylor by a supervisor employed by the Defendant constituted opposition against discriminatory actions as contemplated by 42 U.S.C. § 2000e-3.

Plaintiff submits that there is a material issue as to whether the actions of the Defendant in terminating the Plaintiff from his employment was related to Plaintiff's involvement in statutorily protected activity as contemplated by 42 U.S.C. § 2000e-3.

[Doc. 17, Att. 1] (Pl. SMF). Although Plaintiff includes a factual narrative in his response brief, he does not, in any instance, cite to the record. [See Doc. 17] (Pl. resp.).

The Court does not have an obligation to parse a summary judgment record to search out facts or evidence not brought to its attention. Atlanta Gas Light Co. v. UGI Utilities, Inc., 463 F.3d 1201, 1209 n. 11 (11th Cir.2006). "It is the obligation of the non-moving party ... not the Court, to scour the record in search of the evidence that would defeat a motion for summary judgment: Rule 56 `requires the nonmoving party to go beyond the pleadings and by its own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.'" Lawrence v. Wal-Mart Stores, Inc., 236 F.Supp.2d 1314, 1322 (M.D.Fla.2002) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). Accordingly, the Court deems any of Defendant's factual statements that are supported by the record to have been admitted for the purposes of the summary judgment motion. See Jackson v. City of Stone Mountain, 232 F.Supp.2d 1337, 1341 (N.D.Ga.2002) (treating as admitted defendant's numbered facts in its statement of facts, where plaintiffs failed to comply with N.D. Ga. R. 56.1B(2) by filing a separate statement of material facts in which they respond to each of the movant's numbered facts and thus, failed to controvert any of defendant's material facts).

B. Effect of Plaintiff's Failure

In situations where a plaintiff has not adequately responded to a motion for summary judgment, the Eleventh Circuit has instructed district courts to review the motion and supporting documents to determine whether genuine issues of material fact exist. See Trs. of the Cent. Pension Fund of the Int'l Union of Operating Eng'rs and Participating Employers v. Wolf Crane Serv., Inc., 374 F.3d 1035, 1039-40 (11th Cir.2004); United States v. One Piece of Prop., 5800 S.W. 74th Ave., Miami, Fla., 363 F.3d 1099, 1101-02 (11th Cir.2004).

Therefore, despite Plaintiff's failure to properly respond to Defendant's Statement of Undisputed Material Facts, the Court must still determine if additional relevant facts in the record reveal a genuine issue of material fact. See Jackson, 232 F.Supp.2d at 1341-42.


The pertinent facts of this case at the summary judgment stage, construed in the light most favorable to Plaintiff as the non-moving party,2 are as follows:

Plaintiff was employed by the Georgia Department of Transportation ("GDOT") in 1989 as a Temporary Maintenance Worker. He became a permanent employee in 1990, and was eventually promoted to Equipment Operator III. (D ¶ 1; Deposition of Ronnie McNorton ("Pl. Dep.") at 33-38). In 1996, Plaintiff began training for the Highway Emergency Response Operations ("HERO") Unit and became a HERO Operator I in 1997. Id.

At the time of his dismissal by Defendant in October 2005, Plaintiff held the position of HERO Operator II on the ALPHA shift (5:00 a.m.-1:30 p.m.).3 Plaintiff's immediate supervisor at that time was Shift Supervisor Daniel Hester. Clint Brooks was the Assistant Incident Management Manager, and Gary Millsaps was the Incident Management Manager. Millsaps was responsible for the daily operations of the HERO unit. (D ¶ 2). As a HERO Operator, Plaintiff was responsible for patrolling an assigned route, assisting stranded motorists, responding to traffic incidents, and determining a plan of action for removing the incident. (D ¶ 3).

The GDOT Performance Management Form ("PMF") sets forth the performance requirements for HERO operators. The form designates "Teamwork" as an "applicable and critical" skill. HERO Operators are to "[e]ncourage and facilitate cooperation, pride, trust, and group identity; foster commitment and team spirit; [and] work cooperatively with others to achieve goals." (D ¶ 4), [Doc. 13, Att. 6, Exh. 3:B at 5]. "Organizational Commitment" is also considered an "applicable and critical" skill and HERO Operator are required to "[d]isplay[ ] a high level of effort and commitment to performing work; operate[ ] effectively within the organizational structure; [and] demonstrate trustworthiness and responsible behavior." (Id.). HERO operators must read, learn and follow all GDOT online policies and procedures. (D ¶ 5). The GDOT also requires that HERO Operators appropriately use leave time in order to ensure effective and efficient coverage of all shifts. (D ¶ 6).

During Plaintiff's sixteen years of employment with the GDOT, he received discipline on several occasions for various types of misconduct from absenteeism to insubordination. For example, on May 1, 2001, Brooks issued Plaintiff a...

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